Ex Parte Jackman

Patent Trial and Appeal Board

May 31, 2013

11829169 (P.T.A.B. May. 31, 2013)

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.
11/829,169 07/27/2007 Wayne Jackman 11130-001 1661
29391 7590 05/31/2013
BEUSSE WOLTER SANKS MORA & MAIRE, P. A.
390 NORTH ORANGE AVENUE
SUITE 2500
ORLANDO, FL 32801
EXAMINER
TYLER, CHERYL JACKSON
ART UNIT PAPER NUMBER
3744
MAIL DATE DELIVERY MODE
05/31/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WAYNE JACKMAN
____________

Appeal 2011-004236
Application 11/829,169
Technology Center 3700
____________

Before JOHN C. KERINS, SCOTT A. DANIELS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-004236
Application 11/829,169

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STATEMENT OF THE CASE
Wayne Jackman (Appellant) appeals under 35 U.S.C. § 134(a) from a
final rejection of claims 5, 15 and 20. Claims 1-4, 6-14 and 16-19 are
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
THE INVENTION
Appellant’s invention is directed to a portable canned drink cooler and
dispenser. Claim 5, reproduced below, is illustrative of the claimed subject
matter:
5. A portable canned drink cooler and dispenser,
comprising:

a tube comprising an outer wall and an inner wall
with a webbing between the walls connecting the
walls, the inner wall forming a generally
cylindrical inner chamber comprising a length that
slidably holds multiple drink cans end-to-end;

spaces between the inner and outer walls and
between the webbing forming longitudinal thermal
chambers surrounding the inner wall suitable for
receiving thermal packs along the length of the
inner chamber; and

the inner chamber comprising an access opening at
a front end of the tube for receiving and dispensing
the drink cans endwise;

an elevator in the inner chamber for moving the
drink cans toward the access opening, the elevator
comprising an elevator plate slidably mounted in
the inner chamber, and cords or rods attached to
the elevator plate and extending from the front end
of the tube that pull the elevator plate toward the
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Application 11/829,169

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front end of the tube to move the drink cans toward
the access opening;

the elevator plate comprising diametrically
opposed slide bars slidably engaged in longitudinal
tracks formed in the inner wall, one of the cords or
rods attached to each of the slide bars and
extending from the front end of the tube for
manually pulling the elevator toward the access
opening via the cords or rods;

wherein the elevator plate comprises sides that
converge toward each other and away from the
inner wall with increasing distance behind a front
surface of the elevator plate to prevent binding of
the elevator plate against the inner wall;

wherein the sides of the elevator plate are formed
as a surface of rotation with a sectional radius
centered approximately at the diametrically
opposite side of the elevator plate, wherein no
degree of canting of the plate can cause binding of
the plate in the inner chamber.

THE REJECTIONS
Appellant appeals the following rejections:
(i) claim 5 under 35 U.S.C. § 103(a) as being unpatentable over Penxa
(US 5,272,890, issued Dec. 28, 1993) in view of Edwards (US 4,324,111,
issued Apr. 13, 1982), D’Angelo (US 2006/0000229 A1, published Jan. 5,
2006) and Hilton (US 4,910,977, issued Mar. 27, 1990);
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Application 11/829,169

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(ii) claim 15 under 35 U.S.C. § 103(a) as being unpatentable over
Penxa in view of Edwards, D’Angelo, Hilton and Bauer (US 5,413,414,
issued May 9, 1995); and
(iii) claim 20 under 35 U.S.C. § 103(a) as being unpatentable over
Penxa in view of Edwards and D’Angelo.

ANALYSIS
Claim 5--Obviousness--Penxa/Edwards/D’Angelo/Hilton
The issue joined between Appellant and the Examiner is whether
Hilton, which is proposed by the Examiner to be combined with Penxa,
Edwards and D’Angelo, discloses an elevator plate having sides that
converge toward each other and away from the inner wall of a cooler for
canned drinks. See, Appeal Br. 5-6; Ans. 6-7. The Examiner maintains that
Hilton does disclose such a construction and concludes that it would have
been obvious to incorporate that elevator plate into the Penxa beverage
cooler in order to provide a more stable supporting device for the beverage
cans stored therein. Ans. 6-7. The Examiner, without providing any detail
or explanation as to what modification would be made, further asserts that
“it would have been an obvious mechanical expedient . . . to modify the
elevator plate to ensure that no degree of canting of the plate” will cause the
plate to bind within the inner chamber of the cooler. Ans. 7.
Appellant responds by arguing that the curved surfaces 20, 21 of
Hilton are top and bottom surfaces of disc 18, and not the sides of the disc,
which is flat. Appeal Br. 5-6. Appellant maintains that the sides do not
converge toward each other and away from the inner wall of the container.
Appeal Br. 6.
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Application 11/829,169

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The Examiner provides, as further explanation, annotated versions of
Figures 3 and 4 of the Hilton disc 18, confirming that it is the top and
bottom curved surfaces 20, 21 that are regarded as meeting the limitations
directed to the claimed sides which converge toward each other and away
from the container wall. Ans. 15. Even accepting the Examiner’s position
that the top and bottom curved surfaces in Hilton may properly be regarded
as “sides” of the disc, the Examiner has failed to establish that those sides
converge toward each other and away from the container wall.
The Examiner has annotated Figure 3 of Hilton with arrows
purporting to show how the curved surfaces converge toward each other and
converge away from the container wall. Id. The arrows on each of the
upper and lower curved surfaces, however, do not demonstrate how each of
the upper and lower surfaces converge toward the other and converge away
from the inner wall of the container. The attempt to show convergence away
from the inner wall of the container involves the outer contour of each
surface of each side “converging” away from the wall of the container. The
arrows indicate that the surface of each of the “sides” diverges from the
opposite side in a direction away from the wall of the container. Were the
direction of the arrows reversed, it would be seen that the sides converge
toward each other in a direction toward the inner wall of the container,
which is the opposite of that claimed.
The rejection of claim 5 is not sustained.
Claim 15--Obviousness-- Penxa/Edwards/D’Angelo/Hilton/Bauer
Claim 15 contains the same limitation as does claim 5 with respect to
the elevator plate comprising sides that converge toward each other and
away from the inner wall of the container. As such, the rejection of claim 15
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suffers from the same deficiency as does the rejection of claim 5. The
rejection of claim 15 is thus not sustained.
Claim 20--Obviousness-- Penxa/Edwards/D’Angelo
Claim 20 requires that the portable canned drink cooler and dispenser
have convection communication paths between the thermal chambers and
the inner chamber providing air circulation therebetween.1 The Examiner
relies on Edwards as providing the necessary teaching that, when combined
with Penxa, assertedly renders obvious this claim limitation. Ans. 9, 12, 19.
The Examiner-annotated Figure 6 of Edwards appears to best illustrate what
the Examiner’s position is in this regard. Ans. 19. Appellant maintains that
the Examiner has not established that the proposed modification would
result in the presence of convection communication paths between the
thermal chambers (in which cooling packs are positioned) and the inner
chamber of the cooler (where the beverage containers are maintained).
Appeal Br. 7 (argument directed to both claims 15 and 20).
Annotated Figure 6 of Edwards contains a statement that
“[c]onvection communication paths between the thermal chambers and the
inner chamber” are shown by “shaded portions against inner wall (52)”.
Ans. 19. However, the shaded portions against the inner wall are bounded
by the inner wall, and thus there is no convective communication between
the areas represented by the shaded portions and the inner chamber of the
container. Convection is a specific form of heat transfer, as is emphasized
by the further recitation in claim 20 that the claimed convection
communication paths provide air circulation between the thermal chambers
and the inner chamber. The Examiner has failed to establish that such paths

1 Claim 15, discussed above, includes a similar limitation.
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exist in the proposed modification of the Penxa device, or that it would have
somehow been obvious to provide convection paths.
The rejection of claim 20 is not sustained.

DECISION
The decision of the Examiner to reject claims 5, 15 and 20 is reversed.

REVERSED

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