Ex Parte Raw et al

Patent Trial and Appeal Board

Apr 16, 2018

14979328 (P.T.A.B. Apr. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/979,328
32233 7590
FOLEY GARDERE
Foley & Lardner LLP
12/22/2015
04/18/2018
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
FIRST NAMED INVENTOR
Timothy T. Raw
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.
138533-1059 2717
EXAMINER
BECKER, DREW E
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
04/18/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
pvstorm@gardere.com
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY T. RAW, SUSAN JONES, MATTHEW VINCENT,
TIM O'LEARY, DONALD HUTCHINSON, ZANE PINCKNEY,
RODNEY BORGER, PAUL COBET, KENDRA BOWEN,
THOMAS TWEEDY, and CHESTER J. GROHS IV
Appeal2017-007039
Application 14/979,328
Technology Center 1700
Before ROMULO H. DELMENDO, JENNIFER R. GUPTA, and
JANEE. INGLESE, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicant (hereinafter "Appellant") 1 appeals under 35 U.S.C.
§ 134(a) from the Primary Examiner's final decision to reject claims 1-12,
16, 19, and 20. 2 We have jurisdiction under 35 U.S.C. § 6(b).
1 The Appellant is the Applicant, "Anheuser-Busch, LLC," which, according
to the Brief, is the real party in interest (Appeal Brief filed December 22,
2016, hereinafter "Appeal Br.," 3).
2 Appeal Br. 6-16; Reply Brief filed March 28, 2017, hereinafter "Reply
Br.," 2-7; Final Office Action entered July 20, 2016, hereinafter "Final
Act.," 3-8; Examiner's Answer entered February 2, 2017, hereinafter
"Ans.," 2-12.
Appeal2017-007039
Application 14/979,328
We reverse.
I. BACKGROUND
The subject matter on appeal relates to a sealing closure for a
beverage container (i.e., a crown system) in which an ink composition is
printed on a liner including an oxygen scavenger to provide printed indicia
on the liner's side that is exposed to the beverage (Specification filed
December 22, 2015 (as revised October 20, 2016), hereinafter "Spec.,"
i-fi-12, 11 ). Figure 2 is reproduced from the subject application as follows:
FIG. 2
Figure 2 above depicts a sealing closure including: a crown 108, which has
a bottom surface 120, for connecting to a top portion of a container's neck; a
multi-layer liner 118 containing an oxygen scavenger; and printed material
124 (id. i-fi-13, 10). According to the Specification, "advertisements and
promotions are often printed directly on a metal crown 108, on a varnish on
the metal crown 108 or between layers of a multi-layer liner 118" but that
such "printed material placed under a liner that contains an oxygen
scavenger are often difficult read and become obscured as the liner absorbs
oxygen" (id. i-f 10 (bolding added)). The Specification explains that the
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Application 14/979,328
invention addresses this problem by providing printed material on the
bottom surface of the liner (id. i-fi-141--43).
Representative claim 1 is reproduced from the Claims Appendix to the
Appeal Brief (Appeal Br. 17), with key limitations emphasized, as follows:
1. A sealing closure for a beverage container,
compnsmg:
a crown defining a bottom surface;
a liner comprising an oxygen scavenger coupled to the
crown such that a top surface of the liner contacts the bottom
surface of the crown, the liner being formed by molding a
deformable, resilient material; and
printed indicia on a bottom surface of the liner, the
printed indicia formed by applying an ink to the bottom surface
of the liner, the crown and the liner being configured to seal a
beverage container containing a beverage such that the bottom
surface of the liner and the printed indicia are exposed to the
beverage. 3
II. REJECTIONS ON APPEAL
On appeal, the Examiner maintains several rejections under pre-AIA
35 U.S.C. § 103(a) as follows:
A. Claims 1--4, 6, and 8 as unpatentable over Makino et al. 4
(hereinafter "Makino"), Gwinner, 5 and Powers; 6
B. Claims 5, 10, and 11 as unpatentable over Makino, Gwinner,
Powers, and Sumimiya et al. 7 (hereinafter "Sumimiya");
3 Claim 12, the only other independent claim on appeal, is directed to a
sealed beverage container and recites the same key limitations highlighted in
reproduced claim 1. Therefore, our discussion below with respect to claim 1
applies equally to all claims on appeal.
4 US 7,704,407 B2, issued April 27, 2010.
5 US 3,705,122, issued December 5, 1972.
6 US 2006/0011892 Al, published January 19, 2006.
7 US 2010/0264110 Al, published October 21, 2010.
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Application 14/979,328
C. Claim 9 as unpatentable over Makino, Gwinner, Powers, and
Koyama et al. 8 (hereinafter "Koyama"); and
D. Claims 7, 12, 16, 19, and 20 as unpatentable over Makino,
Gwinner, Powers, and Teumac et al. 9 (hereinafter "Teumac").
(Ans. 2-12; Final Act. 3-8.)
III. DISCUSSION
The Examiner finds that Makino describes a beverage container
closure system including most of the limitations recited in claim 1 (Final
Act. 3). The Examiner acknowledges, however, that Makino's system
differs from the invention recited in claim 1 in that the prior art system does
not include printed ink indicia on a liner's bottom surface such that the
indicia is exposed to the beverage (id.). To resolve this difference, the
Examiner relies on Gwinner, which the Examiner finds as teaching indicia
on the bottom surface of a liner provided in the form of a textured bottom
surface (id. at 4). In addition, the Examiner finds that Powers teaches
providing printed indicia on an oxygen-permeable film that contacts food in
a food container (id.). According to the Examiner, "[i]t was commonly
understood in the art that beverages were a sub-set of the larger category of
'food"' (Ans. 3). Based primarily on these findings, the Examiner concludes
that "all of the claimed elements were known in the prior art and one skilled
in the art could have combined the elements as claimed by known methods
with no change in their respective functions, and the combination would
have yielded predictable results" (Final Act. 5).
8 US 5,542,557, issued August 6, 1996.
9 US 5,663,223, issued September 2, 1997.
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Application 14/979,328
The Appellant contends, inter alia, that "none of the references either
alone or in combination disclose, teach, or suggest a beverage container
where ink is exposed to a beverage sealed in a container" (Appeal Br. 8).
Specifically, the Appellant argues that, unlike the claimed closure in which
ink is applied to the liner's bottom surface, Gwinner discloses indicia
formed by embossing a pigmented liner (id.). As for Powers, the Appellant
argues that for high-moisture food packaging, "Powers suggests adding a
silica gel or a molecular sieve to activate the oxygen absorbing action and to
absorb moisture from the container" (id. at 9). The Appellant urges that,
therefore, Powers' s teachings "to absorb the moisture [and to activate the
oxygen-absorbing action] could not be implemented in a beverage container
containing a liquid beverage" (id.).
We agree with the Appellant. Unlike the closure recited in claim 1 in
which a printed indicia is formed by printing ink on a liner, Gwinner
discloses a closure in which the sealing liner's indicia is provided by
embossing the liner, which contains a mixture of pigments, to result in a
two-toned effect (Gwinner, Figs. 1-2; col. 1, 11. 46-52, 64--70; col. 2, 11. 7-
20; col. 2, 1. 67---col. 3, 1. 12). Therefore, contrary to the Examiner's position
(Final Act. 4), the indicia is not produced by a pigment per se.
Although Powers describes a packaging material in which printed
indicia may be provided on an oxygen-permeable film that contacts food and
covers an oxygen-absorbing composition, the reference states that, in high
moisture environments, the package can be provided with "a moisture
absorbent such as silica gel or a molecular sieve to activate the oxygen
absorbing action and to absorb moisture from the container" (Powers, Fig.
6; i-fi-f 17-18, 27 (emphasis added)). A person having ordinary skill in the art
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Application 14/979,328
would have drawn a reasonable inference from this teaching in Powers that
the disclosed liner system is not designed or suitable for beverages.
Because the Examiner's relied-upon evidence and reasoning fall short
of demonstrating that a person having ordinary skill in the art would have
provided a beverage closure system with ink applied on the bottom surface
of a liner (i.e., the liner's side that is exposed to the beverage), we cannot
sustain the rejections.
IV. SUMMARY
Rejections A through Dare not sustained. Therefore, the Examiner's
final decision to reject claims 1-12, 16, 19, and 20 is reversed.
REVERSED
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