Ex Parte Wilkins

Board of Patent Appeals and Interferences

Aug 27, 2009

10987070 (B.P.A.I. Aug. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ZOE CLAIRE WILKINS
__________

Appeal 2009-007461
Application 10/987,070
Technology Center 3700
__________

Decided: August 27, 2009
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and LORA M.
GREEN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 29, 31, 32, 34-40, and 44. We have
jurisdiction under 35 U.S.C. § 6(b).

Appeal 2009-007461
Application 10/987,070

STATEMENT OF THE CASE
The claims are drawn to a carton containing cans, where the cans are
displayed for individual purchase (Spec. ¶3). Claims 29 and 40 are the
independent claims on appeal, and read as follows:
29. A carton and a plurality of cans arranged in a plurality of columns and
rows:
a top panel;
a first side panel hingedly connected to the top panel;
at least one base panel hingedly connected to at least one of the side
panels; and
two gusset panels at each end of the carton blank, each gusset
comprising:
a first portion hingedly connected to the top panel; and
a second portion hingedly connected to the first portion and
hingedly connected to an adjacent one of the side panels, each second
portion being bent toward the adjacent side panel and held in place by an
abutting one of the cans so that the first portion extends across an open end
of the carton, wherein
a removable portion is defined in the top panel and side panels by at
least one line of weakening, the removable portion including the gusset
panels at one end of the blank, wherein when the removable portion is
removed by separating the removable portion along the at least one line of
weakening, at least a part of a top of all the cans is exposed, and
when the removable portion is removed, a remaining portion of the
top panel remains adjacent one of the ends of the carton and over at least one
of the cans at a top of the carton.

40. A paperboard carton and a plurality of cans arranged in two rows and
three columns, comprising:
a top panel;
a first side panel hingedly connected to the top panel;
a second side panel hingedly connected to the top panel;
a first base panel hingedly connected to the first side panel;
a second base panel hingedly connected to the second side panel, the
first and second base panels being secured together;
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Application 10/987,070

a plurality aperture formations in each base panel, each aperture
formation receiving a bottom edge of one of the cans; and
two gusset panels at each end of the carton blank, each gusset panel
comprising:
a first portion hingedly connected to the top panel; and
a second portion hingedly connected to the first portion along
an oblique fold line and hingedly connected to an adjacent one of the
side panels, each second portion being bent toward the adjacent side
panel and held in place by an abutting one of the cans so that the first
portion extends across an open end area of the carton, wherein
a removable portion is defined in the top panel and side panels by at
least one line of weakening, the removable portion including the gusset
panels at one end of the blank, wherein when the removable portion is
removed by separating the removable portion along the at least one line of
weakening, at least a part of a top of all of the cans is exposed, and
when the removable portion is removed, a remaining portion of the
top panel remains adjacent one of the ends of the carton and over at least one
of the cans at a top of the carton.

The Examiner relies on the following evidence:
Crayne US 4,375,258 Mar. 1, 1983
Campbell US 5,421,458 Jun. 6, 1995
Lingamfelter US 6,550,615 B2 Apr. 22, 2003

Lawrence GB 1,103,372 Feb. 14, 1968
We reverse.

ISSUE
The Examiner concludes that claims 29, 31, 32, 34-40, and 44 are
rendered obvious by the combination of Campbell, Lawrence, Crayne, and
Ligamfelter
Appellant contends that the prior art relied upon by the Examiner does
not render obvious a carton containing cans wherein portion 45 of
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Application 10/987,070

Lawrence’s cut line 44 is moved toward the adjacent end of the carton, i.e.,
toward the right in Figure 2, so that at least a part of the top of all the cans
would be exposed if the portion defined by line 45 and tear lines 65, 66 was
removed.
Thus, the issue on appeal is: Has Appellant demonstrated that the
Examiner erred in concluding that the combination of references relied upon
renders obvious a removable portion, wherein the removable portion is
defined in the top panel and side panels by at least one line of weakening,
and includes the gusset panels at one end of the blank, such that when the
removable portion is removed, at least a part of a top of all of the cans is
exposed?

FINDINGS OF FACT
FF1 The invention is drawn to a paperboard carton, wherein when a
removable portion is removed; at least a portion of the top of all of the
articles in the carton is exposed (Spec. ¶ 4).
FF2 Figure 3 of the instant disclosure is reproduced below for illustrative
purposes.
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Figure 3 shows a perspective view of the carton after the removable section
has been removed (id. at ¶ 13).
FF3 The Specification notes that the width of the retained portion 19 “is
such that at least a portion of the tops of all of the cans 12 is exposed after
removal of the removable portion 20.” (Id. at ¶21.)
FF4 The Examiner rejects claims 29, 31, 32, 34-40, and 44 under 35
U.S.C. § 103(a) as being obvious over the combination of Campbell,
Lawrence, Crayne, and Ligamfelter (Ans. 3).
FF5 Campbell is relied upon for teaching a carton substantially as claimed
(id. at 3-4).
FF6 The Examiner notes that “Campbell merely lacks the removable
portion.” (Id. at 4.)
FF7 The Examiner relies on Lawrence for teaching a beverage carton,
wherein the carton has “a removable portion 34 with a plurality of lines of
weakening 65 or 66 to assist in removal of the portion.” (Id.)
FF8 According to the Examiner:
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Application 10/987,070

Lawrence teaches the removable portion over the top panel and
through both side edges of both side panels (see Figures 1 & 2)
for access to the contents, but the line of weakness is only
located on the side portions (the top access is formed with a
slit). Lawrence leaves a retained portion 51 for gripping and
handling the package.

(Id.)
FF9 Lawrence teaches a carrier made from a blank sheet material for
packaging articles such as cans (Lawrence p. 1, ll. 8-15), wherein the carrier
incorporates a lifting handle (id. at ll. 62-65).
FF10 Figures 2 and 3 of Lawrence are reproduced below.

Figure 2 shows the carrier wrapped around six cans, thus showing the
assembled carrier (id. at 2, ll. 50-52). Figure 3 shows the assembled carrier
being lifted by the lifting handle (id. at ll. 53-55).
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Application 10/987,070

FF11 Lawrence teaches that the lifting handle is defined by a single
continuous slit defined formed in the top panel 35 and the side panels, such
as 33, the straight portion of the slit 45 being formed in the top panel (id. at
ll. 96-98).
FF12 Lawrence teaches further that the portion of the slit 45 is spaced from
the side edge 41 a distance greater than a diameter of the can it is intended to
carry, and the slits on the side panels, such as 46, are spaced from the side
edge at least a distance one and a half times the diameter of the can (id. at ll.
106-115). According to Lawrence, “[m]ost of the weight of the cans in the
carrier is taken up by the handle in the region of the latter along and adjacent
to slit 44,” which can handle the weight as the end portions 63 and 54 are
moved inwardly towards another into the spaces between adjacent cans and
in a direction towards edge 41, which also minimizes the possibility of
tearing (id. at 3, ll. 54-74).
FF13 The package of Lawrence includes tear lines 65, 66, and 67 for
facilitating removal of the cans, wherein the portion of side panel 33
between the tear lines 65 and 66 may be torn to expose four adjacent cans,
and another portion of the side panel may be torn between tear line 67 and
the adjacent transverse folding line to remove two adjacent cans from the
carrier (id. at ll. 10-120).
FF14 Crayne is cited for teaching a beverage carton that has removable
portions 58 for access to the contents, “wherein the removable portion is
formed in both the top panels and side panels and formed by a line of
weakness on the both the top and side panels.” (Ans. 4.) The Examiner
notes that Crayne retains a portion 40 to grip and handle the package (id.).
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FF15 Crayne is drawn to “a paperboard carrier carton for bottles or the like
which is completely enclosed to shield the contents . . . from light and which
also has sections that are detechable . . . to provide access to the contents
without destroying the integrity of the carton and preventing its reuse.”
(Crayne, col. 1, ll. 26-32.)
FF16 Figure 3 of Crayne is reproduced below.

Figure 3 is a perspective view of the carton of Crayne, showing portions of
the structure removed to provide access to the interior of the carton (id. at ll.
49-51).
FF17 The Examiner concludes that it would have been obvious to the
ordinary artisan, in view of the teachings of the references as a whole, to add
a removable portion to the carton of Campbell “with a removable portion
comprising a line of weakness over both the top panel and side panels of the
blank in order to facilitate access to the contents.” (Ans. 4). The Examiner
also concludes that it would have been obvious “to include the retained
portion in the arrangement in order to facilitate gripping and handling.” (Id.
at 5.)
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FF18 The Examiner notes further that both Lawrence and Crayne remove
the corner portion of the carton, which would inherently remove the gusset
(id.). The Examiner also notes that the combination of Campbell, Lawrence,
and Crayne does not teach removing a portion such that a part of all of the
cans is exposed (id.).
FF19 The Examiner relies on Ligamfelter for demonstrating that “the
degree of the removal portion is variable,” thus it would have been obvious
to the ordinary artisan “to vary the degree of the removal portion in order to
access the articles near the back of the carton.” (Id.)

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
While the analysis under 35 U.S.C. § 103 allows flexibility in
determining whether a claimed invention would have been obvious, KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), it still requires showing
that “there was an apparent reason to combine the known elements in the
fashion claimed by the patent at issue.” Id. “We must still be careful not to
allow hindsight reconstruction of references to reach the claimed invention
without any explanation as to how or why the references would be combined
to produce the claimed invention.” Innogenetics, N.V. v. Abbott Labs., 512
F.3d 1363, 1374 n.3 (Fed. Cir. 2008).
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ANALYSIS
Appellant argues that it would not have been obvious, “in view of
Lingamfelter or otherwise, to relocate portion 45 of Lawrence’s cut line 44
toward the adjacent end of the carton, i.e., toward the right in Figure 2, so
that at least a part of the top of all the cans would be exposed if the portion
defined by line 45 and tear lines 65, 66 was removed.” (App. Br. 5.)
Lawrence, Appellant asserts, is drawn to providing a carton with a
handle 51, wherein a portion of the slit is spaced from the side edge at a
distance greater than the diameter of the cans (id. at 5-7). Thus, Appellant
argues, the ordinary artisan “would be taught that in order to minimize the
possibility of tearing, the portion 45 of slit 44 in the top panel should be
located a distance greater than a can diameter from the adjacent end of the
carton, so that the regions 63, 64 at the ends of the handle can move into
spaces between the adjacent cans when the carton is lifted.” (Id. at 7.)
Appellant thus asserts that “Lawrence teaches away from any such
repositioning, and it would not have been obvious to one of ordinary skill in
the art to reposition portion 45 of Lawrence toward an adjacent end of the
carton, because such repositioning would give rise to the very same tearing
problem which the Lawrence arrangement is designed to overcome.” (Id.)
Appellant asserts that Ligamfelter does not remedy the deficiencies of
the other references (id.). While Ligamfelter teaches that the after a section
is removed, 1-3 diameters of cans may be exposed, Lawrence and Crayne
are concerned with providing a handle portion after a portion of the carton is
removed, but Ligamfelter is not (id. at 8). Thus, Appellant argues, “even if
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Application 10/987,070

one might glean from Lingamfelter a generalized teaching that . . . ‘the
degree of the removal portion is variable,’ one of ordinary skill in the art
would not consider that teaching to be applicable to the Campbell carton as
modified by Lawrence and Crayne, because Lawrence specifically teaches
that the handle slit portion 45 must be located in a particular position relative
to the cans in order to minimize the possibility of tearing when the handle is
in use.” (Id.) Thus, moving the handle slit 45 of Lawrence back, Appellant
argues, would make the carton more vulnerable to tearing and breaking, and
would make the slit 44 unsuitable for its intended use of providing a handle
(id.).
We agree with Appellants. Claims 29 and 40, the independent claims
on appeal, require that when the removable portion is removed, that at least a
part of all of the tops of the cans would be exposed. The claims also require
that the removable portion includes the gusset panels at one end of the blank.
Thus, claims 29 and 40 each require a removable portion that includes a
gusset panel at the end of the blank, wherein the removal of a single
removable portion exposes a portion of all of the cans enclosed in the
carrier, as illustrated by Figure 3 of the instant disclosure (FF2).
We agree with Appellant that the Examiner has not set forth a reason
as to why the ordinary artisan would have relocate portion 45 of Lawrence’s
cut line 44 toward the adjacent end of the carton, i.e., toward the right in
Figure 2, so that at least a part of the top of all the cans would be exposed if
the portion defined by line 45 and tear lines 65, 66 was removed, such that
the portion of the top panel that remains still retains the ability to serve as a
handle, as taught by Lawrence and Crayne. Lawrence states that location of
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Application 10/987,070

the cut line 45 of the handle should be positioned from the side edge 41 a
distance greater than a diameter of the can it is intended to carry. In
addition, Crayne also shows a portion of the packaging that remains in the
middle across the top of the carton (FF16). Thus, while Ligamfelter may
demonstrate that the degree of the removable portion is variable, at best, the
ordinary artisan, in view of the teachings of Campell, Lawrence, Crayne, and
Ligamfelter, may have provided a package wherein after removal of two
separate removable portions, each at opposite ends of the package, may have
exposed at least a portion of all of the cans in the package. Claims 29 and
40, however, require that a portion of all of the cans in the package be
exposed after the removal of a single removable portion.

CONCLUSION OF LAW
We conclude that Appellant has demonstrated that the Examiner erred
in concluding that the combination of references relied upon renders obvious
a removable portion, wherein the removable portion is defined in the top
panel and side panels by at least one line of weakening, and includes the
gusset panels at one end of the blank, such that when the removable portion
is removed, at least a part of a top of all of the cans is exposed.

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Application 10/987,070

We are thus compelled to reverse the rejection of claims 29, 31, 32,
34-30, and 44 under 35 U.S.C. § 103(a) as being obvious over the
combination of Campbell, Lawrence, Crayne, and Ligamfelter.

REVERSED

Ssc:

WOMBLE, CARLYLE, SANDRIDGE & RICE, PLLC
ATTN: PATENT DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037

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