Ex Parte HirdinaDownload PDFPatent Trial and Appeal BoardMar 8, 201612660767 (P.T.A.B. Mar. 8, 2016) Copy Citation 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. 2 Appeal2014-004499 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. 3 Appeal2014-004499 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 4 Appeal2014-004499 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. 5 Appeal2014-004499 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 6 Appeal2014-004499 Application 12/660,767 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. 7 Appeal2014-004499 Application 12/660,767 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. 8 Appeal2014-004499 Application 12/660,767 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 9 Appeal2014-004499 Application 12/660,767 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 10 Appeal2014-004499 Application 12/660,767 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 11 Copy with citationCopy as parenthetical citation