Ex Parte Gill et al

Patent Trial and Appeal Board

Aug 31, 2017

12889601 (P.T.A.B. Aug. 31, 2017)

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.
12/889,601 09/24/2010 Matthew T. Gill 082116.0327 6620
114699 7590
Baker Botts LLP
30 Rockefeller Plaza
New York, NY 10112-4498
09/05/2017 EXAMINER
CASTILLO, KEVIN CHARLES
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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):
DLNYDOCKET@BAKERBOTTS.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW T. GILL, RAYMOND A. PRITCHETT
JR., and TRAVIS A. HUNTER
Appeal 2015-006973
Application 12/889,601
Technology Center 3700
Before BRETT C. MARTIN, JILL D. HILL, and THOMAS F. SMEGAL,
Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-006973
Application 12/889,601
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1—3 and 5—22. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
THE INVENTION
Appellants’ claims are directed generally “to hot-fill containers” and
more specifically “ribbed containers.” Spec. 11. Claim 1, reproduced
below with emphasis added to the claim language at issue, is illustrative of
the claimed subject matter:
1. A container comprising:
a finish connected to a neck;
a top portion located below the neck;
a top bumper portion located below the top portion;
a top rib located within and extending entirely about an
outer circumferential perimeter of the top bumper portion and
having a depth with respect to the circumferential perimeter of
the top bumper portion;
a body portion located below the top bumper;
a bottom bumper located below the body portion and
above a base portion of the container, wherein the bottom
bumper comprises a bottom rib extending entirely about an
outer circumferential perimeter of the bottom bumper and
having a depth with respect to the circumferential perimeter of
the bottom bumper; and
wherein the body portion comprises at least one body rib
extending entirely about an outer circumferential perimeter of
the body portion, each body rib having a depth with respect to
the circumferential perimeter of the body portion, the top rib
and the bottom rib each having a greater depth than each body
rib.
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Appeal 2015-006973
Application 12/889,601
REFERENCE
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Nievierowski US 2008/0083696 A1 Apr. 10, 2008
REJECTION
The Examiner made the following rejection:
Claims 1—3 and 5—22 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Nievierowski. Ans. 2.
ANALYSIS
The only issue before us is whether the Examiner properly construed
the phrase “at least one body rib extending entirely about an outer
circumferential perimeter of the body portion” as this issue is dispositive of
the Examiner’s rejections. App. Br. 8—16. Both Appellants and the
Examiner appear to readily admit that Nievierowski fails to teach all features
of the claims under the Appellants’ construction of the phrase at issue.
Nievierowski shows body ribs, but those ribs are interrupted by an integrally
formed handle so that the ribs do not extend around the entirety of the
perimeter of the container. See Nievierowski, Fig. 1.
The Examiner, however, construes the claim such that, as long as the
entirety of the rib extends around the perimeter, the claim language is met.
In other words, the rib does not have to extend all the way around in a
continuous manner, but as long as all of the rib extends around the perimeter
generally, even in an interrupted manner, then the claim language is met.
The Examiner, as the Appellants point out, relies upon “a forced and
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Appeal 2015-006973
Application 12/889,601
improper interpretation” of this claim language. App. Br. 4. The claims
require that the rib “extend[] entirely about an outer circumferential
perimeter.” As shown in Appellants’ Figures, the rib subject to this claim
language is a continuous member and extends around the entire perimeter.
In this case, upon reviewing the Specification, we do not understand that
“extending entirely about an outer circumference]” refers to the extending
of the rib vis-a-vis the rib, but rather describes the extending of the rib vis-a-
vis the container. Accordingly, we construe the term “extending entirely
about” to require that the rib must extend all the way around the container —
i.e., “extend[] entirely” — and cannot be interrupted by, for example, an
integral handle as shown in Nievierowski. Given that there is no dispute as
to the teaching of Nievierowski, once this language is properly construed,
Nievierowski clearly fails as an anticipatory reference. As such, we do not
sustain the Examiner’s rejection.
DECISION
For the above reasons, we REVERSE the Examiner’s decision to
reject claims 1—3 and 5—22.
REVERSED
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