Ex Parte Polt

Patent Trial and Appeal Board

Mar 26, 2018

14550988 (P.T.A.B. Mar. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/550,988 11/22/2014
105055 7590
McCarter & English, LLP
Worldwide Plaza
825 Eighth A venue
New York, NY 10019
03/26/2018
FIRST NAMED INVENTOR
B. Robert Polt
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.
127684-00301 4328
EXAMINER
ALLEN, JEFFREY R
ART UNIT PAPER NUMBER
3781
MAILDATE DELIVERY MODE
03/26/2018 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
Exparte ROBERT B. POLT
Appeal2017-001097
Application 14/550,988
Technology Center 3700
Before ANTON W. PETTING, CYNTHIA L. MURPHY, and
BRUCE T. WIEDER, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant appeals under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1--4. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
We REVERSE.
Appeal2017-001097
Application 14/550,988
STATEMENT OF THE CASE
The Appellant's invention "relates to lids for beverage cups, mugs and
the like." (Spec. 2.)
Illustrative Claim
1. A lid, comprising:
a circular body configured to engage a top of a beverage
container;
an orifice defined in a front portion of a top surface of the
circular body; and
two raised locations on the top surface of the circular
body between the orifice and a center of gravity of the lid, the
two raised locations being the highest locations on the lid so
that the lid tilts on the two raised locations to lift the front
portion when the top surface of the lid is placed on a horizontal
surface.
Rejection1
The Examiner rejects claims 1--4 under 35 U.S.C. § 103(a) as
unpatentable over Kelstrom2 and Hollis. 3
ANALYSIS
Claim 1 is the sole claim on appeal, with the rest of the claims on
appeal (i.e., claims 2--4) depending therefrom. (See Appeal Br., Claims
App.) Independent claim 1 recites "[a] lid" comprising "a circular body"
and "an orifice defined in a front portion of a top surface of the circular
body." (Id.) The Examiner finds that Kelstrom discloses a lid comprising a
1 We consider the Examiner's rejection under 35 U.S.C. § 112, second
paragraph, (see Final Action 2) withdrawn (see Answer 2).
2 US 2006/0163251 Al, published July 27, 2006.
3 US 7,819,271 B2, issued Oct. 26, 2010.
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Appeal2017-001097
Application 14/550,988
circular body having an orifice on the front portion of its top surface. (See
Final Action 3.) Kelstrom shows, in Figures 1 and 2 reproduced below, a
lid 100 including "an upper lid member 104 and a lower lid member 106
which are interfitted together." (Kelstrom i-f 15.)
FIG.1 104,
j
144
FIG, 2
The drawings above depict Kelstrom' s upper lid member 104 as having a
top surface 126 that is circular and relatively flat except for an edge-adjacent
opening 110 and a recessed central area 128. (See id.) The drawings above
depict Kelstrom's lower lid member 106 as having a half-circular top
surface 114, a quarter-circle opening 120, and quarter-circle space occupied
by a cheese-wedge-shaped filter 108. (See id.; see also id. at Fig. 4A.)
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Appeal2017-001097
Application 14/550,988
Kelstrom discloses that this two-member lid construction "permit[ s] a person
to rotate the upper lid member 104 to different positions." (Id. i-f 17; see also
id. at Figs 5A-5C.)4
Independent claim 1 also requires the lid to comprise "two raised
locations on the top surface of the circular body." (Appeal Br, Claims App.)
The Examiner finds that Hollis teaches that "it is known in the art" to
manufacture a lid with two raised locations." (Final Action 3.) Hollis
shows, in Figure 1 reproduced below, a lid 10 having two "raised offsets 64"
that "extend from the body 12 of the lid." (Hollis, col. 10, 11. 19-20.)
FIGJ
c'
·:.::or·
.-'··< 2'2 4,9b
., ' ... ,4 ... rn
., 4} . : "' "' .,,'I ~
·-·n
n
The drawing above depicts a raised offset 64 located on either side of a
"locking recess 24" situated "in the central section of the top wall 34" and
positioned between a "drink-through opening 74" (shown in Fig. 2B) and a
"rear wall 30." (Id., col. 9, 11. 15-16, col. 10, 11. 19-36; see also id. at
4 These positions include "an open position" whereat the openings 110 and
120 are aligned, "a filtered position" whereat the opening 110 is aligned with
the filter 108, and "a closed position," whereat the openings 110 and 120 are
not aligned. (Kelstrom i-f 1 7.)
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Appeal2017-001097
Application 14/550,988
Fig. 2B.) Hollis discloses that the raised offsets 64 are "each adapted to be
punched out to indicate the specific contents in the cup, such as the type of
beverage in the cup." (Id. at col. 10, 11. 19--23.)
The Examiner determines that "[i]t would have been obvious to one of
ordinary skill in the art at the time the invention was made to have
manufactured the lid of Kelstrom with two raised locations, as taught by
Hollis, so that the contents of the cup could be indicated." (Final Action 3.)
In other words, "the raised portions of Hollis are added to the top surface of
Kelstrom." (Answer 4.) The Examiner's proposed modification, as we
understand it, is shown schematically below in our annotated version of
Kelstrom's lid 100.
raised locations
CT'"' 1 I J,:(j, J:
The above-annotated drawing shows that the modified version of Kelstrom's
lid 100 has two raised locations located on either side of central recess 124
and positioned between the opening 110 and the lid's rear edge.
Independent claim 1 additionally requires the two "raised locations"
to be "the highest locations on the lid." (Appeal Br, Claims App.) The
Examiner finds that, in the modified version of Kelstrom's lid, "[t]he two
raised locations would be the highest locations on the lid." (Final Action 3.)
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Appeal2017-001097
Application 14/550,988
As discussed above, the top surface 126 ofKelstrom's lid 100 is relatively
flat, and so, as shown in our annotated drawing above, the raised locations
are the highest locations on the modified version of this lid.
Independent claim 1 further recites that the two raised locations are
"between the orifice and a center of gravity of the lid" and "the lid tilts on
the two raised locations to lift the front portion when the top surface of the
lid is placed on a horizontal surface." (Appeal Br., Claims App.) It is the
Examiner's position that, "due to the uniform nature" of the top surface of
Kelstrom's lid, "by placing the raised portions off-center on the flat surface
taught by Hollis these portions would be located between the center of
gravity and the orifice." (Answer 4.)
The Appellant argues that "an off-center location does not have to be
between the orifice and the center of gravity of the lid as required by the
current claims because the center of gravity is based on the weight
distribution of the lid." (Reply Br. 4.)
We are persuaded by the Appellant's position because the Examiner
does not address adequately why the allegedly uniform nature of the top
surface of Kelstrom's lid is necessarily indicative of the structure's center of
gravity. As discussed above, Kelstrom's lid apparatus 100, and particularly
its lower lid member 106, has a non-symmetric arrangement of a surface
structure 114, a filter structure 118, and an opening 12 0. The Examiner's
explanation does not sufficiently take the weight distribution of these non-
symmetric components into consideration. Therefore, the Examiner's
finding that Hollis teaches a lid with two raised locations "placed between a
front orifice and a center of gravity of the lid" is not supported satisfactorily
by the record before us. (Final Action 3.)
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Appeal2017-001097
Application 14/550,988
The Examiner additionally maintains that it would have been obvious
"to have moved the raised locations, in order to adjust where a user had to
look to determine what beverage was under the lid." (Final Action 4.) As
discussed above, Hollis' s raised locations 64 are "adapted to be punched out
to indicate the specific contents in the cup." (Hollis, col. 10, 11. 19--23.) The
Examiner seems to be proposing a rearrangement of the raised locations 64
on Kelstrom's modified lid that is done for the purpose of adjusting the
drinker's sight line to the punched out (or not) indications.
The problem with the Examiner's approach is that there is insufficient
findings on the record before us to establish that a rearrangement of the
raised locations 64 for sight-line purposes would also provide the claimed
arrangement for lid-tilting purposes. The Examiner does not, for example,
find that rearranging the raised locations 64 forward of the lid's center of
gravity would provide a suitable sight line. Indeed, the Examiner does not
even identify adequately the center of gravity in Kelstrom' s modified lid.
Moreover, as noted by the Appellant, the claimed arrangement of the raised
portions "modifies the functionality" of the lid by adding a feature that "can
avoid contamination of the lid with unwanted elements on the surface near
the orifice." (Appeal Br. 5.)
Thus, we do not sustain the Examiner's rejection of independent
claim 1, and claims 2--4 depending therefrom, 5 under 35 U.S.C. § 103(a) as
unpatentable over Kelstrom and Hollis.
5 The Examiner's further findings and determinations with respect to the
dependent claims (see Final Action 4) do not compensate for the above-
discussed shortcomings in the Examiner's rejection of independent claim 1.
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Appeal2017-001097
Application 14/550,988
DECISION
We REVERSE the Examiner's rejection of claims 1--4.
REVERSED
8