Ex Parte Field

Patent Trial and Appeal Board

Jan 22, 2014

11748740 (P.T.A.B. Jan. 22, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/748,740 05/15/2007 Patrick Frank Field FIEL 200003US01 6982
27885 7590 01/22/2014
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
EXAMINER
WEAVER, SUE A
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
01/22/2014 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 PATRICK FRANK FIELD
____________________

Appeal 2012-002506
Application 11/748,740
Technology Center 3700
____________________

Before: MEREDITH C. PETRAVICK, JOHN W. MORRISON, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

MORRISON, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-002506
Application 11/748,740

2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s Final
rejection of claims 1, 5-7, 11-14, 18-22, 24, and 26-32. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

CLAIMED INVENTION
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A bottle comprising a plastic body having a bottom surface,
the bottom surface including a non-sliding element located
such that it is in contact with a surface when the bottle is in
the upright position on said surface, said non-sliding element
comprising a plurality of ridges being disposed in at least a
partial circular pattern.

REFERENCES
Battles
Glover
Musy
Adomaitis
Yoshino ’882
Yoshino ’639
Haffner
Behm
Vailliencourt

Pehr
King

US 2,133,796
US 2,948,439
US 3,348,718
US 3,598,270
US 4,254,882
US 4,620,639
US 4,846,361
US 4,865,206
US 6,277,321 B1

US 2003/0217987 A1
US 2005/0056613 A1
Oct. 18, 1938
Aug. 9, 1960
Oct. 24, 1967
Aug 10, 1971
Mar. 10, 1981
Nov. 4, 1986
Jul. 11, 1989
Sep. 12, 1989
Aug. 21, 2001

Nov. 27, 2003
Mar. 17, 2005

Appeal 2012-002506
Application 11/748,740

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REJECTIONS
1. Claims 1, 7, 11, and 13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yoshino ’639 and Battles.
2. Claims 1, 7, and 11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yoshino ’882 and Behm.
3. Claim 5 and 6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yoshino ’639, Battles, and Adomaitis.
4. Claim 5 and 6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yoshino ’882, Behm, and Adomaitis.
5. Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Yoshino ’639, Battles, and Glover.
6. Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Yoshino ’882, Behm, and Glover.
7. Claims 14, 20-22, and 26 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Haffner.
8. Claims 18 and 24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haffner and Yoshino ’882.
9. Claims 27 and 28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haffner and Yoshino ’639.1
10. Claim 29 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Haffner, Yoshino ’639 and Pehr.

1 The Examiner indicates that claims 27 and 28 are “obvious in view of the
reference (Haffner) as applied to claim 14 above, and further in view of
Yoshino 4,620,639.” Ans. 7. However, neither claim 27 or 28 depends
from claim 14. We understand these claims to be rejected as obvious over
Haffner and Yoshino ’639.
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Application 11/748,740

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11. Claims 19 and 30 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haffner and King.
12. Claim 31 is rejected under 35 U .S.C. § 103(a) as being unpatentable
over Haffner, King, and Vailliencourt.
13. Claim 32 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Haffner and Musy.

ANALYSIS
Non Appealed Rejections 1, 2, 5, 6, and 8-13
Appellant does not set forth the rejections 1, 2, 5, 6, and 10-13 in the
section of the Appeal Brief entitled “GROUNDS OF REJECTION TO BE
REVIEWED ON APPEAL.” App. Br. 7. Nor does Appellant argue these
rejections in the “ARGUMENTS” section. See App. Br. 8-11. Rejections 8
and 9 are set forth in the section of the Appeal Brief entitled “GROUNDS
OF REJECTION TO BE REVIEWED ON APPEAL”, but Appellant does
not argue these rejections. Id. Since Appellant presents no arguments of
error for these rejections, we summarily sustain these rejections. See In re
Berger, 279 F.3d 975 (Fed. Cir. 2002) (holding that Board did not err in
sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the
applicant failed to contest the rejection on appeal). Accordingly, we sustain
all of the rejections to claims 1, 7, 11-13, 18, 19, 24, and 27-32 which are
rejected under rejections 1, 2, 5, 6, and 8-13.

Appeal 2012-002506
Application 11/748,740

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Rejection 3: Obviousness over Yoshino ’639, Battles, and Adomaitis
Claim 5
Appellant does not argue the rejection of claim 5. Accordingly, we
summarily sustain the rejection of claim 5.

Claim 6
Claim 6 recites “the ridges are disposed in four separate groupings
along the bottom surface, each adjacent grouping about 90 degrees apart.”
App. Br. 12, Claims App’x. (emphasis added). The Examiner finds, inter
alia, that “Yoshino [’639] further teaches the provision of a plurality o[f]
ribs or ridges 21, 31 in a thin walled bottle which may be found in the
bottom and on the contact surface.” Ans. 5. The Examiner also finds that
Battles teaches that these ridges can be non-sliding elements. Id. Appellant
argues that “the references cited by the Examiner fail to teach or suggest a
bottle having a plastic body with a bottom surface including a plurality of
ridges disposed in four separate groups along the bottom surface in a partial
circular pattern.” App. Br. 8. We agree. The Examiner has erred by failing
to find that any of the references teaches separate groupings of ridges.
Accordingly, we do not sustain the rejection of claim 6 as unpatentable over
Yoshino ’639, Battles, and Adomaitis.

Rejection 4: Obviousness over Yoshino ’882, Behm, and Adomaitis
Claim 5
Appellant does not argue the rejection of claim 5. Accordingly, we
summarily sustain the rejection of claim 5.

Appeal 2012-002506
Application 11/748,740

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Claim 6
The Examiner determines
Yoshino teaches a plastic bottle having a body 1 and bottom 2
with feet 4 defining arcuate or part circular contact surface and
nonslip elements at 8 as a plurality of protrusions. To the extent
that the protrusions may not be considered ridges, Behm et al
also teach a plastic bottle having a body 14 and bottom 20 with
a recess 28 and a plurality of feet 25 having protrusions or
ridges as at 34 to improve molding. To have formed the
plurality of protrusions of Yoshino as elongated protrusions or
ridges in the manner of Behm et al to improve molding would
have been obvious.
Ans. 5-6.
Appellant first argues that “the Examiner fails to provide any rationale
for combining the cited references.” App. Br. 8. Appellant presents no
argument or evidence that the Examiner’s reasoning to combine Yoshino
’882 and Behm to “improve molding” is in error. For the further
combination of Yoshino ’882 and Behm with Adomaitis, the Examiner
concludes that “[t]o have alternately formed the feet of Yoshino such that
they are spaced . . . 90 degrees apart as at 125 of Adomaitis to provide
greater foot contact with the support surface would have been obvious.”
Ans. 6. Appellants do not provide any argument or evidence that spacing
the feet at 90 degrees, as taught by Adomaitis, would not provide greater
foot contact. Thus, the Appellants argument that the Examiner’s articulated
reasoning to combine the references is not based on rational underpinnings is
not persuasive. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 415
(2007).
Appellant then argues that none of the cited references “teach or
suggest a bottle having a plastic body with a bottom surface including a
Appeal 2012-002506
Application 11/748,740

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plurality of ridges disposed in four separate groups along the bottom surface
in a partial circular pattern, wherein each adjacent grouping is about 90
degrees apart.” App. Br. 8. In particular, Appellant argues that
only Yoshino mentions non-slip elements and describes those
as a number of slender protrusions and depressions 8 on the
bottom surface 4 (see column 4, lines 38-40) of several legs.
Review of Figure 8 demonstrates that the protrusions and
depressions 8 do not form an at least partial circular pattern as
claimed by Appellant[].
Reply Br. 3-4. We do not find Appellant’s argument to be persuasive. Each
of the references, Yoshino ’882, Behm, and Adomaitis, disclose feet that are
equally spaced at constant radius, i.e. a circle, around the bottom surface of a
round bottle. Thus, each reference discloses a circular pattern composed of
a number of contact surfaces equal to the number legs. As such, the
Appellant has not persuaded us that the Examiner has erred in finding that
the references teach protrusions and depressions arranged in a partial
circular pattern. Accordingly, we sustain the rejection of claim 6 as
unpatentable over Yoshino ’882, Behm and Adomaitis.

Rejection 7: Obviousness over Haffner
Claims 14 and 20
Appellant does not argue the rejection of claims 14 and 20.
Accordingly, we summarily sustain the rejection of claims 14 and 20.

Claim 21
Claim 21 depends from independent claim 14, which recites “the neck
portion including at least two spaced apart, continuous, circumferential ribs
parallel to each other and one or more threads” and “wherein said ribs
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Application 11/748,740

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extend different distances away from said neck portion.” App. Br. 13-14,
Claims App’x. The Examiner finds that “making a bottom rib larger to
function as a support rib is a well-known expedient in plastic bottle
construction as shown for example by Behm.” Ans. 8.
Appellant then argues
the pair of ribs creates a concave support ledge that acts as a
handling mechanism during production. Rib 18 acts as a ledge
and rib 20 as the support for handling equipment. As illustrated
in Figure 2 of the present disclosure, rib 20 extends a further
distance from the neck than rib 18, which provides the support
for the handling equipment. This configuration, providing the
concave support ledge is an improvement over previous
designs, which comprise one external support ring that is much
larger in diameter to solely act as a support ledge. In the present
configuration, since there are two ribs with a concave support
ledge in between, the lower rib still comprises a larger diameter
than the top rib to provide the proper support. Accordingly,
such a configuration is not a mere design choice as provided by
the Examiner, and rather provides a structural benefit. As such,
Appellant submits that such a configuration is not obvious.
App. Br. 10. The Examiner responds “the remarks at lines 10-21 appear to
be directed to the disclosure and not the claim limitations.” Ans. 8. We
agree with the Examiner. Limitations not appearing in the claims cannot be
relied upon for patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
In this case, the Appellant’s arguments are related to handling equipment
and concave support surfaces which do not appear in claim 21. As such, we
are not persuaded by Appellant’s argument that the length of the ribs on the
bottle neck is not merely a matter of design choice. Accordingly, we sustain
the rejection of claim 21 as unpatentable over Haffner.

Appeal 2012-002506
Application 11/748,740

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Claim 22 and 26
Dependent claim 26 depends from independent claim 22.
Independent claim 22 recites, inter alia, “a bottle cap attached to the bottle
without the use of an exterior support ring.” App. Br. 14, Claims App’x.
The Examiner finds “the cap 10 of Haffner with a skirt 12 and 18 extending
sufficiently to encompass the ribs 23 and 24 as shown in Figure 5. The cap
may be attached to the neck without the use of an exterior support ring
wh[en] separated and reapplied.” Ans. 7 (emphasis added). Appellant does
not argue attachment of the cap when it is separated and reapplied, but only
argues the initial sealing of the cap prior to separation, or dissociation, of the
support ring. See App. Br. 10-11, Reply Br. 4-5. As such, we are not
persuaded that the Appellant has identified error in the Examiner’s finding
that the cap is attached to the neck without the use of exterior support rings
when separated and reapplied. Accordingly, we sustain the rejection of
claim 22, and its dependent claim 26 which is not separately argued, as
unpatentable over Haffner.

Appeal 2012-002506
Application 11/748,740

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DECISION
For the above reasons:
the Examiner’s decision to reject claim 5 and 6 as unpatentable over
as Yoshino ’639, Battles, and Adomaitis is affirmed for claim 5 and reversed
for claim 6;
the Examiner’s decision to reject claims 5 and 6 as unpatentable over
Yoshino ’882, Behm, and Adomaitis is affirmed; and
the Examiner’s decision to reject claims 1, 7, 11-14, 18-22, 24, and
26-32 is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

rvb