Ex Parte BOCHNER et al

Patent Trials and Appeals Board

Feb 5, 2019

14479933 - (D) (P.T.A.B. Feb. 5, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/479,933 09/08/2014 Glenn Perry BOCHNER
2352 7590 02/07/2019
OSTROLENK FABER LLP
845 THIRD A VENUE
NEW YORK, NY 10022
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.
P/6259-2 8598
EXAMINER
CASTRIOTTA, JENNIFER
ART UNIT PAPER NUMBER
3733
NOTIFICATION DATE DELIVERY MODE
02/07/2019 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):
pat@ostrolenk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GLENN PERRY BOCHNER, RUSSELL JON GREENBERG,
MINCHUL HONG, and ADAM SETH MIRZOEFF
Appeal2018-005878
Application 14/479,933
Technology Center 3700
Before BRETT C. MARTIN, BRANDON J. WARNER, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-5, 8, 12-14, and 18. 1 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
1 Appeal is taken from the Final Office Action dated June 27, 2017, as
supplemented by the Advisory Action dated January 18, 2018.
Appeal2018-005878
Application 14/479,933
STATEMENT OF THE CASE
Claim 1, the sole independent claim on appeal, reproduced below with
disputed limitations italicized for emphasis, is exemplary of the subject
matter on appeal.
1. A container assembly, comprising:
a first container having a body with an outer surface of a
given shape and size, an opening at the top side of the first
container, a closed bottom and a connection extension at the
bottom side of the first container;
a second container having a body with an outer surface
having said given shape and size, a respective opening at the top
side of the second container, a closed bottom and a respective
connection extension at the bottom side of the second container;
a connection band having a top side and a bottom side, and
at each side, a connector mechanism for releasably holding both
of said first and second containers in a configuration that enables
either one or both set first or second containers to be released and
separated from the connection band and the connection band
being further configured to enable releasably holding said
containers in a bottom to bottom configuration, and
wherein the connection band has an outer peripheral
circumscribing vertical wall surrounding an interior space, and
the shape and size of the peripheral wall of the connection band
matches the shape and size of the outer surface of first and second
containers, whereby the connection band creates the appearance
of a single container with openings at opposed ends, and
the connection band including a top flange adjacent a top
edge of said peripheral wall and a bottom flange located adjacent
a bottom edge of the peripheral wall.
wherein at least one of the connection extensions on the
containers and the flanges on the connection band is constructed
of a resilient deformable material, to enable creating a snap fit
arrangement between the containers and the connection band.
wherein each of the first and second containers has a
respective open top with a cap fittable to the open top.
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Appeal2018-005878
Application 14/479,933
THE REJECTIONS
I. Claims 12-14 stand rejected under 35 U.S.C. § 112(b) as being
indefinite.
II. Claims 1, 5, 8, 12-14, and 18 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Mendez (US 2007/0084863 Al; published Apr.
19, 2007) and Chang (US 4,603,784; issued Aug. 5, 1986).
ANALYSIS
Rejection I
The Examiner determines that claims 12-14, which depend from
claim 11, are indefinite for lack of antecedent basis because claim 11 has
been cancelled. Final Act. 2. Appellants argue that the Examiner should
have permitted an after-final claim amendment to correct the dependency of
claims 12-14, among other issues. Br. 3. To the extent Appellants are
requesting that we review the Examiner's decision denying entry of such
amendment, that decision is reviewable by petition under 3 7 C.F .R. § 1.181
rather than by appeal (see Manual of Patent Examining Procedure (MPEP)
§ § 1002 and 1201) and thus is not within the jurisdiction of the Board. In re
Mindick, 371 F.2d 892,894 (CCPA 1967); see also Ans. 2.
Appellants chose not to present substantive arguments addressing the
Examiner's rejection, and accordingly, we summarily sustain the Examiner's
rejection of claims 12-14 under 35 U.S.C. § 112(b). Br. 3.
Rejection II
Appellants argue claims 1, 5, 8, 12-14, and 18 as a group. We select
claim 1 as representative, with claims 5, 8, 12-14, and 18 standing or falling
with claim 1. See 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv).
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Appeal2018-005878
Application 14/479,933
The Examiner finds, inter alia, that although Mendez does not teach
containers actually being connected in a bottom to bottom configuration,
Mendez discloses to one of ordinary skill in the art that Mendez's containers
are "capable a/being attached to each other via the connection bands in a
bottom to bottom configuration." Final Act. 4--5 ( emphasis added); Ans. 3.
In support, the Examiner relies on Figure 7 of Mendez for depicting first and
second containers 160, 170, each having threaded portions 162, 164, 172,
17 4 on both their top and bottom ends, such that either end of each container
may be releasably held by coupling member 166. Final Act. 5; see also
Mendez ,r,r 25, 26. Figure 7 is reproduced below.
I
lM
H 7 ,g ..
Figure 7 is "a partial exploded perspective view" of a container assembly,
wherein bottom walls 165, 17 5 are not visible. Mendez ,r 15; see also
Mendez ,r 26. The Examiner further relies on Paragraph 25 for teaching that
"the coupling members/connection bands may be solid caps," and on
Paragraph 29, with reference to Figure, 10 for disclosing an alternate
engagement structure: a snap fit. Final Act. 5.
The Examiner further relies on Chang for teaching a container
assembly including connection extensions on bottom sides of first and
second containers, and a connection band (i.e., flat ring member 90)
"configured to enable releasably holding said containers in a bottom to
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Appeal2018-005878
Application 14/479,933
bottom configuration" and "constructed of a resilient deformable material, to
enable creating a snap fit arrangement between the containers." Final Act.
6-7 (citing Chang 4:26-28, 35-53, Figs. 1, 10). The Examiner reasons that
it would have been obvious "to modify the connection extensions and
connection band of Mendez with the teachings of Chang ... as the two are
functional equivalents." Id. at 8 (citing MPEP § 2143(I)(B)).
Br. 4
Appellants argue that
[t]he prior art does not show the features of the present invention
and merely because it is "possible" . . . to have such a
configuration in fact such a configuration is not provided and
would never be provided because the connection band in the
prior art serves as a closure or a cap for the series of containers
all of which are oriented in the same direction and open at their
bottoms.
We are not persuaded by Appellants' argument. Claim 1, as set forth
supra, requires, in relevant part, only that the connection band is configured
to enable releasably holding the containers in a bottom to bottom
configuration. Here, coupling member 166 of Mendez (particularly as
modified, to any extent necessary, with the teachings of Chang, as set forth
supra) is configured to enable releasably holding the containers in a bottom
to bottom configuration, because the threaded section ( or, alternatively, a
snap fit section) is available on either end of each container received by
coupling member 166.
Accordingly, we sustain the Examiner's rejection of independent
claim 1, and claims 5, 8, 12-14, and 18 falling therewith.
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Appeal2018-005878
Application 14/479,933
DECISION
The Examiner's rejection of claims 12-14 under 35 U.S.C. § 112(b)
as being indefinite is AFFIRMED.
The Examiner's rejection of claims 1, 5, 8, 12-14, and 18 under 35
U.S.C. § 103 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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