Ex Parte Apps

Patent Trial and Appeal Board

Nov 14, 2017

13292142 (P.T.A.B. Nov. 14, 2017)

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.
13/292,142 11/09/2011 William P. Apps 10450 PUS; 67080-526
PUS1
4837
26096 7590 12/01/2017
TART SON OASKFY fr OT DS P C
EXAMINER
400 WEST MAPLE ROAD
SUITE 350
MATHEW, FENN C
BIRMINGHAM, MI 48009 ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
12/01/2017 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. APPS1
Appeal 2016-002943
Application 13/292,142
Technology Center 3700
Before KEN B. BARRETT, LEE L. STEPINA, and
FREDERICK C. LANEY, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—5, 16—22, and 25—28. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.
1 The Appeal Brief indicates that Rehrig Pacific Company is the real party in
interest. Appeal Br. 1.
Appeal 2016-002943
Application 13/292,142
CLAIMED SUBJECT MATTER
Appellant’s disclosure is related to a plastic container for liquids,
particularly beverages such as beer. Spec. 12. Claim 1, reproduced below
with emphasis added, is illustrative of the claimed subject matter:
1. A plastic beer keg including:
a lid having an opening, the lid having a lip extending downward
at a periphery thereof, the lip including a lower end having a
diameter and an inner surface angled upward and inward from
the lower end to a shoulder;
a liner including a neck portion and a body portion, the neck
portion adjacent the opening in the lid;
an outer container having a wall with at least one locking rib
projecting therefrom, the locking rib angling downward along a
circumference of the outer container, the lid secured to the outer
container by the at least one locking rib, wherein the at least one
locking rib has an outer diameter not greater than the diameter of
the lower end of the lip of the lid, such that the lid can be snapped
onto the locking rib and wherein the lid can be rotated to lock
onto the locking rib.
Appeal Br. 2 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Blanke, Jr. (“Blanke”)
Apps
US 4,027,777 June 7, 1977
US 2010/0264140 A1 Oct. 21,2010
REJECTION
Claims 1—5, 16—22, and 25—28 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Apps and Blanke.
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Appeal 2016-002943
Application 13/292,142
OPINION
Claims 1—5 and 16—19
The Examiner finds that Apps discloses most of the elements recited
in claim 1, but does not disclose that the wall of the outer container includes
at least one locking rib projecting therefrom or the functional limitation
associated with the interaction of the locking rib and the recited lid (that “the
lid can be snapped onto the locking rib and wherein the lid can be rotated to
lock onto the locking rib”). Final Act. 2-4. However, the Examiner finds
that Blanke teaches locking ribs (pail lugs 10), and these ribs satisfy the
above-noted functional limitation in two different ways. Id. at 5—A.2
To begin with, the Examiner finds that in Blanke, “the lid is first
placed onto the container with the [flange] lugs 33 positioned first in the
space between the ribs [pail lugs] 10 and then it is rotated to secure the lid to
the container. Thus, the lid is both snapped onto the container and rotated
onto the locking rib.” Id. at 4 (emphasis added). In this regard, the
Examiner explains, “almost any motion of engaging the lid and the locking
rib can be considered to be ‘snapping’ since the term ‘snap’ only means ‘to
move into position with a short sharp sound’ (merriam-webster online
dictionary).” Advisory Act. 2.3 Therefore, according to the Examiner, “the
motion of rotating lid to engage the locking ribs can be considered to be
snapping the lid onto the locking rib,” and “[e]ven the simple action of
engaging the lid with the container rim, before turning the lid to lock it into
place can be [considered] to be a snapping motion.” Id. In the Answer, the
2 We do not address the Examiner’s rationale for combining the teachings of
App and Blanke, set forth on page 4 of the Final Action, because it is not
contested by Appellant. See Appeal Br. 5—6.
3 Advisory Action dated December 9, 2014.
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Appeal 2016-002943
Application 13/292,142
Examiner further finds that “the limitation [at issue in claim 1] does not
specify which part of the lid must be snapped over the locking rib; thus, any
part of the lid being snapped over the locking rib can satisfy the functional
limitation.” Ans. 7. Consequently, according to the Examiner, “sharply
moving the lid onto the container is considered ‘snapping’ the lid onto the
container.” Id.
In an alternate approach addressing the “snapping” limitation in claim
1, the Examiner finds that lid 2 in Blanke is capable of snapping directly
over pail lugs 10. Final Act. 4. In this regard, the Examiner finds that, “[i]n
Blanke, a user only needs to apply a small radially outward force to the lid,
or a slight radially inward force to the container wall, to allow the lid to be
snapped onto the [bucket].” Id. at 6.
“Rotation ” compared to “snapping ”
Appellant asserts that placement of flange lugs 33 between pail lugs
10 and rotation of lid 2 into its locking position does not involve “snapping”
as this term should be construed in light of the Specification. Reply Br. 3.
In this regard, Appellant contends that the Specification makes clear that the
action of snapping the lid and the action of rotating the lid are two different
actions. Id.
We agree with Appellant on this point. Paragraph 6 of the
Specification states that “the lid can be snapped onto the locking rib or
rotated to lock onto the locking rib.” Paragraph 30 of the Specification
further explains the difference between “snapping” and “rotating” in relation
to placement of the lid. Accordingly, Appellant has the better position with
regard to the broadest reasonable interpretation of claim 1. Thus, the
Examiner’s finding that the mere process of placing lid 2 on the bucket,
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Appeal 2016-002943
Application 13/292,142
followed by rotation of lid 2, meets the “snapping” limitation in claim 1 is
based on an unreasonably broad interpretation of claim 1.
“Capable of”
Appellant also contends that flange lugs 33 are not capable of
snapping over pail lugs 10 because gasket 40 and the structure of pail lugs
10 themselves would interfere during such an operation. Appeal Br. 5.
Appellant argues that applying force to distort lid 2 would not permit it to
snap over pail lugs 10 because lid 2 is a hoop, and distortion at one portion
of the hoop would affect other portions of the hoop in such a way as to
prevent snapping over pail lugs 10. See id. at 5—6.
First, we note that gasket 40 of Blanke appears to be nested in a
channel within lid 2, and is not attached to bucket 1. See Blanke, 1:53—54,
3:19-20, 37-40. Thus, Appellant’s contention that flange lugs 33 would
have to be forced over gasket 40 during “snapping” is unavailing inasmuch
as gasket 40 is carried with (is stationary with respect to) lid 2 and flange
lugs 33 during installation. Nonetheless, the Examiner has not established
by a preponderance of the evidence that flange lugs 33 are capable of
snapping over pail lugs 10. Blanke discloses rotating lid 2 during
installation. See, e.g., Blanke, 1:44—52. The Examiner does not direct our
attention to any portion of Blanke supporting a finding that flange lugs 33
are capable of being snapped directly over pail lugs 10. Whether flange lugs
33 are capable of this operation depends on their shape and the stiffness of
the material from which they are constructed, and, on the record before us,
we are unable to determine that flange lugs 33 have the requisite shape and
stiffness to be snapped directly over pail lugs 10. Accordingly, we do not
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Appeal 2016-002943
Application 13/292,142
sustain the Examiner’s rejection of claim 1 and claims 2—5 and 16—19
depending therefrom as unpatentable over Apps and Blanke.
Claims 20—22 and 25—28
Independent claim 20 recites a substantially similar limitation to the
one discussed above regarding claim 1. Appeal Br. 3 (Claims App.).
Accordingly, for the same reasons discussed above, we do not sustain the
rejection of claims 20-22 and 25—28 as unpatentable over Apps and Blanke.
DECISION
The Examiner’s rejection of claims 1—5, 16—22, and 25—28 as
unpatentable over Apps and Blanke is reversed.
REVERSED
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