Ex Parte Waanders et alDownload PDFPatent Trial and Appeal BoardSep 22, 201612376806 (P.T.A.B. Sep. 22, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/376,806 03/12/2009 27624 7590 AKZO NOBEL INC AkzoNobel Legal Group 525 W. Van Buren Chicago, IL 60607 09/26/2016 FIRST NAMED INVENTOR Petrus Paulus W aanders 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. ACD 3195 PlUS 1355 EXAMINER NEWAY,BLAINE GIRMA ART UNIT PAPER NUMBER 3788 NOTIFICATION DATE DELIVERY MODE 09/26/2016 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): ipani.patent@akzonobel.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETRUS PAUL US W AANDERS, KAI WARNECKE, and JOHANNESHARMANNUSGERARDUSLOK Appeal2014-009686 Application 12/376,806 Technology Center 3700 Before JENNIFER D. BAHR, WILLIAM A. CAPP, and SEAN P. O'HANLON, Administrative Patent Judges. O'HANLON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Petrus Paulus Waanders et al. (Appellants) 1 appeal under 35 U.S.C. § 134 from the Examiner's Final decision rejecting claims 1---6, 8-19, and 22.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. 1 According to Appellants, the real party in interest is Akzo Nobel N.V. App. Br. 3. 2 Claim 7 is canceled (id. at 20) and claims 20 and 21 are withdrawn (id. at 5). Appeal2014-009686 Application 12/376,806 SU~vHvfARY OF INVENTION Appellants' disclosure "relates to a pressure release container." Spec. 1. Claim 1, the sole independent claim, is representative of the claimed subject matter and is reproduced below: 1. A container comprising: a spout opening, a neck along the periphery of the spout opening, and a venting cover comprising a body plate to cover the spout opening, the body plate having a vent opening and having arranged along its periphery a flange with an inner peripheral surface provided with a fastening means to cooperate with a corresponding fastening means on the outer face of the neck, wherein the vent opening is covered by a gas permeable filter, wherein the gas permeable filter is a sheet fixed between the corresponding fastening means of the neck and the fastening means of the flange, and wherein the container is configured to release gas through the vent opening without having the body plate uncover the spout opening. App. Br. 19 (Claims Appendix) (paragraph structure added). REFERENCES The Examiner relies on the following prior art references in rejecting the claims on appeal: Groya US 5,211,301 Jenkins US 5,692,634 Oglesbee US 6,012,596 May 18, 1993 Dec. 2, 1997 Jan. 11, 2000 Yan US 2007/0163936 Al July 19, 2007 2 Appeal2014-009686 Application 12/376,806 REJECTIONS Claims 1, 2, 4, 6, 9, and 22 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Jenkins, Oglesbee, and Groya. Claims 3, 5, 8, and 10-19 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Jenkins, Oglesbee, Groya, and Yan. ANALYSIS Rejection Based on Jenkins, Oglesbee, and Groya The Examiner finds that Jenkins discloses a container substantially as claimed in independent claim 1, but does not disclose a gas permeable filter fixed between cooperating fastening means or a container configured to release gas through a vent opening without having a body plate uncover a spout opening. Final Act. 2-3 (citing Jenkins, 2:53-56, Fig. 1). The Examiner finds that Oglesbee teaches a bottle having a membrane fixed between cooperating fastening means of the bottle and its lid, and determines that it would have been obvious to a skilled artisan to include such a membrane with the Jenkins container "for the predictable result of easily grasping the edge of the filter to peel it off whenever desired." Id. at 3 (citing Oglesbee, Figs. 3, 4). The Examiner further finds that Groya teaches a closure having a spooning lid, and determines that it would have been obvious to a skilled artisan to include such a spooning lid with the Jenkins- Oglesbee container "for the predictable result [of] using the spooning lid in storing and spoon dispensing of the contents from the container." Id. at 4 (citing Groya, 1:9-12, Fig. 4). Appellants make several arguments to traverse the Examiner's findings and conclusions. Appellants first assert that the intended purpose of the Jenkins container "is to selectively separate emitted gas into a portion of 3 Appeal2014-009686 Application 12/376,806 the container while keeping the entire container hermetically sealed from ambient atmosphere," and the proposed modification based on the teachings of Groya "would render Jenkins unsatisfactory for its intended purpose." App. Br. 11-12 (citing Jenkins, 1:21-24, 2:10-17, 2:53-56, Fig. 1). Appellants further assert that such a spooning lid "is certainly not similar to the automatic venting of gases to avoid a dangerous build-up of pressure as desired by the claimed invention." Id. at 12; see also Reply Br. 4. We find these arguments to be unpersuasive. The Examiner proposes to add Groya's spooning lid 22 to the top surface of Jenkins's screw cap 26 to facilitate dispensing the contained product. Final Act. 4; see also Ans. 4 (clarifying that the remaining portion of Jenkins screw cap 26 is the recited body plate). As such, Jenkins's membrane 30 remains in place, and would remain inviolate prior to dispensing the ground coffee (see Jenkins 2:3-17) stored within the container. Appellants' assertions regarding automatic venting are of no moment, as claim 1 does not require automatic or user-free venting. See In re Self, 671F.2d1344, 1348 (CCPA 1982) ("[A]ppellant's arguments fail from the outset because ... they are not based on limitations appearing in the claims."). To the extent Appellants are arguing that the inclusion of a spooning opening would necessarily prevent Jenkins's chamber 28 from being sealed, we note that the Groya spooning opening provides a "tight seal" in the closed position. Ans. 2; see also Groya, 2: 19- 20. Similarly, Appellants argue that including Groya's spooning lid with the Jenkins container would change its basic principle of operation because "the opening of spooning lid 22 would destroy the hermetic seal of Jenkins, 4 Appeal2014-009686 Application 12/376,806 and membrane 30 of Jenkins would obstruct the spoon from reaching the contents of the container." App. Br. 13. We find these arguments to be unpersuasive for the reasons stated above-namely, including Groya's spooning lid would not destroy the hermetic seal of Jenkins prior to dispensing. We additionally note that Jenkins's membrane 30 would have to be removed (at least in part) prior to dispensing ground coffee from the container, and Appellants fail to convince us that dispensing through the spooning lid opening rather than through the container neck after screw cap removal would change the Jenkins principle of operation. Appellants next argue that the Examiner's rationale for modifying the Jenkins container with the teachings of Groya is "not a rational reason to modify Jenkins because the contents of the container of Jenkins are not dispensed with a spoon" because "the contents are hermetically sealed and membrane 30 obstructs a spoon from reaching the contents of container 27." App. Br. 14 (citing Jenkins, 1:21-25). We find these arguments to be unpersuasive. As noted above, the Jenkins membrane would have to be removed prior to dispensing the ground coffee stored within the container. Appellants' arguments fail to convince us that it would not be rational to dispense ground coffee with a spoon. Appellants next argue that including Groya' s spooning lid with the Jenkins container "does not produce the claimed invention, at least because spooning lid 22 still needs to be manually opened to access the contents of the container," and "manual opening of spooning lid 22 is exactly the opposite of the requirements in claim 1 of the application, which recites that the 'container configured to release gas through the vent opening without 5 Appeal2014-009686 Application 12/376,806 having the body plate uncover the spout opening'." App. Br. 14--15; see also Reply Br. 3. We find these arguments to be unpersuasive. As noted above, claim 1 does not require automatic or user-free venting and Appellants' arguments to the contrary are of no moment. The body plate as defined by the Examiner remains in place while contents are dispensed through the spooning lid opening. Appellants' arguments fail to convince us of error in the Examiner's findings or reasoning. Appellants next argue that the Examiner's construction of Groya's spooning lid to be a venting opening "is a strained and unreasonable interpretation of the claimed invention" because "the modification makes spooning lid 22 an integral part of screw cap 26 of Jenkins, the opening of which is directly analogous to the unscrewing of screw cap 26." App. Br. 15. Continuing, Appellants argue that their Specification "discloses a container that can release gas without a user manually opening spooning lid 22 of Groya or unscrewing cap 26 of Jenkins." Id. at 16. We find these arguments to be unpersuasive. Claim 1 does not require automatic or user-free venting, and the fact that Appellants' Specification may disclose automatic venting is also of no moment because "limitations are not to be read into the claims from the [S]pecification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Appellants' conclusory assertion that "opening of spooning lid 22 of Groya is the same as unscrewing cap 26 of Jenkins" (App. Br. 16) fails to apprise us of error in the Examiner's findings or reasoning. The Examiner defines the portion of Jenkins's screw cap 26 outside of the added spooning lid as the recited "body plate." See Final Act. 4; see also Ans. 4. The Examiner-defined body 6 Appeal2014-009686 Application 12/376,806 plate remains in place while contents are dispensed through the spooning lid opening, and Appellants fail to apprise us of error in the Examiner's interpretation and application of the references. Appellants next argue that the Examiner's rationale for modifying the Jenkins container with the teachings of Oglesbee is "not rational" because "an extension of the membrane 30 of Jenkins to a point between screw cap 26 and threads 24 would likely destroy the hermetic seal of Jenkins." App. Br. 17. Continuing, Appellants assert that "since membrane 30 is permeable, the gas from within enclosed chamber 28 might leak through membrane 3 0 into the surrounding atmosphere, and gas from the surrounding atmosphere might pass through membrane 30 into the container." Id. We find these arguments to be unpersuasive. Contrary to Appellants' assertion, the Examiner set forth an articulated reason with a rational underpinning for the proposed modification of Jenkins-to allow the user to "easily grasp[] the edge of the filter to peel it off whenever desired." Final Act. 3. Additionally, "Attorney's argument in a brief cannot take the place of evidence." In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Although Appellants argue that modifying the Jenkins membrane to extend between the cooperating threads of the container and screw cap would allow gas to leak through the membrane at that location, it seems to us more likely that the compressive forces resulting from the otherwise air-tight seal between the container and cap would prevent any gas from passing through the membrane. Appellants' final argument in the Appeal Brief is that the combination of Oglesbee with Jenkins is improper because "Jenkins does not suggest 7 Appeal2014-009686 Application 12/376,806 there is any difficulty removing membrane 30 to access the contents of the container." App. Br. 17. This argument is unpersuasive because the reason to modify or combine references need not be found in the references themselves. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 415-21 (2007) (setting forth that the motivation to modify or combine reference teachings may arise in the interrelated teachings of multiple prior art references, the effects of demands known to the design community or present in the marketplace, the background knowledge possessed by a person having ordinary skill in the art, the existence at the time of invention of a known problem for which there was an obvious solution encompassed by the claims, and common sense). Appellants also present three additional arguments in the Reply Brief. Namely, Appellants argue: 1) that the Examiner's rationale for modifying the Jenkins container with the teachings of Groya is improper because it is not the same as the Appellants' disclosed reason for inventing (Reply Br. 7- 8), 2) the Examiner's combination of references fails to disclose the recited gas permeable filter (id. at 8-9), and 3) the spooning lid of Groya is not a pop-off cap (id. at 9-10). We need not consider these new arguments, which are deemed waived, and we decline to do so here. 37 C.F.R. § 41.4l(b)(2); see also Ex parte Borden, 93 USPQ2d 1473, 1474--75 (BPAI 2010) (informative) (clarifying that "the reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not" and that "the failure to raise all issues and arguments diligently, in a timely fashion, has consequences"). The new arguments could have been presented in the principal Appeal Brief to 8 Appeal2014-009686 Application 12/376,806 address the outstanding rejection of record, but were not. Here, the absence of any opportunity for the Examiner to respond to these untimely arguments precludes meaningful appellate review. Rejection Based on Jenkins, Oglesbee, Groya, and Yan Appellants do not make any other substantive argument regarding the rejection of dependent claims 3, 5, 8, and 10-19. See App. Br. 9-18. Therefore, we likewise sustain the rejection of these dependent claims. DECISION The Examiner's decision to reject claims 1---6, 8-19, and 22 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)(l )(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation