Application of Donald E. Dailey and Anton F. Eilers

WORLEY, Chief Judge.

This appeal is from the decision of the Board of Appeals which affirmed the examiner’s rejection of claims 25-28 in appellants’ application¹ for “Nursing Container.”

The invention relates to a disposable nursing container for infants. Appellants state:

The nursing container with which the invention is concerned is collapsible so that air is not admitted as the contents are drained. Accordingly the likelihood of the infant swallowing air during feeding, believed to be a major cause of colic, is reduced.

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A further feature is that the top section of the container has the nipple receiving opening therein and the bottom section is collapsible into the top section. The bottom section is more flexible than the top section to facilitate the collapse thereof.

The particular construction which appellants disclose to achieve those results is illustrated in the following drawings:

Appellants describe that construction and its use in their specification as follows:

Top and bottom sections 11 and 12 of container 10 are preferably of a thin formed plastic sheet material or the like. By “plastic” any suitable flexible material is intended, including rubber, synthetic plastics and the like. * * * Both sections have a generally spherical configuration and are somewhat less than hemispherical in extent. In the specific container illustrated in the drawings, the two sections are defined by a central angle of the order of 80°. This relationship provides a finished container which has a rounded configuration and is convenient to hold. * * *

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At the time of feeding, * * * pressure [is applied] to the wall of the container forcing the nipple out. At the same time, any air left in the container during filling is expelled through the nipple so that the infant swallows no air from the container. * * *

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If the infant requires stimulation to cause it to nurse properly, a slight pressure applied to the bottom of the container by the palm of the hand forces some of the formula out through the nipple into the infant’s mouth. As the formula is withdrawn from the container the bottom section 12 collapses within the upper section 11 as indicated in Figure 6 forcing formula into the nipple keeping it filled. This collapse starts at the juncture line 13 between the container sections and progresses inwardly therefrom so that formula is not trapped between collapsed portions of the bottom section wall and the wall of the top section. It is not necessary for air to enter the container as the formula is withdrawn and the cross cut nipple acts as a check valve allowing only the outward flow of formula and restricting inward flow of air. Thus the likelihood of the infant swallowing substantial quantities of air during nursing is reduced. As the container and nipple are free of air at all times during feeding, it is not necessary that the container be elevated above the infant, but it may be in any position above or below. * * * [Emphasis supplied.]

Claim 25 is illustrative:

25. A disposable, plastic infant nursing container of the character described, comprising: a top section of self-sustaining formed material having a nipple opening therein; a bottom section of self-sustaining, formed flexible plastic material sealed to the first section and collapsible thereinto, said bottom section being more flexible than the top section and having a shape such that in the collapsed condition is closely mated with the interior of the top section, said bottom section retaining a position in which it is placed, whereby the bottom section readily collapses upon the withdrawal of the container contents, without retarding or aiding the flow of the contents therefrom; and a nipple mounted on said top section and communicating with the opening therein, said nipple having a slit therein defining a valved nursing opening, whereby the interior of the container is sealed and during nursing the container contents are withdrawn without admission of air to the container, causing collapse of the bottom container section.

Claim 26 defines the valved nursing opening as a cross-cut valve. Claim 27, while defining no particular nipple opening structure, recites the configuration of the top and bottom sections of the container as that of “a portion of a sphere less than a hemisphere.” In claim 28, the central angle of those spherical portions is about 80°.

The references are:

Matzen 554,071 February 4, 1896.

Bardin 2,433,806 December 30,1947.

Allen 2,446,451 August 3, 1948.

Blanchett 2,989,961 June 27, 1961.

Matzen’s nursing bottle is shown in the following drawing:

Matzen’s object is:

* * * to provide a bottle in which no air is admitted and in which no vacuum is formed as the milk is withdrawn by the baby, and * * * to provide a bottle from which the milk will flow continuously and evenly, whatever the size of the opening in the nipple.

The patentee describes his construction as consisting

* * * of a nursing-bottle made of two parts, one of which is flexible, the other rigid, and in which the flexible part operates to prevent a vacuum in the bottle as the milk is drawn out by the child and promotes evenness in the flow, * * *.

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* * * Fig. 2 is a view of said bottle when the two parts are connected and the bottle has been substantially emptied, the flexible part in this case being drawn into the rigid part.

While part A is made of a rigid material, part B consists of

* * * flexible material so thin and light that it will readily respond to the suction of the infant through the nipple and surrender itself to such suction with practically no resistance whatever of its own, thus following the withdrawal of the milk and at last losing itself bodily in the upper half, A, and filling the space thereof, as seen in Fig. 2. I believe that a good quality of elastic rubber is the best material from which to make the part B, and now use very thin vulcanized rubber for this purpose. * * *

Matzen describes the use of his container thus:

* * * The nipple is put on and then the collapsible part B is compressed until all of the air is forced out through the hole in the nipple, whereupon the bottle is ready to give to the child. As the baby sucks the milk from the bottle, the collapsible part B is gradually drawn into the part A, thus reducing the capacity of the bottle, and this goes on until the milk is withdrawn and said part B substantially fills the part A, * * *.

Matzen noted several problems with respect to “ordinary” nursing bottles. In the use of the ordinary rigid glass bottle, the nipple construction necessarily must allow air to be admitted into the bottle, or the flow of milk will cease. Thus the infant had to stop sucking frequently in order that air may be admitted. The presence of air in the bottle results in the baby sucking in air with the milk, with colic as a consequence. The nipple opening in the ordinary bottle had to be relatively large; if small, on the order of a pinhole, the rubber surrounding the hole effectively sealed the nipple opening to entry of air and prevented further withdrawal of milk as well. On the other hand Matzen stated:

* * * if the hole in the nipple is so large that it will not close up and exclude the air, it is at the same time so large that the baby gets the milk too fast.

With my bottle the finest pin-hole may be formed in the nipple, and a small but regular and uninterrupted stream will flow through it.

Matzen also noted his bottle

* * * has the exceptional and distinguishing advantage of being ready to yield its contents to the child whatever the position of the bottle may be. Indeed, one position is practically as good as another and the milk comes freely in all positions. * * *

A detailed discussion of Allen appears unnecessary, beyond noting he discloses a similar nursing container having a bottom portion which

* * * automatically collapses and retracts into the rigid neck as the last of the liquid is sucked from the container by an infant using the nursing unit, in this way providing a non-colic nursing unit in view of .the fact that no accumulation of air is permitted within the container.

Blanchett discloses a nipple construction for use with ordinary rigid nursing bottles in which the nipple opening may consist of a cross cut, an I cut, a Y cut, a single hole, or multiple holes. Blanchett states:

* * * The various “cuts” are preferable to the holes because they do not leak when the nursing unit is turned upside down. Neither do they become plugged.

The board did not find it necessary to discuss Bardin, nor do we.

The board agreed with the examiner that claims 25-28 were unpatentable over Matzen or Allen in view of Blanchett. It found claims 25 and 26 to distinguish over Matzen only in terms of the type of nipple opening employed, and claims 27 and 28 to distinguish only in reciting a “less than a hemisphere” configuration. In answer to appellants’ argument that their particular slit nipple opening provides a self-sealing action to prevent continuous flow and loss of formula from the nurser, the board noted that Blanchett fully appreciated the ability of such an opening to prevent leaks. With respect to claims 27 and 28, it further agreed that the configuration of the container is a “mere matter of choice” not significantly novel over Matzen.

Appellants urge that Matzen is devoid of any suggestion of the desirability of combining a collapsible container with a valved nipple which is responsive only to the sucking of the infant, thereby providing intermittent milk flow. Indeed, appellants state that Matzen promotes the idea of a nipple with a pinhole in it as desirable in order to obtain regular and uninterrupted flow of milk from the container.² It is appellants’ position that the prior art recognizes neither the problem nor result desired and cannot be said to suggest a solution to the problem.

Taking appellants’ argument at face value, we think one skilled in the art could hardly be unaware, after reading Mat-zen, that continuous flow or leakage might be an undesirable feature of the Matzen nursing container construction. Blanchett also recognizes the problem of fluid leakage from a hole opening in a nipple when the container is held upside down and, in a matter-of-fact manner, discloses the solution to that problem— the use of a “slit” nipple opening. We think one of ordinary skill in the art would find it obvious to use the slit nipple of Blanchett in the collapsible container of Matzen in order to achieve intermittent flow responsive to sucking.

As noted above, Matzen discloses that the flexible portion of his container is drawn into the rigid top portion, filling the space thereof. Appellants have presented no argument which convinces us that the particular configuration of their container is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of providing mating surfaces in the collapsed container of Matzen. See Graham v. John Deere Co. of Kansas City, 86 S.Ct. 684.

The decision of the board is affirmed.

Affirmed.

1 . Serial No. 814,110, filed May 18, 1959.

2 . As the Solicitor points out, it is not at all certain that appellants’ interpretation of Matzen is consistent with the actual teaching of that reference. While appellants interpret Matzen as disclosing a container which provides a continuous flow of milk at all times, it seems equally likely that Matzen’s container, having a nipple with a pinhole, provides a continuous flow only so long as the infant is sucking, which the infant may do without necessity of stopping to allow air into the container.