Ex Parte Lagler

Patent Trial and Appeal Board

Nov 29, 2017

14213362 (P.T.A.B. Nov. 29, 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
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/213,362 03/14/2014 Louis Lagler RP-202-A 9436
42419 7590 11/29/2017
PAULEY ERICKSON & KOTTIS
2800 WEST HIGGINS ROAD
SUITE 365
HOFFMAN ESTATES, IL 60169
EXAMINER
KIRSCH, ANDREW THOMAS
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
11/29/2017 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 LOUIS LAGLER
____________________

Appeal 2017-001506
Application 14/213,3621
Technology Center 3700
____________________

Before: STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Louis Lagler (Appellant) appeals under 35 U.S.C. § 134(a) from the
Examiner’s decision in the Final Action (dated June 17, 2015, hereinafter
“Final Act.”) rejecting claims 1–11. We have jurisdiction under 35 U.S.C.
§ 6(b).

SUMMARY OF DECISION
We REVERSE.

1 According to Appellant’s Appeal Brief (hereinafter “Appeal Br.”), filed
December 18, 2015, Creanova AG is the real party in interest. Appeal Br. 2.
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Application 14/213,362

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CLAIMED SUBJECT MATTER
Appellant’s invention relates “to a hinged closure moulded in closed
position.” Spec. 2, ll. 7–8.
Sole independent claim 1 is representative and reads as follows:
1. A closure moulded in closed position with a body
comprising fixing means to fix the closure on a neck of a bottle,
and a lid, the lid comprising a sealing means to seal an orifice of
the bottle, whereby the body and the lid are separated from each
other by a circumferential gap and at least one of the body and
the lid form a closure wall, the closure further comprising:
a snap hinge comprising a first and a second trapezoid
element that are spaced apart from each other,
and a first and second pair of film hinges, each pair
defining a first and second plane, respectively, the first and
second pair of film hinges connecting the first and second
trapezoid elements to the lid and the body, where
the first and second plane are arranged substantially
parallel to an axis A of the closure when the closure is in the
closed position, wherein
the film hinges are positioned along an inside of the
closure wall, an inside of the film hinges is configured such that
the film hinges are easily demoulded in a z-direction, which is a
direction of the axis A of the closure, and
an inner periphery of the film hinges is arranged along a
secant to a circle having a radius equal to a maximum inner
radius (R1) of the closure.

REJECTIONS
The following rejections are before us for review:
I. Claim 9 is rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite.
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II. Claims 1–11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wheeler (US 4,043,475, iss. Aug. 23, 1977) and Rentsch
et al. (US 6,041,477, iss. Mar. 28, 2000, hereinafter “Rentsch”).

ANALYSIS
Rejection I
Claim 9 recites, in relevant part, “wherein the inner wall is formed by
the body and the lid, such that no overlapping exists in an x-direction.”
Supplemental Appeal Brief (Claims App.) (filed Apr. 13, 2016, hereinafter
“Suppl. Appeal Br.”).
The Examiner finds that the limitation “such that no overlapping
exists in an x-direction” is unclear because “from one side, travelling in the
x-direction, the diametrically opposite side walls could be considered to
‘overlap.’” Final Act. 2.
Appellant argues that because the term “overlap means to cover
partially and extend beyond,” and because “[c]laim 9 includes a body wall
and a lid wall that are aligned flush in the x-direction,” a person of ordinary
skill in the art would understand that “no overlapping exists in an x-
direction,” as recited in claim 9. Appeal Br. 4 (citing Spec., Fig. 7).
The Examiner responds that although “overlapping typically requires
something to exist over something else, it is not clear what manner of
overlapping is disqualified by the claimed limitation.” Examiner’s Answer
10 (dated Sept. 7, 2016, hereinafter “Ans.”). According to the Examiner,
traveling in a straight line from a point outside of the closure [in
Appellant’s Figure 7], along the x-direction, through the wall of
the closure at a point ‘A’, through the center axis, through the
wall diametrically opposite point ‘A’, the inner wall could be
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said to overlap itself since the line intercepts the wall twice
along the straight line.
Id.
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the
claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations
omitted). Here, we agree with Appellant that the term “overlap” in claim 9
refers to an inner wall formed by “a body wall and a lid wall.” See Appeal
Br. 4.
Appellant’s Figure 7 shows a body 2 having an inner wall and a lid 3
having an inner wall, and is reproduced below.

Figure 7 shows a top view of a hinged closure 1 of body 2 and lid 3.
The Specification describes inner wall of closure 1 in Figure 7 as
being arranged “such that no hindering overlapping exists in x-direction.”
Spec. 17, ll. 20–21. Hence, when claim 9 is read in light of Appellant’s
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Specification, we agree with Appellant that Figure 7 shows “a body wall and
a lid wall that are aligned flush in the x-direction,” and, thus, a person of
ordinary skill in the art would readily understand this to mean that no
overlapping exists in the x-direction between the inner wall formed by body
2 and lid 3. See Appeal Br. 4.
In conclusion, for the foregoing reasons, we do not sustain the
rejection of claim 9 under 35 U.S.C. § 112, second paragraph, as being
indefinite.

Rejection II
The Examiner finds that Wheeler discloses most of the limitations of
independent claim 1 including, inter alia, a snap hinge 22. Final Act. 3–4.
Appellant argues that Wheeler’s hinge 22 is a “dead hinge” formed
from a flexible web and is not a “snap hinge” consistent with Appellant’s
Specification. Appeal Br. 5 (citing Spec. 5, l. 12).
The Examiner responds that because the claims do not limit how
snapping occurs, Wheeler’s hinge 22 constitutes a “snap hinge” consistent
with the broadest reasonable interpretation of this term in light of
Appellant’s Specification. Ans. 11. The Examiner takes the position that
Wheeler’s hinge 22 “can be considered a ‘snap hinge’” because the material
of the hinge has “sufficient resilience for snapping behavior” and, moreover,
Wheeler specifically discloses that its “cap is snapped back (while
connected to the hinge 22 in the embodiment of Figs. 7 and 8) onto the
container.” Id. (citing Wheeler, col. 1 ll. 35–48, col. 3, ll. 4–7 and 55–57)
(emphasis added). According to the Examiner, Wheeler’s “hinge 22 is
capable of undergoing snapping behavior, [as it] is made of a material with
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intrinsic resilience (i.e. elastic bias), and is thereby considered as meeting
the claimed limitation of a ‘snap hinge’ absent any structural or functional
language in the claim to further limit the term.” Id.
Appellant replies that Wheeler’s hinge is not a snap hinge. Reply Br.
2. According to Appellant, a person of ordinary skill in the art would
understand that “the elasticity of the Wheeler hinge web would not allow the
closure lid to stay in an open position.” Id. at 2–3.
We do not agree with the Examiner’s position because the
presumption that a term is given its ordinary and customary meaning may be
rebutted by the applicant by clearly setting forth a different definition of the
term in the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). In this case, claim 1 requires a “snap hinge,” which is a term of art
that is used for a certain type of hinge. Appellant’s Specification describes
“[t]he hinge structure . . . [as] living, with snap effect, or dead, without snap
effect.” Spec. 5, ll. 12–13; see also Appeal Br. 5. The Specification also
states:
In-between the open and the closed position, snap hinge 4 causes
deformation . . . causing the snap action of lid 3 versus body 2.
While opening or closing closure 1 lid 3 has to be moved against
a resilient force and after passing of a dead center position
(instable) lid 3 moves automatically into the nearest open or
closed position.

Spec. 15, ll. 8–15. As such, in light of Appellant’s Specification, a “snap
hinge” is a type of hinge that exhibits a “snap effect” in which it moves
against a resilient force on either side past a dead center position.
Furthermore, “[p]rior art references may be ‘indicative of what all those
skilled in the art generally believe a certain term means . . . [and] can often
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help to demonstrate how a disputed term is used by those skilled in the art.’”
In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999) (citation omitted).
Here, Rentsch discloses that with respect to a “snap hinge” “[t]he term ‘snap
effect’ designates an automatic opening of the hinge after a specific initial
deflection (dead centre) forced upon the hinge system, and an analogous
effect during closing, in that the hinge automatically returns into a closed
position once it has passed a dead centre.” Rentsch, col. 1, ll. 22–26.
In contrast, although Wheeler employs the term “snapped” in
describing the capability of the material of cap 7, nonetheless, Wheeler fails
to disclose that hinge 22 undergoes a “snap effect” when the cap is placed
onto the container. See Wheeler, col. 3, ll. 38–56. The Examiner does not
explain adequately how Wheeler’s hinge material will provide a “snap
effect” that is required by a “snap hinge,” nor does the Examiner point to
any portion of Wheeler that supports a “snap hinge,” as this term would be
construed by a person of ordinary skill in the art in light of Appellant’s
Specification. Although we appreciate that Wheeler’s cap is flexible and
that the material has some resilience, this does not mean that Wheeler’s
hinge 22 can exhibit a “snap effect” and, thus, constitute a “snap hinge.” In
other words, the Examiner’s finding that Wheeler’s hinge 22 constitutes a
“snap hinge” is mere speculation based on an unfounded assumption that the
flexibility and resilience of the material of Wheeler’s cap 7 can generate a
“snap effect.” As such, the Examiner does not set forth adequate factual
findings or technical reasoning that would lead a person skilled in the art to
make such a finding and thus, requires speculation on the Examiner’s part.
See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
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Accordingly, for the foregoing reasons, we do not sustain the rejection
under 35 U.S.C. § 103(a) of claims 1–11 as unpatentable over Wheeler and
Rentsch.

SUMMARY
The Examiner’s decision to reject claim 9 as indefinite is reversed.
The Examiner’s decision to reject claims 1–11 as unpatentable over
Wheeler and Rentsch is reversed.

REVERSED