Ex Parte Coltri-Johnson

Patent Trial and Appeal Board

Jun 7, 2016

13613468 (P.T.A.B. Jun. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/613,468 09/13/2012 Andrea Coltri-Johnson
26158 7590 06/09/2016
WOMBLE CARLYLE SANDRIDGE & RICE, LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
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.
R029 12970US.Cl 2598
EXAMINER
TAWFIK, SAMEH
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
06/09/2016 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREA COLTRI-JOHNSON
Appeal2014-005349 1
Application 13/613,468
Technology Center 3700
Before JENNIFERD. BAHR, LINDAE. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Andrea Coltri-Johnson (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner's decision rejecting claims 1-7, 13, 15-19, and 21-
28.2 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 The present appeal is related to Appeal 2013-007812, decided July 24,
2015, in related Application 11/729,375.
2 Claims 8-12, 14, and 20 have been withdrawn from consideration and are
not before us in the present appeal.
Appeal2014-005349
Application 13/613,468
CLAIMEn SURJECT MATTER
Appellant's claimed subject matter relates to"[ c ]arrier packages ...
formed by wrapping a carrier blank around a group of containers." Spec.,
para. 3. Claim 1 is the sole independent claim on appeal and is reproduced
below.
1. A method of erecting a carrier package, comprising:
obtaining a blank;
forming a substantially tubular form from the blank, the
substantially tubular form having a first height and a first width;
and
loading containers into the substantially tubular form,
wherein the loading the containers into the substantially tubular
form causes the first height of the substantially tubular form to
decrease to a second height, and the first width to increase to a
second width.
EVIDENCE
The Examiner relied upon the following evidence:
Graser
Langen
us 4,508,258
us 4,936,077
REJECTION3
Apr. 2, 1985
June 26, 1990
Appellant appeals from the Final Action, dated July 25, 2013, in
which the Examiner rejected claims 1-7, 13, 15-19, and 21-28 under
35 U.S.C. § 103(a) as unpatentable over Langen and Graser.
3 The Examiner withdrew a rejection of claims 1-7 and 15-17 under
35 U.S.C. § 102(a) as anticipated by Graser and a rejection of claims 13, 18,
19, and 21-28 under 35 U.S.C. § 103(a) as unpatentable over Graser and
Langen. Ans. 2.
2
Appeal2014-005349
Application 13/613,468
ANALYSIS
The Examiner found that Langen discloses a method of erecting a
carrier package that includes loading containers into a blank having a
substantially tubular form. Final Act. 5 (citing Langen, Figs. 1, 2). The
Examiner found that Langen does not disclose obtaining a blank, forming
the blank into a substantially tubular form, or that the "loading step causes a
first height of the tubular form to decrease and a first width to increase." Id.
at 6. However, the Examiner found that:
Graser discloses a similar method with the steps of obtaining a
blank (Figs. 5 and 6), form[ing] ... [a] tubular form from the
blank (Figs. 2--4 ), [wherein the] loading step causes a first height
of the tubular form to decrease and a first width to increase, see
for example (Fig. 2, via sloped/curved [end panels] 142 and 150;
and/or column 1, lines 50-57[,] "the dust flaps can be revolved
during the filling operation", by adjusting and revolving the flaps
an adjustment[] will take place to the tubular form). Note, Fig. 2
clearly show[ s] [a] decrease in the height while showing [an]
increase in the width via curved/slopped [sic] [end panels] 142
and 150.
Id. at 6-7. The Examiner determined that it would have been obvious to
modify the method of Langen to include the steps of obtaining a blank,
forming the blank into a tubular form, and loading the containers into the
tubular form such that height of the tubular form decreases and the width of
the tubular form increases "in order to come up with an improved loading
step via adjusting a carton to easily accommodate containers." Id. at 7.
Appellant argues, inter alia, that "Graser does not disclose that
inserting cans and bottles, respectively, into the cartons 10, 116 changes the
height or width of the respective carton" and that "Graser completely lacks
any showing or suggestion of loading containers into a substantially tubular
form causing the first height to decrease and the first width to increase."
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Appeal2014-005349
Application 13/613,468
Appeal Rr. 8. In particular, Appellant asserts that the Examiner "has not
provided any support for the assertion that Graser discloses that the height
of the carton 116 decreases." Id. at 9. According to Appellant, Graser's
"end panels 142, 150 are closed after the carton is filled, [and thus] the
position of the end panels 142, 150 at the end of the carton is not caused by
the loading of the bottles." Id. (citing Graser, col. 6, 11. 38--40).
The Examiner responds that "having the cans [i]n the carton will
[a]ffect the dimensions of the carton, as clearly shown in Fig. 2, via [end
panels] 142 and 150 [which are] capable of making the carton adjustable in
height and width based on the loaded cans." Ans. 5---6. The Examiner
maintains that Graser's end panels 142, 150 "are capable of being adjusted
which will affect the height and width of the carton based on the size and
shape of the loaded and/or packed cans." Id. at 6-7.
We agree with Appellant that the Examiner has not provided
sufficient evidence to support a finding that loading Graser's tubular form
causes the height of the tubular form to decrease and the width to increase,
as required by the method claims. The Examiner's assertion that end panels
142, 152 of Graser are capable of adjusting the height and width of the
carrier (id. at 5---6) considers only the structure of Graser's tubular form,
without addressing the claimed step of loading containers into the tubular
form to cause the tubular form height and width to change. Even assuming
that the Examiner's position that adjusting Graser's end panels 142, 150
would change the height and width of the tubular form, the Examiner has not
adequately established that any such purported change in dimensions is
causally connected to a step of loading the containers as claimed. Rather,
the Examiner concedes that end panels 142, 150 of Graser are closed after
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Appeal2014-005349
Application 13/613,468
loading the containers into the tubular form. Id. at 5. Therefore, \Ve find
persuasive Appellant's argument that, "[i]f the bottles are already loaded in
the carton before the supposed change in height and width of the carton ... ,
then the supposed change in height and width of the carton is not caused by
the loading." Reply Br. 3 (emphasis added).
Accordingly, we do not find by a preponderance of the evidence that
Graser discloses "loading containers into the substantially tubular fonn,
wherein the loading the containers into the substantially tubular form causes
the first height of the substantially tubular form to decrease to a second
height, and the first width to increase to a second width," as required by
Appellant's claims. For these reasons, we do not sustain the Examiner's
rejection of claims 1-7, 13, 15-19, and 21-28 under 35 U.S.C. § 103(a) as
unpatentable over Langen and Graser.
DECISION
The decision of the Examiner to reject claims 1-7, 13, 15-19, and 21-
28 is REVERSED.
REVERSED
5