Ex Parte Johansen et alDownload PDFPatent Trial and Appeal BoardJan 24, 201713887484 (P.T.A.B. Jan. 24, 2017) Copy Citation 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. 13/887,484 05/06/2013 Paula Johansen 47009/554714 6614 23644 7590 01/26/2017 Barnes & Thornburg LLP (CH) P.O. Box 2786 Chicago, IL 60690-2786 EXAMINER NGO, LIEN M ART UNIT PAPER NUMBER 3754 NOTIFICATION DATE DELIVERY MODE 01/26/2017 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): Patent-ch@btlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAULA JOHANSEN and JENNIFER RADSPINNER Appeal 2015-003337 Application 13/887,484 Technology Center 3700 Before EDWARD A. BROWN, WILLIAM A. CAPP, and SEAN P. O’HANLON, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Paula Johansen and Jennifer Radspinner (Appellants)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 22—37 and 39-41.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. INVENTION The independent claims on appeal are 22, 32, and 36. Claim 22, reproduced below, is illustrative of the subject matter on appeal. 1 Appellants are identified as the real party in interest. Appeal Br. 1. 2 Claims 1—21 and 38 are cancelled. Appeal Br. 1. Appeal 2015-003337 Application 13/887,484 22. An apparatus comprising: a fitment configured to attach the apparatus substantially permanently with a flexible pouch containing edible material, wherein the fitment includes a first hole configured to provide an exit point for the edible material from the flexible pouch; a neck portion configured to connect the fitment and a mouthpiece portion, wherein the neck portion includes a channel configured to transmit the edible material from the hole of the fitment to the mouthpiece; and a mouthpiece having a core material and a covering of soft material softer than the core material, the mouthpiece configured to facilitate eating of the edible material, wherein the mouthpiece includes: a concave portion configured to hold the edible material, and a second hole configured to transmit the edible material from the neck portion to the concave portion and the mouthpiece includes a twist-off mouthpiece removably coupled with the fitment via a threaded fastener. Appeal Br. 19 (Claims App.). REJECTIONS 1. Claim 36 is rejected under 35 U.S.C. § 102(b) as anticipated by Kamm (US 2004/0006874 Al, published Jan. 15, 2004). 2. Claims 32—34 and 40 are rejected under 35 U.S.C. § 103(a) as unpatentable over O’Brien (US 6,802,423 B2, issued Oct. 12, 2004) and Rhodes, III (US 2007/0251103 Al, published Nov. 1, 2007) (hereinafter, “Rhodes”) or Neale (US Des. 174,917, issued June 7, 1955). 3. Claim 35 is rejected under 35 U.S.C. § 103(a) as unpatentable over O’Brien, Rhodes or Neale, and Castner, Sr. (US 4,888,188, issued Dec. 19, 1989) (hereinafter, “Castner”). 4. Claim 37 is rejected under 35 U.S.C. § 103(a) as unpatentable over Kamm and Ceccarelli (US 3,931,741, issued Jan. 13, 1976). 2 Appeal 2015-003337 Application 13/887,484 5. Claims 22, 23, 27, 30, and 39 are rejected under 35 U.S.C. § 103(a) as unpatentable over Kamm and O’Brien. 6. Claims 22—24, 26, and 27 are rejected under 35 U.S.C. § 103(a) as unpatentable over Mikulec (US 5,137,183, issued Aug. 11, 1992) and Kamm. 7. Claims 25, 28, and 41 are rejected under 35 U.S.C. § 103(a) as unpatentable over Mikulec, Kamm, and Stebick (US 5,429,282, issued July 4, 1995). 8. Claim 29 is rejected under 35 U.S.C. § 103(a) as unpatentable over Mikulec, Kamm, and Nusbaum (US 7,611,025 B2, issued Nov. 3, 2009). 9. Claim 31 is rejected under 35 U.S.C. § 103(a) as unpatentable over Mikulec, Kamm, and Castner. ANALYSIS Anticipation of claim 3 6 by Kamm The Examiner finds that Kamm discloses all limitations of claim 36, including a mouthpiece portion having core material 110 and covering material 200 softer than core material 110. Final Act. 2—3 (citing Kamm, Fig. 6). Appellants contest this finding. Appeal Br. 4. First, Appellants contend that Kamm does not disclose that covering material 200 is a soft material, and that covering material 200 is softer than core material 110. Id. Appellants contend that Kamm’s disclosure that “food is squeezed through slits forming the valve 210” indicates that the flexible material 200 is not soft because, if it were, the slits would not be maintained, but would be replaced by an opening, when food is forced outward through them. Id. at 5. 3 Appeal 2015-003337 Application 13/887,484 Appellants do not, however, provide any evidence to support this contention. Consequently, this argument is speculative, and, thus unpersuasive. Appellants assert that the above-noted disclosure in Kamm demonstrates that Kamm does not disclose a coating softer than the core. Appeal Br. 5. According to Appellants, “[sjilicone materials range from very hard material (silicon chips used in electronics) to less hard materials. This is also true of plastics which range from hard to less hard material.” Id. (emphasis added). Appellants also assert that Kamm does not disclose how the hardness of the core relates to the hardness of material 200. Id. The Examiner answers that Kamm discloses a stainless steel core material 110 and a covering of flexible “silicon”, which is softer than core material 110. Ans. 9 (citing Kamm 118). Kamm discloses a spoon comprising base 110 and over-molded covering 200. See Kamm 120, Fig. 6. Kamm states: Base 110 may be made of injection molded plastic, stainless steel or any other suitable material as will occur to those skilled in the art. The over-molded flexible covering 200 and pressure sensitive valve 210 may be molded onto base 110. Flexible covering 200 and pressure sensitive valve may be made of silicone or any other suitable flexible material as will occur to those skilled in the art. See id. 118 (emphasis added); see also id. at Figs. 3, 4. We agree with Appellants that Kamm does not describe explicitly that flexible covering 200 is made of a material that is both soft and softer than the material of base 110. However, Kamm discloses that flexible covering 200 may be made of “flexible silicone,” not “flexible silicon.'’'’ Even if, as Appellants contend, silicon can be a hard material, Appellants have not shown with evidence that 4 Appeal 2015-003337 Application 13/887,484 “flexible silicone” is a “hard” material.3 Further, Appellants do not address the Examiner’s position that Kamm discloses stainless steel core material 110 and flexible silicone covering 200, which is softer than core material 110. Reply Br. 1—2; see also Ans. 9. Accordingly, Appellants do not apprise us of any error in the Examiner’s position. Second, Appellants contend that Kamm does not disclose “a tubular hole positioned longitudinally and configured to route the semi-liquid material from the container to a holding portion,” as claimed. Appeal Br. 4. Rather, Appellants contend, food exits Kamm’s feeding utensil via slits, which are not a “tubular hole.” Appeal Br. 6. The Examiner responds, “[although, the mouthpiece [of Kamm] comprises slits forming [a] valve, the slits would disappear and be replaced by an opening when the food is forced outward, therefore, the system of Kamm comprises a tubular hole positioned longitudinal[ly] and configured to route the semi-liquid material from the container to a holding portion.” Ans. 9. Appellants reply that a “tubular hole” is the hole of a hollow cylinder, and the “opening” formed when the slits open does not form the hole of a hollow cylinder. Reply Br 2. Appellants’ contentions are persuasive. Figures 4 and 7 of Kamm depict valve 210 including slits arranged to intersect and form a general “t” shape. We agree with Appellants that the depicted slits do not correspond to “a tubular hole positioned longitudinally,” as claimed. The Examiner appears to agree as well. Further, the Examiner does not explain adequately 3 Rhodes discloses an elastomeric coating that “may resiliently yield to a surface . . . e.g., a baby’s face,” and that a suitable material for the elastomeric coating is silicone. See Rhodes 120. This disclosure appears to support the Examiner’s position that “flexible silicone” is a “soft” material. 5 Appeal 2015-003337 Application 13/887,484 how, when food is squeezed through the slits, “a tubular hole positioned longitudinally” is necessarily formed in Kamm’s flexible covering 200. The Examiner does not identify any disclosure in Kamm, or provide any other evidence, that supports the position that the resulting passage through which the food is squeezed would be either a “tubular hole” or “positioned longitudinally” in Kamm’s feeding utensil. “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not, because it may doubt that the invention is patentable, resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (emphasis added). As the Examiner has not provided a factual basis to support the position that Kamm teaches the claimed “tubular hole positioned longitudinally,” we do not sustain the rejection of claim 36 as anticipated by Kamm. Obviousness of claims 32—34 and 40 over O’Brien and Rhodes or Neale Claims 32 and 34 The Examiner finds that O’Brien discloses all limitations of claim 32 except for mouthpiece 38 having a flat end. Final Act. 3^4 (citing O’Brien, Figs. 1, 2). The Examiner finds that Rhodes or Neale teaches a mouthpiece of a spoon with a flat end. Id. at 4. The Examiner concludes that it would have been obvious to modify O’Brien’s mouthpiece 38 to have a flat end, in view of Rhodes or Neale, for facilitating scooping. Id. Appellants contend that the Examiner does not explain how bowl 38 would be modified to have a flat surface, as claimed. Appeal Br. 7. Appellants contend that because bowl 38 is continuously curved, it is not possible to modify it to provide a flat end for scooping material. Id. at 7—8. 6 Appeal 2015-003337 Application 13/887,484 According to Appellants, if the top end of bowl 38 were cut off along a straight line, the end would not be flat, but would be curved due to the curvature of bowl 38. Id. at 8. Appellants contend that front edge 33 of Rhodes “is not flat, it is curved.” Id. Appellants also contend that Neale discloses a spoon with an end cut off along a straight line, wherein the end is not flat, but is curved due to the bowl shape. Appellants contend that because Neale does not teach or suggest a flat edge, it would not have been obvious to modify O’Brien’s bowl 38 to have a flat end, as claimed. Id. Appellants’ contentions are not persuasive. Rhodes discloses that “[i]n one particularly suitable embodiment, the front edge 33 of the bowl 25, extending transversely between the side edges 31 of the bowl, is substantially straight and more suitably the front edge has a smallest radius of curvature that is not less than about 0.75 inches.” Rhodes 121 (emphasis added). Rhodes also states, “[i]t is also contemplated that the front edge 33 of the bowl 25 may extend transversely between the side edges 31 of the bowl 25 along a straight line without departing from the scope of this invention.” Id. (emphasis added). Accordingly, Appellants’ contention that “Rhodes does not teach or suggest a flat edge” (Appeal Br. 8) is not persuasive. Modifying O’Brien in view of Rhodes’ teachings would result in O’Brien’s bowl 38 having a straight edge, which can be considered a “flat edge.” Appellants do not explain persuasively why the “flat edge” of modified bowl 38 could not be considered a “flat end,” or why the “flat edge” would not be “configured to scoop edible material,” as claimed. We note that Appellants cite to 1 53 and Figures 3a—3d of Appellants’ application as supporting claim 32. Appeal Br. 3. However, these citations 7 Appeal 2015-003337 Application 13/887,484 do not inform us how the limitation of “the mouthpiece has a flat end configured to scoop edible material” distinguishes claim 32 over the Examiner’s combination. Accordingly, we sustain the rejection of claim 32, and claim 34 depending therefrom, as unpatentable over O’Brien and Rhodes or Neale. Claim 33 Claim 33 depends from claim 32 and recites that the mouthpiece includes a “moveable flap configured to be moved between a first position and a second position.” Appeal Br. 21 (Claims App.). The Examiner finds that O’Brien teaches moveable flap 36. Final Act. 4 (citing O’Brien, col. 3, 11. 45-54). O’Brien discloses that food passes from food container 12 to food utensil 14 through opening 34, which is sealed with seal 36. See Cert, of Correction 4. Seal 36 prevents moisture or contaminants from contacting food in food container 12 until seal 36 “is removed by the consumer just prior to use.” Id. (emphasis added). Appellants contend that seal 36 of O’Brien is not a flap, as claimed. Appeal Br. 9. Rather, Appellants contend, seal 36 is permanently removed and not configured to be moved between first and second positions to close the channel of the mouthpiece, as claimed. Id. Appellants also assert that a “‘flap’ is commonly known as a piece attached on one side that can be moved while attached to, e.g., open and close an opening,” but “O’Brien’s seal 36 is attached around its entire periphery, not only on side.” Id. at 10. The Examiner answers that “a ‘flap’ is defined in the Merriam Webster’s Collegiate Dictionary as ‘[] something that is broad, limber, thin and hangs loose.’” Ans. 10. The Examiner states that O’Brien’s seal 36 “is 8 Appeal 2015-003337 Application 13/887,484 broad, limber[,] thin and hangs loose and capable of moving between a first seal[ed] position and a second unseal[ed] position to close and open the mouthpiece’s channel.” Id. The Examiner also states that Appellants’ proposed definition of a “flap” is not disclosed in the application. Id. at 10-11. The Examiner also notes that Appellants’ Specification describes “a thin, flexible membrane” to inhibit passage of material from the container out the mouthpiece. Id. at 11 (citing Spec. 1 84).4 The Examiner also finds that O’Brien discloses anti-spill valve 536 across the hollow neck to prevent food spills. Id. (citing O’Brien, Fig. 22); see also Cert, of Correction 9. According to the Examiner, “[t]he anti-spill valve is in a form of a flexible membrane or a flap.” Id. Appellants reply that O’Brien’s removable seal 36 is not a flap. Reply Br. 3. As to Appellants’ proposed definition of a “flap,” Appellants assert that “seal 36 is not attached at only one side when it closes the hole (it is attached on its entire periphery) and it is not attached at only one side when the hole is open.” Id. As to the Examiner’s proposed definition of a “flap,” Appellants assert that “O’Brien’s removable seal 36 does not hang loose in either the open or closed position, i.e., it is not a flap.” Id. Appellants’ contentions are persuasive. O’Brien discloses that seal 36 is removed, and does not disclose or suggest that it is capable of “moving between” a first seal position and a second “unseal” position to close and open the channel of the mouthpiece. Cert, of Correction 4. According to 4 Paragraph 84 of the Specification cited by the Examiner appears to correspond to paragraph 86 of the clean copy of the Substitute Specification filed on August 20, 2013. 9 Appeal 2015-003337 Application 13/887,484 O’Brien’s description of seal 36, any “unseal” position would correspond to when seal 36 is removed. But once seal 36 has been removed, it would not be capable of being moved between such “unseal” position and a seal position. We also agree with Appellants that seal 36 would not “hang” loose in the “unseal” position, where seal 36 is no longer secured to O’Brien’s food container 12, and the Examiner does not explain adequately how seal 36 would “hang loose” in the seal position. Appellants respond that Figure 22 of O’Brien does not show a flap, and O’Brien does not describe the configuration of anti-spill valve 536. Reply Br. 3. We agree with Appellants that Figure 22 does not show clearly the structure of anti-spill valve 536. O’Brien describes that anti-spill valve 536 “is configured across the hollow neck [528] to prevent spills of food.” See Cert, of Correction 9. This description does not indicate that anti-spill valve 536 “is in a form of a flexible membrane or a flap,” as stated by the Examiner. See Ans. 11. Accordingly, the Examiner has not provided the required factual basis to support the position that O’Brien discloses “a moveable flap configured to be moved between a first position and a second position,” as claimed. See In re Warner, 379 F.2d at 1017. Thus, we do not sustain the rejection of claim 33 as unpatentable over O’Brien and Rhodes or Neale. Claim 40 Claim 40 depends from claim 32 and recites that “the mouthpiece has a ring sized to prevent choking.” Appeal Br. 22 (Claims App.). Appellants note that, in the Final Office Action, the Examiner does not point to anything in the applied references disclosing the claimed ring. Appeal Br. 10; see Final Act. 3^4. The Examiner answers that O’Brien 10 Appeal 2015-003337 Application 13/887,484 discloses mouthpiece 14 comprising ring 42 sized to prevent choking. Ans. 11 (citing O’Brien, Fig. 1). Appellants reply that the Examiner does not provide a reasonable explanation why O’Brien’s member 42 with inner ridges that engage ridges 32 of neck 30 is sized to prevent choking, as claimed. Reply Br. 4. Appellants’ contentions are persuasive. Appellants’ Specification describes that “in the implementation shown in FIGS. 18—23 one or more rings can be included at the base of the mouthpiece to prevent choking if the mouthpiece is swallowed by a consumer.” Sub. Spec. 1 85. O’Brien describes ring member 42 shown in Figure 4. See O’Brien, Cert, of Correction 5 (emphasis added). This description does not indicate that ring member 42 is sized to prevent choking. Further, the Examiner finds that O’Brien’s bowl 38 corresponds to the claimed mouthpiece. Final Act. 3. We note, however, that ring member 42 is not part of bowl 38. See, e.g., O’Brien, Fig. 1. Accordingly, the Examiner does not provide the required factual basis to support the position that O’Brien discloses “[a] mouthpiece [having] a ring sized to prevent choking,” as claimed. See In re Warner, 379 F.2d at 1017. Thus, we do not sustain the rejection of claim 40 as unpatentable over O’Brien and Rhodes or Neale. Obviousness of claim 35 over O’Brien, Rhodes or Neale, and Castner Claim 35 depends from claim 34, which depends from claim 32. Appeal Br. 21 (Claims App.). For claim 32, the Examiner finds that O’Brien discloses removable cap 16 configured to fit over a mouthpiece, and which includes plug 58 configured to block a tubular hole. Final Act. 4. For claim 35, the Examiner finds that Castner teaches a removable cap or transparent cover 21 for a mouthpiece comprising plug 22b semi-permanently coupled, 11 Appeal 2015-003337 Application 13/887,484 via a seal, with mouthpiece 12. Id. The Examiner concludes that it would have been obvious to modify O’Brien in view of Rhodes or Neale with Castner’s removable cover or cap “to provide an indicator of safety and tampering for the apparatus.” Id. at 4—5. Appellants contend that the Examiner does not explain how O’Brien is modified to arrive at the claimed apparatus. Appeal Br. 11. Appellants contend that the Examiner acknowledges that O’Brien discloses removable cap 16 including plug 58 to block the tubular hole, and it makes no sense to add a second removable cap or cover to O’Brien. Id. O’Brien discloses that plug 58 extends into channel 46 and prevents food from passing through channel 46 until cap 16 is removed. See O’Brien, Cert, of Correction 5. Figures 5 and 6 of Castner show tear strip 22 of shrink wrap seal 21 carrying sealing plug patch 22a with nose 22b pressed into the discharge orifice of nozzle 14. See Castner, col. 3,11. 33—38. When tear strip 22 is tom out of the seal 21, nose 22b is pulled out of the discharge orifice. See id. at col. 3,11. 38-40. The Examiner answers that the rejection of claim 35 modifies or replaces the invention of O’Brien with a removable cover or cap taught by Castner, and that “no modification of a second removable cap or cover” is required in the rejection. Ans. 11. Appellants reply with additional arguments directed to O’Brien and Castner. Reply Br. 4—5. However, these arguments are untimely. 37 C.F.R. § 41.41(b)(2) states: Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner’s answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown. 12 Appeal 2015-003337 Application 13/887,484 (Emphasis added). Appellants do not show good cause for raising new arguments in the Reply Brief. We note that the Examiner’s position in the Answer is substantially identical to that in the Final Action. Compare Ans. 3—4, 11, with Final Act. 4—5. Consequently, we do not consider the new arguments. We sustain the rejection of claim 35 as unpatentable over O’Brien, Rhodes or Neale, and Castner. Obviousness of claim 3 7 over Kamm and Ceccarelli The Examiner’s application of Ceccarelli to the rejection of claim 37, which depends from claim 36, does not cure the deficiencies of the rejection of claim 36 discussed above. Final Act. 5; Ans. 4. Accordingly, we do not sustain the rejection of claim 37 as unpatentable over Kamm and Ceccarelli. Obviousness of claims 22, 23, 27, 30, and 39s over Kamm and O’Brien For claim 22, the Examiner finds that Kamm discloses all claim limitations except for “the mouthpiece includes a twist-off mouthpiece removably coupled with the fitment via a threaded fastener.” Final Act. 2—3, 5. The Examiner finds that O’Brien discloses a mouthpiece including a twist-off mouthpiece coupled with fitment 30 via threaded fastener 32. Id. at 5. The Examiner concludes that it would have been obvious to modify Kamm with the mouthpiece of O’Brien “for enhancing securely the mouthpiece to the fitment.” Id. Appellants contend that Kamm’s mouthpiece and fitment are one piece so that they are securely connected, and, if the mouthpiece and fitment were changed to two pieces, with a screw connection between them, the 5 Appellants group dependent claims 23, 29, and 30. Appeal Br. 14. Claim 29 is not rejected in this ground of rejection. See Final Act. 5—6. 13 Appeal 2015-003337 Application 13/887,484 mouthpiece to fitment connection would be less secure, not enhanced. Appeal Br. 13. The Examiner answers that Kamm discloses a fitment (i.e., neck of flexible pouch 300) configured to be attached permanently with flexible pouch 300, and mouthpiece 110 coupled with the fitment by a snap engagement. Ans. 12 (citing Kamm| 17, Fig. 6). Appellants’ contentions are persuasive. Claim 22 requires both a fitment configured to attach an apparatus, including the fitment, substantially permanently with a flexible pouch. Kamm’s neck of container 300 is not part of an apparatus that is attached substantially permanently with container 300. Rather, Kamm’s base 110 is attached to container 300. See, e.g., Kamm, Fig. 6. It is not apparent how the neck of container 300 (“flexible pouch”) is configured to attach an apparatus, including the fitment, substantially permanently with container 300. Rather, we agree with Appellants that Kamm’s fitment is part of the mouthpiece. Appeal Br. 13. Thus, we do not sustain the rejection of claim 22, and claims 23, 27, 30, and 39 depending therefrom, as unpatentable over Kamm and O’Brien. Obviousness of claims 22—24, 26, and 27 over Mikulec and Kamm The Examiner finds that Mikulec discloses all limitations of claim 22, except for the mouthpiece having a core material and a covering of material softer than the core material. Final Act. 6 (citing Mikulec, Figs. 1—4). The Examiner relies on Kamm for teaching this limitation. Id. The Examiner concludes that it would have been obvious to modify Mikulec in view of Kamm to include the missing limitation “to prevent injury and with a retrain to meter the correct amount food on the mouthpiece from the container.'1'’ Id. at 7 (emphasis added). 14 Appeal 2015-003337 Application 13/887,484 Appellants contend that Kamm does not disclose a coating of a material softer than the core material. Appeal Br. 15. For the reasons discussed above for the rejection of claim 36, this contention is not persuasive. Appellants also contend that using Kamm’s material 200 to form a valve 210 in Mikulec would change the principle of operation of Mikulec. Id. Appellants further contend that using Kamm’s material 200 to form a valve 210 in Mikulec’s device would provide Mikulec with a second valve duplicative of Mikulec’s valve. Id. (citing Mikulec, col. 5,1. 50-col. 6, 1.21). The Examiner answers that Mikulec only lacks its mouthpiece having a core material and a covering of material softer than the core material, and Kamm teaches a mouthpiece having a steel core material 110 (stainless steel) and a covering of “flexible silicon [sic] material 200 with a restrain 210” softer than the core material. Ans. 13 (emphasis added). The Examiner explains that the modification of Mikulec in view of Kamm “to prevent injury and to meter the correct amount food on the mouthpiece from the container, which is not interfered or destroyed or double any function of the valve in the Mikulec.” Id. at 14. Appellants reply that the Examiner urges in the Answer that the modification of Mikulec, by providing Kamm’s soft covering forming valve 210, would have been obvious as this enables Mikulec’s valve 210 (“retrain” or “refrain” in the Answer) in order “to meter the correct amount food on the mouthpiece from the container.” Reply Br. 6; see also Ans. 13. Appellants contend that Kamm already discloses apertures 52 to meter the flow, and the Examiner has not provided any reasoned explanation why 15 Appeal 2015-003337 Application 13/887,484 adding a second metering device (i.e., Kamm’s valve 210) would have been an obvious addition to Mikulec. Id. We understand that the Examiner proposes to modify Mikulec’s mouthpiece to have both a core material and a covering of material softer than the core material, and a valve 210. Mikulec’s nozzle assembly 14 already includes apertures 52 through which material exits. See Mikulec, col. 5,11. 15—19; Fig. 3. Mikulec describes that lower section 40 of utensil assembly 16 operates with nozzle portion 42 to form a valve assembly for feeding apparatus 10. See id. at col. 5,11. 50-53. The Examiner has not explained why apertures 52 cannot “meter the correct amount of food on the mouthpiece from the container.” Thus, we agree with Appellants that the Examiner has not articulated an adequate reason with some rational underpinning why one of ordinary skill in the art would have modified Mikulec to include Kamm’s valve 210 in addition to apertures 52 and the associated valve assembly. For the above reasons, we do not sustain the rejection of claim 22, and of claims 23, 24, 26, and 27, which depend from claim 22, as unpatentable over Mikulec and Kamm. Obviousness of claim 25, 28, and 41 over Mikulec, Kamm, and Stebick Claim 25 depends from claim 24 and recites that “the neck portion includes a safety indicator configured to indicate whether or not the neck has been moved from the first position to the second position since the apparatus has been manufactured.” Appeal Br. 19 (Claims App.). Claims 28 and 41 also depend from claim 22 and recite similar limitations as claim 25. Id. at 20, 22. 16 Appeal 2015-003337 Application 13/887,484 The Examiner’s application of Stebick to reject claims 25, 28, and 41 does not cure the deficiencies of the rejection of claim 22 discussed above. Final Act. 7; Ans. 7. Accordingly, we do not sustain the rejection of claims 25, 28, and 41 as unpatentable over Mikulec, Kamm, and Stebick. Obviousness of claim 29 over Mikulec, Kamm, and Nusbaum Claim 29 depends indirectly from claim 22. The Examiner’s application of Nusbaum to reject claim 29 does not cure the deficiencies of the rejection of claim 22 discussed above. Final Act. 7—8; Ans. 7—8. Accordingly, we do not sustain the rejection of claim 29 as unpatentable over Mikulec, Kamm, and Nusbaum. Obviousness of claim 31 over Mikulec, Kamm, and Castner Claim 31 depends from claim 22. The Examiner’s application of Castner to reject claim 31 does not cure the deficiencies of the rejection of claim 22 discussed above. Final Act. 8; Ans. 8. Accordingly, we do not sustain the rejection of claim 31 as unpatentable over Mikulec, Kamm, and Castner. DECISION We reverse the rejection of claim 36 as anticipated by Kamm. We affirm the rejection of claims 32 and 34, and reverse the rejection of claims 33 and 40, as unpatentable over O’Brien and Rhodes or Neale. We affirm the rejection of claim 35 as unpatentable over O’Brien, Rhodes or Neale, and Castner. We reverse the rejection of claim 37 over Kamm and Ceccarelli. We reverse the rejection of claims 22, 23, 27, 30, and 39 as unpatentable over Kamm and O’Brien. 17 Appeal 2015-003337 Application 13/887,484 We reverse the rejection of claims 22—24, 26, and 27 as unpatentable over Mikulec and Kamm. We reverse the rejection of claims 25, 28, and 41 as unpatentable over Mikulec, Kamm, and Stebick. We reverse the rejection of claim 29 as unpatentable over Mikulec, Kamm, and Nusbaum. We reverse the rejection of claim 31 as unpatentable over Mikulec, Kamm, and Castner. 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)(iv). AFFIRMED-IN-PART 18 Copy with citationCopy as parenthetical citation