Ex Parte StegDownload PDFPatent Trial and Appeal BoardAug 13, 201311405795 (P.T.A.B. Aug. 13, 2013) Copy Citation 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. 11/405,795 04/18/2006 Henning Steg NI 165 4934 27956 7590 08/14/2013 KLAUS J. BACH 4407 TWIN OAKS DRIVE MURRYSVILLE, PA 15668 EXAMINER VOLZ, ELIZABETH J ART UNIT PAPER NUMBER 3781 MAIL DATE DELIVERY MODE 08/14/2013 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 HENNING STEG ____________________ Appeal 2011-009461 Application 11/405,795 Technology Center 3700 ____________________ Before: WILLIAM V. SAINDON, NEIL T. POWELL, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-009461 Application 11/405,795 2 STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 1-5, 7-9, and 13. Claim 6 is cancelled. After withdrawal of the rejection of claims 1-5 and 7-13 under U.S.C. § 112, first paragraph, there do not appear to be any outstanding rejections directed to claims 10-12. Ans. 3. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Claim 1 is the sole independent claim on appeal and is reproduced below: 1. A container (10) for solid, paste-like and flowable products, comprising: a lower container part (11) with an opening (14) for containing the product and a container top part (12) in the form of a container lid, said lower container part (11) having a rim with a top wall (15) and a downwardly extending rim web (20) extending all around the container opening (14), the top wall (15) having an annular upwardly extending projection (21) and the container top part (12) comprising a collar element (16) also extending all around the container opening (14) and the rim (15, 20) of the container bottom part (11), the collar element (16) including a rim area (23) extending inwardly over the container rim top wall (15) up to the upwardly extending annular projection (21) and an essentially flat areal cover element (17) provided on the collar element (16) and releasably connected to the annular upwardly extending projection (21) of the container rim top wall (15) which is arranged adjacent the inwardly extending rim area (23) and on which the areal cover element (17) is sealingly disposed when the container is closed. Appeal 2011-009461 Application 11/405,795 3 REJECTIONS 1. Claims 1-5 are rejected under 35 U.S.C. § 102(b) as being anticipated by VanCucha (US 4,946,064; iss. Aug. 7, 1990); and 2. Claims 1-5, 7-9, and 13 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Clarke (WO 03/047999 A1; pub. Jun. 12, 2003) and VanCucha. OPINION Anticipation – VanCucha Appellant argues claims 1-5 as a group. See App. Br 7. We select claim 1 as representative. Claims 2-5 stand or fall with claim 1. Appellant argues that VanCucha fails to disclose a cover web located on a collar element and directly in contact with and connected to an annular projection of the container rim top wall 15 so that the cover web is directly connected to the container bottom part when the container top part is disposed on the container bottom part as required by claim 1. App. Br. 6. The Examiner explains that the claim does not require direct contact. Ans. 6. In response, Appellant explains that direct contact is shown in the figures and is clearly a result of the design of the present invention. Appellant argues that “[i]t does not need to be specifically claimed to be specifically claimed that it is in ‘direct’ contact” because the claim recites that the areal cover element is sealingly disposed on the upwardly extending projection of the container rim and consequently in direct contact with the upwardly extending projection. Reply Br. 3. Initially, we note that arguments must be commensurate in scope with the actual claim language. Appeal 2011-009461 Application 11/405,795 4 In re Self, 671 F.2d 1344, 1348 (CCPA 1982). We agree with the Examiner that there is nothing in claim 1 requiring the direct contact alleged by Appellant. Claim 1 simply requires that the cover element is sealingly disposed on the container rim top wall. For example, claim 1 does not preclude an intervening layer from being present between the areal cover element and the container rim top wall. For these reasons, we are not apprised of Examiner error and we sustain the rejection of claims 1-5. Obviousness – Clarke and VanCucha Appellant argues claims 1-5, 7-9, and 13 as a group. See App. Br 7. We select claim 1 as representative. Claims 2-5, 7-9, and 13 stand or fall with claim 1. Appellant argues that Clarke also fails to disclose the claimed arrangement because there is no direct contact between the foil seal (cover member) 14 and the container rim 16 in Clarke. App. Br. 7; Reply Br. 2-3. This argument is not persuasive as explained above because the claims do not require direct contact as alleged by Appellant. For these reasons, we are not apprised of Examiner error and we sustain the rejection of claims 1-5, 7-9, and 13. Appeal 2011-009461 Application 11/405,795 5 DECISION We AFFIRM the Examiner’s decision to reject claims 1-5, 7-9, and 13. 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). AFFIRMED ELD Copy with citationCopy as parenthetical citation