Ex Parte Shiffer

Patent Trial and Appeal Board

Jul 27, 2015

12429508 (P.T.A.B. Jul. 27, 2015)

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.
12/429,508 04/24/2009 David A. Shiffer 1060-0028 1145
28078 7590 07/27/2015
MAGINOT, MOORE & BECK, LLP
One Indiana Square, Suite 2200
INDIANAPOLIS, IN 46204
EXAMINER
MATHEW, FENN C
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
07/27/2015 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
____________

Ex parte DAVID A. SHIFFER
____________

Appeal 2013-008874
Application 12/429,508
Technology Center 3700
____________

Before LINDA E. HORNER, ANNETTE R. REIMERS, and
RICHARD H. MARSCHALL, Administrative Patent Judges.

MARSCHALL, Administrative Patent Judge.

DECISION ON APPEAL

David A. Shiffer (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s Final decision rejecting claims 1, 3–11, and 13–20. We
have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

THE CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to containers with
removable closures. Spec. ¶ 1. Claim 1 is illustrative of the subject matter
on appeal.
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1. A container and closure assembly, comprising:
a container defining an opening and having a lip positioned
around said opening, said lip defining a top surface, a bottom
surface, and an outer surface therebetween; and
a closure configured to be attached to said container, said
closure including:
a top portion defining a circular periphery,
a first skirt portion extending downwardly from said circular
periphery to form a cylindrical structure defining a first
internal closure space,
a second skirt portion extending downwardly from a first
part of said cylindrical structure, said second skirt portion
having a first side edge and a second side edge that are
spaced apart from each other to form a gap,
a tab extending downwardly from a second part of said
cylindrical structure and positioned in said gap,
a first vertex segment attached to said second skirt portion,
a second vertex segment attached to said tab, and
a plurality of spaced apart ribs each being (i) positioned at
least partially in said first internal closure space, and
(ii) attached to both said top portion and said cylindrical
structure,
wherein, when said closure is secured to said container, (i) said
top surface of said lip is positioned in contact with said plurality
of spaced apart ribs, (ii) said bottom surface of said lip is
positioned in contact with both said first vertex segment and
said second vertex segment, and (iii) said outer surface of said
lip is positioned in contact with said second skirt portion,
wherein said plurality of spaced apart ribs includes a pair of
adjacent ribs that defines a first rib and a second rib,
wherein said first rib has a first surface that defines a first plane
P1,
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wherein said second rib has a second surface that defines a
second plane P2,
wherein said tab is located between said first plane P1 and said
second plane P2, and
wherein said tab is spaced apart from both said first plane P1
and said second plane P2.
THE EVIDENCE
The Examiner relied upon the following prior art in rejecting the
claims on appeal:
Stull US 2005/0145627 A1 July 7, 2005
Shiffer US 2007/0114236 A1 May 24, 2007
Auer US 2008/0078763 A1 Apr. 3, 2008
THE REJECTIONS
Appellant seeks review of the following rejections:
1. Claims 1, 3, 5–11, 13, and 15–20 under 35 U.S.C. § 103(a) as
unpatentable over Shiffer and Auer.
2. Claims 4 and 14 under 35 U.S.C. § 103(a) as unpatentable over
Shiffer, Auer, and Stull.

ANALYSIS
Appellant presents arguments for patentability of independent claim 1
on appeal, and repeats the same arguments with respect to independent claim
11 and dependent claims 3–10 and 13–20. App. Br. 15. Accordingly, all of
the claims on appeal stand or fall with claim 1.
The Examiner found that Shiffer discloses several limitations of claim
1, including a top portion defining a circular periphery, a first skirt portion
extending downwardly from the periphery to form a cylindrical structure
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defining a first internal closure space, and a second skirt portion extending
downwardly from the first skirt portion. Final Act. 2. The Examiner also
found that Shiffer does not disclose a second skirt portion having first and
second side edges that are spaced apart to form a gap, and a tab extending
downwardly from a second part of the cylindrical structure, among other
things. Id. at 3. The Examiner found that Auer discloses these limitations
not found in Shiffer, and that it would have been obvious to modify the
closure of Shiffer with the second skirt and related features taught by Auer
“in order to aid in the removal of the closure from the container.” Id. at 3–5.
Appellant raises a number of arguments on appeal that focus on
Auer’s failure to disclose certain claim limitations, including the “top
portion defining a circular periphery” and the “first skirt portion extending
downwardly from said circular periphery to form a cylindrical structure.”
App. Br. 7–9. Appellant then argues that Auer cannot disclose the claimed
tab extending downwardly from a cylindrical structure of Auer because Auer
fails to disclose a “cylindrical structure” as required by the claims. Id. at 10.
While the Examiner did make findings related to Auer’s disclosure of these
limitations, the Examiner primarily relied on Shiffer for the disclosure of
these limitations, and added the teachings related to the edges and tab of
Auer, as well as the rib location, when combining the prior art. Final Act. 2–
5. The Examiner did not suggest replacing the entire closure of Shiffer with
Auer’s closure. Id. Thus, even if we agreed with Appellant that Auer fails
to disclose one or more of these limitations, that would not impact the
Examiner’s findings related to Shiffer and Shiffer’s disclosure of these
limitations. Because Appellant does not argue that Shiffer fails to disclose a
“top portion defining a circular periphery” and the “first skirt portion
extending downwardly from said circular periphery to form a cylindrical
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structure,” and our independent review of those findings does not reveal any
error, we see no error in the Examiner’s finding that these limitations are
disclosed in the combination of Shiffer and Auer.
Appellant makes several additional arguments. First, Appellant
argues that Auer teaches away from a tab extending downwardly from a first
skirt portion because Auer’s hinged lock panel 315 is intentionally separated
from the top portion and the first skirt portion of the closure. App. Br. 10–
11. According to Appellant, if top of the hinged lock panel is not separated
in this manner, the ability to pivot the panel would be “limited.” Id. Even if
this is true, limited movement of a lock panel (e.g., only prying the bottom
of hinged lock panel 315) still provides some movement, and therefore some
ability “to aid in removal of the closure from the container” as the Examiner
found. Final Act. 5. We therefore disagree that Auer’s structure teaches
away from the tab required by claim 1, or a combination with Shiffer, and
see no error in the Examiner’s findings on this issue.
Appellant also argues that Auer fails to disclose a tab located between
planes defined by adjacent ribs as required by claim 1. App. Br. 11–14.
This argument is premised on the argument that the “pawls” 420 in Auer are
in fact ribs, and that the hinged panel 315 of Auer does not extend
downwardly between the pawls because the pawls are on the rear of the
hinged panel 315. Id. at 12–13. We disagree. As the Examiner correctly
found, Auer discloses ribs 280, with the tab located between adjacent ribs.
Final Act. 4; Auer, Figs. 2B and 5 (hinged lock 250, 350 between adjacent
ribs 280). Auer’s description of the pawls as distinct from the ribs 280 of
Auer, and performing different functions when the hinged lock is pivoted on
the top of the container, support the Examiner’s finding that the pawls of
Auer are not ribs. Ans. 5. In addition, the Examiner correctly found that
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Auer does not require the pawls, and because they are optional Auer
discloses a structure without pawls. Id. at 5–6; Auer ¶ 39 (pawls 420 “may
be formed” on the back of the pivot bars 400). Appellant’s argument does
not apply at all to an embodiment without pawls, and Appellant did not
respond to the Examiner’s finding that the pawls were not required. See
Reply Br. 8.
Finally, Appellant argues that the Examiner did not provide a
rationale for modifying Shiffer to include the second skirt portion and tab of
Auer. Reply Br. 9. While the Examiner did not have an opportunity to
respond to this new argument made in Reply, the Examiner did find that one
of skill in the art would have modified the second skirt portion of Shiffer by
adding the edges, gap, and tab of Auer to aid in the removal of the closure
from the container. Final Act. 4–5. Appellant contends that this finding did
not explain why one having ordinary skill in the art would have modified
Shiffer to include only the lower half of hinged lock panel 315 of Auer.
Reply Br. 9. The edges, gap, and tab of Auer all correlate to the lower half
of the hinged lock panel 315 or the area directly adjacent to it. Auer, Fig.
6B; Final Act. 3–4. Importantly, Appellant does not directly contest the
Examiner’s finding, or argue that that one of ordinary skill in the art would
not readily understand the improved ability to remove the closure using the
edges, gap, and tab structure of Auer. Id. In addition, Auer refers to the
advantages of slots or gaps in the bottom of the skirt, and how those
structures aid in the removal of the closure. See Auer ¶¶ 51–54. We see no
error in the Examiner’s finding that the edges, gap, and tab of Auer would
aid in the removal of the closure of Shiffer and would provide the motivation
to modify Shiffer with the structure of Auer.
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Based on the foregoing, we sustain the rejection of claim 1 and the
rejection of all the remaining claims on appeal, which stand or fall with
claim 1.

DECISION
We AFFIRM the decision of the Examiner to reject claims 1, 3–11,
and 13–20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED
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