Ex Parte Hathaway et al

Board of Patent Appeals and Interferences

Oct 3, 2007

09800793 (B.P.A.I. Oct. 3, 2007)

The opinion in support of the decision being entered
today is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JOHN HATHAWAY and DALE TAYLOR
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Appeal 2007-2873
Application 09/800,793
Technology Center 3700
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Decided: October 3, 2007
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Before TERRY J. OWENS, MURRIEL E. CRAWFORD, and
JOSEPH A. FISCHETTI, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
The Appellants appeal from a rejection of claims 3-14. Claims 1 and
2 have been canceled.
THE INVENTION
The Appellants claim a plastic closure having both 1) parting line
flash or surface mismatch, and 2) at least one annular sealing band for
engaging a gasket. Claim 9 is illustrative:

Appeal 2007-2873
Application 09/800,793

9. A plastic closure capable of preventing leakage between
a closure sealing surface having part line flash or surface
mismatch thereon and a gasket, said plastic closure comprising:

a cap portion;

an annular sealing surface extending below said cap
portion and having part line flash or surface mismatch thereon;
and

at least one annular sealing band extending radially
outwardly from said annular sealing surface and through at least
a portion of said part line flash or surface mismatch, so that said
at least one sealing band engages the gasket so at [sic, as] to
prevent leakage between said part line flash or surface
mismatch and said gasket.

THE REFERENCE
Williams US 1,842,226 Jan. 19, 1932

THE REJECTION
Claims 3-14 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the Appellants’ admitted prior art in view of Williams.1

OPINION
We affirm the aforementioned rejection.

1 The Examiner also relies upon US 5,320,236 to Gregory (Ans. 5). Because
that reference is not included in the statement of the rejection it is not
properly before us. See In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ
406, 407 n.3 (CCPA 1970). Accordingly, we do not further address
Gregory.
2

Appeal 2007-2873
Application 09/800,793

The Appellants acknowledge that the claimed plastic closure was
known in the art except for the recited parting line flash or surface mismatch
in combination with at least one annular sealing band (Spec. 1-2). The
Appellants state:
The generally accepted manufacturing method of producing plastic
closures for use in this particular application requires the use of a
split-block mold, which offers the opportunity for “parting line flash,”
otherwise referred to as parting line mismatch, to be created on the
closure’s radial sealing surface. The sharp edged surface created by
the flash or mismatch is not an ideal sealing surface, and provides a
potential leak path through the gland. [Spec. 1]
* * *
In an effort to improve the closure performance, closure
manufacturers often perform a secondary operation on the closure
when parting line flash or mismatch is present on the sealing surface.
Secondary operations include machining the entire outer
circumference of the closure sealing gland, or else removing the flash
or mismatch through a secondary machining process. In either case,
the secondary operations add cost to the product, and lower potential
profits to the manufacturer. [Spec. 2]

The Appellants eliminate the step of removing the parting line flash or
mismatch and compensate for the potential leakage resulting from the
presence of the parting line flash or mismatch by including around the top
neck section one or more annular bands that bite into the gasket and thereby
improve the seal (Spec. 2).
Williams discloses a jar (5) and a closure (7) which preferably are
made of glass but can be made of any other suitable material (p. 1, ll. 83-88;
p. 2, ll. 5-8). The closure has, below an upper peripheral flange (9), a
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Appeal 2007-2873
Application 09/800,793

rounded bead (12) that extends around the closure and protrudes from the
adjacent surface (13) (p. 2, ll. 13-18, 25-30; fig. 4). The bead squeezes into
a gasket (11) and presses the gasket against the internal surface of the mouth
of the jar, thereby insuring an effective seal (p. 1. ll. 47-52; p. 2, ll. 40-44,
84-90). Williams teaches that in the prior art the seal is not certain due to
slight irregularities in the relative dimensions of the jar and its closure
member (p. 1, ll. 30-36).
The Appellants argue that Williams is limited to glass jars (Br. 10;
Reply Br. 3-4). The Appellants are incorrect. Williams teaches that the jar
and the closure can be made of other suitable materials (p. 1, ll. 85-88; p. 2,
ll. 5-8).
The Appellants argue that the prior art removal of the parting line
flash or mismatch teaches away from providing a closure having parting line
flash or mismatch, and that Williams does not disclose a threaded closure or
molded plastic construction2 and is silent regarding parting line flash or
mismatch (Br. 8; Reply Br. 3-4). That argument is deficient in that the
Appellants are attacking the prior art individually when the rejection is based
on a combination of prior art. See In re Keller, 642 F.2d 413, 426, 208
USPQ 871, 882 (CCPA 1981); In re Young, 403 F.2d 754, 757-58, 159
USPQ 725, 728 (CCPA 1968).

2 The Appellants’ claims do not expressly require molded construction, and
independent claims 9 and 12 do not require threaded engagement.
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Application 09/800,793

The Appellants argue that Williams is concerned only with sealing
between the gasket and the jar, not between the gasket and the closure
(Reply Br. 5). It would have been apparent to one of ordinary skill in the art
that the pressing of Williams’ gasket by the annular bead (fig. 4) would
improve the seal on both sides of the gasket.
The Appellants argue that the combined applied prior art would teach
a conventional closure that has an annular sealing band but no parting line
flash or mismatch (Br. 10; Reply Br. 4-5). The Appellants acknowledge that
the machining for removing the parting line flash or mismatch was known to
add cost to the product and to reduce the manufacturer’s profits (Spec. 2).
Thus, one of ordinary skill in the art would have been led by market forces
to eliminate that machining along with its cost. See KSR Int’l. Co. v.
Teleflex Inc., 127 S.Ct. 1727, 1742, 82 USPQ2d 1385, 1397 (2007)(“When
there is a design need or market pressure to solve a problem and there are a
finite number of identified, predictable solutions, a person of ordinary skill
has good reason to pursue the known options within his or her technical
grasp.”). Williams would have indicated to one of ordinary skill in the art
that the pressing of the annular bead into the gasket insures an effective seal
even though there are slight irregularities in the relative dimensions of the
jar and the closure (p. 1, ll. 33-36, 47-52; p. 2, ll. 40-44; 84-87). Williams
does not disclose that the slight irregularities referred to include parting line
flash or mismatch. However, one of ordinary skill in the art at the time of
the Appellants’ invention would have appreciated that parting line flash or
mismatch is a slight irregularity in the relative dimensions of the container
and jar at that point. The person of ordinary skill in the art, therefore, would
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Appeal 2007-2873
Application 09/800,793

have had a reasonable expectation that the pressing of Williams’ annular
bead into the gasket of the admitted prior art closure in the vicinity of the
parting line flash or mismatch would overcome the potential for leakage
caused by the parting line flash or mismatch. Consequently, the use of
Williams’ annular bead in the admitted prior art closure would have been
prima facie obvious to one of ordinary skill in the art. See In re O’Farrell,
853 F.2d 894, 904, 7 USPQ2d 1673, 1681 (Fed. Cir. 1988) (“For
obviousness under § 103, all that is required is a reasonable expectation of
success.”).
For the above reasons we are not convinced of reversible error in the
Examiner’s rejection.
DECISION
The rejection of claims 3-14 under 35 U.S.C. § 103 over the
Appellants’ admitted prior art in view of Williams is affirmed.

AFFIRMED

vsh

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