Ex Parte Marcellino

Patent Trial and Appeal Board

Oct 31, 2016

13438995 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/438,995 04/04/2012
27885 7590 10/31/2016
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
FIRST NAMED INVENTOR
Richard Marcellino
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.
DMAR 200001US01 3952
EXAMINER
MISKA,VITW
Cleveland, OH 44115 ART UNIT PAPER NUMBER
2833
MAILDATE DELIVERY MODE
10/31/2016 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 RICHARD MARCELLINO
Appeal2015-004710
Application 13/438,995
Technology Center 2800
Before MARK NAGUMO, WESLEY B. DERRICK, and JULIA HEANEY,
Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from the Examiner's final
rejection under 35 U.S.C. § 103 of claims 1-9, 11, 13, and 14 over Zoltan1 in
view of Zettek, 2 and of claims 10 and 12 in further view of Maestre3 and
Hildebrandt,4 respectively. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 US 4,419,016, issued December 6, 1983.
2 US 4,630,935, issued December 23, 1986.
3 US 5,495,961, issued March 5, 1996.
4 US 7,382,692 Bl, issued June 3, 2008.
Appeal2015-004710
Application 13/438,995
CLAIMED SUBJECT MATTER
Appellant's claimed invention is generally directed to containers with
a cap or lid that include a tracking device for recording date, time, and
elapsed time information related to when the container was last opened and a
digital display for displaying the information. Spec. Abstract. Independent
claim 1 is directed to a container. Independent claim 7 is directed to a
method for using containers according to the invention.
Independent claim 1 is representative.
1. A container having a tracking device for recording date
and time information, the container comprising:
a container for holding an item and having a closed
bottom end and an open distal end,
a tracking cap able to be engaged with the container at
the open distal end thereof in order to close the same,
a sensor disposed within the portion of the tracking cap
in operative communication with a clocking device also
disposed in or on the tracking cap, and
first and second time displays in operative
communication with the clocking device, where the first time
display illustrates date/time when the cap was last opened, and
the second time display illustrates elapsed time information
since the cap was last opened.
Appeal Br. (Claims Appendix) 12.
Appellant argues claims rejected over Zoltan in view Zettek as a
group and essentially relies on those arguments as to claims 10 and 12
rejected in further view of Maestre and Hildebrandt, respectively.
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Application 13/438,995
DISCUSSION5
Upon consideration of the evidence on this record and each of
Appellant's contentions, we find that a preponderance of the evidence
supports the Examiner's detennination that one of ordinary skill in the art,
armed with the knowledge provided in the applied prior art would have been
led to the subject matter recited in claims 1-14.
The Examiner relies on Zoltan for its disclosure of a container having
a tracking device provided in a cap that can be engaged to close the
container where closure engages a sensor that is in operative communication
with a clocking device in or on the tracking cap and a time display in
operative communication with the clocking device, where the time display
can be used to display the date or time that the tracking cap and container
were engaged and the amount of time elapsed since the tracking cap and
container were engaged. Final Act. 2-3 (citing Zoltan Figs. 1, 3; col. 4,
11. 17-18, 58; col. 5, 1. 66; col. 6, 11. 1-2). The Examiner finds Zoltan's
claims 1 and 4 disclose an elapsed time is determined and indicated in
addition to the time of last opening. Final Act. 4.
The Examiner relies on Zettek for its disclosure of a timekeeping
instrument for tracking and displaying several time periods, including the
time of last reset and elapsed time since the last reset by means of separate
displays. Final Act. 4 (citing Zettek col. 3, 11. 13-16).
5 We refer to the Final Office Action mailed April 23, 2014, the Appeal
Brief filed October 8, 2014, and the Examiner's Answer mailed January 22,
2015.
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Application 13/438,995
The Examiner concludes that one of ordinary skill in the art would
have found it obvious at the time of the invention to provide a separate or
second display to allow simultaneous display of both the time of last reset
and the elapsed time since the last reset to minimize the number of required
switch actuations. Final Act. 4.
Appellant argues that Zoltan contemplates the alternative use of
displays to indicate the last time that the cap was off and the elapsed time
since the cap was last off, not use of both, and so "does not provide a
separate display for the elapsed time indication in addition to the time of last
opening." Appeal Br. 7 (citing Zoltan col. 4, 11. 57-67, Figs. 1-7).
Appellant also argues that because Zoltan' s claims 1 and 4 are written
in means plus function claim language, there is no basis for Zoltan to teach
or suggest "providing a separate display for the elapsed time indication in
addition to the time of last opening." Appeal Br. 8.
Appellant then further argues that contrary to the language of claim 4
that the time keeping means further comprises means for determining and
displaying the elapsed time, claim 4 only discloses doing so as an alternative
to the other "times" that are recited as part of a closed Markush group of
times set forth in claim 1, from which claim 4 depends. Appeal Br. 8-9.
Finally, Appellant argues that Zettek does not make up the
deficiencies of Zoltan because it fails to describe reasons for providing the
simultaneous displays of date/time and elapsed time and does not overcome
Zoltan's express teaching of alternative use of such displays. Appeal Br. 9.
Appellant further contends "Zettek is not related to when a cap was last
situated on a bottle." Appeal Br. 9.
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Appeal2015-004710
Application 13/438,995
Appellant's arguments are unpersuasive of reversible error because, as
well-expressed by the Examiner, Zoltan teaches time keeping and display
means for both the time of last opening and for the elapsed time indication
and, accordingly, having taught that it is desirable to provide both of these
time values, fairly suggests determining and displaying the two time
quantities. Ans. 2--4. An obviousness analysis "need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
[an Examiner] can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007); see also In re Preda, 401 F.2d 825, 826
(CCP A 1968) ("[I]t is proper to take into account not only specific teachings
of the reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom."). Furthermore, Zettek's
disclosure of a timekeeping instrument for tracking and displaying several
time periods makes manifest that it would have been well within the ambit
of one of ordinary skill in the art to provide for simultaneous display of the
specified time periods by means of separate displays. Final Act. 4.
Further, because Zoltan' s claim 4 includes all limitations of claim 1,
from which it depends, the recitation that claim 4 further comprises means
for determining and displaying the elapsed time quantity fairly teaches a
device that measures and displays the time of last opening (Zoltan claim 1)
and the elapsed time since the container was last opened (Zoltan claim 4)
even if it does not expressly disclose that they are displayed simultaneously.
As to Appellant's argument addressing Zettek, it is wholly
unpersuasive as it fails to address the relied on combination as set forth by
the Examiner. Likewise, Appellant fails to squarely address the Examiner's
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Application 13/438,995
rationale grounded on the desirability of providing both desired values at the
same time.
For these reasons, on this record, we are not persuaded that the
Examiner erred in concluding that one of ordinary skill in the art at the time
of the invention, armed with the knowledge of the cited prior art, would not
have been led to the claimed subject matter of claims 1-9, 11, 13, and 14.
As to the obviousness rejections of claims 10 and 12 in further view
of Maestre and Hildebrandt, respectively (Final Act. 6), Appellant
essentially relies on their arguments as to Zoltan and Zettek (Appeal Br. 10).
All that is proffered in addition is that Appellant asserts, without elaboration
or specific criticism of the Examiner's detailed findings, that "Maestre [is]
not related to when a cap was last situated on a bottle" and that "Hildebrandt
teaches an add-on device which may not fit a particular bottle or jar top or
lid properly and may become dislodged from the regular cap or lid, thus
interrupting the timing or not giving the proper information." Appeal Br. 10.
There is, accordingly, no cogent argument sufficient to address the
Examiner's detailed position as to these claims. Cf In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art. Because Lovin
did not provide such arguments, the Board did not err in refusing to
separately address claims 2-15, 17-24, and 31-34."). Thus, on this record,
we are not persuaded of error in the Examiner's findings and conclusions as
to these claims.
Accordingly, we sustain the Examiner's obviousness rejections.
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Application 13/438,995
CONCLUSION
We affirm the Examiner's obviousness rejections of claims 1-14.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l )(iv).
AFFIRMED
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