Ex Parte Baltz

Patent Trial and Appeal Board

Nov 26, 2013

11561379 (P.T.A.B. Nov. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte KYLE BALTZ
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Appeal 2011-013728
Application 11/561,379
Technology Center 3700
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Before: CHARLES N. GREENHUT, LYNNE H. BROWNE, and
PATRICK R. SCANLON, Administrative Patent Judges.

BROWNE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-013728
Application 11/561,379
2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
28. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
The claims are directed to container. Claims 1, 12, and 18 are
independent. Claim 1 is reproduced below:
1. A container comprising:
a base;
a first wall pivotably mounted relative to the
base, a lip projecting inwardly from an upper edge
of the first wall, the lip including an inwardly-open
cutout;
a support pivotably mounted to the first wall
below the lip, the support pivotable about an axis
generally parallel to the base between a support
position and a retracted position, the support
accessible via the inwardly-open cutout through
the lip; and
an adjacent wall adjacent the first wall, the
adjacent wall pivotably mounted relative to the
base, the adjacent wall being longer than the first
wall.

PRIOR ART
Shead
Kreeger
US 4,081,099
US 4,423,813
Mar. 28, 1978
Jan. 3, 1984
Cope US 2007/0125779 A1 Jun. 7, 2007

GROUNDS OF REJECTION
Claims 1-9 and 26 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Cope.
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Claims 10-17 and 27 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Cope and Shead.
Claims 18-25 and 28 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Cope and Kreeger.
OPINION
Claims 1-9 and 26
The Examiner finds that Cope’s eighth embodiment, illustrated by
figures 37-43, discloses all of the limitations of independent claim 1 except
for a lip that “includes an inwardly-open cutout.” Ans. 6. The Examiner
further finds that Cope’s third embodiment, illustrated by figures 13-18,
“teaches a cutout in the lip which allows for easier manipulation of the
support by a user.” Id. Based on these findings, the Examiner concludes
that it would have been obvious “to modify the lip of the container taught by
Cope to include an inwardly-open cutout, as taught in another embodiment
by Cope, in order to allow for easier manipulation of the support by a user.”
Id.
Appellant argues that “[b]ecause Cope’s embodiment 8 includes a
spring-deployed stacking element 814, the support can be deployed and
retracted without the claimed cutout. One would not have added a cutout to
embodiment 8, because doing so would serve no purpose.” Br. 7. In
response to this argument, the Examiner finds that:
Cope discloses in the seventh embodiment, an inwardly open
cutout in a top of an end wall (706) in order to allow access to a
spring loaded support (714) (Fig. 33; Par. 0136). Since Cope
has disclosed the use of a cutout with the gravity-deployed third
embodiment, as well as the spring-deployed seventh
embodiment, the cutout would certainly serve the function of
allowing manipulation of the support by a user in the spring-
loaded eighth embodiment.
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Ans. 17.
In response to this finding, Appellant argues “since embodiment 7
was not mentioned in the Final, embodiment 7 cannot properly be relied on
to show anything.” Br. 8. Appellant’s argument is not persuasive. As noted
by Appellant, the Examiner made this finding in the Advisory Action mailed
November 3, 2010. Appellant has responded to this finding in the Brief;
accordingly, Appellant’s argument that embodiment 7 cannot properly be
relied upon to shown anything is waived. Appellant has not contested the
Examiner’s finding that Cope’s use of a cutout with its third and seventh
embodiments would render the use of a cutout with its eighth embodiment
obvious to one of ordinary skill in the art. Moreover, Appellant has not
explained why a cutout as used in Cope’s seventh embodiment would not be
useful in Cope’s either embodiment. Accordingly, Appellant’s argument is
not persuasive.
Appellant further argues “there is no evidence that Cope’s
embodiment 7 includes an inwardly open cutout.” Id. We disagree. The
Examiner’s finding references Cope’s paragraph [0136], which describes
spring element 722 of retractable stacking element 714 as “extend[ing]
outwards through an aperture 724.” Cope, para. [0136]; fig. 35 (emphasis
added). Appellant has provided no evidence or persuasive argument why
Cope’s aperture 724 is not an inwardly open cutout. Accordingly,
Appellant’s argument is not persuasive.
For these reasons, we sustain the Examiner’s rejection of independent
claim 1. Appellant has not provided separate arguments for the patentability
of claims 2-9 and 26. According, we also sustain the Examiner’s rejection
of claims 2-9 and 26.

Appeal 2011-013728
Application 11/561,379
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Claims 10-17 and 27
The Examiner finds that Cope discloses all of the limitations of
independent claim 12 except for a base having “an elongated recess formed
therein, wherein the lip [is] received in the elongated recess of the base when
the first wall is in the collapsed position.” Ans. 10-11. The Examiner finds
that Shead discloses “a collapsible container comprised of a base (E), side
walls [(A-D)], and a channel (14) to accommodate projections (16) of side
walls B and D when in the collapsed position.” Id. at 11 (citing Shead, fig.
4; col. 3, ll. 22-29). Based on these findings, the Examiner concludes that it
would have been obvious “to modify Cope to include a channel in the base,
as taught by Shead, in order to accommodate the support and lip when the
first wall is in the collapsed position.” Id.
Appellant argues that “[t]he Examiner interprets the recess near
reference numeral 14 as a channel in the base. However, this is incorrect.”
Br. 9. We agree. Shead describes figure 4 as follows:
FIG. 4 shows in chain-dotted lines the positions occupied
by the sides B and D after folding in of the sides A and C. It can
be seen that the sides Band D lie in alignment with another so
that when the crate is inwardly collapsed it is substantially flat.
Furthermore, the sides B and D and the base contain
complementary profiled sections to enable one collapsed
container to nest with another below it.
Shead, col. 3, ll. 22-29. The Examiner has not identified where Shead
describes a channel in the base. It is not clear from figure 4 that the curved
line near reference numeral 14 even represents a recess, let alone a recess in
the base as opposed to a recess in the side wall as argued by Appellant. See
Br. 9. We have been instructed that “we may not resolve doubts in favor of
the Patent Office determination when there are deficiencies in the record as
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to the necessary factual bases supporting its legal conclusion of
obviousness.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
Accordingly, we cannot sustain the Examiner’s rejection of claim 12
and claims 13-17 and 27 which depend therefrom. Claim 10 recites a
similar limitation requiring “a recessed channel formed in the base, the lip of
the first wall received in the recessed channel when the first wall is in the
collapsed position.” Br. 15. We do not sustain the Examiner’s rejection of
claim 10 for the same reasons.
Claims 18-25 and 28
The Examiner finds that Cope discloses every limitation of
independent claim 18 except for “at least one of the support and the first
wall includes at least one interfering member retaining the support in the
retracted position relative to the first wall.” Ans. 13. The Examiner finds
that Kreeger discloses “a stackable container with a support (78) pivotably
mounted (hinge pin 84) to a first wall (26) wherein at least one of the
support and the first wall includes at interfering members (projection 94 and
the surrounding area and 98) retaining the support in the retracted position
relative to the first wall.” Id. (citing Kreeger, col. 4, ll. 56-68). Based on
these findings, the Examiner concludes that it would have been obvious “to
modify the support taught by Cope to include the interfering members taught
by Kreeger in order to allow a user to retain the support in the retracted
position and therefore make loading of the container easier.” Ans. 14.
Appellant argues that “[a]dding interfering members to retain this
spring-deployed support in the retracted position would tend to render the
support non-spring-deployable, thus making the support unsatisfactory for
its intended purpose and changing its principle of operation.” Br. 12.
Appellant’s conclusory arguments are not persuasive because Appellant has
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not explained how adding interfering members to retain the support in the
retracted position during loading would render the support non-spring-
deployable, render the support unsatisfactory for its intended purpose, or
change the principle of operation of the support.
Appellant argues that “Cope teaches away from providing the support
with any structure that would inhibit such deployment.” Id. However,
Appellant has not identified any language in Cope that criticizes the use of
an interfering member. We will not read into a reference a teaching away
from a proposed combination when no such language exists. See Dystar
Textilfarben GmbH& Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
1356, 1364 (Fed. Cir. 2006).
Appellant argues that “Cope only contemplates interfering members
with respect to embodiment 3, which is not spring-deployed.” Br. 13.
Appellant’s argument is not responsive to the rejection as articulated by the
Examiner. The rejection relies upon Kreeger in addition to Cope’s third
embodiment to meet claim 18’s requirement for at least one interfering
member. One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Accordingly, Appellant’s argument is not persuasive.
For these reasons, we sustain the Examiner’s rejection of independent
claim 18. Separate arguments for claims 19-25 and 28 were not presented
by Appellant. Accordingly, we sustain the Examiner’s rejection of claims
19-25 and 28.

Appeal 2011-013728
Application 11/561,379
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DECISION
The Examiner’s rejections of claims 1-9, 18-26, and 28 are
AFFIRMED.
The Examiner’s rejection of claims 10-17 and 27 is REVERSED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011).

AFFIRMED-IN-PART

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