Ex Parte Luburic

Patent Trial and Appeal Board

Aug 25, 2014

12793748 (P.T.A.B. Aug. 25, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte FRANO LUBURIC
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Appeal 2012-011675
Application 12/793,748
Technology Center 1700
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Before BRADLEY R. GARRIS, CHARLES F. WARREN, and
JAMES C. HOUSEL, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner's
rejections of claims 15, 17, 18, 20, and 22 under 35 U.S.C. § 102(b) as
anticipated by Lucas (US 3,680,735, patented Aug. 1, 1972) and of claims
19 and 21 under 35 U.S.C. § 103(a) as unpatentable over Lucas. We have
jurisdiction under 35 U.S.C. § 6.

We AFFIRM.

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Application 12/793,748

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Appellant claims a method of fabricating a container 10 which
comprises injecting plastic into a mold to form the container wherein a
portion (i.e., a corner) of the container sidewall 14 includes a corrugation 16
(independent claims 15 and 17, Fig. 2) and the sidewall tapers toward the
exterior while extending upwardly from the base 12 (independent claim 17,
Fig. 2).

Further details regarding the claimed method are set forth in
representative claims 15, 17, 18, and 20, a copy of which taken from the
Claims Appendix of the Appeal Brief appears below.
15. A method of fabricating a container, including the steps of:
a) Providing a plastic injection mold having at least one corrugation
pattern in a sidewall portion thereof; and
b) Injecting plastic into said mold to form a container.

17. A method of fabricating a container, comprising:
injecting plastic into a mold to form a container, wherein the container
comprises:
a base;
a sidewall extending upwardly from the base and surrounding an inner
cavity, wherein
the sidewall tapers toward the exterior while extending upwardly from
the base; a corrugation in a corner of the sidewall and the base; and a
reinforcement rib crossing the corner of the sidewall,
wherein the base, the sidewall, the corrugation and the reinforcement
rib are integrally formed together via the step of injecting the plastic into the
mold.

18. The method of claim 17, wherein the corrugation is concave as
viewed from outside the container.

20. The method of claim 17, wherein the container further comprises
another corrugation in the corner of the sidewall and the base, wherein the
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Application 12/793,748

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base, the sidewall, both corrugations and the reinforcement rib are integrally
formed together via the step of injecting the plastic into the mold.

Appellant presents arguments specifically directed to limitations of
claims 15, 17, 18, and 20 (App. Br. 9–15). No additional arguments have
been presented concerning the limitations of remaining claims 19, 21, and 22
(id.). As a consequence, these remaining claims will stand or fall with their
parent independent claim 17.

We sustain the above rejections for the reasons expressed in the Final
Office Action, the Answer, and below.

Appellant argues that "Lucas does not teach an injection mold or a
sidewall having a corrugation pattern" (App. Br. 11). This argument lacks
convincing merit. Lucas expressly teaches "[t]he lugs [i.e., containers] may
be injection molded" (col. 3, l. 31) as explained by the Examiner (Ans. 5),
which explanation has not been contested by Appellant in the Reply Brief.
As for the corrugation limitation, Appellant does not even address, and
therefore does not show error in, the Examiner's explicit finding that Lucas's
"ribs 15 and 16 constitute the claimed corrugations" (Final Action 2).

Appellant further argues that Lucas fails to teach the tapering sidewall
feature of claim 17 (App. Br. 10). However, we agree with the Examiner
that Figure 5 of Lucas evinces that Lucas's sidewalls are tapered (Ans. 5).
Figure 5 shows an upper container/lug 1a stacked on a lower container/lug 1
wherein the bottom sidewall of upper container 1a is inwardly spaced from
and nested in the top sidewall of lower container 1. This inwardly spaced
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Application 12/793,748

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and nested relationship reveals that the bottom sidewall has a smaller
circumference than the top sidewall of otherwise identical containers 1a and
1 and accordingly that the sidewall is tapered as required by claim 17.

Regarding claim 18, Appellant contends that Lucas does not teach the
claim limitation of a corrugation which is concave as viewed from the
outside the container (App. Br. 11). The Examiner persuasively refutes this
argument by finding that Lucas's ribs 15, 16 in combination with the non-
raised areas therebetween constitute a concave corrugation as claimed (Ans.
5). In reply, Appellant inappropriately focuses on the non-raised areas only
(Reply Br. 7) and therefore fails to show error in the Examiner's finding that
the combination of ribs 15, 16 and non-raised areas therebetween defines the
claimed concave corrugation.

We also are not convinced by Appellant's argument that Lucas does
not teach the claim 20 feature wherein the recited container structures are
integrally formed together via injection molding (App. Br. 11). As indicated
above, the Examiner has explained that Lucas expressly teaches forming the
container via injection molding (Ans. 5), and Appellant has not contested
this explanation in the appeal record.

Finally, Appellant contends that "the Office Action fails to provide the
requisite factual basis for an anticipation rejection" (App. Br. 13) and that
"[t]he rejection is deficient because the Appellant is left to speculate as to
the basis for the rejection" (id.). We cannot agree. No speculation at all is
required concerning the Examiner's previously mentioned finding that
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Lucas's "ribs 15 and 16 constitute the claimed corrugations" (Final Action
2). Therefore, Appellant's above discussed failure to address this finding is
not because "[t]he rejection is deficient" (App. Br. 13) as urged by
Appellant. Appellant's contention is further undermined by the fact that the
Lucas patent contains only two sheets of drawing and less than three
columns of specification disclosure. This fact evinces that Appellant need
not "speculate as to the basis for the rejection" (id. at 13) but instead need
only review a two-sheet drawing and a three-column disclosure.

These circumstances support a determination that the Examiner's
§ 102 rejection satisfies the notice requirement of 35 U.S.C. § 132 and
thereby satisfies the procedural burden of establishing a prima facie case of
unpatentability (i.e., anticipation). See In re Jung, 637 F.3d 1356, 1362
(Fed. Cir. 2011). The notice requirement of § 132 "is violated when a
rejection is so uninformative that it prevents the applicant from recognizing
and seeking to counter the grounds for rejection." Id., quoting Chester v.
Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990). The record before us supports
a determination that, if Appellant has been prevented from recognizing and
seeking to counter the grounds for rejection, it is due to Appellant's failure to
address explicit findings made by the Examiner and to review two sheets of
drawing and three columns of disclosure.

The decision of the Examiner is affirmed.

Appeal 2012-011675
Application 12/793,748

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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