Ex Parte CavalcanteDownload PDFPatent Trial and Appeal BoardNov 30, 201713469183 (P.T.A.B. Nov. 30, 2017) Copy Citation 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. 13/469,183 05/11/2012 Mauricio D. Cavalcante 11466PUS;67080-543 9313 PUS1 26096 7590 12/04/2017 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 EXAMINER WAY, JAMES R ART UNIT PAPER NUMBER 3788 NOTIFICATION DATE DELIVERY MODE 12/04/2017 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): ptodocket @ cgolaw. com cgolaw@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MAURICIO D. CAVALCANTE Appeal 2017-002389 Application 13/469,183 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Mauricio D. Cavalcante (“Appellant”)1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 4—18, 20, 21, and 23. See Appeal Br. 6—9. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellant, the real party in interest is REHRIG PACIFIC COMPANY. Appeal Br. 1. Appeal 2017-002389 Application 13/469,183 CLAIMED SUBJECT MATTER Appellant’s disclosed invention relates to crates. See Spec. 12. Claims 1, 14, 15, and 23 are independent. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A crate comprising: a base including a generally horizontal panel; a pair of opposed side walls extending upward from the base, generally perpendicular to the panel; a pair of opposed end walls extending upward from the base, generally perpendicular to the panel; and the panel of the base including a plurality of rectangular container support areas of the same size each having four sides, one of the plurality of rectangular container support areas positioned between two others of the plurality of rectangular support areas, wherein the container support areas are arranged in a 3x3 array substantially completely occupying the generally horizontal panel of the base from one of the side walls to the other of the side walls and from one of the end walls to the other of the end walls, each side intersected by a plurality of elongated vents each elongated along an axis perpendicular to the each side, the elongated vents formed through the panel of the base, one row of the elongated vents arranged adjacent each side wall, one column of the elongated vents arranged adjacent each end wall. EVIDENCE The Examiner relied on the following evidence in rejecting the claims appeal: Dotan US 6,142,329 Nov. 7, 2000 Apps US 2003/0155275 A1 Aug. 21,2003 Cadiente US 2006/0027578 A1 Feb. 9, 2006 2 Appeal 2017-002389 Application 13/469,183 REJECTIONS I. Claims 1, 4, 7, 8, 14, and 23 stand rejected under 35 U.S.C. § 102(b) as anticipated by Dotan. Final Act. 3—5. II. Claims 15—18 stand rejected under 35 U.S.C. § 102(b) as anticipated by Apps. Id. at 5—7. III. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Dotan and Cadiente. Id. at 7—8. IV. Claims 9, 13, 20, and 21 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Dotan and Apps. Id. at 8—9. V. Claims 10—12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Dotan, Apps, and Cadiente. Id. at 9—10. ANALYSIS Rejection I— Claims 1, 4, 7, 8, 14, and 23 as anticipated by Dotan Appellant presents arguments against the rejection of independent claim 1, and relies on the same arguments for independent claims 14 and 23, but does not present any separate arguments for dependent claims 4, 7, and 8. See Appeal Br. 6—7; Reply Br. 1—3. We select claim 1 as representative of the issues that Appellant presents in the appeal of this rejection, with claims 4, 7, 8, 14, and 23 standing or falling therewith. See 37 C.F.R. § 41.37(c)(l)(iv). In rejecting claim 1, the Examiner found that Dotan discloses “a crate comprising a base including a generally horizontal panel (10); a pair of opposed side walls (14) extending upward from the base, generally perpendicular to the panel; [and] a pair of opposed end walls (12) extending 3 Appeal 2017-002389 Application 13/469,183 upward from the base, generally perpendicular to the panel.” Final Act. 3. The Examiner also found that Dotan discloses a 3x3 array of rectangular container support areas substantially completely occupying the base panel, and a plurality of elongated vents in the panel adjacent the side walls and end walls. See id. at 3^4 (citing Dotan, Figs. 1, 2); see also id. at 5 (including an annotated reproduction of Figure 2 of Dotan). Referring to the Examiner’s annotated Figure 2 of Dotan, Appellant argues that “[t]he container support areas drawn by the Examiner on the Dotan bin do not ‘substantially completely’ occupy the base.” Appeal Br. 6 (emphasis omitted). In particular, Appellant asserts that “[t]he areas drawn by the Examiner in Dotan are spaced substantially away from the walls, leaving a substantial portion of the horizontal panel of the base unoccupied.” Id. Appellant also asserts that Dotan’s “vents are spaced away from the edges of the base, not ‘adjacent each side wall’ or ‘adjacent each end wall,’ as required by claim 1.” Id. at 7. We are not persuaded by Appellant’s argument because it insists upon an overly narrow reading of the language of claim 1, which does not exclude space between the container support areas and the side/end walls, nor between the vents and the side/end walls. Claim 1 recites that the container support areas “substantially completely” occupy the base panel, and the vents in the base panel are arranged in columns and rows “adjacent each side wall” and “adjacent each end wall.” Id. at 11, Claims App. In this regard, Appellant does not point to, nor do we discern, anything in the Specification that would necessitate an interpretation of “substantially completely” or “adjacent” as excluding space between the vented container support areas and the side/end walls. Rather, as pointed out by the Examiner (see 4 Appeal 2017-002389 Application 13/469,183 Ans. 2—3), Appellant’s Drawings appear to depict space between the vents and side/end walls (see, e.g., Spec., Figs. 1, 4, 5). The container support areas identified by the Examiner in the annotated Figure 2 of Dotan (see Final Act. 5) largely but not wholly occupy base 10, such that the container support areas are sufficiently “substantially completely occupying” the base, as recited in claim l.2 Moreover, Figures 2 and 7a—7e of Dotan show rows and columns of vents in base 10 nearby sides 12 and 14, such that the vents are sufficiently “adjacent each side wall” and “adjacent each end wall,” as recited in the claim.3 Thus, Appellant does not apprise us of error in the Examiner’s findings as to the disclosure of Dotan, which are supported by a preponderance of the evidence. Accordingly, we sustain the rejection of independent claim 1, and claims 4, 7, 8, 21, and 23 falling therewith, under 35 U.S.C. § 102(b) as anticipated by Dotan. 2 We note that an ordinary meaning of “substantial” is simply “largely but not wholly.” See Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). This ordinary meaning is consistent with the claim language and Appellant’s Specification, which does not recite the term “substantial,” and does not impart any special definition to compel a different, or narrower, construction of “substantially completely,” as recited in the claim. See Specpassim. 3 We note that an ordinary meaning of “adjacent” is simply “not distant” or “nearby.” See Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). This ordinary meaning is consistent with the claim language and Appellant’s Specification, which does not impart any special definition to compel a different, or narrower, construction of “adjacent,” as recited in the claim. See Spec. 38—39, 45. 5 Appeal 2017-002389 Application 13/469,183 Rejection II— Claims 15—18 as anticipated byApps In rejecting independent claim 15, the Examiner found that Apps discloses “a crate comprising a base (12); a pair of opposed side walls (22) extending upward from the base; [and] a pair of opposed end walls (20) extending upward from the base.” Final Act. 5—6. The Examiner also found that Apps discloses that “the side walls each include a lower panel portion on an inner surface of the side wall, the lower panel portion extending from one end wall to the other end wall.” Id. at 6; see also id. at 7 (including an annotated reproduction of Figure 1 of Apps). The Examiner explains that Apps’s “side walls are completely connected from one end wall to the other end wall.” Ans. 4. Referring to the Examiner’s annotated Figure 1 of Apps, Appellant argues that “the Examiner references small areas in the comer of the crate as the Tower panel portion,’” but “[t]hese areas do not extend from one end wall to the other end wall.” Appeal Br. 8. Appellant also asserts that “the entire length of the side wall cannot be the Tower panel portion’ because the claim says that the lower panel portion must be ‘on an inner surface of the side wall.’” Reply Br. 3. According to Appellant, “[t]he shaded portion of the side wall is ‘on an inner surface of the side wall’ but the rest of it is spaced outward from that, not ‘on an inner surface of the side wall.’” Id. We are not persuaded by Appellant’s argument. Apps’s Figure 1 clearly depicts side walls 22, 24 extending from end wall 18 to end wall 20. Each of side walls 22, 24 and end walls 18, 20 has inner and outer surfaces (i.e., any wall surface facing inward can be considered an “inner surface,” and any wall surface facing outward can be considered an “outer surface”). See Apps, Fig. 1. Further, the inner and outer surfaces of each wall include 6 Appeal 2017-002389 Application 13/469,183 portions that can be characterized as upper and lower relative to the upright orientation of the container (i.e., a lower portion near base 12 and an upper portion near the top edge of the walls). See id. As such, we are not convinced of a distinction between Apps’s side walls and the side walls recited in claim 15. In other words, Appellant does not apprise us of error in the Examiner’s findings as to the disclosure of Apps, which are supported by a preponderance of the evidence. Accordingly, we sustain the rejection of independent claim 15, and of dependent claims 16—18, for which Appellant does not present separate arguments, under 35 U.S.C. § 102(b) as anticipated by Apps. Rejection III— Claims 5 and 6 as unpatentable over Dotan and Cadiente In rejecting claim 5, which depends from independent claim 1, the Examiner acknowledged that Dotan does “not go into detail about the containers, both shape and orientation, that would be disposed within the crate.” Final Act. 8. However, the Examiner found that “Cadiente teaches a crate wherein a plurality of containers are disposed on the base, each of the containers being supported on the container support areas, and each container having a plurality of lower ventilation openings aligned with the vents of the respective container support area (Cadiente: Abstract).” Id. The Examiner concluded that, given the teachings of the prior art, it would have been obvious “to modify the crate of Dotan with the containers and aligned venting arrangements of Cadiente in order to obtain more efficient cooling of the individual containers (Cadiente: Abstract).” Id. Appellant argues that “Cadiente shows plastic clamshell containers in a crate,” but “does not teach vents in a clamshell container that are aligned 7 Appeal 2017-002389 Application 13/469,183 with vents in a base of a crate.” Appeal Br. 9. According to Appellant, “Cadiente does not disclose any vents in the base of the crate at all.” Id. We are not persuaded by this argument. As discussed above with respect to the rejection of base claim 1, the Examiner relied on Dotan for teaching vents in the base of the crate. See Final Act. 3. The Examiner relied on Cadiente for teaching the concept of placing containers in a crate in which vents in the crate are in alignment with vents in the containers. See id. at 8 (citing Cadiente, Abstract). In particular, Cadiente discloses that “trays are configured such that, when the baskets are loaded into the trays, the upper ventilation slots and the lower cooling channels are aligned with sets of cooling vents in the trays thereby facilitating efficient cooling of produce contained in the baskets.” Cadiente, Abstract (emphasis added); see also id. | 56. Although Cadiente may not specifically disclose that the tray’s cooling vents are in the base of the tray, Cadiente teaches the concept of aligning tray vents with container vents to improve cooling. In this regard, Appellant’s argument attacks Cadiente individually, which is insufficient to apprise us of error when the rejection is predicated upon a combination of prior art teachings (i.e., the combined teachings of Dotan and Cadiente). See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Appellant also argues that “it would not be obvious to put the plastic clamshell containers of Cadiente in the pallet bin of Dotan” because “[tjhey are much too small to be stored in the pallet bin.” Appeal Br. 9 In particular, Appellant asserts that Dotan “discloses a pallet bin, large enough to be lifted by a forklift (about 40”x48”) - - way too large to hold the Cadiente clamshell containers practically, let alone in a 3x3 array.” Id. We 8 Appeal 2017-002389 Application 13/469,183 are not persuaded by Appellant’s argument because it appears to rely on bodily incorporation of specific structural details of Cadiente into Dotan, which is not the standard for an obviousness determination. See In re Keller, 642 F.2d at 425. Although we appreciate Appellant’s observations that Cadiente discusses small containers for berries and Dotan describes a pallet sized crate, we do not understand the Examiner’s rejection to necessarily propose placing small-sized berry containers in a pallet-sized crate. As discussed above, the Examiner found that Cadiente discloses the concept of filling a crate with containers having vents that are in alignment with vents in the crate. See Final Act. 8 (citing Cadiente, Abstract). Further, as the Examiner points out, Cadiente discloses that the container/tray vent alignment concept is applicable to a wide range of package sizes and uses. Ans. 4 (citing Cadiente H 61, 67); see also Cadiente 161 (disclosing that “the principles set forth herein are also applicable to a wide range of produce package sizes and utilizations”). In this regard, Appellant’s contentions are insufficient to refute the Examiner’s conclusion that the claimed subject matter would have been obvious to one of ordinary skill in the art. Moreover, we note that “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416. “[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle” because “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” Id. at 420-21. Here, Appellant has not provided sufficient factual evidence or persuasive technical reasoning to explain why the combination of teachings applied in the rejection—namely, applying the 9 Appeal 2017-002389 Application 13/469,183 known container/crate vent alignment technique from Cadiente to Dotan’s base-vented crate—would yield anything other than a result that would have been predictable to one of ordinary skill in the art. After careful consideration of all the evidence, Appellant’s arguments do not apprise us of error in the Examiner’s findings or reasoning in support of the conclusion of obviousness. We sustain the rejection of claim 5, and its dependent claim 6, for which Appellant does not present separate arguments (see Appeal Br. 8—9), under 35 U.S.C. § 103(a) as being unpatentable over Dotan and Cadiente. Rejections IV and V— Claims 9—13, 20, and 21 as unpatentable over Dotan and one or more of Apps and Cadiente Appellant does not contest the Examiner’s rejections of claims 9—12, 13, 20, and 21 under 35 U.S.C. § 103(a). See Appeal Br. 1—9 (making no reference to the rejections of these claims, and presenting argument only with respect to the rejections of claims 1, 4—8, 14—18, and 23); Reply Br. 1—6. As such, we summarily sustain the rejections of claims 9, 13, 20, and 21 as unpatentable over Dotan and Apps, and of claims 10—12 as unpatentable over Dotan, Apps, and Cadiente. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that summary affirmance without consideration of the substantive merits is appropriate where an appellant fails to contest a ground of rejection). DECISION We AFFIRM the Examiner’s decision rejecting claims 1, 4, 7, 8, 14, and 23 under 35 U.S.C. § 102(b) as anticipated by Dotan. 10 Appeal 2017-002389 Application 13/469,183 We AFFIRM the Examiner’s decision rejecting claims 15—18 under 35 U.S.C. § 102(b) as anticipated by Apps. We AFFIRM the Examiner’s decision rejecting claims 5 and 6 under 35 U.S.C. § 103(a) as being unpatentable over Dotan and Cadiente. We AFFIRM the Examiner’s decision rejecting claims 9, 13, 20, and 21 under 35 U.S.C. § 103(a) as being unpatentable over Dotan and Apps. We AFFIRM the Examiner’s decision rejecting claims 10—12 under 35 U.S.C. § 103(a) as being unpatentable over Dotan, Apps, and Cadiente. 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 11 Copy with citationCopy as parenthetical citation