COMMISSIONER'S DECISION
OBVIOUSNESS, NON-SUPPORT: Partition for a Knock Down Container
Applicants concept of a "fold line" removed from the frangible line of
weakness is not shown in the prior art. Terminology as found in the
claims does have support in the disclosure.
Final Rejection: Reversed
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This decision deals with a request for review by the Commissioner of
Patents of the Examiner's final Action dated January 19, 1977, on appli-
cation 121,263 (Class 217-156). The application was filed on August 24,
1971, in the name of Cecil A. Rowley, and is entitled "End-Load Container."
The Patent Appeal Board conducted a Hearing on June 15, 1977, at which
Mr. C.A. Rowley represented the applicant.
This application relates to a carton such as used in the twelve pack
found in the brewing industry in which the carrying handle is extensible.
It is formed from a unitary member which has certain portions removed
which is then folded to provide a knock-down carton. Figure 1 illustrates
the cardboard blank and figure 6 represents the carton in isometric view.
<IMGS>
In the Final Action the examiner rejected the claims for indefiniteness,
non support of the disclosure and obvious in view of the following pat-
ents:
Canadian Patents
641,721 May 23, 1962 Engel
652,318 Nov. 13, 1962 Gioia
699,467 Dec. 8, 1964 Engel
737,787 July 5, 1966 Hill et al
United States Patent
2,609,137 Sept. 2, 1952 Toenmeier
All the citations relate to the construction of cartons from a blank.
Figure 1 (shown below) of Hill is illustrative of the group.
(See Figure 1)
In the Final Action the examiner stated (in part),
Hill et al discloses a carton made from a blank which com-
prises sequentially arranged handle reinforcing panels, handle
panel, securing panel, first bottom panel, first side panel,
top panel, second side panel, second bottom panel, envelope
panel and partition panel. The handle panel is releasably
connected to the securing panel while the remaining panels are
interconnected by means of substantially parallel fold lines.
The reinforcing panels being hinged to the sides of the
handle panel is as well known as a connection to the end as
disclosed by Engel and are therefore equivalents. There is a
hole for the handle on the fold line between the envelope and
partition panels. Thus the only difference between the carton
or partition portion as defined by applicant and that disclosed
by Hill et al is the order in which the various panels occur
in the blank. The erected carton as disclosed and claimed by
applicant does not patentably differ from that disclosed by
Hill et al. Applicant's attention is directed to figure 5
wherein a cross-section of the carton is shown. The action
of the handle and the arrangement partition parts is identical.
The only difference is that Hill et al connects the securing
panel to one edge of a bottom panel rather than to one
edge of the envelope panel. Hill et al also discloses the
same top wall partition securing means and the handle
reinforcing panel being struck from one of the envelope
or partition panels. Thus claims 2, 7, 8, 9, 10 and 14
are rejected as being obvious in view of Hill et al.
Claims 1, 3 to 7 and 10 to 15 are rejected as being too
broad in view of and not supported by the teachings of the
disclosure. These claims are in effect directed to a
partition per se or a method of making such partition and
not as an integral part of a carton formed from a single
blank. Applicant has disclosed the partition structure as
part of a blank that will make a complete container or
carton. The disclosure as originally filed is completely
silent as to the partition assembly being a separate
entity or as such how it would be secured in a carton.
Claim 7 is also rejected as being indefinite. This results
from the wording "connecting said partition panel to said
walls". Applicant has disclosed only that the partition is
foldably connected to a bottom wall panel and connected to
the top wall panel by glue tabs. At no time has applicant
disclosed any connection with any of the remaining walls.
Claim 8 is rejected as being indefinite and too broad in view
of the teachings of the disclosure. Applicant defines the
partition as being integrally connected by a fold line to the
bottom wall. The bottom wall has not been defined as being
composed of two separate panels. Therefore the partition
cannot be centrally located with respect to the carton.
Applicant has not disclosed a bottom wall comprising a single
panel. In addition the fold line connection to the bottom wall
does not connect the partition to "said walls".
In his response to the Final Action the applicant stated (in part):
The Hill et al patent, it is believed at least the embodiment
relied on by the Examiner (figure 1 etc.) is merely a paper patent.
This is believed to be true because of the difficulty in
fabricating a box using the particular arrangements shown in
Figure 1. The structure as shown could not be manufactured on a
commercial scale from corrugated board since the formation of a
knock down sleeve during manufacture required simultaneous
folding on four laterally space fold lines. Such an operation
would be substantially impossible with corrugated board and at
best would be extremely difficult with boxboard. To explain
further consider the folding sequence taught for erecting the
blank of figure 1. As shown in figures 3 and 4, first the handle
panels 34 are folded into position (figure 3), followed by
folding the blank along the fold line 12 to position the panels 1 and
3 in over lying relationship to the panels 13, 16 and 23. It will be
noted that the fold line 2 in this position is aligned with the
line of weakness 20 in the centre of the top panel 16
(panels 13 and 3 are essentially the same length and the panel 9 is
equal to half the width of the top panel). Next, the blank is folded
along fold line 25 to position the panel 29 against the adhesive on
panel 1 and permit the handle to overlie panel 1. The final folding
operation to close the envelope and form the box is not illustrated,
only the set-up box is seen in Figure 5. This final folding operation
requires simultaneously folding on lines 15, 12, 8 and 2 to form
an open sleeve comprising ~ the box and then collapsing the open
sleeve to bring the panel 3 into position against the panel 29. Had
it been evident to Hill et al that by simply relocating the "securing"
and handle panels in the manner as taught herein a simple easily
manufactured or partially manufactured carton in the form of a knock
down sleeve could be produced using a little, if any, extra material
(i.e. basically the same material cost), they certainly would have so
done.
...
The Examiner seems to argue that since Applicant has disclosed only
two connections namely to the top and bottom walls and the claims
must be so limited the Applicant cannot accept this for the reasons
given herein above.
If the Examiner is inferring that this terminology means that the
partition panel is directly connected to all of said walls, then
obviously it is inaccurate since the partition need not connect
with all of said walls. For example, it is not necessary to connect
directly with the front and back walls, and it may be connected to
the end walls, or top and bottom walls, however, it is substantially
always connected to at least two opposed walls so possibly if the
above suggestion is not acceptable this objection could be overcome
by on the last line after "to" inserting "an opposed pair" i.e.
the last line would then read "connecting said partition panel to
an opposed pair of said walls".
On the other hand, if the objection is an attempt by the Examiner
to restrict the claims to define only connection to the bottom and
top walls, it is submitted that the discussion hereinabove with
respect to scope of claims, particularly in relation to the Union
Carbide application is directly applicable. It is believed that
such limiting of claims also falls within the ambit of the Lovell
vs Beatty referred to herein above.
Claim 1 of the application reads as follows:
In a carton, a partition structure comprising a handle panel having
a handle section and abutment flanges, a securing panel, a line
of weakness connecting said handle panel to be torn therefrom, an
envelope panel, a partition panel, said securing panel and said
partition panel being connected to said envelope panel by substantially
parallel fold lines positioned one on each end of said envelope panel,
a handle opening along said fold line connection between said
partition panel and said envelope panel, said handle panel and said
securing panel being sandwiched between said envelope panel and
said partition panel, said opening permitting said handle section
to be pulled therethrough into a carrying position, wherein said
flanges engage said fold line connection between said envelope
and said partition panels.
The questions to be considered are those of obviousness, indefiniteness,
and disclosure support.
At the Hearing Mr. Rowley outlined the problems encountered during the
development of his carton and the manner in which they were solved. He
pointed out the "concept" of his arrangement was the use of a "fold line" (46)
remote from the frangible "line of weakness" (16). According to the
applicant this arrangement is capable of meeting the speeds used in modern
assembly line production without any danger of preliminary handle separation.
By using models of the cited art Mr. Rowley presented a very clear picture
of the problems that would be faced by the prior art when used in high speed
assembly line production. The applicant's arrangement allows a simple
folding technique while moving the blank in one direction so the panels form
an end load carton. Handle portion (18) is frangibly connected to the
securing panel (14) which in turn is foldably connected to the envelope
panel (20). By this initial fold (46) the applicant eliminates the possible
preliminary handle separation that could occur in the prior art arrangement
where the fold line coincides with the line of weakness.
Engel (1962) is a top load box incorporating a handle structure received
within an envelope and the handle slides between an operative and inoperative
position. There is no securing panel shown in this structure.
Both Gioia and Engel (1964) also relate to a top-load box having an integral
longitudinal partition housing a sliding handle but do not disclose a securing
panel. The Toensmeier patent is for a top-loading container having a
longitudinal partition which encloses the sliding handle. A pair of handle
forming panels are sandwiched between foldably connected partition panels
and are separable to provide the sliding handle. We find no securing panel
as envisaged in the application.
Hill relates to an end-load container having a central partition which en-
closes the sliding handle. This patent uses a first partition panel, a
second partition panel, a first bottom panel, a back panel, a top panel, a
front panel, a second bottom panel, and a connector panel attaching to a
handle panel at the line of weakness.
After studying models of the citations we agree with the applicant that his
concept of moving the initial fold line away from the handle frangible line
is not shown in the prior art. At the Hearing the examiner pointed out
that Hill's arrangement was similar except that the panel was adhesively
connected instead of foldably connected as done by the applicant. Mr. Rowley
explained that the use of adhesive would cause many problems at the assembly
line, when considering the speed required, and that the manufacture of
knocked-down cartons by the instant folding arrangement does not require
any adhesive. Therefore we conclude that the applicants arrangement could
not be considered obvious in view of the prior art.
Another ground of rejection was that claims 1, 3 to 7 and 10 to 15 are
refused as being too broad in view of and not supported by the teachings of
the disclosure. The Final Action states that "these claims are in effect
directed to a partition per se or a method of making a partition and not
as an integral part of a carton formed from a single blank. Applicant has
disclosed the partition structure as part of a blank that will make a complete
carton or container. The a disclosure as originally filed is completely
silent as to the partition assembly being a separate entity or as such how
it would be secured in a carton." In order to consider this rejection we
will reproduce claim 1 with its corresponding reference numerals.
In a carton, a partition structure comprising a handle panel(12)
having a handle section(52) and abutment flanges(54), a securing
panel(14), a line of weakness(16) connecting said handle panel(12)
to said securing panel(14) to permit said handle panel(12) to
be torn therefrom, an envelope panel(20), a partition panel(22),
said securing panel(14) and said partition panel(22) being
connected to said envelope panel(20) by substantially parallel
fold lines(34) positioned one on each end of said envelope panel(20),
a handle opening(50) along said fold line(34) connection between
said partition panel(22) and said envelope panel(20), said handle
panel(12) and said securing panel(14) being sandwiched between
said envelope panel(20) and said partition panel(22), said
opening(50) permitting said handle section(52) to be pulled there-
through into a carrying position wherein said flanges(54) engage
said fold line(34) connection between said envelope(20) and said
partition(22) panels.
We note that the handle section 52 is shown as 32 in figure 1 of the
drawings.
It is clear that pages 2, 3 and 4 of the disclosure use the terminology
and reference numerals indicated in claim 1. Therefore we find that the
claims 1, 3 to 7, and 10 to 15 are supported by and are not too broad in
view of the disclosure. It is well established that the claims do not have
to be restricted to the preferred embodiment. The claim may be couched in
terms as broad as the invention made, while at the same time avoiding the
prior art.
Claims 2, 7, 8 and 16 were rejected as being indefinite. Claim 2 is
rejected as it "defines a single blank which will form a tubular structure
having a longitudinal partition but no means for closing the ends.
It is held that applicant must include structure at least in broad terms
that will result in an end wall in the erected section." The applicant
argues that "a variety of other known ways of retaining different material
in the carton have been used. It is submitted it is not part of the present
invention to provide a specific end closure in the carton and therefore the
claims need not be so restricted." Section 35(2) of the Patent Act codifies
claim requirements to state in distinct and explicit terms the things or
combinations that the applicant regards as new. We find that claim 2 is
directed to the essence of the invention which is that the fold line
and fracture line do not coincide. A person skilled in the art would
be able to construct the container specified in this claim as the
remainder of the component elements and their arrangement is known in
the art. Similarly we do not find any basis for rejection based on
indefiniteness in claims 7, 8 and 16.
In summary, we are satisfied that the applicant has made a patentable
advance in the art and we recommend that the rejections made in the
Final Action should be withdrawn.
J.F. Hughes
Assistant Chairman
Patent Appeal Board, Canada
I have studied the prosecution of this application and reviewed the
recommendation of the Patent Appeal Board. In the circumstances I have
decided to withdraw the Final Action. The application is returned to
the examiner for resumption of prosecution.
J.A. Brown
Acting Commissioner of Patents
Agent for Applicant
C.A. Rowley & Company
c/o Domtar Limited
Box 7210
Montreal 101, Que.
Dated at Hull, Quebec
this 5th. day of June, 1977