Ex parte Gueret

Board of Patent Appeals and Interferences

Sep 12, 2000

08659308 (B.P.A.I. Sep. 12, 2000)

1
The opinion in support of the decision being entered today was not written for
publication and is not binding precedent of the Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JEAN-LOUIS GUERET
_____________
Appeal No. 1999-1911
Application No. 08/659,308
______________
ON BRIEF
_______________
Before ABRAMS, STAAB, and CRAWFORD, Administrative Patent
Judges.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 33-39, all the claims currently pending in
the application.
Appellant’s invention pertains to a container and
applicator assembly for a liquid or viscous product such as
nail polish. An understanding of the invention can be derived
Appeal No. 1999-1911
Application No. 08/659,308
Our understanding of this French language document is1
derived, in part, from a partial translation thereof provided
by counsel for appellant as an attachment to appellant’s
brief.
2
from a reading of exemplary claim 33, which appears in an
appendix to appellant’s brief.
The references relied upon by the examiner in support of
a rejection under 35 U.S.C. § 103 are:
Gibson 869,431 Oct. 29,
1907
Nardone 2,550,586 Apr. 24,
1951
Flynn 2,803,028 Aug. 20,
1957
Lerner 3,185,291 May 25,
1965
Reinhard 3,870,186 Mar. 11,
1975
Gontard, et al. (Gontard) 1,566,737 May 9,1
1969 (Published French Patent Application)
Claims 33-39 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Nardone in view of Gontard, Gibson,
Lerner, Reinhard and Flynn.
Reference is made to appellant’s brief (Paper No. 14) and
to the examiner’s answer (Paper No. 15) for the respective
positions of appellant and the examiner regarding the merits
Appeal No. 1999-1911
Application No. 08/659,308
3
of this rejection.
At the outset, we observe that appellant states on page 2
of the brief that the claims stand or fall together.
Therefore, we need only consider representative claim 33, the
sole independent claim on appeal.
The central issue in this appeal is whether it would have
been obvious to one of ordinary skill in the art at the time
of appellant’s invention to have modified the bottle of
Nardone such that it includes “[a] neck terminating upwardly
in a sharp edge adapted to deform said circular flat (26), so
as to create a sealing arrangement,” as called for by claim
33. No other limitation is argued by appellant as
distinguishing over Nardone.
Nardone seals the bottle opening 1 by providing a
deformable sealing disk 4 mounted in the closure cap 6, and by
providing the neck 2 of the bottle with an upper surface
having a plane, circular configuration 12 bordered by an outer
beveled or frusto conical surface 13 (column 3, lines 62-67).
When the cap is screwed down onto the bottle neck, the sealing
disk is deformed into tight sealing engagement with the
surface portions 12 and
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Application No. 08/659,308
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13 of the neck (column 3, line 74 through column 4, line 13;
Figure 2a). Because the neck of Nardone terminates in a
surface portion 12 having a plane, circular configuration
(column 3, line 64), it cannot be considered to meet the
requirement of claim
33 calling for a neck that terminates in a “sharp edge.”
We note, however, that the Reinhard reference applied by
the examiner against the claims is directed to a container for
liquid cosmetics or the like substances (column 1, lines 4-5)
and
Appeal No. 1999-1911
Application No. 08/659,308
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includes a neck that terminates in an opening having a beveled
edge. Reinhard describes the shape and function of the
opening as follows:
The mouth 33 of passage 32 is outwardly
flared, to facilitate insertion of applicator
14-15, and the upwardly projecting end has
both concave and convex chamfers to define
a circumferentially extensive “line” or edge
for axially driven sealing contact against
a flat annular bottom 34 (FIG. 2) of the
opening in which the threaded neck body 31
is received in cap 11. [Column 2, lines
37-45; emphasis added.]
The Lerner reference applied by the examiner against the
claims is directed to a container and applicator for use in
connection with nail polish and the like (column 1, lines 12-
14). The upper portion of the neck of Lerner’s container
includes a bead portion 36 adjacent the neck opening that is
designed to engage with a flat lower surface of flange 48 of
applicator 40, which flange has a certain degree of resiliency
(column 2, lines 13-16). Lerner explains the sealing action
between the bead
36 and flange 48 as follows:
The annular bead 36 on the upper portion
of the neck of the bottle provides a sealing
ring or an annular point contact with the
Appeal No. 1999-1911
Application No. 08/659,308
6
flange 48 of the applicator. Any surplus
liquid which might drip from the brush and
which might normally deposit on the shelf
30 would not be deposited and remain on the
annular bead 36. This leaves the bead
36 clean at all times for sealing contact
with the flange 48. [Column 3, lines
26-33; emphasis added.]
The test for obviousness is what the combined teachings
of the references would have suggested to one of ordinary
skill in the art. In re Young, 927 F.2d 588, 591, 18 USPQ2d
1089, 1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d 413,
425, 208 USPQ 871, 881 (CCPA 1981). It is our view, from a
collective assessment of the above noted reference teachings,
that it would have been obvious to one of ordinary skill in
the art to incorporate into the container of Nardone a neck
that has a bottle opening that includes a sharp edge adapted
to engage and deform Nardone’s sealing disk 4 to improve the
sealing action thereof, following the teachings of Reinhard
and Lerner. In our opinion, the incentive on the part of one
having ordinary skill in the art for making this modification
would have simply been to gain the art recognized benefits of
increased sealing pressure and enhanced self-cleaning that
flow from utilization of such a sealing interface, as readily
Appeal No. 1999-1911
Application No. 08/659,308
7
discerned from a review of the teachings of Reinhard and
Lerner. In this regard, Reinhard explicitly teaches that the
concave and convex chamfers at the mouth of the container
define a circumferentially extensive “line” or edge for
axially driven sealing contact against the flat annular
surface 34 of the applicator cap (column 2, lines 37-45), and
Lerner explicitly teaches that the bead 34 may be configured
to provide an annular point contact (as by providing the bead
with a sharp edge) to remove any surplus liquid that may
remain on the bead, thereby leaving the bead clear at all
times for sealing contact with the flange 48 (column 3, lines
26-33).
The arguments advanced by appellant have been carefully
considered, however, they do not persuade us that the standing
rejection is improper. Our position with respect to most of
these arguments should be apparent from our discussion supra.
Concerning the individual deficiencies of Reinhard noted by
appellant on page 3 of the brief, we observe that
nonobviousness cannot be established by attacking the
references individually when, as here, the rejection is
predicated upon a combination of prior art disclosures. In re
Appeal No. 1999-1911
Application No. 08/659,308
8
Merck & Co. Inc., 800 F.2d 1091, 1097, 231 USPQ 375, 380 (Fed.
Cir. 1986). As to the case law cited by appellant on pages 4-
6 of the brief, we do not disagree with any of the principles
recounted therein, however, it is our opinion that our
conclusion of obviousness in the present application is in
accordance therewith.
Appeal No. 1999-1911
Application No. 08/659,308
9
In light of the foregoing, we will sustain the standing
rejection of claim 33 under 35 U.S.C. § 103. We will also
sustain the § 103 rejection of dependent claims 34-39 since,
as noted above, appellant states that the appealed claims
stand or fall together.
The decision of the examiner is affirmed
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
)
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
LJS:hh
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Application No. 08/659,308
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Robert J. Patch
745 South 23rd Street
Arlington, VA 22202