Ex Parte AppsDownload PDFPatent Trial and Appeal BoardMay 26, 201612243742 (P.T.A.B. May. 26, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/243,742 10/01/2008 26096 7590 05/31/2016 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 FIRST NAMED INVENTOR William P. Apps 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 8382PUS; 67080-428PUS 1 1729 EXAMINER KIRSCH, ANDREW THOMAS ART UNIT PAPER NUMBER 3781 NOTIFICATION DATE DELIVERY MODE 05/31/2016 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 Appeal2014-002763 Application 12/243,742 1 Technology Center 3700 Before STEFAN STAICOVICI, JAMES P. CALVE, and FREDERICK C. LANEY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE William P. Apps (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1-26 and 32-38.2 Claims 27- 31 were cancelled by Amendment filed June 1, 2012. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 According to Appellant, the real party in interest is Rehrig Pacific Company. Appeal Br. 3 (filed July 15, 2013). 2 Claims 8 and 21 were canceled by Amendment filed after the Final Action and entered by the Examiner on December 19, 2012. See Amendment, filed Dec. 14, 2012, at 3, 6, 9. Appellant cancelled claim 18 by Amendment filed concurrently with the Appeal Brief. See Amendment with Appeal, filed July 15, 2013, at 5, 9; Appeal Br. 3. Appeal2014-002763 Application 12/243,742 We REVERSE. SUMMARY OF DECISION INVENTION Appellant's invention relates to large multiple serving beverage container, in particular, beer kegs. Spec. ,-r 1. Claims 1, 15, and 23 are independent claims. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A plastic beer keg including: a container having a base and a wall extending upward from a periphery of the base; and a liner within the container, wherein a spacing between the liner and the container varies around a periphery of the liner, wherein the periphery is defined generally parallel to the base, to a portion of increased spacing defining at least one vertical gap between the liner and the container, wherein the vertical gap is elongated vertically upward relative to the liner and the container, wherein the base is generally round and wherein the wall includes at least one portion of reduced diameter defining at least one recess below a portion of larger diameter defining a handle on an exterior of the container above the recess and wherein the at least one portion of reduced diameter contacts the liner to define the at least one vertical gap on an interior of the container adjacent the at least one portion of reduced diameter. Appeal Br. 8 (Claims App.) (emphasis added). 2 Appeal2014-002763 Application 12/243,742 REJECTION3 The following rejections are before us for review: I. The Examiner rejected claims 1--4, 6, 11-17, 19, 21-25, and 32-38 under 35 U.S.C. § 102(b) as anticipated by Prepodnik (US 4,519,219, iss. May 28, 1985). II. The Examiner rejected claims 5 under 35 U.S.C. § 103(a) as unpatentable over Prepodnik and Marzolf (US 2, 104,466, iss. Jan. 4, 1938). III. The Examiner rejected claims 7, 20, and 26 under 35 U.S.C. § 103(a) as unpatentable over Prepodnik and Dunn (US 5,129,534, iss. July 14, 1992). IV. The Examiner rejected claim 9 under 35 U.S.C. § 103(a) as unpatentable over Prepodnik and Lundblade (US 4,775,072, iss. Oct. 4, 1988). V. The Examiner rejected claim 10 under 35 U.S.C. § 103(a) as unpatentable over Prepodnik and Brand (US 2,447,390, iss. Aug. 17, 1948). 3 The Examiner entered Appellant's December 14, 2012 amendments to the claims after the Final Action and withdrew the rejection of claims 8, 12, and 21under35 U.S.C. § 112, first paragraph for lack of enablement, and the rejection of claim 1 under 35 U.S.C. § 112, second paragraph. Adv. Act. 2, filed Dec. 31, 2012. In addition, because Appellant canceled claim 18 concurrently with the filing of the Appeal Brief (Appeal Br. 3), the Examiner withdrew the rejection of claim 18 under 35 U.S.C. § 112, first paragraph. Ans. 10. Because the Examiner accepted the cancellation of claim 18 and because cancelling that claim does not affect the scope of any other pending claim, we admit Appellant's cancellation of claim 18. See 37 CPR§ 41.33(b)(l) (2014). As a result, we will not consider the Examiner's obviousness rejection of claim 18. 3 Appeal2014-002763 Application 12/243,742 ANALYSIS Rejection I Each of the independent claims 1, 15, and 23 requires, [a] plastic beer keg including: a container having a base and a wall extending upward from a periphery of the base ... wherein the base is generally round and wherein the wall includes at least one portion of reduced diameter defining at least one recess below a portion of larger diameter defining a handle on an exterior of the container above the recess .... Appeal Br. 8, 11-12 (Claims App.) (emphasis added). Appellant asserts Prepodnik does not anticipate the claimed inventions because it fails to disclose the recited "handle on an exterior of the container." Appeal Br. 5- 6. Appellant argues, "[t]here is no handle on the exterior of the container of Prepodnik." Appeal Br. 5---6. Appellant asserts the Examiner's contrary finding relies on an overly broad interpretation of the term "handle" and incorrectly characterizes an internal wall surface as an "exterior of the container." Reply Br. 1-2. The Examiner relies on annotated Figure 3 of Prepodnik, reproduced below, to show the "handle on an exterior of the container" recited by those claims. Adv. Act. 5. Jr... 37.... /.-,;z . Copy with citationCopy as parenthetical citation