Ex Parte Hirdina

Patent Trial and Appeal Board

Mar 8, 2016

12660767 (P.T.A.B. Mar. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/660,767 03/04/2010
23280 7590 03/10/2016
Davidson, Davidson & Kappel, LLC
589 8th A venue
16th Floor
New York, NY 10018
FIRST NAMED INVENTOR
Jochen Hirdina
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
5019.1013 6403
EXAMINER
HUSON, MONICA ANNE
ART UNIT PAPER NUMBER
1742
NOTIFICATION DATE DELIVERY MODE
03/10/2016 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):
ddk@ddkpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOCHEN HIRDINA
Appeal2014-004499
Application 12/660,767
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
JAMES C. HOUSEL, Administrative Patent Judges.
PERCURIAM.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellant2 filed an appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-17 and 26-32. We have jurisdiction under
35 U.S.C. §§ 6(b) and 134(a).
We AFFIRM.
The claims on appeal are directed to methods for manufacturing and
filling beverage containers having thin walls and/or at least partially unstable
1 Our decision refers to the Final Office Action mailed Apr. 2, 2013 (Final
Act.), Appellant's Appeal Brief filed Sept. 24, 2013 (Appeal Br.), the
Examiner's Answer mailed Dec. 24, 2013 (Ans.), and Appellant's Reply
Brief filed Feb. 19, 2014 (Reply Br.).
2 Appellant identifies the real party of interest as Krones AG. Appeal Br. 2.
Appeal2014-004499
Application 12/660,767
shapes under the influence of heat (see, e.g., claim 1 ). Appellant discloses
that conventional blow molding processes for manufacturing beverage
containers require additional cooling, additional time, and are expensive.
Spec. i-fi-14 and 5. In view of this, Appellant discloses a method for
manufacturing filled beverage containers that is energy-efficient, reliable,
and ensures the least possible deviation in shape. Spec. i1 7.
Independent claim 1 is illustrative of the subject matter on appeal.
Claim 1 is reproduced from the Claims Appendix of the Appeal Brief:
1. A method for manufacturing and filling beverage
containers having thin walls and/or at least partially unstable
shapes under the influence of heat, comprising:
blow molding preforms with a blow mold to form a
container, the preforms and containers molded therefrom
pressurized during blow molding by heating the blow mold at a
blow molding temperature below 110°C;
filling the container with a heated liquid filling product;
pressurizing the filled container with a compressed gas to
achieve both volume compensation and mechanical stabilization
of the container; and
sealing the filled and pressurized container.
Appeal Br., Claims Appendix 1 (emphasis added).
The claims on appeal stand rejected as follows:
(1) claims 1-5, 13, 17, 31, and 32 under 35 U.S.C. § 103(a) as
being unpatentable over Hayashi3 and Zenger;4
(2) claim 6 under 35 U.S.C. § 103(a) as being unpatentable over
Hayashi and Zenger and further in view ofUhlig;5
(3) claims 7, 8, 10, 14, 15, and 26-30 under 35 U.S.C. § 103(a) as
3 Hayashi et al., US 4,524,045, issued June 18, 1985.
4 Zenger et al., US 5,251,424 A, issued Oct. 12, 1993.
5 Uhlig, US 4,206,171, issued June 3, 1980.
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Application 12/660,767
being unpatentable over Hayashi and Zenger and further in view of
Agrawal;6
(4) claim 9 under 35 U.S.C. § 103(a) as being unpatentable over
Hayashi and Zenger and further in view ofValyi;7
(5) claims 11 and 12 under 35 U.S.C. § 103(a) as being
unpatentable over Hayashi and Zenger and further in view of Ajmera; 8 and
(6) claim 16 under 35 U.S.C. § 103(a) as being unpatentable over
Hayashi and Zenger and further in view of Anthony. 9
OPINION
Rejection (1)
Claims 1-5, 13, 17, 31, and 32 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Hayashi and Zenger. Appellant argues claims 1,
17, 31, and 32 separately. Appeal Br. 3-5. We select the separately argued
claims as representative for resolving the issues on appeal.
Claim 1
The Examiner finds Hayashi discloses a method of making a beverage
container comprising blow molding a preform to form a container by heating
a blow mold at a temperature in a range of 80-90°C and filling the container
with a heated liquid. Final Act. 2. The Examiner finds Hayashi does not
disclose pressurizing the filled container. Id. The Examiner finds Zenger
discloses a method of hot filling a blow molded container, including
pressurizing the filled container with compressed gas to achieve volume
6 Agrawal et al., US 4,318,882, issued Mar. 9, 1982.
7 Valyi, US 5,941,054 A, issued Aug. 24, 1999.
8 Ajmera, US 4,883,631, issued Nov. 28, 1989.
9 Anthony, US 6,418,731 Bl, issued July 16, 2002.
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Application 12/660,767
compensation and mechanical stabilization of the container, as well as
sealing the container after filling. Id. The Examiner concludes it would
have been obvious to use Zenger's pressurizing step in Hayashi's process to
maintain a desired shape and volume of Hayashi's container. Id.
Appellant contends Hayashi discloses thermally setting a blow
molded container before filling, which permits a very small degree of age
deformation and superior dimensional superiority. Appeal Br. 4. In view of
this, Appellant argues there is no reason to modify the process of Hayashi in
view of Zenger because the process of Hayashi makes a container that is
already stabilized before filling. Id.; Reply Br. 1. Appellant further
contends there is no factual basis for determining the Hayashi container, as
modified by Zenger, would maintain its desired shape and volume because
the container of Hayashi is already stabilized and fully set before any
pressurization. Appeal Br. 4.
Appellant's arguments are not persuasive. The Examiner finds
Hayashi discloses filling a blow molded container with a hot liquid. Final
Act. 2. Hayashi discloses its blow molded container is capable of enduring
filling with a liquid at a temperature of 70°C. Hayashi col. 5, 11. 62----67.
Zenger discloses a blow molded container is filled with a product at a
temperature of 190°F, or 87.8°C. Zenger col. 5, 11. 17-28. Furthermore,
Zenger discloses that containers filled with product at a temperature of 80°F
to 200°F must have the ability to resist thermal distortion and negative
pressure that forms upon cooling, which can cause a container to buckle or
collapse. Zenger col. 1, 11. 31-38 and col. 3, 11. 61----65. In view of this,
Zenger discloses pressurizing a hot-filled container with a positive pressure
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Application 12/660,767
to offset the thermal distortion and to neutralize the negative pressure.
Zenger col. 3, 1. 65 to col. 4, 1. 4; col. 4, 11. 37--47; and col. 5, 11. 23--40.
The disclosure of Zenger supports the Examiner's findings and
demonstrates one of ordinary skill in the art would have had a reason to
modify the process of Hayashi in view of Zenger. Zenger discloses hot
filling of blow molded containers at temperatures higher than those
disclosed by Hayashi, discloses problems that may occur during hot filling,
and discloses pressurization as a solution to address these problems. Indeed,
Zenger not only provides a reason to modify the process of Hayashi; Zenger
improves upon the process of Hayashi. Thus, the record supports the
Examiner's findings and conclusion and Appellant has not met their burden
of providing evidence or argument to rebut the Examiner's case of
unpatentability.
Claims 2-5 and 13 have not been argued separately and therefore fall
with claim 1.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103 rejection of claims 1-5 and 13
under 35 U.S.C. § 103(a) as being unpatentable over Hayashi and Zenger.
Claim 17
Claim 1 7 depends from claim 1 and further recites "wherein the
containers are PET bottles or containers having a low thermal stability."
Appellant asserts the containers of Hayashi have superior dimensional
stability in a high temperature atmosphere and therefore do not have low
thermal stability. Appeal Br. 5.
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Application 12/660,767
In the rejection over Hayashi and Zenger, the Examiner finds Hayashi
discloses the use of PET (polyethylene terephthalate). Final Act. 3. Hayashi
discloses containers manufactured via its process can be made of PET,
which supports the Examiner's finding. Hayashi col. 3, 11. 34--42 and col. 5,
11. 24--26. The container disclosed by Hayashi is therefore made of the same
material claimed by Appellant and is made by a process having the same
parameters as those recited in claim 1. As a result, Appellant's argument is
not persuasive that the Examiner reversibly erred. Therefore, for the reasons
discussed above and those set forth in the Examiner's Answer, we sustain
the Examiner's§ 103 rejection of claim 17 under 35 U.S.C. § 103(a) as
being unpatentable over Hayashi and Zenger.
Claim 31
Claim 31 depends from claim 1 and further recites "wherein the
mechanical stabilization occurs solely via the pressurizing."
Appellant contends the container of Hayashi is mechanically
stabilized in the blow mold, not via pressurization, and the Examiner has not
addressed the limitation of claim 31. Appeal Br. 5.
The Examiner rejects claim 3 1 for the same reasons as claim 1,
finding Hayashi and Zenger disclose the various steps for the method recited
in claim 1. Final Act. 2. As discussed above, the disclosures of Hayashi and
Zenger support the Examiner's findings and conclusion. For example,
Hayashi discloses an exemplary method of blow molding a container by
using a blow mold heated to 86°C. Hayashi col. 5, 11. 26-29. Thus, the
process of Hayashi, as modified by Zenger, uses the same process
parameters as those recited in claim 1 and therefore would produce the same
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result as Appellant's process. Appellant does not provide any evidence or
explanation demonstrating the container of Hayashi, as modified by Zenger,
would differ from Appellant's container. Therefore, Appellant's argument
does not persuade us that the Examiner reversibly erred.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103 rejection of claim 31 under
35 U.S.C. § 103(a) as being unpatentable over Hayashi and Zenger.
Claim 32
Claim 32 depends from claim 1 and further recites "wherein inherent
stresses remain in the container after the blow molding and prior to the
pressurizing."
Appellant argues no inherent stresses remain in the container of
Hayashi after blow molding because the container is dimensionally
stabilized. Appeal Br. 5. As discussed above with regard to claim 1 7, the
container of Hayashi is made by process having the same parameters as
those recited in claim 1 and would therefore produce the same result (i.e.,
the same container) as Appellant's process. Appellant does not provide any
evidence or explanation demonstrating the container of Hayashi would differ
from Appellant's container or would otherwise not have inherent stresses
after blow molding and prior to pressurizing. Therefore, Appellant's
argument does not persuade us that the Examiner reversibly erred.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103 rejection of claim 32 under
35 U.S.C. § 103(a) as being unpatentable over Hayashi and Zenger.
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Rejection (2)
Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Hayashi and Zenger and further in view of Uhlig.
Claim 6 depends from claim 5, which depends from claim 1. Claim 5
recites the blow mold is heated by a liquid temperature-regulating medium.
Claim 6 further recites "wherein the temperature-regulating medium is
water."
Appellant contends the heating medium used in the process of
Hayashi cannot be water because Hayashi discloses heating the blow mold
up to a temperature of 130°C, at which water would boil. Appeal Br. 5.
This argument is not persuasive of reversible error because, as stated by the
Examiner in the Answer, 10 Hayashi discloses a blow mold can be heated to
lower temperatures, such as 86°C, 11 at which water would not boil.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103 rejection of claim 6 under
35 U.S.C. § 103(a) as being unpatentable over Hayashi, Zenger, and Uhlig.
Rejection (3)
Claims 7, 8, 10, 14, 15, and 26-30 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hayashi and Zenger and further in view
of Agrawal. Appellant confines their arguments to claim 7. Appeal Br. 6.
We select claim 7 as representative for resolving the issues on appeal.
10 Ans. 2-3.
11 Hayashi col. 5, 11. 26-29.
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Claim 7 depends from claim 1 and further recites containers are still
hot after blow molding and are cooled on a conveyance path to the filling
operation.
Appellant asserts there would have been a lack of reason or factual
basis in Agrawal to cool containers on a conveyance path because Hayashi
discloses rapidly cooling a container from a mold temperature to room
temperature, which teaches one to cool the container before arriving on any
conveyance path. Appeal Br. 6.
Hayashi discloses a blow molded container can be unloaded from a
blow mold "while retaining its high temperature shape without deformation,
and then cooled as it is." Hayashi col. 5, 11. 7-10. Hayashi further discloses
the container is capable of enduring filling with a liquid at a temperature of
70°C. Hayashi col. 5, 11. 62----67. Therefore, Hayashi discloses a blow
molded container may still be hot after blow molding and suggests a
conveyance path by disclosing the container may be hot-filled, which would
occur after blow molding. As a result, Appellant's argument does not
persuade us the Examiner reversibly erred.
Claims 8, 10, 14, 15, and 26-30 have not been argued separately and
therefore fall with claim 7.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's § 103 rejection of claims 7, 8, 10, 14, 15,
and 26-30 under 35 U.S.C. § 103(a) as being unpatentable over Hayashi,
Zenger, and Agrawal.
Rejection (5)
Claims 11 and 12 are rejected under 35 U.S.C. § 103(a) as being
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unpatentable over Hayashi and Zenger and further in view of Ajmera.
Appellant confines the argument to claim 12. Appeal Br. 6-7. Claim 12
depends from claim 11. We sustain the rejection of claim 11 for the reasons
we gave in connection with the rejection of claim 1.
Claim 12 recites "wherein liquid or gas escapes on an end face of the
drawing rod directed toward a bottom of the container to be molded."
The Examiner finds Ajmera discloses a blow molding process in
which liquid/ gas escapes on an end face of a drawing rod directed toward a
bottom of a container. Final Act. 5. The Examiner concludes it would have
been obvious to modify the process of Hayashi, as modified by Zenger, to
use the drawing rod of Ajmera. Id.
Appellant argues Hayashi discloses splined air vent slots that direct air
to a side of a container and the mold of Hayashi includes a separate heating
structure for the bottom of a container. Appeal Br. 7. In view of this,
Appellant contends there would not have been a reason to modify the
process of Hayashi, as modified by Zenger, in view of Ajmera. Id.
Appellant's argument is not persuasive. The determination of
obviousness must take into account not only the teachings within the
references, but the knowledge of the ordinary artisan. In re Samour, 571
F.2d 559, 562 (CCPA 1978); see also In re Sovish, 769 F.2d 738, 743 (Fed.
Cir. 1985) (In an obviousness assessment, skill is presumed on the part of
the artisan, rather than the lack thereof.). "A person of ordinary skill is also
a person of ordinary creativity, not an automaton." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 421 (2007). Further, "[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results." 550 U.S. at 416. Here, Ajmera
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discloses an alternative configuration of a drawing rod used for the same
purpose as the shaft 20 and cooling passage 34 of Hayashi' s process.
Moreover, the Examiner determines Ajmera's cooling method would be an
appropriate way to cool the container of Hayashi. Ans. 3. Appellant has not
responded to the Examiner's determination.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103 rejection of claims 11 and 12
under 35 U.S.C. § 103(a) as being unpatentable over Hayashi, Zenger, and
Ajmera.
Rejections (4) and (6)
Appellant does not advance any additional arguments against the
rejections of claims 9 and 16. For the reasons discussed above and those set
forth in the Examiner's Answer, we sustain the Examiner's§ 103 rejections
of claims 9 and 16.
DECISION
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 C.F.R. § 1.136(a)(l).
AFFIRMED
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