Ex Parte 6328557 et al

Board of Patent Appeals and Interferences

Apr 29, 2008

90007335 (B.P.A.I. Apr. 29, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DIXIE CONSUMER PRODUCTS LLC1
__________

Appeal 2008-0584
Reexamination Control 90/007,335
Patent 6,328,5572
Technology Center 3900
___________

Decided: 29 April 2008
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Before JOHN C. MARTIN, ADRIENE LEPIANE HANLON, and
CAROL A. SPIEGEL, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

1 The Patent Owner and Reexamination Requester.
2 Patent 6,328,557 issued to Grishchenko et al. (“Grishchenko”) on
December 11, 2001.
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A. STATEMENT OF THE CASE
The Appellant appeals from the final rejection of claims 1-3 subject to
reexamination.3 35 U.S.C. §§ 134(b) and 306. We have jurisdiction under
35 U.S.C. §§ 6(b) and 306. We AFFIRM.
Claim 1 is the only independent claim on appeal (Br. 134):
1. An apparatus for producing heat-insulating composite
paper containers comprising:

an oven producing currents of heated air;
a conveyor for conveying a plurality of fabricated containers
through the oven to cause a foamable material to foam on a
surface of each fabricated container, the conveyor including a
plurality of spaced apart holders for supporting respective
fabricated containers, each holder configured for supporting its
respective fabricated container in a loose manner, enabling the
fabricated container to freely wobble relative to its holder under
the influence of conveyor vibration and air currents within the
oven, while preventing the fabricated container from making
contact with any other fabricated container within the oven;

wherein each holder supports its respective container in a
substantially vertical orientation;

wherein each of the holders includes an upstanding portion
extending through a mouth of a respective fabricated container;

wherein each holder supports its respective fabricated container
in an inverted state, with the upstanding portion extending
upwardly through the mouth of the fabricated container;

3 Claims 4 and 5 are also subject to reexamination. The Examiner has
indicated that “Claims 4 and 5 are patentable and/or confirmed.” Final
Office Action mailed January 17, 2006, at 1.
4 Substitute Appeal Brief filed March 9, 2007.
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wherein each holder further includes a generally horizontal
shoulder portion located below an upper end of each upstanding
portion for directly supporting a rim of the mouth of a
respective fabricated container; and

wherein each holder is configured such that a respective
container is free to move in any direction relative to the holder
except vertically downwardly.

The Examiner finally rejected claims 1-3 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Iioka,5 the admitted prior art in
columns 1-2 of Grishchenko, Gilbert,6 and Johnson.7
B. ISSUES
The Appellant presents two issues on appeal, i.e., whether Gilbert is
analogous art and whether a container is able to “freely wobble” relative to
the holder disclosed in Johnson.
As discussed hereinafter, the teachings in Gilbert are, in relevant part,
cumulative of the teachings in Johnson. Therefore, it is not necessary to
decide whether the teachings of Gilbert, in combination with Iioka, the
admitted prior art, and Johnson, would have rendered the claimed invention
obvious.
The sole issue on appeal is:
Has the Appellant shown that the Examiner erred in finding that the
holder disclosed in Johnson enables a container to “freely wobble” relative
to the holder?

5 Patent 4,435,344 issued to Iioka on March 6, 1984.
6 Patent 3,715,109 issued to Gilbert on February 6, 1973.
7 Patent 4,274,532 issued to Johnson on June 23, 1981.
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C. FINDINGS OF FACT
The following findings of fact are believed to be supported by a
preponderance of the evidence. Additional findings of fact as necessary
appear in the Analysis portion of the opinion.
1. Appellant’s invention
The Appellant’s invention is directed to a method and apparatus for
producing heat-insulating composite paper containers. Grishchenko 2:20-
21.
At least a portion of each container is formed of paper and is provided
on at least one surface with a foamable material. The containers are
conveyed through an oven while being supported on a conveyor for a
sufficient period of time to cause the foamable material to foam under the
action of moisture released from the paper. Grishchenko 2:24-31.
During conveyance through the oven, each container is supported on
the conveyor in a manner that prevents the containers from making contact
with each other. Grishchenko 2:31-36.
The conveyor includes a plurality of spaced apart holders for
supporting respective containers. Each holder is configured to support its
respective container in a loose manner, enabling the container to freely
wobble relative to its holder under the influence of conveyor vibration
and/or air currents within the oven, while preventing the container from
contacting any other container within the oven. Grishchenko 2:53-61.
A container is free to move in any direction relative to the holder
except vertically downward. Grishchenko 4:32-34.
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One configuration of a holder is illustrated in Grischchenko Figure 7
reproduced below:

Grischchenko Figure 7 depicts a container holder.
Holder 50 includes a series of rods 52 that converge upwardly. At
their lower ends, the rods 52 carry horizontal shoulders 54 upon which a rim
R of a container can rest, such that the bottom panel of the container is
spaced above an upper end of the holder, and the side body of the container
is spaced from the rods 52. Grishchenko 5:5-10.
2. Admitted prior art
The Appellant’s Specification discloses a prior art heat-insulating
paper container. Grishchenko 1:22-23 and Figure 5.
The heat-insulating container is fabricated as follows. Two paper
sheets are laminated with a thermoplastic synthetic resin film such as
polyethylene. A blank is cut from each of the paper sheets. Using a
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conventional cup-forming machine, the two blanks are fabricated into a
container. The fabricated untreated container is then subjected to a heat
treatment that causes moisture in the paper to vaporize. Grishchenko 1:35-
50.
According to the Appellant’s Specification, Patent 4,435,344 (Iioka)
discloses that the untreated containers may be heat-treated in an oven. The
containers, disposed right side up, pass through the oven on a conveyor belt.
In order to achieve maximum cup stability, the cups are preferably in an
inverted state, i.e., supported on their larger diameter rims, on the conveyer
belt. Nevertheless, as the containers pass through the oven, they are
subjected to air currents and conveyer vibrations that cause the very
lightweight containers to be displaced against one another. Accordingly, the
containers can become stuck together. Some containers may be displaced to
such an extent that they fall over and create a jam during conveyance.
Grishchenko 1:51-64.
3. Johnson
The invention disclosed in Johnson relates to a can handling system
for moving cans through an oven without contact between the cans. Johnson
1:5-10.
In one embodiment of the invention, the can handling system
comprises a plurality of free-standing can carriers each having (1) means
loosely engageable with a can to hold a can in an inverted position and (2) a
base of a size to prevent contact between two cans when a pair of can carrier
bases are in contact. Johnson 2:6-11.
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One configuration of a can carrier is illustrated in Johnson Figure 5
reproduced below:

Johnson Figure 5 depicts a can carrier.
Can carrier 25 has a base 40. A rod 45 extends upwardly central of
the base and has its lower end affixed thereto, as by welding at 47. The rod
45 has a height less than the height of a can whereby the lower open end of
the can may rest on upper panel 43 of the base 40. Johnson 3:60-4:13.
4. Gilbert
Gilbert discloses an apparatus for heating thermoplastic parison
preforms. Gilbert 2:7-8.
The parisons are conveyed through a heating chamber and are
supported on a holding device. Gilbert 2:45-52.
One configuration of a parison holding device is illustrated in Gilbert
Figure 5 reproduced below:
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Gilbert Figure 5 depicts a parison holding device.
The parison holding device includes apertures 52 and resistance wires
50 to provide a combination of circulating hot air and a heated mandrel for
heating the interior of the parison.8 Gilbert 3:74-4:13.
D. PRINCIPLES OF LAW
A claimed invention is not patentable if the subject matter of the
invention would have been obvious to a person having ordinary skill in the
art at the time the invention was made. 35 U.S.C. § 103(a); KSR Int’l Co. v.
Teleflex Inc., 127 S. Ct. 1727 (2007); Graham v. John Deere Co., 383 U.S. 1
(1966).
Facts relevant to a determination of obviousness include (1) the scope
and content of the prior art, (2) any differences between the claimed
invention and the prior art, (3) the level of skill in the art, and (4) any
relevant objective evidence of obviousness or non-obviousness. KSR, 127 S.
Ct. at 1734; Graham, 383 U.S. at 17-18.
One of ordinary skill in the art is presumed to have skills apart from
what the prior art references expressly disclose. See In re Sovish, 769 F.2d

8 Except for apertures 52 and resistance wires 50, the parison holding device
illustrated in Figure 5 of Gilbert is substantially the same as the can carrier
25 disclosed in Johnson.
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738, 743 (Fed. Cir. 1985). A person of ordinary skill is also a person of
ordinary creativity, not an automaton. KSR, 127 S. Ct. at 1742.
E. ANALYSIS
The Examiner found that Johnson discloses container holders 25 for
supporting containers on a conveyor. The Examiner found that the holder 25
includes a post 45 spaced from an interior surface of an associated container
such that the container is held in a loose manner and is free to move in any
direction except vertically downward. Referring to the right half of Figure
5, the Examiner found that the container can “freely wobble” relative to the
holder 25. Ans. 4.9
The Appellant argues that the holder in Johnson is not configured to
allow a container to freely wobble relative to the holder. Rather, the
Appellant argues that any wobbling of the can would be relative to the base.
Br. 10.
In response, the Examiner explains that the base 40 is part of the
holder 25 which comprises the base 40 and the rod 45. Ans. 6; see also
Final 4.10 The Examiner also points out that Figure 5 shows a container C
that has wobbled relative to the holder 25. Ans. 6.
The Appellant does not demonstrate any error in these findings.
Rather, the Appellant attempts to establish error by pointing to the following
statement made by the Examiner in the Final Office Action:
Patent owner argues that the holder taught by Johnson
would not allow the container to freely wobble. This argument
is contradicted by Fig. 5 of Johnson which clearly illustrates a
container that has wobbled. [Italics added.]

9 Examiner’s Answer mailed July 27, 2007.
10 Final Office Action mailed January 17, 2006.
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Final 4.
The Appellant argues that the absence of the word “freely” in this
passage establishes that the containers in Johnson may wobble, but they do
not “freely wobble.” Br. 10.
Although the Examiner omitted the word “freely” in the passage
reproduced above, the Examiner did use the phrase “freely wobble”
elsewhere in the Final Office Action to describe how the holder 25 in
Johnson supports a container. See, e.g., Final 3 (“As shown in the right half
of Fig. 5, the container C can ‘freely wobble’ relative to the holder 25.”);
Final 4 (air currents and conveyor vibrations will inherently cause/enable the
containers to “freely wobble” on the holder 25 of Johnson).
The Appellant also points out that claim 1 recites that “each holder is
configured such that a respective container is free to move in any direction
relative to the holder except vertically downwardly.” The Appellant argues
that this language was added to more clearly highlight the recitation in claim
1 that the holder enables a container to “freely wobble” relative to the
holder. Br. 10.
As shown in Figure 5 of Johnson, the holder 25 does not include any
structure that prevents the container C from freely wobbling relative to the
holder 25. See Ans. 7. The holder 25 includes a rod 45 spaced from an
interior surface of the associated container C such that the container is held
in a loose manner and is free to move in any direction relative to the holder
except vertically downward. Ans. 4. To the extent that the rod 45 and the
base 40 restrict some movement of the container C, the Appellant’s holder
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similarly restricts movement via rods 52 and shoulders 54. See Appellant’s
Figure 7.
In sum, the Appellant has failed to demonstrate that the phrase “freely
wobble” means something other than the movement illustrated in the right
half of Johnson Figure 5.
For the reasons set forth above, the Appellant has not shown that the
Examiner erred in finding that the holder disclosed in Johnson enables a
container to “freely wobble” relative to the holder.
F. DECISION
The rejection of claims 1-3 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Iioka, the admitted prior art in
columns 1-2 of Grishchenko, Gilbert, and Johnson is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a) (2006).

AFFIRMED

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