Ex Parte Ullmann

Board of Patent Appeals and Interferences

Jun 24, 2010

10381345 (B.P.A.I. Jun. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BERND ULLMANN
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Appeal 2009-005108
Application 10/381,345
Technology Center 1700
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Decided: June 24, 2010
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Before BEVERLY A. FRANKLIN, LINDA M. GAUDETTE, and
KAREN M. HASTINGS, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134 from the Examiner's
rejection of claims 15-33. We have jurisdiction under 35 U.S.C. § 6(b).

STATEMENT OF THE CASE
Claims 15 and 30 are representative of the subject matter on appeal
and are set forth below:
15. A can lid for crimping onto a can body, comprising a lid
Appeal 2009-005108
Application 10/381,345

panel with a tongue for forming a pouring opening along a slit line, wherein
the lid panel has fastened to a side pointing toward an interior of the can a
separate space for accommodating solid, liquid or gaseous substances, which
space is formed by at least one flexible, but essentially non-expandable,
essentially gas-tight and liquid-tight wall and extends over a portion of the
lid panel such that a lateral edge of the wall crosses the slit line at least at
one point, and when opening the can, a portion of the tongue moves toward
the interior and exerts a force on said wall, thereby making an opening into
said space.

30. A can, comprising:
a can body; and,
a can lid crimped onto the can body, comprising a lid panel with a
tongue for forming a pouring opening along a slit line, wherein the lid panel
has fastened to a side pointing toward an interior of the can a separate space
for accommodating solid, liquid or gaseous substances, which space is
formed by at least one flexible, but essentially non-expandable, essentially
gas-tight and liquid-tight wall and extends over a portion of the lid panel
such that a lateral edge of the wall crosses the slit line at least at one point,
and when opening the can, a portion of the tongue moves toward the interior
and exerts a force on said wall, thereby making an opening into said space.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bourelle 3,305,368 Feb. 21, 1967
Jamieson 5,290,574 Mar. 1, 1994
Spring 5,885,635 Mar. 23, 1999
Flansburg 4,333,581 Jun. 8, 1982
de Lloret 3,779,372 Dec. 18, 1973
Es Willy FR2788034 Jul. 7, 2000
Hunt 4,264,007 Apr. 28, 1981
Croner 3,743,520 Jul. 3, 1973
Radford WO 91/16967 Aug. 4, 1994

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Appeal 2009-005108
Application 10/381,345

THE REJECTION(S)
Claims 15-33 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Bourelle in view of Jamieson, further in view of Spring,
Flansburg, de Lloret, Es Willy, Hunt, Croner, and Radford.
ISSUE
Did the Examiner err in determining that Jamieson teaches that when
a stay-on tab is used, the secondary compartment 4 is torn in the manner as
claimed by Appellant?
We answer this question in the negative.

FINDINGS OF FACT, PRINCIPLES OF LAW, AND ANALYSIS
We incorporate the Examiner’s findings, analysis, and response to
Appellant’s arguments, as set forth in the Answer in its entirety, and add the
following for emphasis only.
On page 8 of the Brief, Appellant asserts that the applied art does not
suggest a structure that opens a separate substance chamber under a
container lid specifically by tearing into the edge of a wall defining the
separate chamber. Appellant alleges that the applied art cited by the
Examiner for teaching a crossing alignment between a slit line defining a
tongue across a lateral edge of a chamber (Jamieson, Figs. 10 and 11 )
teaches that such a structure avoids the need to tear or displace the wall from
the lid (col. 5, lines 45-62 of Jamieson). We do not agree with Appellant’s
interpretation of Jamieson in this regard for the following reasons.
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Application 10/381,345

We agree with the Examiner’s interpretation of Jamieson as set forth
on page 9 of the Answer. Therein, the Examiner states:
Jamieson et al clearly discloses that the fig. 8-11 embodiments can be
used with either a stay-on tab or a ring-pull tab and if one employs the
ring-pull tab, the "shell does not need to be torn or displaced" (col. 5,
para. the entire paragraph 2). If one employed the stay-on tab, the
shell would clearly be torn, which incidently [sic, incidentally] is not a
negative for Jamieson et al because Jamieson et al discloses that
tearing the shell allows the liquid in the shell to flow or drop down
into the can and mix with the liquid in the can. (e.g., col. 5, para. 1).
We also refer to column 3, lines 28-35 of Jamieson in support of the
Examiner’s position, as discussed by the Examiner on page 6 of the Answer.
In view of the above, Appellant has incorrectly interpreted Jamieson’s
teachings in asserting that the structure of Jamieson avoids the need to tear
the wall from the lid.
In view of the above, we affirm the rejection.
CONCLUSIONS OF LAW
The Examiner did not err in determining that Jamieson teaches that
when a stay-on tab is used, the secondary compartment 4 is torn in the
manner as claimed by Appellant.

DECISION
The rejection is affirmed.
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)(v).
AFFIRMED
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tc

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