Application of Noble André

341 F.2d 304

Application of Noble ANDRÉ.

Patent Appeal No. 7303.

United States Court of Customs and Patent Appeals.

February 18, 1965.

Dirks B. Foster, San Francisco, Cal., (Mark R. Mohler, San Francisco, Cal., of counsel), for appellant.

Clarence W. Moore, Washington, D. C., (L. F. Parker, Washington, D. C., of counsel), for the Commissioner of Patents.

Before RICH, Acting Chief Judge, and MARTIN, SMITH, and ALMOND, Judges.

MARTIN, Judge.

1

This appeal is a review of the board's affirmance of the rejection of appellant's claims 9 and 10 in application serial No. 780,603 for a "Multi-Can Package and Blank," filed December 15, 1958. The specification states that this application is a continuation-in-part of serial No. 557,885, filed January 9, 1956. No claims stand allowed. The question is one of obviousness under 35 U.S.C. § 103.

2

The invention is a paper wrapper of the type used for six-packs of canned items. Its major features are best understood by reference to Figures 2 and 5 of the application reproduced below:

3

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

4

As the first major feature of the invention, a paper blank is tightly wrapped around the cans so that the rims or chimes 8 and 22 of the cans protrude through arcuate slits provided therefor. The second major feature is a display strip 10 which is positioned by folding in extensions 11, which terminate midway along the side panels 3, so that the extensions spring past the cans and are tightly secured thereby.

5

The following references were relied on for the rejection:

6

  Kinkenon            2,033,526    Mar. 10, 1936
Murray              2,765,073    Oct. 2, 1956
André               2,828,009    Mar. 25, 1958
Fisher              2,889,040    June 2, 1959
Filmer Ltd., et
al. (British)       736,218    Sept. 7, 1955

7

Claims 9 and 10 were rejected by the examiner as unpatentable over André, showing a tightly wrapped slitted sleeve-type wrapper, in view of Fisher, Filmer or Kinkenon, all of which show a display strip. Additionally, claim 10 was rejected as unpatentable over Murray, who has showings similar to André, in view of each of the secondary references. Neither the board nor appellants make any distinction between the claims or between such rejections. On analysis of the claims and references, we also see no reason to do so and accordingly will treat them together.

8

An inspection of figures 2 of André and 8 of Murray below show the tightly wrapped sleeve-type wrapper with slits for the chimes of cans:

9

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

10

Typical of the secondary references showing the other major feature, the display strip, is Fisher:

11

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE Fisher has two display strips 12 and 13, which are joined along the sides by a connecting extension 10. This extension is sprung past the cans in the folded condition as shown best in Fig. 6. Pull tab 23 facilitates reopening the package. The Filmer reference shows a single display strip along the lower edge of an open-ended sleeve. The infolded extension continues around the remaining three edges and is secured on the sides by staples. Kinkenon also shows a single display strip with full side extensions.

12

The following analysis of representative claim 10 shows portions of the claim in two columns according to the correspondence said to exist between the primary and secondary references:1

13

                                                Fisher or Kinkenon
André or Murray                         or Filmer
10. A package comprising:
at least one row of a plurality of
cylindrical objects in side by side
relation,
an open ended sleeve enclosing
said row with the end objects in
said row at the open ends of said
sleeve,
a pair of strips one at each end
of said sleeve in positions extending
across the sides of said end
objects that face outwardly of
said open ends of said sleeve,
said sleeve and said strips being
formed from a single elongated
cardboard blank having side edges
extending longitudinally thereof
and transversely creased to
form a longitudinally extending
series of panels including a pair
of spaced end panels and a pair
of spaced side panels alternating
with and immediately adjacent
to said end panels and a pair of
terminal end sections,
said strips extending along and
projecting oppositely outwardly
from side edges of one of said end
panels and having
extensions at their ends integrally
connected therewith and
with said side panels along said
side edges,
said extensions terminating      A
within the extent of said side
panels.
said blank having openings therein,

14

    said blank being so tightly wrapped
around said row in forming
said sleeve as to forcibly project
portions of said objects through
said openings and to hold said objects
in said sleeve with
said end panels extending over
and substantially in engagement
with the opposite ends of said objects
and said side panels extending
over and substantially in engagement
with the oppositely outwardly
facing sides of said row
of objects,
said extensions extending into
said sleeve to positions between
said side panels and said objects
with the latter solely holding said
extensions therein,                B
and means securing said terminal
C   end sections together maintaining
said sleeve so wrapped
around said objects
and said strips and said extensions
in their said positions.           D

15

The italicized portions, referred to by letters A-D, are said by appellant not to be found in the references and are alleged to form the basis of the unobviousness of the combination. We do not agree.

16

Regarding italicized portion A, we see it to be no more than an obvious matter of choice to terminate the extension midway along the sides. Appellant's specification does not indicate that any particular significance was placed on that detail of the wrapper for it states:

17

"* * * While the extensions 11 may continue the full widths of the panels 3, if desired, there is no actual need for it in the present invention, and they are therefore indicated as terminating along diagonally extending free end edges 15 at points intermediate the end edges of the panels 3."

18

Appellant contends that a saving of paper is obtained by the use of shorter, or "terminating," extensions since the blanks can be nested in cutting them from a paper strip. Assuming the record supports this saving, it is not persuasive of patentability since it is obvious to consider such matters in the design of blanks.

19

Regarding italicized portion B, appellant states that the wrapper of Fisher is a loose one and the extensions may be reopened by means of pull tab 23. This is said to be in contrast to the present invention in which the extension is tightly secured in position. Fisher recognizes that the cans will lock the folded extension in place, stating:

20

"* * * if each closing flap [side extension] is moved inwardly further along its hinge line [fold], the outer end of each flap will first engage the periphery of the can and, upon further movement in the same direction, will bend and then straighten out and be locked against the back of the can."

21

It is apparent that a slitted wrapper of the type of Murray or André, by permitting the chimes to project through the arcuate slits, will result in a tight fit between the cans and sides of the wrapper. It follows predictably that a more snug fit is obtained when the display strip is used with the slitted-type wrapper. Moreover, that italicized language of the claim does not permit any distinction over the somewhat looser wrapping of Fisher.

22

Italicized portion C refers to interlocking tabs which secure the ends of the sleeve together. For that purpose we find tabs in the André patent, and glue in both André and Murray. Portion D merely refers to the strips and extensions in their relative positions as earlier recited in the claim, which were amply discussed above.

23

Appellant argues that the combination of references is improper, stating:

24

"However, for such a rejection to be proper, it is necessary that at least one of the references suggest the combination or the selection from and incorporation of features into the other. As stated [in] In re Hortman, 46 CCPA 814, 264 F.2d 911, 121 U.S.P.Q. (BNA) 218, 220 (1959):

25

"``It is well settled that references may not be combined where "there is no suggestion in either of the references that they can be combined * * *" to meet the recitation of appellant's claims. In re Shaffer [43 CCPA 758, 229 F.2d 476, 108 U.S.P.Q. (BNA) 326] * * *.'

26

"To the same effect are In re Rothermel and Waddell, 47 CCPA 866, [276 F.2d 393] 125 U.S.P.Q. (BNA) 328 (1960) and In re Pavlecka, 50 CCPA 1406 [318 F.2d 339] 138 U.S.P.Q. (BNA) 152 (1963). The latter decision points out that the appellant's disclosure may not be used as the source of the suggestion for combining features of various references, but that such suggestion must come from the references themselves."

27

We disagree not with the principles set forth in those cases, but with the application of them as controlling in all fact situations involving the question of obviousness. Each case involving the question of obviousness must ultimately rest on its own facts; those facts here dictate a holding that the combination is obvious. As stated recently in In re Conti, 337 F.2d 664, at 670, 52 CCPA 817, Judge Almond speaking for the court,

28

"* * * We think that the structures shown in the references when contemplated by one of ordinary skill in the art would, in themselves, suggest or hint at the combination of old features here claimed."

29

In our opinion that is the situation here.

30

For the foregoing reasons the decision of the board is affirmed.

31

Affirmed.

32

SMITH, J., concurs in the result.

Notes:

1

This analysis is from appellant's brief