Ex Parte Soehnlen et al

Patent Trial and Appeal Board

Apr 14, 2016

11406889 (P.T.A.B. Apr. 14, 2016)

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.
11/406,889 04/19/2006 Gregory M. Soehnlen SDYZ 200010US05 6416
27885 7590 04/14/2016
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
EXAMINER
REYNOLDS, STEVEN ALAN
ART UNIT PAPER NUMBER
3788
MAIL DATE DELIVERY MODE
04/14/2016 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 GREGORY M. SOEHNLEN, DALE PANASEWICZ, and
LAWRENCE A. BECKS
____________

Appeal 2014-0017861,2
Application 11/406,889
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 4–6, 8–11, 16–19, 21, 23, 26–40, 61, 62, and 64–70.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Our decision references Appellants’ Specification (“Spec.,” filed Apr. 19,
2006) and Appeal Brief (“Br.,” filed June 26, 2013), as well as the Final
Office Action (“Final Action,” mailed June 25, 2012) and the Examiner’s
Answer (“Answer,” mailed Sept. 24, 2013).
2 According to Appellants, the real party in interest is Creative Edge Design
Group Ltd. Br. 1.
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According to Appellants, “the invention relates to molded, thin-walled
containers that are capable of being stacked upon one another for storage
and shipping purposes.” Spec. 1, ll. 2–3. Claims 1, 16, and 61 are the only
independent claims under appeal. We reproduce below independent claim 1
as representative of the appealed claims.
1. A plastic container having a milk product therein used in
caseless shipping of a product, such as milk or juice, the
container comprising:
a base having a load bearing region;
a top surface having a load bearing region that is parallel
to the load bearing region of the base, the top surface having a
pour spout formed therein;
a sidewall integrally formed with and extending between
the base and top surface, the sidewall enclosing an internal cavity
in communication with the pour spout;
a handle extending from the sidewall and defining a finger
receiving region, the handle interposed between the base and top
surface along a substantial length of the sidewall and integrally
formed with the base, top surface, and sidewall; and
a structural load distributing feature formed therein for
conveying bearing loads from the top surface to the base,
wherein the structural load distributing feature includes a
plurality of first ribs formed in the sidewall and being adjacent to
the top surface and extending along the sidewall toward the base,
and at least one second rib at least partially formed in the load
bearing region of the top surface.

Br., Claims App.

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REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
claims 1, 4–6, 8–11, 29–31, 34–36, 38–40, 61, 62, and 64–70 on the
ground of obviousness-type double patenting as unpatentable over
claims 1–14 and 19–25 of Soehnlen (US 6,068,161, iss. May 30, 2000);
claims 16–19, 21, 23, 26–28, 32, 33, and 37 on the ground of
obviousness-type double patenting as unpatentable over claims 1–10 of
Soehnlen (US 6,591,986 B2, iss. July 15, 2003);
claims 1, 4–6, 8–11, 28, 30, 31, 34–36, 38–40, and 70 under 35 U.S.C.
§ 103(a) as unpatentable over Urquiza (US 3,765,574, iss. Oct. 16, 1973),
Gentili (US 4,609,106, iss. Sept. 2, 1986), and Mason (US 3,434,635, iss.
Mar. 25, 1969);
claims 16–19, 21, 26, and 27 under 35 U.S.C. § 103(a) as
unpatentable over Urquiza, deLarosiere (US 4,416,373, iss. Nov. 22, 1983),
Brandt (US 4,805,793, iss. Feb. 21, 1989), and Gentili;
claim 23 under 35 U.S.C. § 103(a) as unpatentable over Urquiza,
deLarosiere, Brandt, Gentili, and Mason;
claims 29, 32, and 33 under 35 U.S.C. § 103(a) as unpatentable over
Urquiza, Gentili, Mason, and Christy (US Des. 393,520, iss. Apr. 14, 1998);
claim 37 under 35 U.S.C. § 103(a) as unpatentable over Urquiza,
deLarosiere, Brandt, Gentili, and Christy;
claims 61, 62, and 64–68 under 35 U.S.C. § 103(a) as unpatentable
over Urquiza, Brandt, and Gentili;
claims 61, 62, and 64–68 under 35 U.S.C. § 103(a) as unpatentable
over Urquiza, Stansbury (US 5,330,050, iss. July 19, 1994), and Gentili; and
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claim 69 under 35 U.S.C. § 103(a) as unpatentable over Urquiza,
Gentili, Mason, deLarosiere, and Brandt.
See Final Action 2–15.

ANALYSIS
The Obviousness-type Double Patenting Rejections
Appellants do not argue the merits of the Examiner’s obviousness-
type double patenting rejections. See Br. 17. Therefore, we summarily
sustain the obviousness-type double patenting rejections.

The Obviousness Rejections
The Examiner rejects independent claim 1 as unpatentable over a
combination of Urquiza, Gentili, and Mason. See Final Action 2–4.
Regarding the “structural load distributing feature” of claim 1, the Examiner
concludes that “it would have been obvious . . . to have modified the
container of Urquiza with first ribs as taught by Gentili in order to make the
container[] more resistant to vertical loads.” Id. at 3.
Appellants argue that “Urquiza cannot be fairly combined with
Gentili” because “Urquiza expressly states that the ‘case is a molded
construction of a single piece of plastic, having a bottom, front, back and
side part . . . but without providing any additional protuberance to the design
of the container.’” Br. 16. In response, the Examiner determines:
Providing the structural load distributing features (14) as taught
by Gentili will provide the container walls of Urquiza with
inward extending ribs that are molded with the walls of the
container, not protuberances extending outwardly from the
walls. Modifying the walls of Urquiza with the reinforcing
grooves of Gentili will not interfere with the compact stacking as
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disclosed as being important in Urquiza. Furthermore, Gentili
discloses that the stiffening grooves (14) make the container
more resistant to vertical loads and avoid the outward swelling
of the walls when submitted to a load. This reduction of outward
swelling of the walls is also important to Urquiza since Urquiza
wants to avoid any protuberances in the walls of the container
that would interfere with compact stacking and storage.
Answer 2–3 (emphasis added).
Thus, even assuming arguendo that it would be improper to modify
Urquiza contrary to a design that is “without . . . any additional
protuberances” (Urquiza, col. 2, ll. 21–26), the Examiner’s rejection does
not rely on modifying Urquiza’s container to include protuberances. Rather,
the Examiner proposes to modify the walls of Urquiza’s container to include
inwardly extending ribs. See Answer 2. Appellants do not rebut
persuasively the Examiner’s determination that modifying the walls of
Urquiza’s container with inwardly extending ribs would make Urquiza’s
container more resistant to vertical loads, without interfering with compact
stacking (see Final Action 3, Answer 2–3).
Appellants additionally argue that “[t]he claims define a container and
system that satisfies a long-felt need[,] which was not solved by others.”
Br. 16. Appellants do not submit any evidence to support this argument, but
instead argue (id.):
As detailed on page 3, line 6 through page 6, line 17, substantial
costs were incurred in order to ship milk in connection with a
conventional dairy. By using the caseless shipping system,
which employs the ribbed container, a substantial improvement
was realized in the industry. Likewise, substantial cost
associated with the equipment to manufacture cases, clean the
cases, replace the cases, ship empty cases, and the added manual
labor associated with loading and unloading milk filled bottles
from the cases were encountered.
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Inasmuch as Appellants’ arguments are not supported by any
objective evidence, they are insufficient to rebut the Examiner’s conclusion
of obviousness. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
“Argument in the brief does not take the place of evidence in the record.” In
re Schulze, 346 F.2d 600, 602 (CCPA 1965) (citing In re Cole, 326 F.2d
769, 773 (CCPA 1964)).
Based on the foregoing, we sustain the obviousness rejection of
independent claim 1 and dependent claims 4–6, 8–11, 28, 30, 31, 34–36, 38–
40, and 70, which are not separately argued. Because Appellants rely on the
arguments discussed above for the remaining obviousness rejections, we
also sustain the obviousness rejections of claims 16–19, 21, 23, 26, 27, 29,
32, 33, 37, 61, 62, and 64–69.

DECISION
We summarily AFFIRM the Examiner’s rejections of claims 1, 4–6,
8–11, 16–19, 21, 23, 26–40, 61, 62, and 64–70 on the ground of
obviousness-type double patenting.
We AFFIRM the Examiner’s rejections of claims 1, 4–6, 8–11, 16–19,
21, 23, 26–40, 61, 62, and 64–70 under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2015).

AFFIRMED