Ex Parte Choi et alDownload PDFPatent Trial and Appeal BoardJun 25, 201311588476 (P.T.A.B. Jun. 25, 2013) 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. 11/588,476 10/26/2006 Robert Choi KRN 330A 1895 78569 7590 06/26/2013 DASCENZO Intellectual Property Law, P.C. 1000 SW Broadway, Suite 1555 Portland, OR 97205 EXAMINER BRADEN, SHAWN M ART UNIT PAPER NUMBER 3728 MAIL DATE DELIVERY MODE 06/26/2013 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 ROBERT CHOI, BARLEY A. FORSMAN, and JEREMY GALTEN ____________ Appeal 2011-006137 Application 11/588,476 Technology Center 3700 ____________ Before JOHN C. KERINS, NEIL T. POWELL, and JILL D. HILL, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-006137 Application 11/588,476 2 STATEMENT OF THE CASE Robert Choi, Barley A. Forsman, and Jeremy Galten (Appellants) appeal under 35 U.S.C. § 134 from a final rejection of claims 1-9 and 12-31. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER The claimed subject matter relates “to drink bottles with bite-actuated mouthpieces.” Spec., p. 1, ll. 10-11. Claim 1 illustrates the subject matter on appeal and is reproduced below with disputed claim limitations emphasized. 1. A drink container, comprising: a rigid fluid container having a fluid container base adapted to support the fluid container in an upright configuration, wherein the fluid container further includes a neck with an opening and a wall structure extending between the neck and the fluid container base; wherein the fluid container defines an internal compartment sized to hold a volume of potable drink fluid; a cap assembly removably coupled to the fluid container to cover the opening, the cap assembly comprising: a cap assembly base removably coupled to the neck of the fluid container; a drink spout extending in a fixed orientation relative to the cap assembly base and having an outlet, wherein the drink spout defines at least a portion of a fluid conduit for drink fluid to flow from the fluid container through the drink spout; and a self-sealing bite-actuated mouthpiece fluidly coupled to the drink spout and including a sealable opening through which drink fluid may be selectively Appeal 2011-006137 Application 11/588,476 3 dispensed from the fluid container to a user, wherein the mouthpiece is selectively configured between a closed configuration, in which the mouthpiece is adapted to prevent drink fluid from being dispensed therethrough, and a dispensing configuration, in which the mouthpiece is adapted to permit drink fluid to be dispensed therethrough, wherein the mouthpiece is adapted to be configured from the closed configuration to the dispensing configuration responsive to compressive forces applied thereto, and further wherein the mouthpiece is biased to automatically return from the dispensing configuration to the closed configuration. EVIDENCE The Examiner relies on the following evidence: Randolph US 2003/0218015 A1 Nov. 27, 2003 Chen US 2004/0069783 A1 Apr. 15, 2004 Viggiano US 7,032,764 B2 Apr. 25, 2006 REJECTIONS Claims 1, 4-9, 12-15, and 23-25 stand rejected under 35 U.S.C. § 102(a) and § 102(e) as anticipated by Viggiano (Ans. 4-7); claims 2, 3, and 26-31 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Viggiano (Ans. 7-8 and 10-11); claims 16-19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Viggiano and Randolph (Ans. 8); and claims 20 and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Viggiano and Chen (Ans. 9). Appeal 2011-006137 Application 11/588,476 4 ANALYSIS Claims 1-9 and 11-25 Regarding independent claim 1, the Examiner finds that the nipple 115 of Viggiano is a self-sealing bite-actuated mouthpiece “fluidly coupled to the drink spout and including a sealable opening (140) through which drink fluid may be selectively dispensed,” and wherein the mouthpiece is selectively configured between a closed configuration, in which the mouthpiece is adapted to prevent drink fluid from being dispensed there through, and a dispensing configuration, in which the mouthpiece is adapted to permit drink fluid to be dispensed there through, wherein the mouthpiece is adapted to be configured from the closed configuration to the dispensing configuration responsive to compressive forces applied thereto, and further wherein the mouthpiece is biased to automatically return from the dispensing configuration to the closed configuration. Ans. 4. The Examiner bases this finding on the fact that nipples are opened by the pressure from a user’s mouth, and closed when not in use, which is supported by a statement in the background section of Viggiano that the nipple “opening is biased into a normally closed position, restricting fluid from exiting the bottle. When an infant sucks on the nipple, the negative pressure created urges fluid from the container . . . out of the opening.” Id.; Viggiano, col. 1, ll. 17-21. Appellants argue that, because reference to a closed position of the nipple and negative pressure from an infant’s mouth is found in the background section of Viggiano, it does not apply to the nipple 115 of Viggiano. App. Br. 13. We disagree, because Appellants have provided no reasoning why Viggiano’s discussion of how nipples generally work does not apply to Viggiano’s own nipple 115. Appeal 2011-006137 Application 11/588,476 5 Appellants also argue that even if Viggiano’s background mentions a nipple opening being biased to a normally closed position, Viggiano does not teach its nipple 115 changing from a closed configuration to a dispensing configuration in response to a compressive force applied to the nipple. App. Br. 13-14. Appellants argue that baby bottle nipples do not change from a closed to a dispensing configuration based on a compressive force, but rather dispense fluid based on a pressure differential between the baby’s mouth and the internal volume of the baby bottle, and that a baby’s mouth would expand (stretch) rather than compress the nipple to release milk when sucking. App. Br. 14. The Examiner responds that the baby’s mouth creating a seal on a nipple necessary for the pressure differential requires a compressive force on the nipple, that negative pressure needs to be created inside the bottle to remove fluid from the bottle, and that such negative pressure is a compressive force as claimed. Ans. 11-12. Regardless of whether a baby creating a seal on a nipple during sucking is a compressive force, the Examiner still has not shown that such compression in Viggiano would cause the nipple to change from a closed configuration to a dispensing configuration as recited in claim 1. Mere mention in the background of a nipple opening being biased into a normally closed position and negative pressure urging fluid from the container does not anticipate a change from a closed configuration to a dispensing configuration upon application of a compressive force. The Examiner has not explained what such closed and dispensing configurations would be, or how compression would move the nipple from one to the other, the Examiner has only tied compressive force to the end result of fluid Appeal 2011-006137 Application 11/588,476 6 extraction. We therefore do not sustain the rejection of claim 1 as anticipated by Viggiano. Because claims 2-9 and 11-25 depend from claim 1, and because the Examiner’s findings relative to these claims in their respective rejections do not cure the deficiency noted above, we do not sustain the rejections of claims 2-9 and 11-25 for the same reason. Claims 26-31 Independent claim 26 includes many limitations similar to those of independent claim 1, including the limitation of the self-sealing, bite- actuated mouthpiece configured to change from a closed to a dispensing configuration in response to compressive forces. Clms. App’x. Appellants make at least the same arguments for claim 26 that were made for claim 1, including arguing that baby bottle nipples do not change from a closed to a dispensing configuration based on a compressive force, but rather dispense fluid based on a pressure differential between the baby’s mouth and the internal volume of the baby bottle, and that a baby’s mouth would expand (stretch) rather than compress the nipple to release milk when sucking. App. Br. 21-22. For the reasons set forth above, we agree with Appellants that Viggiano does not teach or suggest compression causing the nipple to change from a closed configuration to a dispensing configuration as recited in claim 26. We therefore do not sustain the rejection of claim 26. Because claims 27-31 depend from claim 26, and because the Examiner’s findings relative to these claims in their respective rejections do not cure the deficiency noted above, we do not sustain the rejection of claims 27-31 for at least the same reason. Appeal 2011-006137 Application 11/588,476 7 DECISION We REVERSE the rejection of claims 1, 4-9, 12-15, and 22-25 under 35 U.S.C. § 102(a) and § 102(e) as anticipated by Viggiano. We REVERSE the rejection of claims 2, 3, and 26-31 under 35 U.S.C. § 103(a) as unpatentable over Viggiano. We REVERSE the rejection of claims 16-19 under 35 U.S.C. § 103(a) as unpatentable over Viggiano and Randolph. We REVERSE the rejection of claims 20 and 21 under 35 U.S.C. § 103(a) as unpatentable over Viggiano and Chen. REVERSED hh Copy with citationCopy as parenthetical citation