Ex Parte Stahl

Patent Trial and Appeal Board

Feb 22, 2016

12403723 (P.T.A.B. Feb. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/403,723 03/13/2009 Edward L. Stahl
66228 7590 02/24/2016
NIXON PEABODY LLP
INTELLECTUAL PROPERTY GROUP- PATENTS
70 WEST MADISON STREET
SUITE 3500
CHICAGO, IL 60602-4224
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
52045-7232 1220
EXAMINER
COLLADO, CYNTHIA FRANCISCA
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
02/24/2016 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):
IPDOCKET@NIXONPEABODY.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD L. STAHL
Appeal2014-001262
Application 12/403,723
Technology Center 3700
Before CYNTHIA L. MURPHY, BRADLEY B. BA YAT, and
TARA L. HUTCHINGS, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant 1 appeals under 35 U.S.C. § 134 from the Examiner's
rejections of claims 1, 8, 10-14, and 17-21. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 "The real party in interest is Orbis Corporation." (Appeal Br. 2.)
Appeal2014-001262
Application 12/403,723
STATEMENT OF THE CASE
The Appellant's invention "generally relates to a beverage crate for
transporting bottles containing a beverage having multiple cap sizes."
(Spec. if 3.)
Illustrative Claim2
1. A beverage crate having a bottom surface configured to
allow secure stacking of the beverage crate on bottles having a
first cap size and bottles having a second cap size different than
the first cap size, the beverage crate comprising:
a bottom wall for supporting a plurality of beverage
bottles, the bottom wall having a first side, an opposing second
side, a first end, and a second;
a first side wall connected to the bottom wall along the first
side;
a second side wall connected to the bottom wall along the
second side;
the bottom wall including an upper surface for supporting
bottles in the beverage crate and a lower surface having a
generally square shape centrally located bottle cap receiving area
and a plurality of other generally square bottle cap receiving
areas shaped to contact tops of bottles contained in a lower
beverage crate, the lower surface including a first lowermost
surface forming a floor engaging portion, the centrally located
receiving area and each of the plurality of other receiving areas
of the bottom surface configured to securely stack on one of a
plurality of bottles having a first cap size and a plurality of bottles
having a second cap size different than the first cap size, the
centrally located bottle cap rece1vmg area having a
symmetrically formed first bottom surface portion at a first depth
from the lowermost surface surrounding a perimeter of the
centrally located receiving area and a second bottom surface
portion at a second depth from the lowermost surface greater than
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") set forth on pages 10-12 of the Appeal Brie£
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Application 12/403,723
the first depth, each of the plurality of other receiving areas
having a first irregular shaped surface portion at the first depth,
and a second irregular shaped surface portion at the second
depth, each receiving area including a wall connecting the first
bottom surface portion to the second bottom surface portion
wherein each wall in each receiving area connecting the first
bottom surface portion to the second bottom surface portion has
a plurality of arc shaped segments.
Rejection
The Examiner rejects claims 1, 8, 10-14, and 17-21under35 U.S.C.
§ 103(a) as unpatentable over Umiker3 and Apps. 4 (Final Action 2.)
ANALYSIS
Independent claim 1 is directed to a beverage crate wherein a bottom
surface is "configured to allow secure stacking of the beverage crate on
bottles having a first cap size and bottles having a second cap size different
than the first cap size." (Claims App.) Independent claims 14 and 21 are
also directed to a beverage crate having a bottom surface configured to
accommodate "multiple sized caps." (Id.) The Examiner finds that Umiker
discloses a beverage crate having such a bottom surface. (See Final
Action 3.) This finding is supported by Umiker's disclosure that the
"multistepped design" for its receiving areas is what "ensures that different-
sized bottle caps can be used for one and the same case." (Umiker, col. 4,
lines 14--23.)
Independent claim 1 requires the receiving area to have "a first bottom
surface portion at first depth," "a second bottom surface portion at a second
3 US 5,967,306 issued Oct. 19, 1999.
4 US 2001/0015329 Al published Aug 23, 2001.
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Application 12/403,723
depth," and "a wall connecting the first bottom surface portion to the second
bottom surface portion." (Claims App.) Independent claims 14 and 21
similarly recite different-depth "wall portions" and "vertical walls"
connecting the different-depth portions. (Id.) The Examiner finds that
Umiker's multi-stepped receiving area includes different-depth portions
connected by a connecting wall (or vertical walls). (See Final Action 2-5.)
This finding is supported by the Examiner's annotated reproduction of
Umiker's Figure 4 denoting the different-depth portions (each labeled
"bottom wall") and the connecting wall (labeled "vertical wall"). (Id. at 5.)
Independent claims 1, 14, and 21 also each requires the connecting
wall (or vertical walls) to have "a plurality of arc shaped segments."
(Claims App.) The Examiner finds that Apps teaches such arc-shaped
segments for bottle-movement-restraining purposes. (See Final Action 4.)
This finding is supported by Apps' s teaching that a "cloverleaf closure
acceptance area" will "substantially restrain the end-to-end movement as
well as the side-to side movement of the bottles in the stacked cases."
(Apps, if 19.)
The Examiner determines that it would have been obvious "to have a
plurality of arc shaped segments in the case of Umiker, as suggested by
Apps[,] to restrain the end to end movement as well as the side to side
movement of the bottle[s] in the stacked cases." (Final Action 4.)
The Appellant argues that Umiker's connecting wall is "without arc-
shaped segments," and that Apps's cloverleaf wall "does not connect to
surfaces designed to accommodate two different cap sizes." (Reply Br. 5.)
In other words, the Appellant argues that U miker and Apps each fails to
individually "disclose a crate with the claimed features." (Id.) We are not
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Application 12/403,723
persuaded by this argument because the Examiner's rejection is based upon
a combination of the teachings ofUmiker and Apps. 5
The Appellant also argues that "the Examiner provides no analysis of
how the combined structures would look or how the resulting lower surface
of the crate would be able to accommodate two different cap sizes."
(Appeal Br. 8.) We are not persuaded by this argument because the
Examiner's combination involves modifying the contour ofUmiker's
connecting wall so that it has a cloverleaf shape as taught by Apps. This
modification would alter the shape, but not the different depths, of the
bottom portions ofUmiker's beverage crate, and the crate would still have a
multistepped design to accommodate different-sized bottle caps.
The Appellant additionally argues that "the Examiner does not
provide any reason or basis for making this modification." (Reply Br. 5; see
also Appeal Br. 8.) We are not persuaded by this argument because, as
discussed above, the Examiner explains that the proposed modification
would "restrain the end to end movement as well as the side to side
movement of the bottles in the stacked cases." (Final Action 4.) And, as
also discussed above, Apps expressly teaches that a cloverleaf contour
provides such restraint. (See Apps, i-f 18.) Hence, the Examiner's explicit
analysis includes articulated reasoning with rational underpinnings to
support the determination of obviousness. 6
5 "Non-obviousness cannot be established by attacking references
individually where the rejection is based on the teachings of a combination
of references." In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
6 In a rejection based on obviousness grounds, the "analysis should be made
explicit" and "there must be some articulated reasoning with some rational
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Application 12/403,723
The Appellant further argues that changing Umiker's connecting wall
as proposed by the Examiner would make the beverage crate "unusable for
use" and it "would no longer work." (Reply Br. 6; Appeal Br. 8.)
According to the Appellant, "neither the smaller nor the larger cap size
would fit properly in such a configuration" and stacked crates "would be at
greater risk of falling over." (Reply Br. 6.) We are not persuaded by this
argument because the record evidence establishes otherwise. Particularly,
Apps teaches that its closure acceptance area can be "sized to receive a
bottle top of a bottle which is disposed in a lower case." (Apps i-f 19.) Apps
also teaches that a cloverleaf contour of a closure acceptance area enables
crates to be stacked "in a stable pallet load." (Id.) The Appellant argues, but
does not evidence, that such cap-receiving and/or stability features would be
compromised in Umiker's modified beverage crate. 7
Independent claim 1 further requires the receiving areas to have "a
first irregular shaped surface portion at the first depth" and "a second
irregular shaped surface portion at the second depth." (Claims App.)
Independent claim 14 similarly requires the different-depth portions to be
"irregularly shaped." (Id.) The Appellant argues that "Umiker does not
disclose bottle-contacting surfaces with an irregular shape." (Appeal Br. 9.)
We are not persuaded by this argument because it does not address the shape
of the bottle-contacting surfaces (i.e., the different-depth portions) when
underpinning to support the legal conclusion of obviousness." KSR Int'! Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007).
7 See Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir.
2009) (unswom attorney argument is not evidence and cannot be used to
rebut record evidence).
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Umiker's connecting wall is modified to have a cloverleaf contour. As
acknowledged by the Appellant, the arc-shaped segments reflect, at least in
part, the shapes of the different-depth portions. (See Appeal Br. 5.)
In view of the foregoing, we are not persuaded by the Appellant's
arguments that the beverage crates recited in independent claims 1, 14,
and 21 would not have been obvious over Umiker and Apps. As for the
dependent claims, they are argued only by virtue of their dependency on
independent claims 1 and 14. (See Appeal Br. 9.) Thus, we sustain the
Examiner's rejection of claims 1, 8, 10-14, and 17-21under35 U.S.C.
§ 103(a) as unpatentable over Umiker and Apps for the foregoing reasons.
DECISION
We AFFIRM the Examiner's rejection of claims 1, 8, 10-14,
and 17-21.
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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