Ex Parte Seidita

Board of Patent Appeals and Interferences

Apr 7, 2005

09946049 (B.P.A.I. Apr. 7, 2005)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte THOMAS M. SEIDITA
______________
Appeal No. 2005-0987
Application No. 09/946,049
______________
ON BRIEF
_______________
Before FRANKFORT, MCQUADE, and NASE, Administrative Patent
Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Thomas M. Seidita appeals from the final rejection of claims
11 through 20 and 22 through 28, all of the claims pending in the
application.
THE INVENTION
The invention relates to “twist off type closures of the
type that are commonly used in the packaging of consumer
Appeal No. 2005-0987
Application No. 09/946,049
1 With regard to claims 19 and 28, the underlying
specification and drawings would seem to indicate that the
references in these claims to the “respective outer ends” should
instead be to the --respective lower ends--.
2
beverages” (specification, page 1). Representative claim 11
reads as follows:1
11. A packaging assembly, comprising:
a container having a threaded finish portion; and
a closure cap mounted on said threaded finish portion
of said container, said closure cap comprising an upper
portion and a generally cylindrical sidewall depending
downwardly from said upper portion, said cylindrical
sidewall defining a threaded inner surface that is mated
with said threaded finish portion, and wherein said
cylindrical sidewall further has an outer surface that is
stylized to resemble a conventional crown closure.
THE REJECTIONS
Claims 11, 13 through 20 and 22 through 28 stand rejected
under 35 U.S.C. § 102(b) as being anticipated by U.S. Patent No.
5,715,959 to Pfefferkorn et al. (Pfefferkorn).
Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pfefferkorn.
Attention is directed to the brief (filed September 13,
2004) and answer (mailed November 4, 2004) for the respective
positions of the appellant and examiner regarding the merits of
these rejections.
Appeal No. 2005-0987
Application No. 09/946,049
3
DISCUSSION
Pfefferkorn discloses a closure cap for containers, e.g.,
beverage containers, having mouths with external threads. The
cap, which is made of plastic, comprises an upper base 1, a
cylindrical wall 2 depending downwardly from the upper base, a
thread 13 on the inner surface of the cylindrical wall and a
plurality of axially extending ribs on the outer surface of the
cylindrical wall (see Figures 1 and 3).
As indicated above, independent claims 11 and 20 stand
rejected under 35 U.S.C. § 102(b) as being anticipated by
Pfefferkorn. Anticipation, of course, is established only when a
single prior art reference discloses, expressly or under
principles of inherency, each and every element of a claimed
invention. RCA Corp. v. Applied Digital Data Sys., Inc., 730
F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984). In other
words, there must be no difference between the claimed invention
and the reference disclosure, as viewed by a person of ordinary
skill in the field of the invention. Scripps Clinic & Research
Found. v. Genentech Inc., 927 F.2d 1565, 1576, 18 USPQ2d 1001,
1010 (Fed. Cir. 1991).
Appeal No. 2005-0987
Application No. 09/946,049
2 This declaration, which was filed by the appellant
subsequent to final rejection on March 8, 2004, has been entered
and considered by the examiner (see the advisory action mailed
April 15, 2004).
4
As framed and argued by the appellant, the dispositive issue
with respect to the rejection of claims 11 and 20 is whether
Pfefferkorn, and more particularly the ribbed outer surface of
Pfefferkorn’s cylindrical wall 2, meet the limitations in claims
11 and 20 requiring the cylindrical sidewall of the closure cap
to have “an outer surface that is stylized to resemble a
conventional crown closure.” The underlying specification (see
page 4) describes a conventional crown closure as one that is
“conventionally used to seal glass beer bottles” and that has “a
familiar metal crimp pattern.” The record contains a 37 CFR
§ 1.132 declaration2 which establishes, without challenge by the
examiner, that a crown closure is commonly known to have the
appearance illustrated on page 6 of the appellant’s brief. Given
this understanding of a conventional crown closure, and the
manifest and considerable differences between the respective
appearances of such conventional crown closure and the
Pfefferkorn closure cap, a person of ordinary skill in the art
Appeal No. 2005-0987
Application No. 09/946,049
3 Based on the understanding of a conventional crown closure
established in the record, a person of ordinary skill in the art
arguably would not view the closure cap depicted in the
appellant’s drawings as having a cylindrical sidewall stylized to
resemble a conventional crown closure. In the event of further
prosecution, consideration should be given to the question of
whether these drawings comply with the requirement set forth in
37 CFR § 1.83(a) that patent application drawings “must show
every feature of the invention specified in the claims.”
5
clearly would not view the ribbed outer surface of Pfefferkorn’s
cylindrical wall 2 as being stylized to resemble a conventional
crown closure.3
Hence, the examiner’s determination that Pfefferkorn meets
the above noted limitations in claims 11 and 20 is not well
founded. Accordingly, we shall not sustain the standing 35
U.S.C. § 102(b) rejection of independent claims 11 and 20, and
dependent claims 13 through 19 and 22 through 28, as being
anticipated by Pfefferkorn.
In addition to not teaching a closure cap comprising a
cylindrical sidewall having an outer surface stylized to resemble
a conventional crown closure, Pfefferkorn would not have
suggested same to one of ordinary skill in the art. Therefore,
we shall not sustain the standing 35 U.S.C. § 103(a) rejection of
claim 12, which depends from independent claim 11, as being
unpatentable over Pfefferkorn.
Appeal No. 2005-0987
Application No. 09/946,049
6
SUMMARY
The decision of the examiner to reject claims 11 through 20
and 22 through 28 is reversed.
REVERSED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN P. MCQUADE ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
JPM/hh
Appeal No. 2005-0987
Application No. 09/946,049
7
KNOBLE, YOSHIDA & DUNLEARY
EIGHT PENN CENTER
STE. 1350, 1628 JOHN F. KENNEDY BLVD.
PHILADELPHIA, PA 19103