Ex Parte Pedmo et al

Patent Trial and Appeal Board

Feb 14, 2013

11181177 (P.T.A.B. Feb. 14, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MARC A. PEDMO, JAMES C. DORN, and JAMES J. MILLER
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Appeal 2010-008561
Application 11/181,177
Technology Center 3700
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Before LINDA E. HORNER, EDWARD A. BROWN, and
PATRICK R. SCANLON, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Marc A. Pedmo et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 27, 30, 31, 35, 36, 39, 40,
and 44-50, which are all of the pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
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THE INVENTION
Appellants’ claimed invention “relates to a blown plastic container
that is suitable for the packaging of juice or other beverages.” Spec. 2.
Independent claims 27 and 48 are reproduced below.
27. A plastic container, which comprises:
a hollow body of plastic material having a lower
supporting base, a sidewall extending upwardly from the lower
base, and an upper neck portion with an opening therein, said
neck portion extending upwardly from the sidewall;
wherein the sidewall includes at least one panel having a
central region and an outer boundary, with the outer boundary
being depressed with respect to the central region and with the
depressed outer boundary having side portions and top and
bottom portions, wherein the depressed outer boundaries
comprise substantially continuous, channel-like structures
which substantially circumscribe the central regions;
wherein said sidewall has two opposed relatively larger
sidewall sections which alternate with two opposed relatively
smaller sidewall sections, including a single one of said panels
with outer boundary on each of the opposed relatively larger
sidewall sections, with each panel extending over a major
portion of their corresponding sidewall section and at least in
part extending substantially across their corresponding sidewall
section, wherein each of said panels can flex inwardly under
vacuum and return to the original configuration, and wherein
each of the opposed smaller sidewall sections including an
inwardly depressed panel, with each of the inwardly depressed
panels on opposed smaller sidewall sections having an oval
configuration and including side portions thereof which are
adjacent a depressed outer boundary of a sidewall panel of the
larger sidewall sections, wherein each of said larger sidewall
sections include a single one of said panels with outer
boundary, and each of the smaller sidewall sections include a
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single one of said inwardly depressed panels including side
portions thereof which are adjacent a depressed outer boundary
of a sidewall panel of the larger sidewall sections; and
wherein at least part of the side portions of the outer
boundary of said panels on the larger sidewall sections extends
to the edges of the larger sidewall sections.
48. A plastic container comprising:
a hollow body of plastic material having a lower
supporting base, a sidewall extending upwardly from the lower
base, and an upper neck portion with an opening therein, said
neck portion extending upwardly from said sidewall;
wherein said sidewall has two opposed relatively larger
sidewall sections which alternate with two opposed relatively
smaller sidewall sections;
each of the larger and smaller sidewall sections includes
an oval-shaped panel; and
the panels of the larger sidewall sections contact or
intersect adjacent panels of the smaller sidewall sections at or
about a transition point between the adjacent larger and smaller
sidewall sections.
THE EVIDENCE
The Examiner relies upon the following evidence:
Sawyer US Des. 6,489 Mar. 4, 1873
Parcels US Des. 205,798 Sep. 20, 1966
Weckman US 4,387,816 Jun. 14, 1983
Dugan US Des. 419,887 Feb. 1, 2000
Conway US D480,005 S Sep. 30, 2003
Beck US 6,814,248 B2 Nov. 9, 2004
Akiyama US 6,838,138 B1 Jan. 4, 2005
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THE REJECTIONS
Appellants seek review of the following rejections:
1. Claims 27, 30, 31, 35, 36, 39, 40, and 44-50 under 35 U.S.C. § 103(a)
as being unpatentable over Weckman and either Conway or Beck;
2. Claims 27, 30, 31, 35, 36, 39, 40, and 44-50 under 35 U.S.C. § 103(a)
as being unpatentable over Weckman, either Conway or Beck, and
Akiyama;
3. Claim 44 under 35 U.S.C. § 103(a) as being unpatentable over the
prior art relied on in rejections 1 or 2 and further in view of Parcels;
4. Claims 27, 30, 31, 35, 36, 39, 40, and 44-50 under 35 U.S.C. § 103(a)
as being unpatentable over Dugan, Akiyama, and Conway; and
5. Claims 48-50 under 35 U.S.C. § 103(a) as being unpatentable over
Sawyer and Akiyama.
ANALYSIS
Rejections (1) – (3)
As to independent claim 27, each of the first three grounds of
rejection on appeal are based on the Examiner’s determination that
Weckman discloses a sidewall including “at least one panel having a central
region 84, 86 and an outer boundary 92, 94 . . . .” Ans. 3 (citing Weckman,
fig. 5). Appellants argue that even if the prior art relied upon in these
grounds of rejection were combined, the combination would not result in “at
least part of the side portions of the outer boundary of said panels on the
larger sidewall sections extend[ing] to the edges of the larger sidewall
sections” as called for in claim 27. App. Br. 9.
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Weckman discloses, with respect to the embodiment shown in Figures
5-9, a container 70 having label areas 84 and 86 connected to a pair of
upstanding rim portions 88 and 90 by a pair of hinge portions 92 and 94.
Weckman, col. 5, ll. 15-31. As shown in Figures 5 and 6 of Weckman, the
depressed hinge portions 92, 94, which according to the Examiner form the
claimed outer boundary, extend only to the upstanding rim portions 88, 90
on the sidewalls, rather than to the edges of the larger sidewall sections. The
Examiner does not rely on Conway, Beck, Akiyama, or Parcels to remedy
this deficiency in Weckman. As such, even when the container of Weckman
is modified as proposed by the Examiner in rejections (1) – (3), the resulting
container would not include “at least part of the side portions of the outer
boundary of said panels on the larger sidewall sections extend[ing] to the
edges of the larger sidewall sections” as called for in independent claim 27.
For this reason, we do not sustain the grounds of rejection (1)-(3) of
independent claim 27 or its dependent claims 30, 31, 35, 36, 39, 40, and 44-
47 under 35 U.S.C. § 103(a).
As to independent claim 48, each of the first three grounds of
rejection on appeal are based on the Examiner’s determination that
Weckman discloses a sidewall including “at least one panel having a central
region 84, 86 and an outer boundary 92, 94 . . . .” Ans. 3 (citing Weckman,
fig. 5). The Examiner further determined:
with respect to the limitation that the boundary of the panels
being in contact or intersect[ing] with the boundary of the
panels of smaller sidewall sections, it is submitted that with the
inherent structures of the two handle recesses in either Conway
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or Beck, the boundary of the oval panel in Weckman would be
in contact or intersect with the two handle recesses in either
Conway or Beck.
Ans. 5. Appellants argue that the Examiner erred in finding that the
combination would result in the boundary of the oval panel in Weckman
being in contact with the handle recesses because “[t]he inclusion of the
upstanding rim portion 88, 90 would prevent the outer boundary (i.e.,
depressed outer boundary) of the panels of the larger sidewall sections from
contacting or intersecting with the outer boundary of any panels that would
be located on the smaller sidewall sections.” App. Br. 13.
We agree with Appellants that Weckman’s upstanding rim portions 88
and 90 would lie between the proposed oval-shaped panels on the smaller
sidewall sections, taken from Conway or Beck, and the panels of the larger
sidewall sections of Weckman. The Examiner does not rely on Conway,
Beck, Akiyama, or Parcels to remedy this deficiency in Weckman. As such,
even when the container of Weckman is modified as proposed by the
Examiner in rejections (1) – (3), the resulting container would not include
“the panels of the larger sidewall sections contact[ing] or intersect[ing]
adjacent panels of the smaller sidewall sections at or about a transition point
between the adjacent larger and smaller sidewall sections” as called for in
independent claim 48. For this reason, we do not sustain the grounds of
rejection (1)-(3) of independent claim 48 or its dependent claims 49 and 50
under 35 U.S.C. § 103(a).
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Rejection (4)
The Examiner found that “Dugan teaches a bottle with a panel and
side grips,” Akiyama teaches a depressed outer boundary, and Conway
teaches depressed side grips. Ans. 6-7. With respect to claim 27, Appellants
argue that “[b]oth Dugan and Akiyama et al. . . . fail to teach or disclose that
at least part of the side portions of the outer boundary of the panels on the
larger sidewall sections extend to the edges of the larger sidewall sections”
and Conway does not cure the deficiencies in Dugan and Akiyama. App.
Br. 23-24. We agree with Appellants that in Dugan “the larger sidewall
panels (e.g., the front and rear panels) are clearly significantly spaced from
the edges of the large sidewall sections” and in Akiyama “the larger sidewall
panels (e.g., the front and rear panels) clearly wrap around – i.e., extend
beyond – their respective sidewall section (and ‘edge’ thereof) and
significantly encroach into the smaller sidewall sections.” App. Br. 23. See
also App. Br. 24 (“the edge of the larger sidewall section would be the point
where the larger sidewall sections meet the smaller sidewall sections as
shown in Figs. 1-2 of Appellant’s specification.”) We further agree that
Conway does not cure this deficiency as it discloses only depressed gripping
panels on the smaller sidewall sections. As such, even when the container of
Dugan is modified as proposed by the Examiner in rejection (4), the
resulting container would not include “at least part of the side portions of the
outer boundary of said panels on the larger sidewall sections extend[ing] to
the edges of the larger sidewall sections” as called for in independent claim
27. For this reason, we do not sustain rejection (4) of independent claim 27
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or its dependent claims 30, 31, 35, 36, 39, 40, and 44-47 under 35 U.S.C.
§ 103(a).
With regard to claim 48, Appellants argue that “even if a panel on
larger sidewall sections with a channel as purportedly taught by Akiyama et
al. were combined with Dugan, it would fail to teach panels on the larger
sidewall sections that contact or intersect with panels on the smaller sidewall
sections.” App. Br. 27. The Examiner determined that “it would have been
obvious to one of ordinary skill in the art to have the oval portion of the
finger grip panel in Dugan to intersect or contact the outer edge of the
channel to provide the desired size for the two panels.” Ans. 7.
The Examiner has failed to provide an adequate reason to explain why
one of ordinary skill in the art would have been led to modify the container
of Dugan such that the panels on the larger sidewall sections contact or
intersect with the panels on the smaller sidewall sections when neither
Dugan nor Akiyama nor Conway discloses such a configuration.
“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). As such, the
Examiner has failed to adequately articulate how the combination of art
relied upon in rejection (4) would result in a container in which “the panels
of the larger sidewall sections contact or intersect adjacent panels of the
smaller sidewall sections at or about a transition point between the adjacent
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larger and smaller sidewall sections” as called for in independent claim 48.
For this reason, we do not sustain rejection (4) of independent claim 48 or its
dependent claims 49 and 50 under 35 U.S.C. § 103(a).

Rejection (5)
The Examiner determined that “Sawyer meets all claimed limitations
except for the container being made from plastic” and that “[i]t would have
been obvious to one of ordinary skill in the art to make the container from
plastic as taught by Akiyama to provide the desired material.” Ans. 7. In
particular, the Examiner found that “Sawyer teaches a container with two
larger sidewall sections (A+B in fig. 1) with an oval panel (defined at g) and
two smaller sidewall sections (A+B in Fig. 2) with an oval panel (defined by
g) and the oval panels intersects [sic] or in contact about g.” Ans. 7.
Appellants argue that “Sawyer may show the sidewall sections themselves
meeting at a point (i.e., at/about point g), but there is no teaching or
disclosure for the panels on the sidewall sections from meeting.” App. Br.
29. See also App. Br. 30 (arguing the elements defined at g are not panels).
Claim 48 calls for the container to comprise a hollow body having a
lower supporting base, a sidewall extending upwardly from the lower base,
and an upper neck portion with an opening formed therein, the neck portion
extending upwardly from the sidewall. Claim 48 further calls for the
sidewall to have two larger sidewall sections which alternate with two
smaller sidewall sections and further calls for each of the larger and smaller
sidewall sections to include an oval-shaped panel. The Examiner’s rejection
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designates portions A and B of Sawyer’s bottle as forming the claimed
sidewall sections, such that the subsections circumscribed by line g are
designated as the claimed panels. Portion B, however, clearly designates the
neck of the bottle, which is separately recited in claim 48. See Sawyer at 1
(describing a body A of the bottle extending upwardly from base a and a
neck B springing from the tops of the two borders e and from the upper parts
of the straight sides b b). As such, portion A of Sawyer’s bottle corresponds
to the claimed sidewall sections, and thus Sawyer discloses only that the
sidewall sections meet at a point (i.e., at/about point g), but does not teach
panels on each sidewall section in contact or intersecting with one another.
As such, even when the bottle of Sawyer is modified as proposed by the
Examiner in rejection (5), the resulting container would not include “the
panels of the larger sidewall sections contact[ing] or intersect[ing] adjacent
panels of the smaller sidewall sections at or about a transition point between
the adjacent larger and smaller sidewall sections” as called for in
independent claim 48. For this reason, we do not sustain rejection (5) of
independent claim 48 or its dependent claims 49 and 50 under 35 U.S.C.
§ 103(a).
DECISION
We REVERSE the decision of the Examiner to reject claims 27, 30,
31, 35, 36, 39, 40, and 44-50.

REVERSED
mls