Ex Parte Apps

Patent Trial and Appeal Board

Nov 14, 2016

12468281 (P.T.A.B. Nov. 14, 2016)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/468,281 05/19/2009 William P. Apps 0544 PUS3;
67080-286PUS3
9643
26096 7590 11/16/2016
TART SON OASKFY fr OT DS P C EXAMINER
400 WEST MAPLE ROAD
SUITE 350
CASTELLANO, STEPHEN J
BIRMINGHAM, MI 48009 ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
11/16/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ptodocket @ cgolaw. com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM P. APPS
Appeal 2014-009171
Application 12/468,2811
Technology Center 3700
Before JILL D. HILL, THOMAS F. SMEGAL, and
GORDON D. KINDER, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
William P. Apps (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s final rejection2 under 35 U.S.C. § 103(a) of claims 14—22,
24—33, 35—38, 40-42, and 44-46 as unpatentable over Apps (US 4,899,874,
iss. Feb. 13, 1990) and Wallace (US 4,101,049, iss. July 18, 1978); and of
claims 39, 41, 43, and 45 as unpatentable over Apps, Wallace, and Arthurs
(US 4,928,841, iss. May 29, 1990).3 We have jurisdiction under
35 U.S.C. § 6(b).
1 According to Appellant, the real party in interest is Rehrig Pacific
Company. Appeal Br. 1.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Action, dated October 28, 2013 (“Final Act.”).
3 Claims 1—13 have been canceled. See Amendment filed February 22,
2011. Claims 23 and 34 are no longer the subject of rejection, as the
Appeal 2014-009171
Application 12/468,281
We AFFIRM.
CLAIMED SUBJECT MATTER
Claims 14 and 27 are independent. Claim 14 is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
14. A low depth tray for bottles comprising:
a base;
at least one interior column projecting upwardly from the
base;
a plurality of interior divider structures which project
upwardly from the base, wherein each of the plurality of
interior divider structures extends from the at least one interior
column, and each of the plurality of interior divider structures
includes a first pocket side spaced apart from a second pocket
side and having an area void of material therebetween; and
an exterior wall structure directly attached to the base,
wherein the exterior wall structure extends continuously around
a perimeter of the tray.
ANALYSIS
Obviousness of Claims 14—22, 24—33, 35—38, 40—42, and 44—46 over
Apps and Wallace
Claims 14—20, 24—32, 35—38, 40—42, and 44—46
Appellant argues claims 14—20, 24—32, 35—38, 40-42, and 44-46
together in contesting the rejection of these claims as obvious over Apps and
Wallace. See Appeal Br. 2—\\ Reply Br. 1—2. We select claim 14 as the
representative claim for this group, and the remaining claims stand or fall
with claim 14. See 37 C.F.R. § 41.37(c)(l)(iv).
Examiner withdrew several non-statutory obviousness-type double patenting
rejections. See Ans. 2.
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Application 12/468,281
In rejecting claim 14, the Examiner finds that Apps discloses a low
depth tray for bottles, having all the structural elements recited by the claim,
including a plurality of interior divider structures which project upwardly
from the base and extend from the interior column, but “fails to disclose the
void between the two spaced apart sides of the divider structures.” Final
Act. 2. However, the Examiner also finds that “Wallace teaches divider
walls having a first side adjacent to one pocket [and] a second side adjacent
to an adjacent pocket,” where “the divider [walls are] hollow or [of] double-
walled construction and the first and second side[s] are spaced apart having
an area void of material therebetween,” and reasons that
[i]t would have been obvious to modify the divider walls of Apps
to be hollow with an area void of material extending between the
two sides in order to provide a divider which absorbs shock and
impact loads to prevent the impact on one side of the divider from
transferring to the other side or to prevent an impact load to one
pocket from penetrating towards another pocket.
Id. at 2—3. The Examiner explains that “the modification with Wallace
doesn’t change the shape of the divider,” because “[t]he two sides remain
planar with the respective planes of the two sides being parallel.” Id. at 3.
Appellant first contends that, while disclosing “a case 10 having
vertical walls 29 that abut columns 30 to help secure the columns 30 to a
bottom portion 20,” Apps “does not disclose that the vertical walls 29 are
incapable of absorbing shock and impact loads, and there is no reason to
modify the case 10 of Apps [] to perform these functions.” Appeal Br. 3;
Reply Br. 1.
However, we agree with the Examiner that it isn’t necessary for Apps
to “discuss a deficiency before [Apps] could be modified by a secondary
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Application 12/468,281
reference that teaches a solution to the deficiency.” Ans. 3. As the
Examiner explains, “Wallace is a better structural construction for absorbing
shock and impact” because
modification of the divider [of Apps] to be two spaced walls, one
wall associated with one pocket and the other wall associated
with an adjacent pocket, with an area void of material between
would allow the two adjacent pocket walls, one wall to deflect
and absorb impact without or with minimal effect on the other
adjacent wall.
Id.
The Examiner also reasons that this modification of Apps “allows
shock and impact forces to be absorbed to the benefit of the objects held
within the pockets by reducing the forces in adjacent pockets,” while “[t]he
void area of Wallace allows for delicate objects to be handled in an efficient
manner without detriment of impact loads and damage to the objects held
within the pockets during shipping and storage.” Id. at 3^4. Furthermore,
the Examiner explains that “[ajdded space between adjacent objects held
within the pockets [of Apps] would be another motivational reason to add
the area void of material” as “[t]his would reduce the possibility of objects
touching, thus reducing damage,” from which “Apps would benefit by
reducing bottle breakage or scuffing” or “fruit bruising.” Id. at 4.
We agree, also noting that “when a patent claims a structure already
known in the prior art that is altered by the mere substitution of one element
for another known in the field, the combination must do more than yield a
predictable result.” KSR Int’l, 550 U.S. at 416. Appellant does not apprise
us of error in the Examiner’s factual findings or the conclusion as to
obviousness.
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Application 12/468,281
Referring to Figures 12 and 16 of Apps, Appellant next contends that
Apps “discloses that the walls 29 are not even required.” Appeal Br. 3.
Appellant continues by asserting that “the absence of walls in this
embodiment further supports that bottle breakage or scuffing is not a
concern is [sic] Apps.” Reply Br. 2. However, Appellant misreads the
Examiner’s final rejection which is based on the disclosure of vertical walls
29, as illustrated in Figures 1—11 of Apps. We agree with the Examiner that
“[ejvidence of alternate embodiments or evidence that an element can be
removed entirely does not negate the teaching [relied upon],” confirming
that “divider 29 is very much present in the disclosure [of Apps].” Ans. 4.
Appellant also contends that “the very thin structure of the vertical
walls 29 makes it is [sic] difficult to provide a void in the vertical walls 29
[while] adding an area void of material would result in two much thinner and
weaker opposing walls,” so that “the resulting structure would be less able to
absorb shock and impact loads.” Appeal Br. 3^4. Appellant alternatively
contends that “if the vertical walls 29 were made thicker to accommodate a
void, the pockets of Apps et al. would [either] become smaller, and the
objects would not be able to fit in the pockets[, or] the structure of the case
10 would need to be made larger.” Id. at 4. However, “[a] person of
ordinary skill in the art is also a person of ordinary creativity, not an
automaton.” KSRInt'l Co. v. Teleflex Inc., 550 U.S. 398, 421, (2007). “[I]n
many cases a person of ordinary skill will be able to fit the teachings of
multiple patents together like pieces of a puzzle.” Id. at 420. Office
personnel may also take into account “the inferences and creative steps that
a person of ordinary skill in the art would employ.” Id. at 418. We are not
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Application 12/468,281
persuaded that one skilled in the art would not understand how to
accommodate a void in Apps’ walls.
In view of the foregoing, we sustain the Examiner’s rejection of
claims 14—20, 24—32, 35—38, 40-42, and 44-46 as obvious over Apps and
Wallace.
Claims 21 and 22
Appellant contends that neither Apps nor Wallace disclose “that the
plurality of external columns define an exterior wall structure having a first
pair of opposed walls connected to a second pair of opposed walls,” as
recited by claims 21 and 22. Appeal Br. 4. However, the Examiner points
out that “the external (side, end and comer) columns 30 of Apps are all
attached to an external wall (side and end wall) and are considered part of
that external wall,” and observes that “Appellant might be referring to the
exterior surface of the external columns being flush with interior surfaces of
a perimeter wall,” but “this distinction is never claimed.” Ans. 5. Appellant
has not apprised us that the Examiner’s rationale is in error.
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claims 21 and 22 as obvious over Apps and Wallace.
Claim 33
Appellant asserts that neither Apps nor Wallace disclose “that the
plurality of external columns define an exterior wall stmcture having a
double-walled construction,” as recited by claim 33, contending the side
walls of Apps “that define the exterior wall stmcture have a single walled
construction.” Appeal Br. 4. However, Appellant misreads Apps. As the
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Examiner points out, “the external columns of Apps are double-walled with
respect to having an inner wall spaced from an outer wall by a void area.”
Ans. 5. Again, Appellant has not apprised us of a definition of the term
“double-walled construction” that renders the Examiner’s finding erroneous.
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claim 33 as obvious over Apps and Wallace.
Obviousness of Claims 39, 41, 43, and 45 over Apps, Wallace, and
Arthurs
Claims 39 and 43
Claims 39 and 43 are dependent on claims 14 and 27, respectively,
and further limit the claims from which they depend, by reciting that “the
exterior wall structure includes a first pocket side spaced apart from a
second pocket side and an area void of material therebetween.” See Appeal
Br. 11, 12 (Claims App.). We understand Appellant’s appeal of the rejection
of claims 39 and 43 to rest on the same arguments presented against the
proposed combination of Apps and Wallace, which we found not
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demonstrative of error in the Examiner’s rejection of claims 14 and 27, as
set forth supra. Compare Appeal Br. 5, with Appeal Br. 3^4.
Accordingly, we sustain the rejection of claims 39 and 43 as being
obvious over Apps, Wallace, and Arthurs, for the same reasons stated above
with respect to the rejection of claims 14 and 27 over Apps and Wallace.
Claims 41 and 45
We affirm the rejection of claims 41 and 45 under 35 U.S.C. § 103(a)
as being obvious over Apps and Wallace.4 This affirmance disposes of
those claims before us on appeal. See 37 C.F.R. § 41.50(a)(1) (“The
affirmance of the rejection of a claim on any of the grounds specified
constitutes a general affirmance of the decision of the examiner on that
claim, except as to any ground specifically reversed.”).
DECISION
We AFFIRM the Examiner’s rejections.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
4 The Examiner’s final rejection of claims 41 and 45 as obvious over Apps
and Wallace is set forth at pages 4—5 of the final rejection.
8