Ex Parte PoltDownload PDFPatent Trial and Appeal BoardMar 26, 201814550988 (P.T.A.B. Mar. 26, 2018) Copy Citation 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. 2 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.) 3 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.) 4 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.) 5 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.) 6 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. 7 Appeal2017-001097 Application 14/550,988 DECISION We REVERSE the Examiner's rejection of claims 1--4. REVERSED 8 Copy with citationCopy as parenthetical citation