Ex Parte Robb et al

Patent Trial and Appeal Board

Oct 22, 2013

11457052 (P.T.A.B. Oct. 22, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte HAL P. ROBB and HAROLD G. ROBB
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Appeal 2011-013267
Application 11/457,052
Technology Center 3700
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Before: CHARLES N. GREENHUT, LYNNE H. BROWNE, and
PATRICK R. SCANLON, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-013267
Application 11/457,052
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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
5, 6 and 8-23. App. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The claims are directed to a multiple substance mixing container
system. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A multiple substance mixing container system,
comprising:
a mixing container having a first volume capacity for
holding a main ingredient, said mixing container including a
first upper end, wherein said mixing container is configured to
retain a volume of a first mixing substance;
a vessel member including a first lower end and a second
upper end, wherein said first lower end is removably attached to
said first upper end of said mixing container;
an additive container having a second volume capacity
smaller than said first volume capacity, to retain a volume of a
second mixing substance, wherein said additive container
includes a first cap, said additive container and first cap being
removably positioned within said vessel member through said
second upper end;
a stopper member formed integrally with and positioned
on an inner side of said vessel member, said stopper member
having a circular ring structure having an inner diameter
smaller than an outer diameter of said additive container
whereby to form a base for said additive container as well as a
frictional surface for engaging the substances when the mixing
container is agitated, wherein said stopper member is positioned
within said vessel member to allow said additive container to
reside completely within said vessel member; and
a second cap removably attached to said second upper
end of said vessel member;
Appeal 2011-013267
Application 11/457,052
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and wherein said mixing container is configured to retain
the combined volumes of the first and second mixing
substances.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bourcart
Schwartz
US 2,663,450
US 4,756,424
Dec. 22, 1953
Jul. 12, 1988

REJECTION
Claims 1, 5, 6 and 8-23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Bourcart and Schwartz. Ans. 5.

OPINION
The Examiner found that Bourcart discloses the basic container
claimed, but without the recited stopper arrangement. Ans. 5-6. The
Examiner concluded that it would have been obvious to incorporate the
annular rib 26 of Schwartz, interpreted as the recited “stopper member” into
Bourcart’s shell 10 in order to retain Bourcart’s boxes 28-31 when the end
closure 14 is removed. Ans. 7. In Schwartz the purpose of the annular rib is
to prevent migration of the receptacles 40 into the empty space in cup 10.
Col. 2, ll. 55-64, fig. 2. Bourcart, having no empty space, has no such
problem.
We must agree with Appellants that the Examiner’s proposed
modification would be more detrimental than advantageous to Bourcart’s
design. App. Br. 20-23. In response to Appellants’ remarks that the
Examiner’s proposed modification would make it more difficult to remove
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Application 11/457,052
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the internal boxes, the Examiner states that “the removal and return of the
containers from into the shell could be facilitated by flipping the shell up[]
side down.” Ans. 17. In such a configuration, there would seemingly be no
risk that Bourcart’s boxes would inadvertently exit through the end of the
shell that receives closure 14—the problem that the Examiner proposes to
remedy by adding Schwartz’s rib.
In light of the fact that there is seemingly no need for, or benefit from,
the Examiner’s proposed modification to Bourcart, we are forced to
conclude that the Examiner’s conclusion of obviousness was improperly
based upon hindsight reasoning. We are therefore constrained to reverse the
Examiner’s rejection.

DECISION
The Examiner’s rejection is reversed.

REVERSED

mls