Ex Parte Johnsen

Board of Patent Appeals and Interferences

Oct 18, 2007

09936820 (B.P.A.I. Oct. 18, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte LARS JOHNSEN
__________

Appeal 2007-2902
Application 09/936,820
Technology Center 3700
__________

DECIDED: October 18, 2007
__________

Before TONI R. SCHEINER, DONALD E. ADAMS, and LORA M. GREEN,
Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from the final rejection of
claims 41-49 and 52-55 as obvious over the prior art.1 We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.

1 Claims 50 and 51 are also pending, but have been indicated allowable by
the Examiner.
Appeal 2007-2902
Application 09/936,820

THE INVENTION
“The object of the invention is to provide a lid [for a container] which
is easy to open without the use of a great force” (Spec. 2: 10-11).
Claims 55 and 41 are representative of the claimed subject matter:
41. A lid assembly according to claim 55, wherein the second layer
consists of aluminum.

55. A lid assembly for closing an opening in a neck of a container,
said lid assembly comprising an outer lid member and a planar,
multilayered inner lid member,
said outer lid member consisting of a top part and a cylindrical
collar, said cylindrical collar defining inwardly-extending threads and
a single inwardly-extending protrusion which is located below the
inner lid member at a level of an upper edge of the neck of the
container when the lid assembly is attached to the container, and
said planar, multilayered inner lid member consisting of a first
layer for sealing against the upper edge of the container and made of a
soft thermoplastic elastomer, a second layer having gas barrier
properties, and a third layer consisting of thermoplastics which covers
the second layer, said third layer making contact with the outer lid,
wherein said third layer has a first relatively low friction coefficient
with said outer lid and said first layer has a second relatively higher
friction coefficient with the upper edge of the neck of the container,
wherein during removal of the lid assembly from a container,
the outer lid member is rotated relative to the neck of the container
and said protrusion will exert an upward pressure against an edge of
the inner lid member to cause the inner lid member to be pointwise
separated from the upper edge of the neck as the outer lid member is
rotated.

According to the Specification, “[b]y concentrating the force at a
single point and affecting the inner lid in an upward direction, the force
required to create venting of the inner volume will be greatly reduced”
(Spec. 2: 27-30).
2
Appeal 2007-2902
Application 09/936,820

In addition, “where[ ] the upper [third] layer of the [multi-layered]
inner lid has a relatively lower friction with the [outer] lid than the lower
[first] layer of the inner lid which has a relatively higher friction with the
edge of the container collar . . . the outer lid rotates relatively to the inner lid
until the inner lid is lifted by the projection of the lid” (Spec. 3: 25-32).
“The second [middle] layer may advantageously consist of aluminum . . .
[which] can form a good gas barrier even with a very thin layer” (id. at 5:
24-26).
Figure 1 of the instant Specification is reproduced below:

Figure 1 “shows a lid 1 in relation to a package neck 15, 2” (Spec. 7:
8). According to the Specification, “[i]n the lid, a loose, circular plate called
the inner lid 5 is positioned, whose diameter essentially corresponds to the
diameter of the collar 3 and is larger than the external diameter of the
package neck. A projection 13 in the form of a cylindrical or box-shaped
pin extends from the inner face of the collar 3, and this projection 13 has an
extent such that it extends into the peripheral part of the inner lid 5 . . . the
essential point being that [the projection 13] has a small contact area so that
when the lid is removed and the venting function is released, the force . . .
[is] distributed over as small an area as possible . . . Additional projections
3
Appeal 2007-2902
Application 09/936,820

14 may be arranged in the lid . . . positioned at a greater distance from the
inner lid 5 than the active projection[ ] 13, the purpose of the additional
projections 14 exclusively being to ensure that the inner lid does not drop
out” (id. at 7: 17 to 8: 4).
STATEMENT OF THE CASE
1. Claims 49 and 52-55 under 35 U.S.C. § 103(a) as unpatentable
over Geiger,2 Lecinski,3 and Acton.4
2. Claims 49 and 52-55 under 35 U.S.C. § 103(a) as unpatentable
over Geiger, Hayes,5 and Acton.
3. Claims 41-48 under 35 U.S.C. § 103(a) as unpatentable over
Geiger, Hayes, Acton, and Osip.6
Appellant has not argued that the claims are separately patentable.
Therefore, with respect to the first and second rejections, we will focus on
independent claim 55 as representative of the claimed subject matter, and
remaining claims 49 and 52-54 will stand or fall accordingly, as provided for
in 37 C.F.R. § 41.37(c)(1)(vii). With respect to the third rejection, we will
focus on claim 41 as representative, and remaining claims 42-48 will stand
or fall accordingly.

2 U.S. Patent 4,473,163 to Geiger, issued September 25, 1984.
3 UK Patent Application GB 2 122 178 A of Lecinski, published January 11,
1984.
4 U.S. Patent 3,006,493 to Acton, issued October 31, 1961.
5 U.S. Patent 5,839,592 to Hayes, issued November 24, 1998.
6 U.S. Patent 4,991,731 to Osip, issued February 12, 1991.
4
Appeal 2007-2902
Application 09/936,820

FINDINGS OF FACT
Geiger
1. Geiger describes “a screwcap 1 with a plastic, annular outer cap 2 and
a punched . . . sheet metal inner cap” (Geiger, col. 3, ll. 37-39), and “[a]t a
distance D1 from the lower edge 22 of edge portion 16 of inner cap 3, . . .
projection 23b is formed on the inside of collar 24 of the outer cap” (id. at
col. 3, ll. 63-66). Thus, Geiger describes a lid assembly for closing the
opening in a neck of a container, comprising an outer lid member and an
inner lid member, wherein the outer lid member has a cylindrical collar with
a single inwardly-extending protrusion located between the inner lid member
and the level of the upper edge of the neck of the container when the lid
assembly is attached to the container, as required by claim 55.
2. “On unscrewing the cap, projection 23b is first to raise inner cap 3 in
the axial direction from the container opening” (id. at col. 4, ll. 5-7), thus,
“the raising force only acts in a locally defined zone on the periphery of the
inner cap 3. The inner cap is only initially raised in this zone, and the
vacuum . . . is removed before the complete inner cap is raised” (id. at col. 4,
ll. 16-20). Thus, “said protrusion will . . . cause the inner lid member to be
pointwise separated from the upper edge of the neck as the outer lid member
is rotated,” as required by claim 55.
3. Geiger’s inner cap is sheet metal, with a “soft-elastic sealing layer”
which “sealingly engages” the neck of the container “by elastic
deformation” (Geiger, col. 1, ll. 42-44). Referring to Figure 1, Geiger
teaches that “[o]uter cap 2 can be turned by exerting relatively little force,
without peripherally displacing the inner cap 3. The contact between the
5
Appeal 2007-2902
Application 09/936,820

varnished top of inner cap 3 and the plastic material of the outer cap
provides adequately low frictional resistance so that the treading movement
of the outer cap is only opposed by relatively limited frictional resistance”
(Geiger, col. 3, ll. 54-61). Thus, Geiger’s inner cap has a first layer for
sealing against the upper edge of the container, and a second metal layer
having “gas barrier properties,” and the inner lid has a relatively low friction
coefficient with the outer lid as compared with the upper edge of the neck of
the container, as required by claim 55.
4. Geiger’s sheet metal inner cap has an “annular groove,” and a
“downwardly sloping edge portion” (Geiger, col. 1, ll. 38-39, and ll. 45-47).
Therefore, Geiger’s inner lid differs from that of the present invention in that
it is not “planar,” as required by instant claim 55.
Lecinski
5. Lecinski describes a two-piece screw type cap for a container, such as
a glass jar, comprising a ring member and a closure panel. The closure
panel 22 is sheet metal “provided with an external protective coating 38” on
top and a gasket 42 below, “formed of a suitable sealing material” (Lecinski
2: 31-37).
6. Lecinski’s external coating “has a low coefficient of friction as does
the undersurface of the retaining ring . . . Thus, there may be relative
rotation between the ring member [ ] and the closure panel [ ] with a
minimum of frictional resistance” (Lecinski 2: 47-52).
6
Appeal 2007-2902
Application 09/936,820

Acton
7. Acton describes a two-piece screw type cap for a container, such as a
glass jar, comprising a ring member and a planar sealing liner 6, illustrated
in Figures 1, 8, and 9, “which is pressed into the cap and held therein by [ ]
liner-retaining lugs 7” (Acton, col. 2, ll. 66-68).
Hayes
8. Hayes describes a two-piece screw type cap for a container, such as a
glass jar, comprising a ring and a closure disk. The closure disk is formed
from “a thermoplastic composite having an upper or outer layer which is a
strong but flexible plastic material, and a lower layer which is softer and
comparably easily deformed” (Hayes, col. 2, ll. 1-4), e.g., a thermoplastic
elastomer (id. at col. 4, l. 29).
9. Hayes’ “composite laminate can be formed with various intermediate
layers such as an oxygen-barrier layer which would prevent oxygen
permeation into the headspace” (id. at col. 2, ll. 8-10). “Typical barrier
layers include ethylene vinyl alcohol, and polyvinylidene chloride[,] [and]
[m]etal foil” (Hayes, col. 4, ll. 33-35).
Osip
10. Osip describes a two-piece screw type cap for a container, such as a
plastic jar, comprising an outer annular portion, and a “metallic disk [ ] with
the disk lower surface [ ] having applied there to a fusible coating[ ],
preferably of polypropylene” (Osip, col. 4, ll. 54-56). “[A]luminum . . . is
an excellent choice [for the disk] since the rigidity of the metal forming the
disk must be greater than the peel strength, otherwise the metallic disc will
be subject to . . . deformation upon removal” (id. at col. 4, ll. 62-67).
7
Appeal 2007-2902
Application 09/936,820

DISCUSSION
Obviousness over Geiger, Lecinski, and Acton
Claims 49 and 52-55 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Geiger, Lecinski, and Acton.
The Examiner acknowledges that Geiger “does not teach the third
layer of the inner lid nor . . . the inner lid being planar” (Answer 3), but
contends that it would have been obvious for one of ordinary skill in the art
“to provide the lid assembly of Geiger with the inner lid having a third layer,
as taught by Lecinski, in order to protect the metal” (id.), and to provide a
planar inner lid, as taught by Acton, “in order to simplify the manufacturing
process by eliminating more complicated outlines” (id.).
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007). “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” Id. at 1739. Moreover, an
“[e]xpress suggestion to substitute one equivalent for another need not be
8
Appeal 2007-2902
Application 09/936,820

present to render such substitution obvious.” In re Fout, 675 F.2d 297, 301
(CCPA 1982).
We find that the Examiner has established that the claimed lid
assembly would have been obvious over the cited references (all of which
pertain to two-piece screw type closures for jars (FF7 1, 5, and 7)), given the
fact that the references show that both shaped and planar disks are familiar
alternatives in two-piece screw type closures (FF 4 and 7), the fact that
multi-layer disks (FF 3 and 5) with a gas barrier layer (FF 3) are common
elements in two-piece screw type closures, and the fact that it is
conventional to coat the top of the inner lid with a layer of material that
provides a relatively low coefficient of friction between the inner and outer
members of two-piece screw type closures (FF 3 and 6).
We are not persuaded otherwise by the mere assertion that “there is no
reasonable ‘teaching’ in Lecinski that would suggest applying another layer
to the inner cap 3 of Geiger” (Appeal Br. 6). The Examiner has articulated a
reason, based on the prior art, why one of ordinary skill in the art would
have put a third coating on Geiger’s metal inner lid, which Appellant has not
addressed.
Nor are we persuaded by Appellant’s contention that “although the
inner lid 6 in Acton does appear to be planar, there is no discussion of this
fact in [Acton’s] specification and thus absolutely no ‘teaching’ that would
suggest use of a planar inner lid in some other environment” (Appeal Br. 6-
7). Both Acton and the present invention concern two-piece screw type

7 “Finding(s) of Fact”.
9
Appeal 2007-2902
Application 09/936,820

closures for jars. Acton’s Figure 1 illustrates a planar inner lid 6, “which is
pressed into the [closure, i.e., outer,] cap and held therein by the liner-
retaining lugs 7” (Acton, col. 2, ll. 66-71). Appellant has not explained why
Acton’s Figure 1, with or without the accompanying text, would not have
suggested to one of skill in the art that planar inner lids are conventional
alternatives to shaped inner lids in two-piece screw type closures.
Appellant’s contention that “reconstructing the inner cap of Geiger to be
‘completely planar’ would mean omission of the downwardly-extending
peripheral wall part found on each embodiment of the Geiger invention”
(Appeal Br. 7) is unpersuasive for the same reason.
Finally, Appellant’s argument that “the [E]xaminer has provided no
reasoning why it would be obvious to exclude the projections 23a, 23c and
23d in Geiger” (id. at 7) is irrelevant. Geiger’s projections 23a, 23c and 23d
are not “located below the inner lid member at a level of an upper edge of
the neck of the container when the lid assembly is attached to the container”
(Claim 55), and so are not precluded by claim 55. As Geiger explains, “[a]t
a distance D1 from the lower edge 22 of edge portion 16 of inner cap 3,
projection 23b is formed on the inside of collar 24 of the outer cap . . . Other
identically shaped [ ] projections 23a, 23c, 23d are peripherally distributed at
somewhat greater distance D2 from the lower edge 22 of the inner cap”
(Geiger, col. 3, l. 63 to col. 4, l. 2). “On unscrewing the cap, projection 23b
is first to raise inner cap 3 in the axial direction from the container opening”
(id. at col. 4, ll. 5-7), thus, “the raising force only acts in a locally defined
zone on the periphery of the inner cap 3. The inner cap is only initially
raised in this zone, and the vacuum . . . is removed before the complete inner
10
Appeal 2007-2902
Application 09/936,820

cap is raised” (id. at col. 4, ll. 16-20). Projections 23a, 23c, 23d, on the
other hand, “subsequently engage edge portion 16 to completely raise the
inner cap” (id. at col. 4, ll. 14-15). They also function “so that inner cap 3 is
reliably held in outer cap 2” (id. at col. 4, ll. 40-41). In any case, as
discussed above, the present Specification describes a similar arrangement:
“Additional projections 14 may be arranged in the lid . . . positioned at a
greater distance from the inner lid 5 than the active projection[ ] 13 . . . to
ensure that the inner lid does not drop out” (Spec. 7: 33 to 8: 4).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR, 127 S. Ct. at 1739. We find that is the case here, and the Examiner has
established that the lid assembly of claim 55 would have been obvious over
the prior art. As discussed above, claims 49 and 52-54 fall accordingly. The
rejection of claims 49 and 52-55 under 35 U.S.C. § 103(a) as unpatentable
over Geiger, Lecinski, and Acton is affirmed.

Obviousness over Geiger, Hayes, and Acton
Claims 49 and 52-55 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Geiger, Hayes, and Acton.
Again, the Examiner acknowledges that Geiger “does not teach the
third layer of the inner lid nor . . . the inner lid being planar” (Answer 3), but
contends that it would have been obvious for one of ordinary skill in the art
“to provide the lid assembly of Geiger with the inner lid having a third layer,
as taught by [Hayes], in order to protect the metal” (id.), and also to provide
11
Appeal 2007-2902
Application 09/936,820

a planar inner lid, as taught by Acton, “in order to simplify the
manufacturing process by eliminating more complicated outlines” (id.).
Appellant contends that “there would be no reason to add an oxygen
barrier to the inner lid of Geiger since it already includes a layer [ ] of sheet
metal” (Appeal Br. 8). This argument is not persuasive. The Examiner’s
position is not that it would have been obvious to add an oxygen barrier to
Geiger’s inner cap (Geiger’s inner cap already has an oxygen barrier), but
that it would have been obvious to add a protective layer of the type taught
by Hayes, to the metal layer of Geiger’s inner cap. Appellant has not
addressed this.
In addition, Appellant argues that “it would not be ‘obvious’ based on
Hayes to reconstruct the inner cap 3 of Geiger to be ‘completely planar’ as
the outer edge portion of the Geiger cap is critical to his invention” (Appeal
Br. 8). We are not persuaded by this argument either, as Appellant has not
explained why the outer edge portion of Geiger is critical to Geiger’s screw
cap assembly.
We find that the Examiner has established that the claimed lid
assembly would have been obvious over the cited references, all of which
pertain to two-piece screw type closures for jars (FF 1, 7, and 8); the fact
that the references show that both shaped and planar disks are familiar
alternatives in two-piece screw type closures (FF 4 and 7); the fact that
multi-layer disks (FF 3 and 8) with a gas barrier layer (FF 3 and 9) are
common elements in two-piece screw type closures; and the fact that it is
conventional to coat the top of the inner lid with a layer of material that
12
Appeal 2007-2902
Application 09/936,820

provides a relatively low coefficient of friction between the inner and outer
members of two-piece screw type closures (FF 3).
The rejection of claims 49 and 52-55 under 35 U.S.C. § 103(a) as
unpatentable over Geiger, Hayes, and Acton is affirmed.

Obviousness over Geiger, Hayes, Acton, and Osip
Claims 41-48 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Geiger, Hayes, Acton, and Osip. As discussed above, claim 41 is
representative, and claims 42-48 will stand or fall accordingly.
Claim 41 depends from claim 55, and requires that the gas barrier
layer is aluminum. The Examiner contends that “[i]t would have been
obvious to one having ordinary skill in the art . . . to provide the modified lid
assembly of Geiger with the metal being aluminum, as taught by Osip, to
give the inner lid the rigidity characteristic of aluminum” (Answer 4).
Appellant argues that “nothing in Osip [ ] can overcome the
deficiencies in the [E]xaminer’s rejection of claim 55 based on Geiger in
view of [Hayes] and Acton” (Appeal Br. 9). This argument is not
persuasive, as we have already found that Appellant has not established that
the Examiner’s rejection of claim 55 as unpatentable over Geiger, Hayes,
and Acton is deficient.
The rejection of claims 41-48 under 35 U.S.C. § 103(a) as
unpatentable over Geiger, Hayes, Acton, and Osip is affirmed.

13
Appeal 2007-2902
Application 09/936,820

SUMMARY
The Examiner’s rejections of the claims under 35 U.S.C. § 103(a) as
unpatentable over the prior art are 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)(1)(iv) (2006).

AFFIRMED

lbg

DYKEMA GOSSETT PLLC
FRANKLIN SQUARE, THIRD FLOOR WEST
1300 I STREET, NW
WASHINGTON DC 20005
14