Ex Parte Jongsma et alDownload PDFPatent Trial and Appeal BoardNov 17, 201512162923 (P.T.A.B. Nov. 17, 2015) 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. 12/162,923 02/09/2009 Jelmer Eelke Jongsma 60291.000069 6196 21967 7590 11/18/2015 HUNTON & WILLIAMS LLP INTELLECTUAL PROPERTY DEPARTMENT 2200 Pennsylvania Avenue, N.W. WASHINGTON, DC 20037 EXAMINER STASHICK, ANTHONY D ART UNIT PAPER NUMBER 3788 MAIL DATE DELIVERY MODE 11/18/2015 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 JELMER EELKE JONGSMA and JEAN-FRANCOIS JOUILLAT ____________ Appeal 2013-0095631,2 Application 12/162,923 Technology Center 3700 ____________ Before BIBHU R. MOHANTY, NINA L. MEDLOCK, and PHILIP J. HOFFMANN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the rejection of claims 1–7. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. According to Appellants, “[t]he invention relates to lids for cans for receiving foodstuff, which are to be subjected to a thermal treatment above 1 Our decision references Appellants’ Specification (“Spec.,” filed July 31, 2008), Appeal Brief (“Appeal Br.,” filed Mar. 22, 2013), and Reply Brief (“Reply Br.,” filed July 29, 2013), as well as the Final Office Action (“Final Action,” mailed Oct. 22, 2012), the Advisory Action (“Advisory Action,” mailed Feb. 6, 2013), and the Examiner’s Answer (“Answer,” mailed June 21, 2013). 2 “The real party in interest is Ardagh MP Group Netherlands B.V.” Appeal Br. 2. Appeal 2013-009563 Application 12/162,923 2 50°C in the form of sterilization or at least pasteurization.” Spec. 1, ll. 7–8. We reproduce below independent claims 1 and 2, the only independent claims on appeal, as representative of the appealed claims. 1. A lid for a can body for receiving a foodstuff, wherein, after sealingly closing of the can body, the closed can is subjectable to a thermally treating pasteurization or sterilization process, the lid comprising: an annular ring for firmly seaming to a can body edge portion and a plane or surface oriented cover panel disposed sealingly on the annular ring or affixable to the ring; wherein the annular ring comprises a flat web that extends towards a vertical central axis of the lid and is inclined at an angle with respect to a horizontal plane, the inclination is oriented upwards or axially outward of the can body; wherein the cover panel is sealingly affixed to the flat web, by a radially outer ring band, and a remaining central portion that is surrounded by the ring band is preformed axially towards an interior of the can as a bowl-shape and is for this reason stabilized in a manner so that the bowl-shaped cover panel, during an increase in pressure during one of sterilization and pasteurization, changes from the preformed first position to a second position that is bowl-shaped axially outwards, and automatically returns to the preformed first position after cooling. 2. A lid for cans for filling and keeping food or foodstuff therein, wherein after closing of the can body with said lid, the can is subjected to an atmosphere of a pasteurization or sterilization process as a temperature treatment, the lid comprising: an annular ring for seaming to an edge portion of the can body, providing firm and tight connection between can body and lid, the lid further having a lid panel affixed to the annular ring, wherein the annular ring for seaming to the can body comprises a flat web that is inclined upwards or outwards with Appeal 2013-009563 Application 12/162,923 3 respect to a horizontal plane at an angle of more than 10°, to which web the lid panel is sealingly affixed along a radially outer ring band; wherein the lid panel comprises of a material for hardening or stiffening by a deep-drawing deformation, at least as one layer; and wherein a central portion surrounded by the outer ring band has a first shape continuously bulged due to the deep- drawing process providing a shape keeping hardness or stability to still enable this central portion to: change into an outwardly shaped bulging under an inner pressure occurring during the temperature treatment inside the closed can, and upon reduction of said pressure to return this central portion to the first shape of continuous bulging. Appeal Br. 22–23, Claims App. REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows: claims 1 and 3–7 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement; claims 1–7 under 35 U.S.C. § 103(a) as unpatentable over combinations of Claydon (WO 2005/005277 A1, pub. Jan. 20, 2005) and Shaffer (US 1,162,520, iss. Nov. 30, 1915).3 See Final Action 3–5. 3 We combine the Examiner’s obviousness rejections of claim 2 based on “Claydon . . . in view of Shaffer,” of claims 1 and 3–7 based on “Claydon . . . in view of Shaffer,” and of claims 1 and 3–7 based on “Shaffer in view of Claydon.” Final Action 3–5. Appeal 2013-009563 Application 12/162,923 4 ANALYSIS Written description rejection of claims 1 and 3–7 The Examiner rejects independent claim 1, as well as claims 3–7 depending from claim 1. Specifically, the Examiner determines that “[t]here is no support in the disclosure as originally filed to support the new claim limitation that the cover panel ‘automatically returns to the preformed first position.’” Final Action 3. The Examiner further explains, “the originally[-] filed [S]pecification sets forth [that] the lid returns to the pre-form position, at least substantially. To now claim it returns to the preformed position goes beyond the scope of the disclosure.” Advisory Action 2 (emphasis added). After reviewing Appellants’ arguments (see Appeal Br. 8–10), and the Examiner’s findings and conclusions (see, e.g., Answer 8–9), we agree with Appellants that the original Specification supports claim 1’s recitation that the cover panel automatically returns to the preformed first position without claiming “at least substantially.” We conclude that a portion of the Specification identified by Appellants and Appellants’ Figure 1 provide support for the claimed recitation. See Appeal Br. 9–10 (citing Spec. 3, ll. 12–14, and Figure 1). We, therefore, do not sustain the written description rejection. Obviousness rejection of claim 2 The Examiner’s first obviousness rejection is of claim 2, and Appellants first argue against the rejection of claim 2 in the Appeal Brief. Thus, we first address the obviousness rejection of claim 2. Independent claim 2 requires the following: a central portion [of a lid] surrounded by the outer ring band has a first shape continuously bulged due to the deep-drawing Appeal 2013-009563 Application 12/162,923 5 process providing a shape keeping hardness or stability to still enable this central portion to: change into an outwardly shaped bulging under an inner pressure occurring during the temperature treatment inside the closed can, and upon reduction of said pressure to return this central portion to the first shape of continuous bulging. Appeal Br. 22–23, Claims App. Despite the Examiner’s determination to the contrary (see Answer 9–10), we agree with Appellants (see Appeal Br. 15–18; see also Reply Br. 6–8) that the claim requires a central portion able to change from a first bulged shape to a second bulged shape during treatment, and then back to the same first bulged shape. We note that claim 2 recites “this central portion [returning] to the first shape of continuous bulging,” rather than, for example, “the central portion [returning] to a shape of continuous bulging.” Appeal Br. 23, Claims App. (emphasis added). The Examiner fails to establish that either Claydon or Shaffer discloses a central portion able to change from a first bulged shape to a second bulged shape during treatment, and then back to the same first bulged shape, or that it would have been obvious to further modify the combination of references to provide such a central portion. Rather, at most the Examiner establishes that Shaffer discloses an end panel that changes from an inwardly bulged shape to an outwardly bulged shape, and then back to a different, inwardly bulged shape. See Answer 11–12. Thus, we do not sustain the rejection of claim 2. Obviousness rejection of independent claim 1 and its dependent claims 3–7 Independent claim 1 requires the following: a remaining central portion [of a lid] that is surrounded by the ring band is preformed axially towards an interior of the can as Appeal 2013-009563 Application 12/162,923 6 a bowl-shape and is for this reason stabilized in a manner so that the bowl-shaped cover panel, during an increase in pressure during one of sterilization and pasteurization, changes from the preformed first position to a second position that is bowl- shaped axially outwards, and automatically returns to the preformed first position after cooling. Appeal Br. 22, Claims App. For reasons similar to those discussed above with respect to claim 2, we agree with Appellants that the claim requires a central portion able to change from a first position to a second position during treatment, and then back to the same first position. The Examiner fails to establish that either Claydon or Shaffer discloses such a central portion, but at most establishes that Shaffer discloses an end panel that changes from an inwardly bulged shape to an outwardly bulged shape, and then back to a different, inwardly bulged shape. Thus, we do not sustain the rejection of claims 1 and 3–7. DECISION We REVERSE the Examiner’s rejection of claims 1 and 3–7 under 35 U.S.C. § 112, first paragraph. We REVERSE the Examiner’s rejection of claims 1–7 under 35 U.S.C. § 103(a). REVERSED rvb Copy with citationCopy as parenthetical citation