Ex Parte Litzka et al

Patent Trial and Appeal Board

May 17, 2016

12310807 (P.T.A.B. May. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/310,807 07/30/2010 Bernd Litzka
20311 7590 05/19/2016
LUCAS & MERCANTI, LLP
30 BROAD STREET
21st FLOOR
NEW YORK, NY 10004
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
BP-113 1372
EXAMINER
CALVETTI, FREDERICK F
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
05/19/2016 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):
info@lmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BERND LITZKA and STEP AN KREPPEL
Appeal2014-004945
Application 12/310,807
Technology Center 3700
Before WILLIAM A. CAPP, JAMES J. MAYBERRY, and
AMANDA F. WIEKER, Administrative Patent Judges.
MAYBERRY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Bernd Litzka and Stefan Kreppel (Appellants) seek our review under
35 U.S.C. § 134 of the Examiner's rejections of claims 1---6. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claims are directed to a cup-shaped container with an open top.
Spec. i-f 1. Claim 1, reproduced below, is the sole independent claim and is
illustrative of the claimed subject matter:
Appeal2014-004945
Application 12/310,807
1. Cup-shaped container which is open at the top with an
opening which can be closed by a cover, and with an outwardly
protruding rim and a filter arranged at the inner side of the
container, wherein the rim (5) is provided on its upper side with
an adhesive surface ( 6), wherein a first, annular cover (7) is
arranged releasably on the surface ( 6), and a second cover (9)
for closing the container (1) is pivotally arranged in the area of
the upper rim of the container ( 1) .
Appeal Br. 11, Claims App.
REJECTIONS
I. Claims 1, 2, and 4--6 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Acuff (US 5, 171,457, issued Dec. 15, 1992).
II. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Acuff and Lozito (US 5,424,083, issued June 13, 1995).
ANALYSIS
Rejection I
Independent claim 1 recites, in relevant part, "wherein a first, annular
cover[] is arranged releasably on the surface." Appeal Br. 11, Claims App.
The Examiner finds that Acuff discloses the recited annular cover,
referencing Acuffs cup cover sheet 25 and cover sheet 35. Final Act. 2.
Appellants argue that Acuff s cover sheet 25 and cover sheet 35 are
circular, not annular. Appeal Br. 8. Appellants assert that the term
"annular" should be construed to require a hole in the interior of the cover,
such that the cover is discontinuous. Reply Br. 1. Appellants argue that the
Examiner's construction of the term "annular" to encompass Acuff s
circular, continuous covers is unreasonably broad. See id. at 1-2. The
Examiner responds that "[a]nnular is circular." Answer 5.
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Appeal2014-004945
Application 12/310,807
We agree with Appellants that the Examiner's construction of the
term "annular" is unreasonably broad. "[C]laims under examination before
the PTO are given their broadest reasonable interpretation consistent with
the specification." In re Abbott Diabetes Care Inc., 696 F.3d 1142, 1148
(Fed. Cir. 2012). Under the broadest reasonable construction standard,
claim terms are given their ordinary and customary meaning, as would be
understood by one of ordinary skill in the art in the context of the entire
disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
2007). The ordinary and customary meaning of the term "annular" is "of,
relating to, or forming a ring." MERRIAM-WEBSTER ONLINE DICTIONARY,
available at http://www.merriam-webster.com/dictionary/annular (last
visited May 11, 2016). This meaning is consistent with Appellants'
Specification. See, e.g., Spec., Fig. 2 (depicting annular cover 7 as ring-
shaped, with an opening in the middle). That is, an annular cover is ring-
shaped, which includes an opening in the interior of the cover away from the
circular edges. The Examiner's construction of the term "annular" to
encompass Acuff s covers that are circular and continuous-that is, without
an opening at the interior of the cover surface-is unreasonably broad.
For the reason above, we do not sustain the Examiner's rejection of
independent claim 1. We also do not sustain the Examiner's rejection of
claims 2 and 4--6, which depend directly from claim 1.
Rejection II
In rejecting claim 3 as obvious over Acuff and Lozito, the Examiner
relies on the finding that Acuff anticipates claim 1. See Final Act. 3. For the
reason discussed above in connection with our analysis of claim 1, we do not
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Appeal2014-004945
Application 12/310,807
sustain the Examiner's rejection of claim 3 under 35 U.S.C. § 103(a) as
being unpatentable over Acuff and Lozito.
DECISION
We reverse the Examiner's rejection of claims 1, 2, and 4---6 under 35
U.S.C. § 102(b) as anticipated by Acuff.
We reverse the Examiner's rejection of claim 3 under 35 U.S.C. §
103(a) as being unpatentable over Acuff and Lozito.
REVERSED
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