Ex Parte Jansen

Patent Trial and Appeal Board

Dec 14, 2017

12618562 (P.T.A.B. Dec. 14, 2017)

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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/618,562 11/13/2009 Michael Jansen 079380-480195 6890
27148 7590 12/18/2017
POT STNFT T T PC
EXAMINER
900 WEST 48TH PLACE HARMON, CHRISTOPHER R
SUITE 900
KANSAS CITY, MO 64112-1895 ART UNIT PAPER NUMBER
3649
NOTIFICATION DATE DELIVERY MODE
12/18/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL JANSEN
Appeal 2016-000140
Application 12/618,5621
Technology Center 3600
Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Jansen (Appellant) seeks our review under 35 U.S.C. § 134
of the final rejection of claims 5—9. We have jurisdiction under 35 U.S.C.
§ 6(b).
SUMMARY OF DECISION
We AFFIRM but denominate the affirmance as a NEW GROUND OF
REJECTION.
1 The Appellant identifies Michael Jansen as the real party in interest.
App. Br. 3.
Appeal 2016-000140
Application 12/618,562
THE INVENTION
Claim 5, reproduced below, is illustrative of the subject matter on
appeal.
5. A method of bottling a liquid comprising:
providing a plurality of single-use containers;
dispensing a predefined quantity of liquid into the plurality of
single-use containers such that each of the plurality of single-use
containers has a fraction of the predefined quantity on a combined
basis, the predefined quantity is equal to one of a plurality of
standards of fill defined by a regulation; and
connecting each of the plurality of single-use containers
together via a connector to (i) yield a single unit such that the single
unit has a quantity that is equal to the predefined quantity, and (ii)
convert the plurality of single-use containers from regulatory non-
compliant to regulatory compliant based on the regulation.
THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Hunter US 5,287,677 Feb. 22, 1994
Strodtman US 2007/0282696 A1 Dec. 6,2007
The following rejections are before us for review:
1. Claims 5—9 are rejected under 35 U.S.C. § 102(b) as being anticipated
by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over
Strodtman.
2. Claims 5—9 are rejected under 35 U.S.C. § 102(b) as being anticipated
by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over
Hunter.
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Application 12/618,562
ISSUES
Did the Examiner err in rejecting claims 5—9 under 35 U.S.C. § 102(b)
as being anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
obvious over Strodtman?
Did the Examiner err in rejecting 5—9 under 35 U.S.C. § 102(b) as
being anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
obvious over Hunter?
FINDINGS OF FACT
We rely on the Examiner’s factual findings stated in the Answer.
Additional findings of fact may appear in the Analysis below.
ANALYSIS
The rejection of claims 5—9 under 35 U.S.C. § 102(b) as being anticipated
by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over
Strodtman.
The Appellant argued these claims as a group. See App. Br. 7. We
select claim 5 as the representative claim for this group, and the remaining
claims 6—9 stand or fall with claim 5. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner’s position is that
Strodtman discloses a process of bottling including providing a
plurality of single use containers 12a-12d; dispensing a predefined
quantity of liquid (wine) into the containers and bound/connected
together via a variety of known packaging steps including “shrink
wrapping, adhesion, and strapping.” see para. 20.; see figure 1, para.
20, 22. Strodtman discloses using containers of known volumes
suitable for alcohol packaging; see para. 25 (including 187 ml or
250ml for the single serving container which multiplied by 4 ~ 750ml
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Application 12/618,562
or 1000 ml, both known standards of fill for a bottle of wine or spirits
which is widely regulated by governmental authorities as admitted by
appellant; see Specification, para. 3).
Ans. 3. See also Final Act. 2—3.
The Appellant
acknowledges that Strodtman discloses a variety of packaging steps
and lists random single container sizes, with one possible single
container size being 1000ml. See Strodtman, para. 0025. However,
none of these single container sizes are fractions of a predefined
standard of fill such that “connecting each of the plurality of single­
use containers together via a connector to (i) yield a single unit such
that the single unit has a quantity that is equal to the predefined
quantity, and (ii) convert the plurality of single-use containers from
regulatory non-compliant to regulatory compliant based on the
regulation,” as recited by independent claim 5. The bottling process of
Strodtman is completely silent in this regard. There is no fraction of a
predefined quantity and there is no conversion from regulatory non-
compliant to regulatory compliant based on the regulation. Indeed,
Strodtman clearly bottles each container based on the size of each
container. This is clearly not the same as the bottling process required
by independent claim 5.
Reply Br. 2—3.
The Appellant’s argument is unpersuasive.
Strodtman discloses connecting a plurality of single-use containers
together via a connector. Fig. 1 which shows an embodiment consisting of
four single-use containers and the associated disclosure describes ways of
connecting them together. See para. 20 (“In order to facilitate efficient
distribution and handling, [single use] containers 12 are preferably bound
together. Containers 12 may be bound together using a variety of techniques
known to one of skill in the art including, but not limited to, shrink
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Application 12/618,562
wrapping, adhesion, and strapping.”) The single-use containers can be
bottles. See para. 25.
The question is whether each of Strodtman’s single-use containers
contains “a fraction of [a] predefined quantity on a combined basis, the
predefined quantity is equal to one of a plurality of standards of fill defined
by a regulation” (claim 5, emphasis added). Since claim 5 broadly covers
dispensing any liquid and any regulation promulgated by any entity, the
scope of claim 5 is not limited to fills of any particular liquid or fills to any
particular level. All that is required is that a single unit has a quantity that is
a fraction of a predefined quantity (on a combined basis) equal to one of a
plurality of standards of fill defined by a regulation.
Strodtman describes filling single-serving cartons with wine. See para.
25. “In this preferred embodiment, carton 20 is suitable for holding a single­
serving of wine, such as 187 ml or 250 ml for providing a sampling for a
small number of consumers such as one or two.” Para. 25.
According to 27 CFR § 4.72(a), the authorized “standards of fill for
wine are” 50 ml, 100 ml, 187 ml, 375 ml, 500 ml, 750 ml, 1 L, 1.5 L, and 3
L. See T.D. ATF-303, 55 FR 42713, Oct. 23, 1990 (Redesignated by T.D.
ATF-953, 68 FR 39455, July 2, 2003) (https://www.gpo.gov/fdsys/pkg/FR-
1990-10-23/pdf/FR-1990-10-23 ,pdf#page= 19).
250 ml is not a standard of fill for wine per 27 CFR § 4.72(a).
However, Strodtman’s 250 ml single-serving of wine is a fraction (i.e., one
quarter) of the 1 L standard of fill per 27 CFR § 4.72(a). It therefore meets
the claim limitation “a fraction of [a] predefined quantity on a combined
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Application 12/618,562
basis, the predefined quantity is equal to one of a plurality of standards of fill
defined by a regulation” (claim 5).
Because 250 ml is not a standard of fill for wine per 27 CFR § 4.72(a)
but when connected with three others of the same fill the combination yields
1 L, which is a standard of fill for wine per 27 CFR § 4.72(a), Strodtman
(Fig. 1) describes and would lead one of ordinary skill in the art to reach the
subject matter covered by claim 5; that is,
connecting each of [a] plurality of single-use containers together via a
connector to (i) yield a single unit such that the single unit has a
quantity that is equal to the predefined quantity, and (ii) convert the
plurality of single-use containers from regulatory non-compliant to
regulatory compliant based on the regulation.
Accordingly, the Appellant’s argument (supra) is not persuasive as to error
in the rejection under § 102 or § 103.
Our analysis departs from that of the Examiner. Accordingly,
although we affirm the rejection, we denominate the affirmed rejection as a
new ground of rejection.
The rejection of claims 5—9 under 35 U.S.C. § 102(b) as being anticipated
by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over Hunter.
This rejection is cumulative of the rejection discussed above. For that
reason, we do not reach it.
CONCLUSIONS
The rejection of claims 5—9 under 35 U.S.C. § 102(b) as being
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious
over Strodtman is affirmed but denominated as a new ground of rejection.
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Application 12/618,562
The rejection of claims 5—9 under 35 U.S.C. § 102(b) as being
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious
over Hunter is not reached.
DECISION
The decision of the Examiner to reject claims 5—9 is affirmed but
denominated as a new ground of rejection.
NEW GROUND
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” 37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to
the examiner....
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record ....
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED: 41.50(b)
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