Ex Parte RINGLER

Patent Trial and Appeal Board

Jun 15, 2017

13756745 (P.T.A.B. Jun. 15, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/756,745 02/01/2013 Werner RINGLER 50501.437 4854
72372 7590 06/19/2017
SCHOPPE, ZIMMERMANN , STOCKELER & ZINKLER
C/O KEATING & BENNETT, LLP
1800 Alexander Bell Drive
SUITE 200
Reston, VA 20191
EXAMINER
IMPINK, MOLLIE LLEWELLYN
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
06/19/2017 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):
USPTO@KBIPLAW.COM
j keating @ kbiplaw. com
ADeschere @ kbiplaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WERNER RINGLER
Appeal 2015-006836
Application 13/756,745
Technology Center 3700
Before JENNIFER D. BAHR, LEE L. STEPINA, and
SEAN P. O’HANLON, Administrative Patent Judges.
O’HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Werner Ringler (Appellant)1 appeals under 35 U.S.C. § 134 from the
Examiner’s October 10, 2014 final decision rejecting claims 1—14. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is IFCO Systems GmbH.
Appeal Br. 2.
Appeal 2015-006836
Application 13/756,745
SUMMARY OF THE INVENTION
Appellant’s disclosure “relates to a collapsible container for
transporting fresh fish or similar ice-cooled goods.” Spec. 12. Claim 1 is
the sole independent claim and is reproduced below from page 10 (Claims
Appendix) of the Appeal Brief:
1. A collapsible container for transporting fresh fish or
similar ice-cooled goods,
the collapsible container including side walls and a base,
wherein
the side walls and/or the base comprise a double-walled
structure comprising a closed air cushion;
the base has a tray shape including strips, wherein the
base is drawn slightly upward toward the side walls;
hinges to which the foldable side walls are hinged are
provided at the strips;
lateral openings arranged to permit passage of liquid are
provided in the base, the lateral openings are spaced away from
the hinges;
the lateral openings are sunk into the base at four comers
of the base; and
the base comprises, apart from the lateral openings and/or
eyes in the area of the hinges, a closed base design.
REJECTIONS
Claims 1—7 and 9-14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Walsh (US 6,776,300 B2, iss. Aug. 17, 2004) and Donnell
(US 5,857,416, iss. Jan. 12, 1999).
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Walsh, Donnell, and Oster (US 7,011,225 B2, iss. Mar.
14, 2006).
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Application 13/756,745
ANALYSIS
Rejection Based on Walsh and Donnell
The Examiner finds that Walsh discloses a collapsible container
substantially as recited in claim 1, including, inter alia, side walls (side walls
14, 16, end walls 18, 20)2 and a pallet-type base (base 12), but “does not
teach lateral openings in the base.” Final Act. 2—3 (citing Walsh 3:15—25,
3:48—52, 4:40—67, 5:15—6:67, 8:30—37, Figs. 1—10). The Examiner finds
that Donnell discloses a pallet base (pallet 10) having lateral openings (drain
holes 38) in each of the four comers of the base, and reasons that it would
have been obvious to one of ordinary skill “to modify the base of Walsh to
include lateral openings in the four comers as taught by Donnell in order to
provide a stackable collapsible container that can be drained without the
removal of the collapsible container from the stack.” Id. at 3 (citing Donnell
2:1—5, 8:30-45, Figs. 1, 2). The Examiner clarifies that the entirety of
Donnell’s pallet 10 corresponds to the recited base. Id. at 6.
Appellant traverses, first arguing that Donnell’s “drain holes 38 . . .
are clearly not arranged anywhere near the four comers of the corrugated
deck 12 of the pallet 10 of Donnell.” Appeal Br. 5 (emphasis omitted).
According to Appellant, Donnell’s corrugated deck 12 corresponds to the
base, but comer feet 16 are merely “supporting elements” and, therefore, do
not so correspond. Id. at 6. Appellant further asserts that Donnell teaches
away from arranging drain holes in deck 12 because such an arrangement
would render Donnell unsatisfactory for its intended purpose. Id. at 6—7.
Appellant presents additional comments in the Reply Brief regarding
2 Parentheticals refer to the terminology of the cited references.
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Application 13/756,745
Walsh’s hinges (see Reply Br. 2—3), but such comments are untimely and,
therefore, we do not here consider them. See 37 C.F.R. § 41.41(b)(2); see
also Final Act. 6—7.
Donnell discloses that pallet 10 “is symmetrically square using a ‘star
shaped’corrugated deck 12.” Donnell 4:21—23. Donnell further discloses
that “pallet 10 includes four comer troughs 16, also referred to as comer
feet.” Id. at 4:41 42. Thus, Donnell discloses that both deck 12 and comer
troughs/feet 16 are part of pallet 10, and Appellant’s arguments to the
contrary are not persuasive. Thus, Appellant fails to apprise us of any error
in the Examiner’s determination that Walsh’s entire pallet, including the
deck and the feet, correspond to the recited base. Final Act. 6; see also Ans.
7. We further note that claim 1 recites that the lateral openings are “spaced
away from the hinges” and are “sunk into the base at four comers of the
base,” but does not otherwise limit the lateral openings to be on any
particular portion of the base, such as a top or bottom surface thereof. See
Appeal Br. 10 (Claims App.). Additionally, the Examiner’s modification of
Walsh adds drainage holes “in the comers as taught by Donnell, and in the
base side wall [at 24] of Walsh but not in the pallet feet of Walsh since the
pallet feet are not open to the bottom of the container” and, thus, “placing
holes in the pallet feet would not provide any drainage.” Ans. 7 (brackets in
original). Finally, regarding Appellant’s argument that Donnell teaches
away from arranging drain holes in its deck 12, we note that the rejection
does not propose to modify DonnelFs pallet base; rather, as correctly noted
by the Examiner, Walsh is modified based on the teachings of Donnell. Id.
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Application 13/756,745
Appellant also argues that Donnell “fails to teach or suggest a
collapsible container for transporting goods,” and, “[accordingly, the drain
holes 38 of [Donnell] are not formed in a container.” Appeal Br. 7
(emphasis omitted).
The Examiner relies on Walsh, not Donnell, to teach a collapsible
container. Final Act. 2—3; see also Ans. 8. Appellant’s argument is not
directed to the rejection as set forth by the Examiner, and, thus, fails to
apprise us of error.
Appellant next argues that Donnell is non-analogous because “the
present invention and [Donnell] are clearly in different fields of endeavor.”
Appeal Br. 7.
A reference qualifies as prior art for a determination under § 103
when it is analogous to the claimed invention. In re Clay, 966 F.2d 656, 658
(Fed. Cir. 1992).
Two separate tests define the scope of analogous art:
(1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is
not within the field of the inventor’s endeavor, whether the
reference still is reasonably pertinent to the particular problem
with which the inventor is involved.
In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (citing In re Deminski,
796 F.2d 436, 442 (Fed. Cir. 1986)).
Although Appellant asserts that Donnell is not from the same field of
endeavor, Appellant has not made any argument regarding pertinence to the
problem(s) solved by Appellant’s claimed invention. With respect to this
second test, the Examiner states that Donnell is “pertinent to the problem
with which the inventor is concerned: providing drainage in a pallet type
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base.” Ans. 8. Appellant does not dispute the Examiner’s statement. Thus,
Appellant fails to persuade us that Donnell is non-analogous.
Appellant next argues that “a combination of [Walsh] and [Donnell]
would have simply resulted in the container of [Walsh] being placed on top
of the container support of [Donnell], since [Donnell] is merely directed to a
pallet that is separate from and used to support drums, and not to a
container.” Appeal Br. 7.
We find this argument unpersuasive for the reasons set forth by the
Examiner. See Final Act. 7; Ans. 8. As correctly noted by the Examiner,
Walsh’s container 10 includes a pallet-type base 12. See Walsh 4:20-21.
We are not persuaded that a person of ordinary skill would have placed the
pallet-type base 12 of Walsh’s container 10 on Donnell’s pallet 10, as
suggested by Appellant, rather than modifying Walsh’s pallet-type base in
view of the teachings of Donnell’s pallet.
Finally, Appellant argues that Walsh “teaches that a problem of the
prior art is the incorporation of vents into a container ‘provide [s] undesirable
niches for contaminants to accumulate.’” Reply Br. 2 (citing Walsh 2:35—
39) (alteration in original). Thus, according to Appellant, “[Walsh]
explicitly teaches away from including any holes in a container.” Id.
(emphasis omitted).
Initially, we note that although these arguments are first presented in
the Reply Brief, they appear to be in response to the Examiner’s Answer.
See Ans. 6—7. Thus, we consider these arguments, and we find them
unpersuasive.
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Although Walsh states that the prior art “side walls incorporate vents
and vertical stmt elements that still provide undesirable niches for
contaminants to accumulate and barriers that reduce penetration of cleansers
and flushing liquids” (Walsh 2:35—39), Walsh also discloses that
cleaning of the hinge elements is facilitated by providing self-
bailing hinge pockets 59 molded into the wall 24, 26 of the
bases. By steeply inclining the floor of the hinge pocket
downward as shown in FIG. 1, the hinge pocket drains readily
during washing and has a greater tendency to shed
contaminants during use of the container.
Id. at 6:18—24 (emphasis added). Thus, a person of ordinary skill, upon
considering the entirety of the cited references, would similarly provide an
inclined floor with the added openings taught by Donnell, and avoid placing
vertical stmt elements within the added openings. See KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (explaining that the obviousness
analysis “can take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.”). We further note that Appellant
has not persuasively established that Donnell’s drain holes 38 are equivalent
to the prior art “vents and vertical stmt elements” discussed by Walsh.
Accordingly, for the foregoing reasons, we sustain the Examiner’s
rejection of independent claim 1 as being unpatentable over Walsh and
Donnell. Appellant does not make any other substantive argument regarding
the rejection of claims 2—7 and 9—14, which depend from claim 1. See
Appeal Br. 8. Therefore, we likewise sustain the rejection of these
dependent claims as being unpatentable over Walsh and Donnell.
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Rejection Based on Walsh, Donnell, and Oster
With respect to the rejection of claim 8, Appellant relies on the
arguments presented above in regards to the rejection of claim 1, from which
claim 8 depends. Appeal Br. 8. Accordingly, for the same reasons as
discussed above, we also sustain the rejection of claim 8 as being
unpatentable over Walsh, Donnell, and Oster.
DECISION
The Examiner’s decision to reject claims 1—14 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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