Ex Parte Burkovskiy

Patent Trial and Appeal Board

Feb 26, 2015

11611117 (P.T.A.B. Feb. 26, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/611,117 12/14/2006 Igor Burkovskiy 3847
7590 02/26/2015
Igor Burkovskiy
104 Lake Rd.
Valley Cottage, NY 10989
EXAMINER
SHEARER, DANIEL R
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
02/26/2015 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte IGOR BURKOVSKIY
____________

Appeal 2012-010192
Application 11/611,117
Technology Center 3700
____________

Before: JOHN C. KERINS, BRANDON J. WARNER, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Igor Burkovskiy (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision finally rejecting claim 18, which is the only pending
claim. Br. 1. An oral hearing was held on January 29. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We AFFIRM.

Appeal 2012-010192
Application 11/611,117
2

INVENTION
Claim 18 is reproduced below, with formatting added for clarity.
18. A pouring apparatus for carbonated beverages, comprising:
a container having an opening at a top;
a single-piece cap located at said top of said container and
directly engaging said top of said container in contact with said top;
a valve associated with said cap and having an immovable
valve seat and a movable valve member which is displaceable relative
to said valve seat, wherein when said single-piece cap is in a
completely closed position an internal volume of said container is
isolated from an external atmosphere and said cap seals said opening
of said container;
sealing means associated with said valve and being separate
from said valve seat and from said valve member and formed as a
gasket so that in said completely closed position of said cap said valve
member tightly sits on said valve seat with interposition of said
sealing formed as a gasket means so that said valve member is sealed
relative to said valve seat by said sealing means formed as a gasket
and thereby said container is tightly sealed and an escape of a
carbonated beverage is reliably prevented and an escape of its
carbonating gas is reliably prevented and the carbonating gas remains
under pressure, and for opening a passage through said cap, when
only said single-piece cap is turned relative to said top said valve
member is displaced away from said valve seat in response to turning
of only said single-piece cap and said container can be emptied or
filled through said valve and no other elements but said single-piece
cap and said valve member can cause opening and closing of said
container for confining the beverage in said container and for
emptying or filling said container.
1

Br. 17, Claims App. (emphasis added).

1
In the event of continued prosecution, the Examiner should consider
whether “said sealing” lacks antecedent basis, and whether the recitations of
“a gasket” and “a gasket means” creates ambiguity in claim 18.
Appeal 2012-010192
Application 11/611,117
3

REJECTION
The Examiner rejected claim 18 under 35 U.S.C. § 102(b) as
anticipated by Juk (US 5,772,076; iss. June 30, 1998).

ANALYSIS
“Determining whether claims are anticipated involves a two-step
analysis. The first step involves construction of the claims of the
[application] at issue.” In re Aoyama, 656 F.3d 1293, 1296 (Fed. Cir.
2011)). “During examination, [pending] ‘claims . . . are given their broadest
reasonable construction consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.’” In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond, 910 F.2d
831, 833 (Fed. Cir. 1990). “The second step [of an anticipation analysis]
involves comparing the claims to the prior art.” In re Aoyama, 656 F.3d at
1296. “Anticipation requires that all of the claim elements and their
limitations are shown in a single prior art reference.” In re Skvorecz, 580
F.3d 1262, 1266 (Fed. Cir. 2009).
The Examiner interprets the claim terms “an opening” and “a gasket”
as requiring the claimed pouring apparatus to include the structure, among
other things, of an opening at a top of the container and a gasket. Ans. 5.
The Examiner does not interpret these claim terms to require the pouring
apparatus to have only one opening and only one gasket. Id. In other words,
the Examiner interprets claim 18 such that a prior art reference anticipates
the claimed invention if the reference includes at least one opening and at
least one gasket (to thereby meet the recitations of claim 18), even if other
Appeal 2012-010192
Application 11/611,117
4

openings and/or gaskets are present as part of the prior art reference’s
pouring apparatus.
Appellant argues that claim 18 should be interpreted to mean that the
“invention has an (one) opening at a top, said cap seals said opening of said
container, the sealing is accomplished when said valve member tightly seats
o[n] said valve seat with interposition of a (one) gasket.” Br. 7. Thus,
Appellant contends that the claim language excludes a pouring apparatus
that has more than one opening at a top of the container sealed by a cap
and/or more than one gasket interposed between the valve member and the
valve seat in the completely closed position of the cap. Appellant concludes
that “‘[a]n’ and ‘a’ clearly identify only one corresponding component.” Br.
7.
The terms “a” and “an” are indefinite articles customarily interpreted
within patent law to mean “at least one,” permitting the inclusion of
additional elements not recited in the claim. See KCJ Corp. v. Kinetic
Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000). Moreover, our
reviewing court has “repeatedly emphasized that an indefinite article ‘a’ or
‘an’ in patent parlance carries the meaning of ‘one or more’ in open-ended
claims containing the transitional phrase ‘comprising.’” Id. (citing Elkay
Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 977 (Fed. Cir. 1999); Abtox, Inc.
v. Exitron Corp., 122 F.3d 1019, 1023 (Fed. Cir. 1997); North Am. Vaccine,
Inc. v. American Cyanamid Co., 7 F.3d 1571, 1575–76 (Fed. Cir. 1993)).
“Unless the claim is specific as to the number of elements, the article ‘a’
receives a singular interpretation only in rare circumstances when the
[Appellant] evinces a clear intent to so limit the article.” Id. (citing Abtox,
122 F.3d at 1023). Thus, “[u]nder this conventional rule, the claim
Appeal 2012-010192
Application 11/611,117
5

limitation ‘a,’ without more, requires at least one,” as opposed to only one.
Id. (emphasis added).
Appellant’s attention is directed to the Manual of Patent Examining
Procedure (MPEP), Section 2111.03, which explains that the transitional
phrases “comprising,” “consisting essentially of,” and “consisting of” are
terms of art in patent law that define the scope of a claim with respect to
what unrecited additional components or steps, if any, are excluded from the
scope of the claim. “Comprising” is open-ended and does not exclude
additional, unrecited components or method steps. “Consisting of” is
closed-ended and excludes any component or step not specified in the claim.
“Consisting essentially of” occupies a middle ground and limits the scope of
a claim to the specified components or steps and those that do not materially
affect the basic and novel characteristic(s) of the claimed invention.
Claim 18 recites the transitional phrase “comprising” and therefore
does not exclude additional, unrecited components. Consequently,
according to the discussion above, the claim terms “a” or “an” are
interpreted to mean “one or more” unless the claim is specific as to the
number of elements.
Turning to the language of claim 18, we do not find that claim 18 is
limited to one opening at the top of the container or to a specific number of
gaskets interposed between the valve member and the valve seat when the
single-piece cap is in a completely closed position. In other words, we do
not find that the functional limitations set forth in claim 18 necessarily
require one and only one opening at the top of the container or one and only
one gasket performing a sealing function, as part of the pouring apparatus.
As the Examiner points out, “the claim[] include[s] no structural limitations
that require only one gasket to seal the container” and the “functional
Appeal 2012-010192
Application 11/611,117
6

recitations [in claim 18] do not preclude the use of multiple gaskets to seal
the container, but rather that the container is sealed when the cap is in the
closed position and in said position, the valve member is sealed to the valve
seat by a gasket.” Ans. 6.
Accordingly, we are not persuaded that the Examiner erred in
interpreting the claim terms “an opening” and “a gasket” to mean one or
more openings and/or one or more gaskets (in other words, that other
openings and/or other gaskets may be present as part of the pouring
apparatus).
As noted above, the second step of an anticipation analysis involves
comparing claim 18 to Juk and determining if Juk discloses every limitation
of claim 18. As discussed above, we agree with the Examiner that claim 18
is anticipated by a prior art reference that discloses at least one opening and
at least one gasket that meets the recitations of the claim 18, even if other
openings and gaskets are present as part of the pouring apparatus.
Referring to Figure 25, the Examiner finds that Juk shows “a single-
piece cap (101) . . . a valve associated with the cap and having an
immovable valve seat (123) and a movable valve member (104) which is
displaceable relative to the seat” and “sealing means (112) associated with
the valve.” Ans. 4–5. We understand that the Examiner is referring to Juk’s
outer cap 101, with annular shoulder 108, as corresponding to the claimed
single-piece cap. Notably, Juk’s gasket, or resilient liner 112, is expressly
described as being formed on the interior of cap 101. Juk 8:11–15. We also
understand that although the Examiner refers to apertures 123 as an
immovable valve seat, the apertures are located on end panel 117 of inner
cap 102, and “the bottom surface of upper and annular resilient liner 112
provides a vacuum seal with the end panel 117 of inner cap 102.” Juk 8:61–
Appeal 2012-010192
Application 11/611,117
7

63. Thus, we understand that the Examiner finds that the valve associated
with the cap includes end panel 104 of outer cap 101 as corresponding to the
claimed movable valve member, annular resilient liner 112 as corresponding
to the claimed sealing means formed as a gasket, and end panel 117 of inner
cap 102 as corresponding to the claimed valve seat. Appellant has not
apprised us of error in these findings.
To the extent that Appellant is arguing that outer cap 101, and a
portion thereof (e.g., annular shoulder 108), cannot correspond to both the
single-piece cap and the valve member (see Br. 8, “[i]f the single-piece cap
in the reference is element 108, when [sic] there is no valve associated with
the cap and having a separate valve member cooperating with a valve seat
with interposition of a gasket”), we disagree, because the language of claim
18 does not require the valve member to be separate from the cap, but only
that the valve, including a valve member, is “associated with” the cap. We
also note that Appellant refers to page 13 and Figure 16 of Appellant’s
Specification in support of the claimed subject matter. See Br. 3. Figure 16
depicts an embodiment of the invention wherein “[t]he entire cap is
constructed as one integral unit and is comprised of Cap 1, Piston 2, Valve 3,
[and] Gasket 4” (Spec., p. 25, ll. 8–10; Fig. 16),
2
and wherein gasket 4 at the
end of valve 3 seals bottle opening 11 by providing a seal against partition
10, which in Figure 16 is part of bottle 8 (see Spec. 13, ll. 7–10; Fig. 16).
Appellant also argues that Juk does not disclose the recitation of claim
18 “wherein [when] said single-piece cap [is] in a completely closed position
an internal volume of said container is isolated from an external atmosphere
and said cap seals said opening of said container.” Br. 6. The Examiner

2
We refer to the amended Specification entered on Aug. 16, 2010.
Appeal 2012-010192
Application 11/611,117
8

finds that Figure 25 shows Juk’s single-piece cap, or outer cap 101, in a
completely closed position, and reasons that “[t]hese functional recitations
do not preclude the use of multiple gaskets to seal the container, but rather
that the container is sealed when the cap is in the closed position and in said
position, the valve member is sealed to the valve seat by a gasket.” Ans. 6.
In view of the discussion above, we are not persuaded by Appellant that the
Examiner erred in finding that Juk’s Figure 25 and description at column 8,
line 57 to col. 9, line 15 discloses that, in a closed position, Juk’s cap 101
isolates the container’s internal volume from an external atmosphere and
seals the container 43, as recited in claim 18.
Appellant further argues that Juk does not disclose the claim recitation
that “said valve member tightly sits on said valve seat with interposition of
said sealing means formed as a gasket [means] so that said valve member is
sealed relative to said valve seat by said sealing means formed as a gasket
and thereby said container is tightly sealed an escape of a carbonated
beverage is reliably prevented and an escape of its carbonating gas is
reliably prevented and the carbonating gas remains under pressure.” Br. 8.
Again, we are not persuaded that the Examiner erred in finding that Juk’s
valve member, or outer panel 104 of outer cap 101, sits tightly on Juk’s
immovable valve seat, or end panel 117 of inner cap 102, whereby Juk’s
gasket, or resilient liner 112, is interposed therebetween, so that “the valve
member is sealed relative to the valve seat by the gasket and thereby the
container is tightly sealed and an escape of a carbonated beverage is reliably
prevented and the carbonating gas remains under pressure.” Ans. 5, citing
Juk 2:40–44, 8:58–63. Juk expressly states that “the bottom surface of upper
and annular resilient liner 112 provides a vacuum seal with the end panel
117 of inner cap 102.” Juk 8:61–63. Thus, Juk recites the claim limitations
Appeal 2012-010192
Application 11/611,117
9

of claim 18, even in view of Juk’s additional disclosure that “the bottom
surface of resilient liner 113 contacts the neck finish 48 of container 43 to
provide a vacuum seal therewith.” Id. at 8:58–60. Notably, Appellant’s
invention has a similar junction between the neck of bottle 8 and cap 1,
forming opening 20. See Fig. 16.
Regarding the claim limitation “no other elements but said single-
piece cap and said valve member can cause opening and closing of said
container for confining the beverage in said container and for emptying or
filling said container” (Br. 17, Claims App.), we find that only Juk’s outer
cap 101, end panel 104 of outer cap 101, resilient liner 112, and end panel
117 of inner cap 102, according to the Examiner’s findings, cause the
opening and closing of the container at least for emptying and filling. The
sealing and unsealing of Juk’s resilient liner 113, as depicted on Juk’s
pouring apparatus, does not allow for emptying and filling the container.
See Juk, Fig. 26; see also Juk, 9:5–10:12 (“[c]ontinued rotation of the outer
cap 101 results in axial displacement of the plug 122 from the central
opening . . . , thereby creating a passageway for dispensing of the contents of
the container through the apertures 123 into the annular space adjacent the
plug 122 and outwardly from the dispensing closure in the opening defined
by inner edge 106 of end panel 104 as schematically shown in FIG. 26.”).
Finally, Appellant points out the disadvantages of the pouring
apparatus disclosed in Juk, as compared with the invention, however, this
commentary is not relevant to determining whether Juk discloses each and
every limitation of claim 18. As discussed in detail above, Appellant’s
arguments do not apprise us of error in the Examiner’s findings that Juk does
disclose each and every element as recited in claim 18.
For the reasons set forth above, we sustain the rejection of claim 18.
Appeal 2012-010192
Application 11/611,117
10

DECISION
We AFFIRM the Examiner’s decision to reject claim 18 as anticipated
by Juk.
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).

AFFIRMED

rvb