Ex Parte BERLEPSCH

Patent Trial and Appeal Board

Oct 22, 2018

14298172 (P.T.A.B. Oct. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/298,172 06/06/2014
27752 7590 10/24/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Joseph Allen BERLEPSCH
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.
13405 8721
EXAMINER
CASTRIOTTA, JENNIFER
ART UNIT PAPER NUMBER
3733
NOTIFICATION DATE DELIVERY MODE
10/24/2018 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH ALLEN BERLEPSCH
Appeal 2018-003709
Application 14/298, 172
Technology Center 3700
Before PHILIP J. HOFFMANN, KENNETH G. SCHOPPER, and
MATTHEWS. MEYERS, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner's rejection of claims 1, 2, 4--12, 14, 15, and 17-19. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, "[t]he real party in interest is The Procter &
Gamble Company." Appeal Br. 1.
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Application 14/298, 172
According to Appellant, the invention relates to a "[ c ]ontainer for a
product." Spec. 1, 1. 4. Claim 1 is the sole independent claim on appeal.
Below, we reproduce claim 1 as representative of the appealed claims.
1. A container comprising:
an open end circumscribing a longitudinal axis; and
a peripheral wall extending from said open end about said
longitudinal axis to a closed end;
wherein said peripheral wall and said closed end comprise
a thermoplastic substrate;
wherein said peripheral wall comprises a faceted region
comprising a plurality of facets arranged edge to edge with at
least one adjacent facet, at least a portion of said faceted region
being located nearer to said closed end than to said open end;
wherein said peripheral wall has a peripheral wall exterior
surface oriented away from said longitudinal axis, said peripheral
wall exterior surface having a peripheral wall exterior surface
area;
wherein each of said plurality of facets has a facet exterior
surface area oriented away from said longitudinal axis and each
of said facets has an exterior surface area that is less than between
about 0.0001 % and about 4% of said peripheral wall exterior
surface area;
wherein at local positions along said longitudinal axis said
container has a local maximum internal dimension orthogonal to
said longitudinal axis, a local major axis coincident with said
local maximum internal dimension, a local minor axis orthogonal
to said local major axis and said longitudinal axis, a local minor
internal dimension coincident with said local minor axis, and a
local aspect ratio defined as a ratio of said local maximum
internal dimension to said local minor internal dimension;
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Application 14/298, 172
wherein said container has a local aspect ratio between
about 1.3 and about 5 midway along said longitudinal axis; and
wherein individual facets have a radius of curvature of the
principal curvatures at a centroid of said facets greater than
about 60 mm.
REJECTIONS AND PRIOR ART2
The Examiner rejects the claims as follows:
I. Claims 1, 2, 10-12, 14, 15, and 17-19 under 35 U.S.C. § I03(a)
as unpatentable over Yamamoto et al. (US 2010/0252477 Al,
pub. Oct. 7, 2010) ("Yamamoto");
II. Claims 4--7 and 9 under 35 U.S.C. § I03(a) as unpatentable
over Yamamoto and Dupuis et al. (US 8,511,472 B2, iss.
Aug. 20, 2013) ("Dupuis");
III. Claim 8 under 35 U.S.C. § I03(a) as unpatentable over
Yamamoto and Thompson (US 4,708,255, iss. Nov. 24, 1987);
and
IV. Claim 1 under 35 U.S.C. § I03(a) as unpatentable over Kim
(US D4I 1,740, iss. June 29, 1999).
ANALYSIS
Rejection I
As set forth above, independent claim 1 recites, in relevant part,
2 Appellant argues (see Appeal Br. 2) that the Examiner's objection to the
drawings (see Final Action 2-3) is improper. The drawing objection is not
appealable to the Board, however. See In re Berger, 279 F.3d 975, 984
(Fed. Cir. 2002). Instead, the objection is reviewable, if at all, only by
means of a petition.
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Application 14/298, 172
wherein at local positions along said longitudinal axis said
container has a local maximum internal dimension orthogonal to
said longitudinal axis, a local major axis coincident with said
local maximum internal dimension, a local minor axis orthogonal
to said local major axis and said longitudinal axis, a local minor
internal dimension coincident with said local minor axis, and a
local aspect ratio defined as a ratio of said local maximum
internal dimension to said local minor internal dimension; [ and]
wherein said container has a local aspect ratio between
about 1.3 and about 5 midway along said longitudinal axis.
Appeal Br. Claims App. (Claim 1 ). In the rejection of claim 1, the Examiner
finds
that it would have been an obvious matter of design choice to
modify the local aspect ratio of Yamamoto ... [,] as a change in
size is generally recognized as being within the level of ordinary
skill in the art, as the local aspect ratio has no significance in the
operation of the claimed invention.
Answer 8. Appellant argues that the Examiner errs, because Yamamoto
does not disclose the claimed aspect ratio, the Examiner "presents no
reasoning as to why one skilled in the art would desire to alter the local
aspect ratio of the container," and there are advantages that are provided by
the claimed aspect ratio. Appeal Br. 3, 4.
We are not persuaded by Appellant's arguments, however. "The law
is replete with cases in which the difference between the claimed invention
and the prior art is some range or other variable within the claims." In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990). "These cases have
consistently held that in such a situation, the applicant must show that the
particular range is critical, generally by showing that the claimed range
achieves unexpected results relative to the prior art range." Id.; see also In
re Kuhle, 526 F.2d 553, 555 (CCPA 1975) (use of claimed feature presents
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Application 14/298, 172
no unexpected result and "would be an obvious matter of design choice
within the skill of the art" (citations omitted)); see also In re Dailey, 357
F.2d 669, 672-73 (CCPA 1966) (holding that the configuration of a claimed
container was a matter of choice that a person of ordinary skill in the art
would have found obvious absent persuasive evidence that the particular
configuration of the claimed container was significant). In this case,
Appellant does not persuade us that an unexpected result occurs from the
claimed aspect ratio----rather, that a portion of a container which is "less ...
rounded ... can be labeled with brand identifying information" (Appeal
Br. 3--4 ), and that certain aspect ratios "balance the desire to provide for a
container having a [ certain look] when viewed from a distance [ with the
ability to] be legibly labeled on a primary label face of the container" (id.)
are expected, predictable results. Thus, contrary to Appellant's argument,
claim 1 is obvious based on Yamamoto. See KSR Int 'l Co., v. Teleflex Co.,
550 U.S. 398,416 (2007) ("The combination of familiar elements according
to known methods is likely to be obvious when it does no more than yield
predictable results.").
Therefore, based on the foregoing, we sustain the Examiner's
rejection of claim 1 based on Yamamoto. Further, inasmuch as Appellant
does not separately argue against the Examiner's anticipation rejection,
based on Yamamoto, of claims 2, 10-12, 14, 15, and 17-19 that depend
from claim 1, we also sustain the dependent claims' rejection.
Rejections II and III
Appellant argues that the Examiner's obviousness rejections of
claims 4--9, which depend from claim 1, are in error because neither Dupuis
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nor Thompson remedies deficiencies in the Examiner's rejection of claim 1
based on Yamamoto. Appeal Br. 4. Inasmuch as we do not agree that there
is any deficiency in claim 1 's rejection (see supra), we also sustain the
rejection of claims 4--9.
Rejection IV
Appellant argues that the Examiner's obviousness rejection of
claim 1, based on Kim, is in error because "Kim does not disclose a
container having a local aspect ratio between about 1.3 and about 5 mid-way
along the longitudinal axis," and the Examiner "presents no reasoning as to
why one skilled in the art would desire to alter the local aspect ratio of the
container." Appeal Br. 5.
For reasons similar to those discussed above with respect to the
Examiner's rejection of claim 1 based on Yamamoto (see supra), because
Appellant does not persuade us that an unexpected result occurs from the
claimed aspect ratio, we sustain claim 1 's rejection based on Kim.
DECISION
We AFFIRM all of the Examiner's obviousness rejections of claims 1,
2, 4--12, 14, 15, and 17-19.
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
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