Ex Parte Ehmer et alDownload PDFPatent Trial and Appeal BoardNov 15, 201712921491 (P.T.A.B. Nov. 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. 12/921,491 09/08/2010 Wilfried Ehmer 40047-007US1 3285 69713 7590 11/17/2017 OCCHIUTI & ROHLICEK LLP 321 Summer St. Boston, MA 02210 EXAMINER KIRSCH, ANDREW THOMAS ART UNIT PAPER NUMBER 3781 NOTIFICATION DATE DELIVERY MODE 11/17/2017 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): INFO @ORP ATENT.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILFRIED EHMER and ALOIS MONZEL Appeal 2015-004837 Application 12/921,491 Technology Center 3700 Before EDWARD A. BROWN, LYNNE H. BROWNE, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Wilfried Ehmer and Alois Monzel (“Appellants”)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—20, which are all the pending claims. Appeal Br. 1. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). An oral hearing was held on July 6, 2017. We AFFIRM-IN-PART. 1 According to Appellants, the real party in interest is KHS GmbH. Appeal Br. 1. Appeal 2015-004837 Application 12/921,491 CLAIMED SUBJECT MATTER Appellants’ disclosed invention “relates to a closure for beverage containers having a substantially cylindrical neck with an end opening and a closure cap.” Spec., p. 1,11. 12—14. Claim 1, reproduced below, is the sole independent claim appealed and is representative of the subject matter on appeal. 1. A closure for kegs having a substantially cylindrical neck with an end opening and a closure cap, wherein the neck has an inside circumferential detent collar and wherein the closure cap has an insertion shaft, an opening for receiving an extraction valve, and a circumferential detent groove provided on an outer circumference thereof, the detent groove corresponding to the detent collar and being profiled in a direction of insertion, wherein the detent groove engages over the detent collar on a ring surface thereof that lies in the direction of insertion. EVIDENCE The Examiner relied on the following evidence in rejecting the claims appeal: Clark US 4,497,758 Feb. 5, 1985 Lemme US 5,031,785 July 16, 1991 Arnold US 5,680,954 Oct. 28, 1997 REJECTIONS The following rejections are before us for review: I. Claims 1, 2, 5—8, 12, 15, 18, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Clark and Lemme. Final Act. 3—7. 2 Appeal 2015-004837 Application 12/921,491 II. Claims 3, 4, 9-11, 13, 14, 16, 17, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Clark, Lemme, and Arnold. Id. at 7—9. ANALYSIS Rejection I— Claims 1, 2, 5—8, 12, 15, 18, and 19 as unpatentable over Clark and Lemme Claim 1 The Examiner determines that a combination of teachings from Clark and Lemme renders obvious the closure recited in independent claim 1. See Final Act. 3—5 (including annotated reproductions of Figures 2 and 4 from Clark). Appellants argue that the rejection is deficient because of asserted deficiencies with respect to Clark. See Appeal Br. 2—12; Reply Br. 1—13. After careful consideration of the record before us, Appellants’ arguments do not apprise us of error in the Examiner’s factual findings from Clark or Lemme, which are supported by a preponderance of the evidence, or the Examiner’s reasonable conclusion of obviousness, which is rationally articulated based on prior art teachings. In short, we sustain the Examiner’s rejection of claim 1 based on the reasoned position set forth therein and in light of the Examiner’s responses to Appellants’ arguments. See Final Act. 3—5; Ans. 9-12. We address Appellants’ principal assertions below as a matter of emphasis. Appellants assert that Clark does not disclose a neck that includes an “inside circumferential detent collar,” as recited in the claim. See Appeal Br. 2—6; Reply Br. 1—7 (emphasis added). This assertion is premised on Appellants’ contention that inclusion of the adjective “inside” requires 3 Appeal 2015-004837 Application 12/921,491 disposition of the collar to be constrained both axially and radially to be spaced away from respective outer edges of the neck. See Appeal Br. 2—6. Such a contention is misplaced, however, as the recitation in the claim is not so limiting. Rather, the Examiner’s interpretation that the claimed collar need only be disposed radially “inside” the neck—although broader than Appellants’ proffered interpretation—is reasonable. See Ans. 9-10. Given such an interpretation, the Examiner’s finding from Clark is supported by a preponderance of the evidence. See Final Act. 3^4; Ans. 9-10 (including an annotated reproduction of Figure 4 from Clark).2 Thus, Appellants’ assertion is unpersuasive of error. Appellants also assert that Clark does not disclose a circumferential detent groove that is “profiled in a direction of insertion,” as recited in the claim. See Appeal Br. 6—9; Reply Br. 8—10. In support of this assertion, Appellants allege that there is a distinction between Clark’s flange 46 and the corresponding structure (element 6) depicted in their drawings.3 See 2 The identified collar 20 from Clark “is considered at least radially inside of the neck, and does not protrude in any upward or outward direction therefrom.” Ans. 10. In other words, from at least a radial perspective, the collar is disposed “inside” rather than “outside” of the neck. The plain language of the claim requires no more than this. 3 We question whether Appellants’ element 6 is properly identified as a “groove” within the ordinary meaning of the term, particularly in light of another recited groove (namely, the “retaining and/or guiding groove” of claims 6 and 15—18, discussed infra). See Ans. 10; Record of Oral Hearing, p. 7,1. 4 — p. 10,1. 8 (discussing whether this limitation could be made more clear). Nevertheless, the Examiner’s finding that the applicable “profiled” structure disclosed in Appellants’ Figures 1—5 is substantially the same as that disclosed in Clark’s Figure 2, regardless of the label applied to such shaped structure, is supported by a preponderance of the evidence. Thus, even with the present claim language, the rejection can be considered for 4 Appeal 2015-004837 Application 12/921,491 Appeal Br. 6—9; Figs. 1—5 (depicting profiled “groove” 6). However, we agree with the Examiner that there is no meaningful distinction between these identified structures, at least insofar as the downward faces thereof (those surfaces in the “direction of insertion”) are concerned—both lower surfaces taper inwardly, thereby facilitating insertion of the structure into the neck and past the collar.* * * 4 See Ans. 10-11; Final Act. 4 (including an annotated reproduction of Figure 2 from Clark); see also Figs. 1—5 (depicting the lower surface of element 6 tapering inwardly, either along a curve or a straight line). Thus, Appellants’ assertion is unpersuasive of error. Further, Appellants allege that the Examiner’s proposed modification to Clark would change its principle of operation or render it unsuitable for its intended function. See Appeal Br. 9-12. However, Appellants do not provide factual evidence or persuasive technical reasoning to explain why the proposed combination of teachings would change the basic principles of Clark’s closure, render it unsuitable for a removal function, or yield anything other than a result that would have been predictable to one of ordinary skill in the art. See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The appellate review herein. We leave it to Appellants and the Examiner to work out any clarifying revisions to the claim language should there be further prosecution of this application upon return of jurisdiction to the Examiner. 4 A review of Clark’s Figure 2 compared with Appellants’ Figures 1—5 indicates that Clark’s surface 48 of element 46 is beveled or tapered in the same direction and manner as the corresponding surface of Appellants’ element 6, albeit possibly at a shallower angle, though such a detail of construction is unclaimed and cannot be inferred from an undefined recitation that the groove is simply “profiled” in certain direction. 5 Appeal 2015-004837 Application 12/921,491 combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). As the Examiner logically explains, “Clark is originally a container with a closure which can be removed for the pouring of its contents,” and the modification of “[ajdding an extraction valve as taught by Lemme would not prevent a user from removing the closure and pouring its contents.” Ans. 11 (emphasis omitted); see id. at 11—12 (explaining that the addition of a further extraction capability does not diminish the original functionality of Clark’s closure). Thus, Appellants’ assertion is unpersuasive of error. We note that any other arguments not specifically addressed in detail herein have been considered by the panel but are not persuasive for the reasons discussed supra and those expressed in the Examiner’s Answer. Accordingly, we sustain the rejection of independent claim 1. Claim 2 Appellants argue that the rejection does not sufficiently identify structure constituting the recited “closure cap ha[ving] a circumferential support and/or guide ring that engages over an outside of the neck,” asserting that Clark’s flange 20 is already relied on as constituting the recited collar. Appeal Br. 12. This is unpersuasive of error, as the rejection specifically relies on Clark’s element 52 (not flange 20) as meeting this claim limitation. Final Act. 5; Ans. 12. The finding regarding Clark’s element 52 is undisputed. Accordingly, we sustain the rejection of claim 2. 6 Appeal 2015-004837 Application 12/921,491 Claims 5 and 12 With respect to the rejection of claims 5 and 12, which depend from claims 1 and 2, respectively, Appellants do not set forth any additional substantive arguments separate from the arguments discussed supra with respect to the base claims. Thus, for the same reasons, we likewise sustain the rejection of claims 5 and 12. Claims 6, 15, and 18 Each of claims 6, 15, and 18, depending from claims 1, 2, and 5, respectively, recites that the closure further includes “a circumferential retaining and/or guiding groove on an outside of the neck.” Appeal Br., Claims App. (emphasis added). The Examiner relies on an angled intersection between surfaces of Clark’s neck 16 and flange 18 to meet this limitation. Final Act. 6 (referencing the annotated reproduction of Figure 4 from Clark on Final Act. 4); Ans. 12 (explaining a position that Appellants “ha[ve] not claimed any specific angle, contour, or orientation requirements for the groove that would prevent” such a broad interpretation). Appellants argue that the Examiner’s broad interpretation of this limitation, particularly in light of the Specification, is unreasonable. See Appeal Br. 12—14; Reply Br. 13—16. We agree. Although we appreciate the Examiner’s observation that the limitation lacks much detailed specificity, the recited “groove” must nonetheless comport with a plain meaning of the term, such as “a long narrow channel or depression,” disposed on or recessed from another surface. See Merriam- Webster’s Collegiate Dictionary (11th ed. 2003); see also Fig. 3 (depicting groove 13 fitting such a plain meaning). As Appellants explain, the 7 Appeal 2015-004837 Application 12/921,491 Examiner’s interpretation does not comport with such a plain meaning. See Appeal Br. 13—14 (noting that the Examiner’s interpretation would eliminate any difference between the embodiments depicted in Figure 2 (disclosed as including support ring 10, which intersects neck 2, but not including any “groove”) and Figure 3 (disclosed as including retaining and/or guiding groove 13)). Moreover, we note that the Examiner’s interpretation does not account for such a “groove” (an angled intersection of surfaces) being “on” an outside of the neck, as claimed, since the Examiner’s “groove” at least partly includes the surface of the neck. In short, based on an unreasonably broad interpretation of the claim limitation, the Examiner has not established a finding supported by a preponderance of the evidence that Clark, as relied on in the rejection, includes “a circumferential retaining and/or guiding groove on an outside of the neck,” as recited in the claims. Accordingly, we do not sustain the rejection of claims 6, 15, and 18. Claims 7, 8, and 19 Each of claims 7 and 19, depending from claims 1 and 2, respectively, recites that the closure further includes, in addition to the elements of the base claims, “a circumferential support ring on an inside of the neck.” Appeal Br., Claims App. Claim 8 depends from claim 7 and thus includes the same limitation. See id. The Examiner relies on an inner surface of opening 22 of Clark’s flange 20 to meet this limitation. Final Act. 6—7; Ans. 13 (clarifying that “[t]he wall surface of 20 which defines the hole at 22 is considered to be a surface that meets the limitations of the claim(s)”); see 8 Appeal 2015-004837 Application 12/921,491 also Final Act. 4 (including the annotated reproduction of Figure 4 from Clark, depicting the elements relied upon). Appellants argue that the Examiner’s reliance on this identified structure is improper because Clark’s flange 20, including inner wall surface 22, is already being relied upon to meet the limitation of the “inside circumferential detent collar” of the base claims, and therefore cannot also be considered the additional element of the inside support ring. See Appeal Br. 14—15; Reply Br. 16. We agree. From Appellants’ disclosure, in light of which the claims must be interpreted, it is clear that the “circumferential support ring on an inside of the neck” recited in claims 7 and 19 is a different, and additional, structural element relative to the “inside circumferential detent collar” recited in base claim 1. See, e.g., Fig. 5 (depicting inside support ring 14 as being different, additional to, and axially spaced from, inside detent collar 4). Based on a proper interpretation of this claim limitation, the Examiner has not established a finding supported by a preponderance of the evidence that Clark, as relied on in the rejection, includes “a circumferential support ring on an inside of the neck,” as recited in the claims. Accordingly, we do not sustain the rejection of claims 7, 8, and 19. Rejection II— Claims 3, 4, 9—11, 13, 14, 16, 17, and 20 as unpatentable over Clark, Lemme, and Arnold Claims 3, 9, 11, 13, 16, and 20 Each of claims 3 and 9, depending from claims 1 and 2, respectively, recites that the closure further includes, in addition to the elements of the base claims, “a seal on a ring surface of the detent collar on an opening side 9 Appeal 2015-004837 Application 12/921,491 thereof.” Appeal Br., Claims App. Claims 11, 13, 16, and 20 depend from claim 3 and thus includes the same limitation. See id. The Examiner relies on element 24 of Arnold as meeting this limitation for a seal. Final Act. 7—9 (including a reproduction of Figure 7 from Arnold). Appellants argue that the Examiner’s reliance on this identified structure is improper because Arnold’s wave ring 24 is neither disclosed as being a seal, nor is it described as having structure that would allow it to adequately function as a seal. See Appeal Br. 15—18; Reply Br. 17—20. Rather, as Appellants explain, Arnold’s wave ring 24 functions as a spring to apply an upward force to the underside of cap 1 to keep the same in a level position. See Appeal Br. 17 (citing Arnold, col. 4,11. 60-65). We agree. Although we appreciate the Examiner’s observation that the limitation lacks much detailed specificity, such that the seal be “circumferentially continuous,” this observation does not remedy the lack of support for wave ring 24 being a “seal.” Ans. 14. Moreover, the Examiner’s additional explanation that maintaining alignment of the closure, which is the function of wave ring 24, “promotes uniform sealing contact,” does not sufficiently establish that wave ring 24 itself either is, or would be capable of functioning as, the recited “seal.” Id.', see also Arnold, col. 3,11. 55—63, col. 4,11. 54—65 (describing differences in function between sealing ring 20, disposed in a different location, and wave ring 24). In short, we agree with Appellants that the Examiner has not established a finding supported by a preponderance of the evidence that Arnold’s wave ring 24, as relied on in the rejection, may be considered “a seal on a ring surface of the detent collar on an opening side thereof,” as recited in the claims. 10 Appeal 2015-004837 Application 12/921,491 Accordingly, we do not sustain the rejection of claims 3,9, 11, 13, 16, and 20. Claims 4, 10, and 14 With respect to the rejection of claims 4 and 10, which depend from claims 1 and 2, respectively, as well as the rejection of claim 14, which depends from claim 4, Appellants do not set forth any additional substantive arguments separate from the arguments discussed supra with respect to the base claims.5 Thus, for the same reasons, we likewise sustain the rejection of claims 4, 10, and 14. Claims 16 and 17 With respect to the rejection of claims 16 and 17, which depend from claims 3 and 4, respectively, we note that Appellants do not set forth any additional substantive arguments separate from the arguments discussed supra with respect to the base claims. Nevertheless, we further note that each of these claims recites the same limitation as each of claims 6, 15, and 18 discussed supra in the context of Rejection I—namely, that the closure further includes “a circumferential retaining and/or guiding groove on an outside of the neck” 5 We note that each of claims 4 and 10 recites “a seal on the outer surface of the insertion shaft” (Appeal Br., Claims App.), for which the Examiner relies on Arnold’s sealing ring 20, and incorporates the same “for the purpose of increasing leak prevention as is common in the art” (Final Act. 9). As opposed to the reliance on wave ring 24, as discussed supra, this finding regarding Arnold’s sealing ring 20 is undisputed, and a reasonable basis for the combination is rationally articulated. 11 Appeal 2015-004837 Application 12/921,491 (Appeal Br., Claims App.)—the rejection of which suffers from an unreasonably broad interpretation of the claim limitation and a corresponding lack of a supported finding in Clark, as relied on in the rejection. Here in Rejection II, the Examiner relies on Arnold for teaching additional features of base claims 3 and 4, but not to cure the above-noted deficiency as to the disclosure of Clark. See Final Act. 9. In the interest of adjudicative consistency, despite the lack of argument for these claims subject to Rejection II, we note that the lack of evidentiary support from Clark is also fatal to the rejection of claims 16 and 17 for the same reasons. Accordingly, we do not sustain the rejection of claims 16 and 17. DECISION The Examiner’s decision to reject claims 1,2, 5—8, 12, 15, 18, and 19 under 35 U.S.C. § 103(a) as being unpatentable over Clark and Lemme is AFFIRMED as to claims 1, 2, 5, and 12, and is REVERSED as to claims 6—8, 15, 18, and 19, as set forth above. The Examiner’s decision to reject claims 3, 4, 9-11, 13, 14, 16, 17, and 20 under 35 U.S.C. § 103(a) as being unpatentable over Clark, Lemme, and Arnold is AFFIRMED as to claims 4, 10, and 14, and is REVERSED as to claims 3,9, 11, 13, 16, 17, and 20, as set forth above. 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-IN-PART 12 Copy with citationCopy as parenthetical citation