Ex Parte Bayss et al

Board of Patent Appeals and Interferences

Nov 26, 2008

10466032 (B.P.A.I. Nov. 26, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GEORGE LEONARD BAYSS
and MARCEL MILLER
____________

Appeal 2008-4721
Application 10/466,032
Technology Center 1700
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Decided: November 26, 2008
____________

Before BRADLEY R. GARRIS, THOMAS A. WALTZ, and
CATHERINE Q. TIMM, Administrative Patent Judges.

WALTZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Primary Examiner’s rejection of claims 24-43, which are the only claims
pending in this application. Although the action appealed from was a non-
final rejection (mailed Oct. 17, 2006), we have jurisdiction since the claims
have been twice presented and rejected. See 35 U.S.C. §§ 6(b) and 134; and
Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1998).

Appeal 2008-4721
Application 10/466,032

According to Appellants, the invention is directed to signaling to users
of common disposable beverage containers when a lid placed over a
container to prevent spillage of its contents is not properly sealed to the
container (App. Br. 3). This signaling is achieved by incorporating a skirt in
the lid that has thermochromic properties. When the skirt is sealed, no color
change occurs in the skirt, but when it is not sealed against the container,
heat transfer occurs to the non-sealed portions of the skirt causing a color
change to these parts which indicates a lack of sealing integrity (id.).
Further details of the invention may be gleaned from illustrative independent
claim 24, which is reproduced below:
24. A disposable beverage container with a lid,

the container comprising a closed end from which a side wall or
side walls extend to an open end surrounded by a circular rim, and

the lid comprising:

a peripheral skirt comprising a circular part from which an
outwardly flared part depends, the circular part of the peripheral skirt
sealingly engaging with the circular rim, the outwardly flared depending part
of the peripheral skirt not being in contact with and being spaced away from
any part of the container;

at least a region having thermochromic properties which is
adapted to change color upon reaching a predetermined heated non-ambient
temperature in response to heat transfer from or to the contents of the
container; and

thermochromic material applied either to all of the lid including
the skirt, or only to the skirt, to provide the thermochromic properties
whereby the color of the skirt provides a visual indication as to whether or
not the lid is properly sealed with respect to the beverage container.

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Appeal 2008-4721
Application 10/466,032

The Examiner has relied on the following prior art references as
evidence of obviousness:
Elele US 5,720,555 Feb. 24, 1998
Zinngrebe (DE ‘797), as translated DE 200 02 797 Aug. 10, 2000

ISSUE ON APPEAL
Claims 24-43 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Elele in view of DE ‘797 (Ans. 3).
Appellants contend that the Examiner has incorrectly read Elele, since
there is no mention in the Abstract of Elele or Figures 5-6 that the
downwardly depending flange of Elele’s lid flares or is spaced away from
the container as required by the claims on appeal (App. Br. 9). Appellants
further contend that element #24 cited by the Examiner from Figures 5-6 of
Elele is a lid assembly, not a skirt portion that flares and is not in contact
with the container (App. Br. 9; Reply Br. 3-4). Appellants agree that
element #24 of Elele points to what appears to be a downwardly depending
flange of the lid assembly, but a skirt that is “flared” or “open and spread
outward” is not the same as the claimed skirt “not being in contact with and
being spaced away” from the container (App. Br. 11-12). Appellants also
contend that DE ‘797 does not cure this deficiency of Elele (App. Br. 10).
The Examiner contends that Elele discloses a lid which includes a
skirt, and the skirt “flares or is spaced away [sic, from] any part of the
container (Abstract, lines 18-21; Figures 5 and 6, #24).” (Ans. 3 and 7).
Accordingly, we determine that the dispositive issue presented from
the record in this appeal is whether Appellants have established that the
Examiner committed reversible error in determining that the skirt of the lid
shown by Elele meets the claimed limitation for a skirt.
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Appeal 2008-4721
Application 10/466,032

We determine that Appellants have established that the Examiner
committed reversible error in the factual findings presented in the Answer.
Therefore, we cannot sustain the sole ground of rejection presented in this
appeal essentially for the reasons stated in the Brief, Reply Brief, and those
set forth below. The decision of the Examiner is REVERSED.
OPINION
The Examiner finds that Elele discloses a lid including a skirt where
the skirt “flares or is spaced away [sic, from] any part of the container,”
citing the Abstract, ll. 18-21, and Figures 5-6, #24, from Elele (Ans. 3, 7).
As noted above, Appellants dispute that Elele discloses or suggests this
limitation (App. Br. 9-12; Reply Br. 3-4).
First, we note that the actual claim limitation in dispute is the
outwardly flared depending part of the peripheral skirt “not being in contact
with and being spaced away from any part of the container” (see claim 24 as
reproduced above). As correctly noted by Appellants (App. Br. 9-12; Reply
Br. 3-4), the Abstract of Elele does not refer to any skirt, and #24 of Figures
5-6 is a “lid assembly” (e.g., col. 6, l. 3). Although we agree with the
Appellants and the Examiner that Figures 5-6 of Elele show a lid with a
downwardly depending flange or skirt (Ans. 3, 7; App. Br. 10), we cannot
ascertain from these Figures, and the Examiner has not pointed to any
element in the Figures or other evidence, whether the lid of Elele contacts
the container or is spaced away from the container. The Examiner relies
solely on Elele for this limitation of the claims (Ans. 3-4). Accordingly, we
determine that the Examiner’s legal conclusion of obviousness is not
supported by proper factual findings in the record of this appeal. See In re
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Appeal 2008-4721
Application 10/466,032

Warner, 379 F.2d 1011, 1017 (CCPA 1967) (Where the legal conclusion of
obviousness is not supported by facts, it cannot stand).

The decision of the Examiner is REVERSED.
REVERSED

tc

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