Ex Parte Davies et alDownload PDFPatent Trial and Appeal BoardMar 15, 201713479962 (P.T.A.B. Mar. 15, 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. 13/479,962 05/24/2012 JEFF DAVIES KRN 356A 8853 139868 7590 03/15/2017 DASCENZO Intellectual Property Law, P.C. 1000 SW Broadway, Suite 1555 Portland, OR 97205 EXAMINER POON, ROBERT ART UNIT PAPER NUMBER 3788 MAIL DATE DELIVERY MODE 03/15/2017 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 JEFF DAVIES and DEREK GAVIN SULLIVAN1 __________ Appeal 2014-007854 Application 13/479,962 Technology Center 3700 __________ Before JAMES P. CALVE, BRANDON J. WARNER, and AMANDA F. WIEKER, Administrative Patent Judges. WIEKER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Jeff Davies and Derek Gavin Sullivan (“Appellants”) appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 2, 5–18, 20, and 21.2 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellants, the Real Party in Interest is CamelBak Products, LLC. Appeal Br. 1 (filed Jan. 7, 2014). 2 The Examiner indicated that claims 3, 4, and 19 contain allowable subject matter. Final Act. 13 (mailed Aug. 30, 2013). Appeal 2014-007854 Application 13/479,962 2 CLAIMED SUBJECT MATTER The invention concerns “drink containers with mouthpiece assemblies that have a dispensing configuration and a stowed configuration.” Spec. 1:9–10. Claim 1 is illustrative of the subject matter on appeal, and recites: 1. A drink container, comprising: a liquid container having a neck with an opening and having an internal compartment sized to hold a volume of potable drink liquid; and a cap assembly removably coupled to the liquid container, the cap assembly comprising: a base removably coupled to the neck of the liquid container and including a through-passage; a first catch structure; a mouthpiece assembly extending through the through-passage of the base and defining a liquid passage through which drink liquid from the liquid container may selectively flow, and further defining an inlet through which drink liquid in the internal compartment may enter the liquid passage and an outlet through which drink liquid from the internal compartment of the liquid container is selectively dispensed, wherein the mouthpiece assembly is configured to be selectively configured between a dispensing configuration, in which the liquid passage permits drink liquid to flow from the internal compartment at least into the liquid passage, and a stowed configuration, in which the liquid passage restricts the flow of drink liquid through the liquid passage, wherein the mouthpiece assembly is biased to the dispensing configuration, and wherein the mouthpiece assembly comprises: a mouthpiece portion that includes the outlet; a tube that defines at least a portion of the liquid passage for drink liquid to flow from the internal compartment to the mouthpiece portion, wherein the tube includes a crimping region constructed of a resiliently Appeal 2014-007854 Application 13/479,962 3 deformable material and is adapted to restrict the flow of drink liquid through the liquid passage when the mouthpiece assembly is in the stowed configuration, and wherein the mouthpiece portion and the tube are constructed as a unitary assembly of the resiliently deformable material; an anchor portion extending from the tube distal the mouthpiece portion, wherein the anchor portion is sized to restrict passage of the anchor portion through the through-passage of the base of the cap assembly; and a second catch structure adapted to be selectively engaged with the first catch structure to retain the mouthpiece assembly in the stowed configuration; and a user release mechanism adapted to automatically disengage the first and second catch structures upon actuation of the user release mechanism and thereby release the mouthpiece assembly to move via its bias from the stowed configuration to the dispensing configuration. Appeal Br. (Claims App. 1–2) (emphasis added). REJECTIONS The claims stand rejected as follows: I. Claims 1, 2, 5–9, 16, 17, and 21 under 35 U.S.C. § 103(a) as unpatentable over Choi3 and either Lee4 or Rossbach.5 II. Claims 10–14 under 35 U.S.C. § 103(a) as unpatentable over Choi, Lee, and Wang.6 3 US 2007/0039959 A1, pub. Feb. 22, 2007. 4 US 6,745,949 B2, iss. June 8, 2004. 5 US 5,273,172, iss. Dec. 28, 1993. 6 US 5,337,918, iss. Aug. 16, 1994. Appeal 2014-007854 Application 13/479,962 4 III. Claim 15 under 35 U.S.C. § 103(a) as unpatentable over Choi, Lee, and Lin.7 IV. Claims 18 and 20 under 35 U.S.C. § 103(a) as unpatentable over Choi, Lee, Rossbach, Wang, and Lin. ANALYSIS Rejection I Independent claim 1 requires, inter alia, “an anchor portion extending from the tube distal the mouthpiece portion, wherein the anchor portion is sized to restrict passage of the anchor portion through the through-passage of the base of the cap assembly.” Appeal Br. (Claims App. 1–2). Independent claim 21 includes a substantially identical limitation. Id. at (Claims App. 11). The Examiner finds that Choi discloses drink container 10 comprising liquid container 12, which has mouthpiece portion 72 and anchor portion 182. Final Act. 2–3, 14; Ans. 3 (mailed May 12, 2014). With respect to the claim language requiring the anchor portion be “sized to restrict passage of the anchor portion through the through-passage of the base of the cap assembly,” the Examiner finds that [i]ntended use limitations such as “sized to restrict” are given little patentable weight and as long as the anchor portion has a size, it is capable of restricting passage since the term “restrict” by definition means to limit and therefore examiner believes that anchor portion (182) has a size which can limit the passage of the anchor portion (182) through the through-passage (outlet 104) of the base (70) of the cap assembly. 7 US 5,582,320, iss. Dec. 10, 1996. Appeal 2014-007854 Application 13/479,962 5 Ans. 13 (emphasis added), 14 (“[I]f the anchor portion (mount 182) has a size, then it is capable of restricting or limiting passage.”). Among other arguments, Appellants contend that Choi describes structure 182 as “a ‘mount’ for removably or permanently coupling a straw 180, which is separate from the mouthpiece 72 of Choi and extends only from the underside of the cap into the drink container.” Appeal Br. 17–18; see also id at 18–19 (discussing Choi, Figs. 26, 29). Appellants argue that “Choi simply does not disclose that mount 182 . . . functionally restricts removal of a mouthpiece assembly through a through-passage defined in the base of the cap assembly.” Id. at 18; Reply Br. 2–3 (filed July 11, 2014). With respect to the Examiner’s interpretation of the claim language “sized to restrict,” Appellants argue that this language is not merely “intended use,” as the Examiner alleges, but rather presents “structural features of the anchor portion” regarding its size and shape, and which “associates the physical interrelation between the anchor portion and the passage.” Reply Br. 2 (emphasis omitted). Appellants also contend that the Examiner is incorrect in finding that “anything with a size may restrict a passage . . . because something that is sized and shaped smaller than a through-passage obviously will not restrict passage therethrough.” Id. at 3. We agree with Appellants. The “sized to restrict” language of claims 1 and 21 is not a statement of intended use. To the contrary, this language positively limits the structure of the claims to a structure in which an anchor portion has a size that functionally acts to restrict, or limit, passage of the anchor portion through the claimed through-passage. Accordingly, the Examiner’s finding that an anchor portion with any size is capable of Appeal 2014-007854 Application 13/479,962 6 restricting passage is unreasonable. Every structure has a size, but not all structures are capable of performing the claimed functional requirement of restricting passage of the anchor portion through the through-passage of the base of the cap assembly. Ans. 13–14. As Appellants correctly note, for example, an anchor portion that is smaller than the through-passage will not function to restrict passage therethrough. Reply Br. 3. In this case, the Examiner provides insufficient findings regarding the relative sizes of Choi’s “anchor portion” 182 and through-passage 104 from which we could find that element 182 is sized to restrict passage through opening 104. Choi does not discuss the relative sizing or the claimed functional requirement. Choi describes element 182 as an optional “mount” for securing straw 180, but does not describe its size, shape, structure, or function, including whether it restricts passage through the through-passage, in any specific way. Choi ¶¶ 72, 83, Figs. 9, 26–29. Therefore, there is no reasonable basis upon which to find that Choi’s element 182 is capable of functioning as claimed. The Examiner’s reliance on either Lee or Rossbach does not cure the deficiency noted above. See Final Act. 4. Therefore, for at least these reasons, we reverse the Examiner’s rejection of claims 1 and 21 as unpatentable over Choi and either Lee or Rossbach. The Examiner’s rejection of dependent claims 2, 5–9, 16, and 17 is also reversed, as it incorporates the deficiency discussed above. Rejection II The Examiner rejects claims 10–14, which depend ultimately from claim 1, as unpatentable over Choi, Lee, and Wang. The Examiner’s Appeal 2014-007854 Application 13/479,962 7 reliance on Wang does not cure the deficiency noted above, with respect to independent claim 1. See Final Act. 6–7. Therefore, for at least these reasons, we reverse the Examiner’s rejection of claims 10–14 as unpatentable over Choi, Lee, and Wang. Rejections III and IV Claim 15 further limits the anchor portion of claim 1 to include “a plurality of flanges that are sized and shaped to provide a friction-fit arrangement with the through-passage.” Appeal Br. (Claims App. 6). The Examiner rejects claim 15 as unpatentable over Choi, Lee, and Lin. Final Act. 7. Claim 18 recites an anchor portion having “a plurality of flanges that are sized and shaped to provide a friction-fit arrangement with the through- passage and to restrict passage of the anchor portion through the through- passage.” Appeal Br. (Claims App. 8). The Examiner rejects independent claim 18, and its dependent claim 20, as unpatentable over Choi, Lee, Rossbach, Wang, and Lin. Final Act. 8–13. With respect to both rejections, the Examiner finds that Choi teaches an anchor portion 182. Final Act. 2–3 (claim 1), 7 (claim 15), 9 (claim 18). The Examiner finds that Choi does not disclose a plurality of flanges on the anchor portion, and relies on Lin for such a disclosure, wherein Lin discloses a beverage dispenser with “anchor portion (51)” and “flanges (512).” Id. at 7 (claim 15), 12–13 (claim 18). The Examiner concludes that it would have been obvious to incorporate Lin’s flanges into Choi’s anchor portion to prevent leakage. Id. at 7 (claim 15), 13 (claim 18). Appeal 2014-007854 Application 13/479,962 8 Appellants contend that Choi fails to disclose the claimed anchor portion, as discussed with respect to claim 1. Appeal Br. 27. Appellants further argue that Lin’s flanges do not cure the defects in Choi because the lower of Lin’s two flanges 512 “is disclosed as being configured to permit passage of the lower flange through the through hole 35 so that the two flanges fit on either side of the through hole.” Id. at 28 (citing Lin, 2:65– 3:4) (emphasis omitted). Therefore, Appellants contend that “the flanges 512 of Lin cannot fairly be interpreted as comprising an anchor . . . [whose] flanges ‘are sized and shaped to provide a friction-fit arrangement with the through-passage and to restrict passage of the anchor portion through the through-passage of the base of the cap assembly,’” as claimed. Id. (emphasis omitted); see also id. at 29–30 (discussing claim 15). We agree with Appellants. As discussed above, Choi does not disclose an anchor portion as claimed. Lin does not remedy this defect because, although Lin teaches a plurality of flanges, Lin does not teach flanges that restrict passage of an anchor portion through a through-passage. Indeed, Lin’s lower flange is expressly configured to permit passage through the through-passage. Lin, 2:65–3:4. Further, the Examiner’s purported reasoning for incorporating Lin’s flanges into Choi’s structure lacks rational underpinning, as Choi does not articulate a “leakage” problem, and Lin does not associate the prevention of leakage with the inclusion of flanges. Lin, Abstract, 4:14–35. DECISION The Examiner’s decision to reject claims 1, 2, 5–18, 20, and 21 is REVERSED. Appeal 2014-007854 Application 13/479,962 9 REVERSED Copy with citationCopy as parenthetical citation