Ex Parte Weissbrod et alDownload PDFPatent Trial and Appeal BoardSep 23, 201311931899 (P.T.A.B. Sep. 23, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PAUL A. WEISSBROD, ARTHUR PAPINEAU, ANTHONY D. SHOEMAKER and MARK DOUGLAS DONALDSON ____________ Appeal 2011-012010 Application 11/931,899 Technology Center 3700 ____________ Before JOHN C. KERINS, SCOTT A. DANIELS and JILL D. HILL, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-012010 Application 11/931,899 2 STATEMENT OF THE CASE Paul A. Weissbrod et al. (Appellants) seek our review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1-5, 7-19 and 21, the only claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Appellants’ invention is directed to a stackable container for storing welding materials. Independent claim 1, reproduced below, is representative of the claimed subject matter: 1. A stackable container having an interior region for storing associated welding materials, comprising: a container body having one or more walls that define an open end for receiving welding materials, the open end forms a plane, wherein the one or more walls are disposed orthogonal to the plane to define first and second distally disposed surfaces that comprise complementary contours for restraining lateral movement while allowing longitudinal movement of a first stackable container with respect to a second substantially similar stackable container when the stackable containers are placed in a stacking relationship, each wall has a length and a width, wherein the length is at least two times greater than the width to form a generally longitudinal container body; a recess longitudinally fashioned within the first surface, wherein the recess has a characteristic width (w); and at least one rib extending from the first surface and Appeal 2011-012010 Application 11/931,899 3 spanning the width (w) of the recess with a thickness (t), the rib extends from the first surface a distance that is greater than its width and is disposed in a location that does not contact an end of the one or more walls. THE REJECTION Appellants appeal from the rejection of claims 1-5, 7-19 and 21 under 35 U.S.C. § 103(a) as being unpatentable over Schroeder (US 2004/0173613 A1, published Sep. 9, 2004) in view of Meier (US 6,889,838 B2, issued May 10, 2005) and Langenbeck (US 4,593,816, issued Jun. 10, 1986). ANALYSIS Appellants argue the patentability of independent claims 1, 13 and 21 together, and further do not separately argue the patentability of claims 2-5, 7-12 and 14-19 depending from one of these claims. Claim 1 will be taken as representative, and claims 2-5, 7-19 and 21 will stand or fall with claim 1. Appellants argue that the combination of the teachings of the applied references does not disclose or suggest: 1) first and second distally disposed surfaces that comprise complementary contours configured to restrain lateral movement; 2) a recess longitudinally fashioned within the first surface; and 3) at least one rib extending from the first surface and spanning the width (w) of the recess with a thickness (t), [wherein] the rib extends from the first surface a distance that is greater than its width and is disposed so as to not contact an end of any of the [container] walls. Reply Br. 6; see also Appeal Br. 10-17. The Examiner finds that these three features are not disclosed in the Appeal 2011-012010 Application 11/931,899 4 primary reference to Schroeder, but relies on Meier as disclosing a container having first and second distally disposed surfaces with complementary surfaces including a first surface with a recess longitudinally fashioned therein, as well as a rib. Ans. 5, 16. The Examiner relies on Langenbeck as disclosing a rib meeting the positional and dimensional limitations set forth in claim 1. Ans. 6. The Examiner concludes that it would have been obvious to modify the Schroeder container to include these features. Ans. 5- 6. Appellants do not challenge the combinability of the teachings of the references. Appellants maintain that Meier lacks first and second distally disposed surfaces having complementary contours for restraining lateral movement. Appeal Br. 13-14; Reply Br. 4-5. Appellants first argue that locking engaging projections 13 and guide recesses 14 provide a means against sliding. Appeal Br. 13. The Examiner, however, does not rely on those projections and guide recesses in proposing the modification to the Schroeder container. As such, the argument is not commensurate with the basis for the rejection. Appellants further argue that the recessed portions 19 and raised portions 21 in Meier relied on by the Examiner as disclosing the claimed complementary surfaces “seem to be configured to merely provide support (emphasis added) in the plane of the sidewalls 6 of Meier (column 6, lines 21-26), and do not appear to be for restraining lateral movement while allowing for longitudinal movement.” Appeal Br. 14. In the Reply Brief, Appellants present a quotation from Meier that states that the raised portion 21 and matching recess 19 engage at pressure surfaces 22 and support one another within the plane of the sidewalls and also support one another in a Appeal 2011-012010 Application 11/931,899 5 direction transversely to an upward direction. Reply Br. 4. This disclosure more completely identifies the function of the elements as impeding transverse or lateral movement, and undermines Appellants’ argument that those elements “merely provide support” within the plane of the sidewalls. Notwithstanding the specific language employed in the Meier reference in describing the function of the complementary surfaces, the raised portions and matching recesses of the surfaces are configured such that, when mated together, the abutting surfaces are operable to restrain movement in a lateral direction, in essentially the same manner as do Appellants’ claimed complementary surfaces. Thus, the Schroeder container, as modified in view of the teachings of Meier, meets the claim limitations directed to the first and second distally disposed surfaces. While Appellants further maintain that the references lack a teaching of a recess longitudinally fashioned in the first of the distally disposed surfaces, Appellants have not pointed out how the Examiner’s proposed modification to the Schroeder container in view of Meier would lack such a recess. Appellants’ arguments directed to the lack of a teaching of the claimed rib begin with an attempt to refute the Examiner’s finding that Meier teaches a rib 5 extending from the first surface and spanning the width of the recess. Appeal Br. 14. Appellants refer to this element in Meier as a “stacking post” that “serve[s] to support a bottom part 2 of a stacking tool case placed on top,” and that the stacking posts are “not equivalent to the rib of the claimed invention.” Id. Appellants’ argument fails to apprise us of error in the Examiner’s position that the upwardly projecting portion of the element termed by Meier as a “stacking post” meets the general limitation in Appeal 2011-012010 Application 11/931,899 6 claim 1 calling for a rib extending from the first distally disposed surface and spanning the width of the recess. Claim 1 does not structurally distinguish the recited rib from the projecting portion of the stacking post in general. The Examiner acknowledges that the rib or stacking post in Meier does not extend from the first surface a distance that is greater than its width, and is not disposed in a location that does not contact an end of one or more of the walls. Ans. 5. The Examiner relies on the disclosure in Langenbeck of a rib 57 extending from a first surface and spanning the width of the recess, and also having a profile meeting the claim language of extending from the surface to a greater distance than its width, as well as being positioned such that it does not contact an end of any walls. Ans. 6. The Examiner finds that Langenbeck discloses that the ribs help prevent stacked containers from unwanted sliding, and thus concludes that it would have been obvious, in the proposed modification to Schroeder by way of Meier, to have a rib configured as disclosed in Langenbeck. Id. Appellants argue that Langenbeck is directed to providing ribs on a lid for mating with grooves on a bottom surface of an additional container when stacked thereon. Appeal Br. 14. Appellants maintain that “the claimed invention… has nothing to do with such a rib/groove mating configuration.” Id. Along these lines, Appellants point out that the ribs of the claimed invention “are not involved in any mating with a groove but are instead configured to help position the ridges 40 of an adjacent container 10 within the channel 37.” Appeal Br. 16. As a result, according to Appellants, “the mating rib/groove configuration of Langenbeck would not suggest to one skilled in the art the claimed rib 48 of the claimed invention . . . when Appeal 2011-012010 Application 11/931,899 7 considered with Schroeder and Meier.” Id.; see also, Reply Br. 6. The Examiner does not take the position that the Schroeder reference is proposed to be modified such that adjacent containers will have a mating rib/groove configuration. Rather, the Examiner finds that the shape or profile of the ribs in Schroeder, which Appellants do not contest as meeting the claim limitations directed to size and positioning, are effective at preventing sliding between stacked containers. Ans. 14. From this, the Examiner proposes that the Schroeder container be modified in view of the teachings of Meier as well as Langenbeck to aid in preventing unwanted sliding. Ans. 15. That Appellants do not use the rib to engage or mate with a groove, but to help position ridges of an adjacent container, is not probative of error in the Examiner’s proposed modification and conclusion that the subject matter of claim 1 would have been obvious. It is not necessary for the prior art to serve the same purpose as that disclosed in Appellants’ Specification in order to support the conclusion that the claimed subject matter would have been obvious. See In re Linter, 458 F.2d 1013, 1016 (CCPA 1972). In view of the foregoing, the rejection of claim 1, and of claims 2-5, 7-19 and 21 grouped therewith, is sustained. DECISION The decision of the Examiner to reject claims 1-5, 7-19 and 21 under 35 U.S.C. § 103(a) 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)(iv). AFFIRMED Appeal 2011-012010 Application 11/931,899 8 mls Copy with citationCopy as parenthetical citation