Ex Parte Auzenne

Patent Trial and Appeal Board

Dec 24, 2013

11461385 (P.T.A.B. Dec. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
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3
BEFORE THE PATENT TRIAL AND APPEAL BOARD 4
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6
Ex parte GERALD KEITH AUZENNE 7
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9
Appeal 2012-001539 10
Application 11/461,385 11
Technology Center 3700 12
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Before ANTON W. FETTING, PHILIP J. HOFFMANN, and 16
THOMAS F. SMEGAL, Administrative Patent Judges. 17
SMEGAL, Administrative Patent Judge. 18
DECISION ON APPEAL 19
20
Appeal 2012-001539
Application 11/461,385

2
STATEMENT OF THE CASE1 1
Gerald Keith Auzenne (Appellant) seeks review under 35 U.S.C. § 134 2
of a final rejection of claims 24-43, the only claims pending in the 3
application on appeal. We have jurisdiction over the appeal pursuant to 4
35 U.S.C. § 6(b). 5
SUMMARY OF DECISION 6
We REVERSE. 7
CLAIMED SUBJECT MATTER 8
The Appellant invented a stopper system for preventing spilling from the 9
opening in the lid of a disposable beverage cup (Specification 1: ll. 14-18). 10
An understanding of the invention can be derived from a reading of 11
exemplary claim 24, which is reproduced below with emphasis by italics 12
added. 13
24. A system related to stoppering at least one non-circular 14
sipping aperture located within at least one disposable lid of at 15
least one beverage cup comprising: 16
a) at least one stopper body structured and arranged to 17
stopper the at least one noncircular sipping aperture; 18
b) wherein said at least one stopper body comprises 19
i) at least one top portion, 20
ii) at least one bottom portion, and 21
iii) at least one longitudinal axis extending through 22
said at least one top portion and said at least one bottom 23
portion; 24

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed May 9, 2011) and Reply Brief (“Reply Br.,” filed September 30,
2011), and the Examiner’s Answer (“Ans.,” mailed August 2, 2011).
Appeal 2012-001539
Application 11/461,385

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c) wherein at least one portion of said at least one stopper 1
body comprises at least two feature sets comprising cross 2
sections, each cross section defined by a rectangular portion, 3
with at least one set of opposing sides of said rectangular 4
portions of said cross sections capped with rounded ends, each 5
said cross section being oriented substantially perpendicular to 6
said at least one longitudinal axis; 7
d) wherein each feature set of said at least two feature sets 8
of said cross sections comprises 9
i) a first said cross section comprising a first 10
perimeter, 11
ii) a second said cross section comprising a second 12
perimeter, 13
iii) a third said cross section comprising a third 14
perimeter, 15
iv) a fourth said cross section comprising a fourth 16
perimeter; 17
v) wherein said second perimeter is lower in 18
perimeter value than both said first perimeter and said third 19
perimeter, 20
vi) wherein said third perimeter is lower in perimeter 21
value than said first perimeter, 22
vii) wherein said fourth perimeter is lower in perimeter 23
value than said second perimeter and said third perimeter, 24
viii) wherein said first said cross section is positioned 25
above said second said cross section, 26
ix) wherein said second said cross section is 27
positioned above said third said cross section, and 28
x) wherein said third said cross section is positioned 29
above said fourth said cross section; 30
iv) wherein each feature set of said at least two feature 31
sets further comprises a continuous concave curve joining said 32
first said cross section and said third said cross section. 33
34
Appeal 2012-001539
Application 11/461,385

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REFERENCES 1
The Examiner relies upon the following prior art: 2
Dunbar US 2,427,664 Sep. 23, 1947 3
Gustafson US 6,016,914 Jan. 25, 2000 4
Smith US 6,679,397 B2 Jan. 20, 2004 5
Noon US 2006/0016823 A1 Jan. 26, 2006 6
7
REJECTIONS ON APPEAL 8
Claims 24-32 and 39-43 stand rejected under 35 U.S.C. §103(a) as being 9
unpatentable over Noon and Dunbar. 10
Claims 33-36 and 38 stand rejected under 35 U.S.C. §103(a) as being 11
unpatentable over Noon, Dunbar and Gustafson. 12
Claim 37 stand rejected under 35 U.S.C. §103(a) as being unpatentable 13
over Noon, Dunbar, Gustafson and Smith. 14
15
FINDINGS OF FACT 16
The findings of fact, which appear in the Analysis below, are 17
supported by at least a preponderance of the evidence. Ethicon, Inc. 18
v.Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general 19
evidentiary standard for proceedings before the Office). 20
21
ANALYSIS 22
Obviousness of claims 24-32 and 39-43 based on Noon and Dunbar. 23
We are persuaded by Appellant’s arguments that the Examiner failed 24
to establish a prima facie showing of obviousness in rejecting claims 24-32 25
and 39-43 under 35 U.S.C. § 103(a) as being unpatentable over the 26
Appeal 2012-001539
Application 11/461,385

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combined teachings of Noon and Dunbar. In particular, we agree with 1
Appellant that the combination of Noon and Dunbar fails to disclose “a 2
continuous concave curve joining said first said cross section and said third 3
said cross section”, as recited by independent claim 24. 4
The Examiner contends that Dunbar teaches this limitation because 5
“the claimed limitations do not require that the curve extends for half a circle 6
and as such any sized curve would read on the claimed limitations” (Ans. 7
11). However the claim does not define the curve in relation to half of a 8
circle, but defines the curve as a “continuous concave curve” that extends 9
from a first cross section to a third cross section. As Appellant correctly 10
points out, “(t)he shape of flanges (4) in Dunbar create a saw-toothed path 11
between the Examiner-identified first and third cross-section (a) and (c), not 12
a continuous concave curve joining them, as demonstrated by Appellant’s 13
figure 3A” (App. Br. 9). More specifically, unlike Dunbar “(t)he stopper 14
body as claimed does not have a flat wall on the removal side of the surface 15
ribs, but rather has curving sidewalls that act as opposing ramps on either 16
side of the surface ribs” (Reply Br. 2-3). 17
Examiner’s referral to a half circle appears to treat Dunbar’s 18
downward sloping walls between the flanges as the recited feature sets. 19
Appellant clearly refers to both the downward and upward sloping walls in 20
the disclosed Fig. 3A inset. The Examiner’s difficulty with relying on only 21
the downward sloping walls is that they define monotonically decreasing 22
perimeters. Claim 24 requires the second cross section perimeter to be less 23
than both the first and third, and so cannot read on a monotonically 24
decreasing perimeter. 25
Appeal 2012-001539
Application 11/461,385

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Therefore, we do not sustain the Examiner’s rejection of claims 24-32 1
and 39-43 as being unpatentable over Noon and Dunbar. 2
Obviousness of claims 33-36 and 38 over Noon, Dunbar and 3
Gustafson. 4
This rejection is directed to claims 33-36 and 38, which depend from 5
claim 24. We reverse the rejection of claim 24 above, and thus we do not 6
sustain the rejection of claims 33-36 and 38 over the cited prior art. Cf. In re 7
Fritch, 972 F. 2d 1260, 1266 (Fed. Cir. 1992) (“[D]ependent claims are 8
nonobvious if the independent claims from which they depend are 9
nonobvious”). 10
Obviousness of claim 37 over Noon, Dunbar, Gustafson and Smith. 11
This rejection is directed to claim 37, which depends from claim 24. 12
We reverse the rejection of claim 24 above, and thus we will not sustain the 13
rejection of claim 37 over the cited prior art. Cf. In re Fritch, 972 F. 2d, at 14
1266 (“[D]ependent claims are nonobvious if the independent claims from 15
which they depend are nonobvious”). 16
17
DECISION 18
The rejections of claims 24-43 are reversed. 19
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REVERSED 21
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llw 23