Michael Anthony. Stopp

Patent Trials and Appeals Board

Nov 19, 2019

14050712 - (D) (P.T.A.B. Nov. 19, 2019)

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.
14/050,712 10/10/2013 Michael Anthony Stopp 66171-1201 4518
94104 7590 11/19/2019
Taylor English Duma LLP
1600 Parkwood Circle, Suite 200
Atlanta, GA 30339
EXAMINER
ACKUN, JACOB K
ART UNIT PAPER NUMBER
3736
MAIL DATE DELIVERY MODE
11/19/2019 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 MICHAEL ANTHONY STOPP
____________________

Appeal 2018-003111
Application 14/050,712
Technology Center 3700
____________________

Before DANIEL S. SONG, ANNETTE R. REIMERS, and JILL D. HILL,
Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 11, 13–15, 23, 25, 26, 28–32, and 37–39.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Pratt
Corrugated Holdings, Inc. Appeal Br. 2.
2 Claims 1–10, 12, 16–22, 24, 27, 33–36, and 40 have been cancelled.
Appeal Br. 34–44 (Claims App.).
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BACKGROUND
Independent claims 11, 26, and 31 are pending. Claim 11, reproduced
below, illustrates the claimed invention:
11. A packaging system comprising:
a blank, the blank including
a main body comprising a top body end, a bottom body
end, a left body end, and a right body end; each of
the top body end and the bottom body end
comprising a first portion, a second portion, and a
third portion; each of the left body end and the
right body end comprising a first portion and a
second portion;
a first top end support comprising
a top end,
a bottom end distal from the top end,
a right end extending from the top end to the
bottom end, the right end angled at a 90-
degree angle with respect to the top end, and
a left end distal from the right end, proximate to
the left body end, and extending from the
top end to the bottom end, the left end
angled at a non-90-degree angle with respect
to the top end,
wherein the bottom end of the first top end support
is connected to the first portion of the top
body end by a bend line;
a second top end support comprising
a top end,
a bottom end distal from the top end,
a left end extending from the top end to the bottom
end, the left end angled at a 90-degree angle
with respect to the top end, and
a right end distal from the left end and extending
from the top end to the bottom end, the right
end angled at a 90-degree angle with respect
to the top end,
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wherein the bottom end of the second top end
support is connected to the second portion of
the top body end by a bend line;
a third top end support connected to the third portion of
the top body end by a bend line;
a first bottom end support connected to the first portion
of the bottom body end by a bend line;
a second bottom end support connected to the second
portion of the bottom body end by a bend line;
a third bottom end support connected to the third portion
of the bottom body end by a bend line;
a first left end support connected to the first portion of
the left body end by a bend line;
a second left end support connected to the second portion
of the left body end by a bend line;
a first right end support connected to the first portion of
the right body end by a bend line;
a second right end support connected to the second
portion of the right body end by a bend line;
a first top support brace connected to the top body end of
the main body and positioned between the first top
end support and the second top end support;
a second top support brace connected to the top body end
of the main body and positioned between the
second top end support and the third top end
support;
a first bottom support brace connected to the bottom
body end of the main body and positioned between
the first bottom end support and the second bottom
end support;
a second bottom support brace connected to the bottom
body end of the main body and positioned between
the second bottom end support and the third
bottom end support;
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a left support brace connected to the left body end of the
main body and positioned between the first left end
support and the second left end support; and
a right support brace connected to the right body end of
the main body and positioned between the first
right end support and the second right end support;
wherein each of the first top support brace, the second
top support brace, the first bottom support brace,
the second bottom support brace, the left support
brace, and the right support brace comprises a
plurality of adjustability contour bend lines
configured to allow adjustability of the position of
each support brace for various sized fragile items,
each of the adjustability contour bend lines being
an internal bend line;
a box, the box including a front side and a back side distal from
the front side, wherein:
the blank is placed in the box such that the blank contacts
each of the front side and the back side;
an inner surface of the main body faces a one of the front
side and the back side; and
the main body is not in contact with the front side and the
back side; and
shrinkwrapping.

REJECTIONS
I. Claims 11, 13–15, 23, 25, 26, 28–32, and 37–39 stand rejected
under 35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement. Final Act. 6.
II. Claims 11, 13–15, 23, 25, 26, 28–32, and 37–39 stand rejected
under 35 U.S.C. § 112, second paragraph, as indefinite. Final Act. 10.
III. Claims 11, 13–15, 23, 25, 26, 28–32, and 37–39 stand rejected
under 35 U.S.C. § 103(a) as unpatentable over Sullivan (US 4,865,200,
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issued Sept. 12, 1989), Carroll, Jr. (US 7,731,028 B2, issued June 8, 2010)
(“Carroll”), and Smith (US 6,158,589, issued Dec. 12, 2000). Final Act. 11.

ANALYSIS
Rejection I – Written Description
The Examiner generally finds that Appellant’s non-original claim
limitations specifying “angles of any kind between ends of the supports,”
except for limitations encompassing the specific subject matter recited in the
originally-filed Specification, “was not described in the [S]pecification so as
to show possession of the claimed invention by applicant.” Final Act. 7
(emphasis omitted). The Examiner further finds that claim limitations of
“non-90-degree angle” and “non-square angle” violate the written
description requirement “because the claimed subject matter was not
described in the [S]pecification in the manner required by the Statute.” Id. at
7–8. According to the Examiner, (1) “the particular ends that constitute ‘the
other ends’ in the first sentence are not properly described. It is not clear
which ends are being referred to”; (2) it is not clear which angle is “the
angle” that is claimed to be approximately forty five degrees; and (3) it is
unclear what a 0 degree angle or a 90 degree angle would be. Id. at 8.
“An objective standard for determining compliance with the written
description requirement is, ‘does the description clearly allow persons of
ordinary skill in the art to recognize that [the inventor] invented what is
claimed.’” MPEP § 2163.02 (citing In re Gosteli, 872 F.2d 1008, 1012 (Fed.
Cir. 1989)). An annotated version of Appellant’s originally-filed Figure 1 is
presented below, wherein we have indicated the top end support “angles”
recited in claim 11.
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Annotated Figure 1, above, “is a view of a layout for a blank in accord
with one embodiment of the current disclosure.” Spec. 1:27–28.
Appellant’s originally-filed Specification discloses that:
Both the left end 126 and the right end 148 [of the first top end
support] are angled at a non-square angle with respect to the
other ends in the current embodiment. The angle in the current
embodiment is approximately forty-five degrees, although any
angle may be used. In some embodiments, a square angle—
such as 0 degrees or 90 degrees—may be used.
Spec. 3:21–25. The originally-filed Specification discloses similar angle
ranges for, e.g., left and right ends 156, 178 (id. at 4:4–7), top and bottom
ends 182, 194 (id. at 4:15–18), and top and bottom ends 212, 224 (id. at
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4:26–29). Figure 1 illustrates an exemplary embodiment of the angles of
each free end of each end support.
While there may be additional “ends” of each support end that are not
specifically accounted for in the claims and the Specification, and the term
non-90-degree angle may be broad (see Ans. 5–8), we do not agree that these
facts prevent a reasonable and definite scope of the claims being determined
when the claims are read in light of Figure 1 and Appellant’s original
description thereof.
The Examiner also mentions claims 37 and 38 in the written
description rejection. Final Act. 10. In the Answer, the Examiner explains
that the bend lines recited in claims 37 and 38 “are not numbered and are not
specifically shown in any drawing.” Ans. 10. Dependent claim 37 recites
“the bend line connecting the first top end support to the main body [being]
offset from the bend line connecting the first top support brace to the main
body.” Dependent claim 38 recites “the bend line connecting the first top
support brace to the main body [being] positioned inside of the bend line
connecting the first top end support to the main body relative to the top body
end of the main body.”
We are not persuaded by the Examiner’s findings and conclusions.
See Ans. 10–13. Although the various bend lines are not numbered in
Appellant’s drawings, Appellant’s original Specification explains that: “[a]ll
connections as described with reference to the current embodiment are by
bend lines”; “the various supports (120,130,140,150,160,170
180,190,210,220) are connected to the main body 110 by bend lines”; and
“the various support braces (230,240,260,270,280,290) are connected to the
main body 110 by bend lines.” Spec. 5:27, 6:1–3. Given this disclosure, a
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reasonable and definite scope of the claims can be determined when the
claims are read in light of Figure 1 and Appellant’s original description
thereof.
The objective standard for determining compliance with the written
description requirement is whether the description clearly allows a skilled
artisan to recognize that the inventor invented what is claimed. In
determining claim scope, while limitations should not be imported from the
Specification into the claims, the claims are nevertheless construed in light
of the Specification, rather than in a vacuum. Given Appellant’s original
disclosure outlined above, the Examiner’s findings and conclusions do not
persuade us that Appellant’s written description fails to allow a skilled
artisan to recognize that the inventor invented what is claimed. For this
reason, we do not sustain the written description rejection.
Rejection II – Indefiniteness
The Examiner finds that “the noted claim limitations with regard to
the various angles between the various ends . . . cannot properly be
interpreted because the features encompassed thereby were not properly
described in the [S]pecification.” Final Act. 10.
A decision on indefiniteness requires a determination of whether a
skilled artisan would understand what is claimed when a claim is read in
light of the Specification. See Power-One, Inc. v. Artesyn Techs., Inc., 599
F.3d 1343, 1350 (Fed. Cir. 2010); see also Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565 (Fed. Cir. 1986).
The Examiner makes no determination that a skilled artisan would not
understand what is claimed when the rejected claims are read in light of
Appellant’s Specification. Lacking such a determination, we do not sustain
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the indefiniteness rejection. The Examiner’s arguments set forth in the
written description rejection cannot support a determination of
indefiniteness.
The Examiner also mentions claims 37 and 38 in the indefiniteness
rejection. Final Act. 10. In the Answer the Examiner explains that the bend
lines “are not numbered and are not specifically shown in any drawing.”
Ans. 10. As explained above, these claims are directed to bend lines
between the main body and the supports/support braces. The Examiner
makes no determination that a skilled artisan would not understand what is
claimed when the rejected claims are read in light of Appellant’s
Specification. Lacking such a determination, we do not sustain the
indefiniteness rejection. The Examiner’s arguments set forth in the written
description rejection cannot support a determination of indefiniteness.
The Examiner also finds that claim 29 is indefinite because “the
references to the left and right support braces towards the end of the claim”
lack antecedent basis. Final Act. 11. Because the pending version of claim
29 does not include any support braces, we discern no antecedent basis
issue.
For the reasons explained above, we do not sustain the indefiniteness
rejection.
Rejection III – Obviousness
Claims 11, 13–15, 23, and 25
Appellant argues claims 11, 13–15, 23, and 25 as a group. Appeal Br.
26. We select independent claim 11 as representative. Claims 13–15, 23,
and 25 stand or fall with claim 11.
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The Examiner finds that Sullivan discloses “a blank (Fig 1, top part of
the Figure) with supports (walls 19) . . . and support braces (flaps 16),” a box
as shown in Figure 1, the supports 19 spacing the main body of the blank
away from at least one side or main face of the box. Final Act. 11–12. The
Examiner finds that Sullivan does not disclose (1) “the specific number and
arrangement of the supports and support braces claimed,” (2) shrink
wrapping “(the reference does teach straps 18 instead),” (3) a “non-90-
degree angle,” or (4) “the spacing of the main body of the blank away from
two sides or main faces of the box.” Id. at 12 (emphasis omitted).
The Examiner finds, however, that Carroll discloses using more than
one support brace (tabs 12) “per side of a blank.” Final Act. 12 (citing
Carroll 5:47–59, 6:42–49). Indeed, Carroll’s Figure 3 shows two support
braces 33, 34, with bend lines, that divide its blank such that it includes three
end supports along its bottom. See Carroll, Fig. 3, 3:32–34, 3:53–58.
According to the Examiner, Carroll’s “wings 26w can correspond to the
claimed supports since the panels or wings and the panels to which they are
attached can be spaced apart by the support braces on the top and bottom of
the blank and are folded to space the blank from a carton wall.” Final Act.
12. Carroll also discloses “stretch film wrapping around the support braces
to hold the glass panel to the blank.” Id. Carroll additionally discloses
“score lines 36 on the support braces corresponding to the claimed
adjustability contour bend lines.” Id. at 13.
The Examiner then finds that Smith discloses
knowledge in the art of the non-90-degree feature (described
above, for example, with respect to the orientation of ends 126
and 148), the folding of insert flaps to space the insert from
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both sides or main faces of a box and shrinkwrapping to hold a
product to a face of an insert.
Id.
The Examiner concludes that it would have been obvious, in view of
Carroll and Smith, “to provide the apparatus of Sullivan with all of the
elements of the claims as a matter of obvious choice of design” or “to
provide superior protection to a packaged article in the Sullivan apparatus.”
Id.
Appellant argues that “none of the three cited references used in the
rejection (i.e., Sullivan, Carroll, or Smith) disclose all of
a first top end support comprising . . . a right end extending
from the top end to the bottom end [and] angled at a 90-degree
angle with respect to the top end, and a left end . . . extending
from the top end to the bottom end [and] angled at a non-90-
degree angle with respect to the top end.
Appeal Br. 22 (emphasis added). Appellant continues that “the only
reference showing angled edges (Smith) . . . only mentions the use of a box
in the written description and not in any of the figures,” and does not
identify “or describe, much less ascribe a single benefit to” and angles ends
of its flaps, such that “Smith cannot properly support the contention that it
would be conventional to angle the edges of a blank as claimed.” Id. at 22–
23.
This argument is not persuasive. One cannot establish non-
obviousness by attacking references individually where, as here, the
rejections are based on a combinations of references. See In re Keller, 642
F.2d 413 (CCPA 1981); see also In re Merck & Co., 800 F.2d 1091 (Fed. Cir.
1986). Appellant’s argument does not address the Examiner’s proposed
combination of references, where the Examiner modifies Sullivan’s end
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supports in view of, inter alia, Smith’s end supports’ tapered angle shown in
its Figures 4, 5, and 8–28. That Smith does not discuss the taper shown in
its Figures, or the purpose of such taper, does not negate its teaching thereof
or its availability as a teaching that can be combined with Sullivan. Smith is
available for what it teaches a skilled artisan, which is angled supports for a
blank. Drawings can be relied on for what they reasonably disclose and
suggest to one of ordinary skill in the art. See In re Mraz, 455 F.2d 1069,
1072 (CCPA 1972); In re Aslanian, 590 F.2d 911, 914 (CCPA 1979).
Appellant does not contend that a skilled artisan would not appreciate the
tapering of Smith’s end supports.
Appellant also argues that the Examiner’s proposed combination of
Sullivan, Carroll, and Smith “fails to provide an ‘instant and unquestionable
demonstration as to defy dispute’ that incorporating a non-90-degree angle
into the ‘blank’ . . . is ‘well known’ in the art.” Appeal Br. 23.
The Final Action, however, does not contend that an end support
having a non-90-degree angle was “well known.” Rather, the Examiner
finds that Smith discloses an end support with a non-90-degree angle, such
that the tapering represented thereby was known in the art. Indeed, even if
such a taper is not established to be “well known,” it has certainly been
established as “known,” via the disclosure of Smith.
Appellant next argues that the Examiner’s proposed combination of
Sullivan, Carroll, and Smith “fails to disclose, teach, or suggest ‘a third top
end support connected to the third portion of the top body end by a bend
line’ and ‘a third bottom end support connected to the third portion of the
bottom body end by a bend line’ as claimed.” Appeal Br. 23–24. Appellant
appears to base this argument on a contention that the Examiner’s proposed
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modification would render Carroll unsatisfactory for its intended purpose.
Id. This argument is not persuasive, because the Examiner’s proposed
combination modifies Sullivan rather than Carroll. In any event, if
Appellant’s argument is that Sullivan only discloses two top end supports
and two bottom end supports, this argument is unpersuasive because the
rejection modifies Sullivan in view of Carrol that discloses using more than
one support brace (tabs 12) per side of the blank. Final Act. 12. In that
regard, we observe that when additional support braces are used on the top
and bottom as suggested, a third top end support and a third bottom end
support necessarily result.
Appellant further argues that the Examiner’s proposed combination
“fail[s] to disclose, teach, or suggest” the claimed support braces, wherein
each of the support braces “‘comprises a plurality of adjustability contour
bend lines configured to allow adjustability of the position of each support
brace for various sized fragile items, each of the adjustability contour bend
lines being an internal bend line’ as claimed.” Appeal Br. 25.
The Examiner responds that Carroll discloses adjustability contour
bend lines 36 in its Figure 3. Ans. 16. Indeed, regarding its Figure 3,
Carroll discloses that “[t]he bottom edge 32 is notched at four places to form
two tabs 33 and 34 with light score lines such as 36 to facilitate folding them
forward.” Carroll 3:32–34. Appellant does not explain how score lines that
facilitate folding differ from the claimed bend lines, and we discern no such
difference or patentable distinction. Thus, we discern no error in the
Examiner’s finding that Carroll discloses support braces 33, 34 having plural
adjustability contour bend lines 36.
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Appellant finally argues that, because “some of the Office Action’s
allegations are not supported by any of the cited references and the only
support provided for such a modification is Appellant’s own [S]pecification,
the Office Action plainly includes impermissible hindsight reasoning.”
Appeal Br. 25 (citing MPEP §§ 2142, 2145(X)(A)). According to Appellant,
“[t]he benefit of using a non-90-degree angle . . . has not been cited in any of
the cited references and the alleged ‘non-90-degree angle’ in Smith is not
even identified in Smith by even a reference number or described in the
[S]pecification.” Id. at 25–26.
Appellant’s argument regarding hindsight is not persuasive. To the
extent that Appellant is arguing that the prior art lacking elements of the
claim (as discussed above) required the Examiner to employ hindsight to
“fill in the blanks,” we disagree that the prior art lacked any elements for the
reasons explained above. To the extent Appellant is challenging the
Examiner’s reasoning as lacking a rational basis, Appellant has not provided
a sufficient explanation.
Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant’s
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). The Examiner
concludes that it would have been obvious, in view of Carroll and Smith, “to
provide the apparatus of Sullivan with all of the elements of the claims as a
matter of obvious choice of design” or “to provide superior protection to a
packaged article in the Sullivan apparatus.” Final Act. 13. Appellant has
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not explained why this reasoning lacks a rational basis or includes
knowledge gleaned only from Appellant’s disclosure.
For the reasons explained above, we sustain the obviousness rejection
of claim 11. Claims 13–15, 23, and 25 fall with claim 11.
Claims 26 and 28–30
Appellant argues claims 26 and 28–30 as a group. Appeal Br. 30. We
select claim independent claim 26 as representative. Claims 28–30 stand or
fall with claim 26. In arguing the patentability of independent claim 26,
Appellant relies on the arguments set forth above regarding claim 11. Thus,
for the reasons set forth above, we are not persuaded that the Examiner erred
in determining that independent claim 26 is unpatentable over Sullivan,
Carroll, and Smith. Claims 28–30 fall with claim 26.
Claims 31, 32, and 37–39
Appellant argues claims 31, 32, and 37–39 as a group. Appeal Br. 33.
We select claim independent claim 31 as representative. Claims 32 and 37–
39 stand or fall with claim 31. In arguing the patentability of independent
claim 31, Appellant relies only on certain arguments set forth above
regarding claim 11. Thus, for the reasons set forth above, we are not
persuaded that the Examiner erred in determining that independent claim 31
is unpatentable over Sullivan, Carroll, and Smith. Claims 32 and 37–39 fall
with claim 31.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
11, 13–15, 23,
25, 26, 28–32,
37–39
112, ¶ 1 11, 13–15, 23,
25, 26, 28–32,
37–39
11, 13–15, 23,
25, 26, 28–32,
37–39
112, ¶ 2 11, 13–15, 23,
25, 26, 28–32,
37–39
11, 13–15, 23,
25, 26, 28–32,
37–39
103 Sullivan, Carroll,
Smith
11, 13–15, 23,
25, 26, 28–32,
37–39

Overall
Outcome
11, 13–15, 23,
25, 26, 28–32,
37–39

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED