768 F.2d 1340 (Fed. Cir. 1985), 85-882, In re Benno

Docket NºAppeal No. 85-882.
Citation768 F.2d 1340
Party Name226 U.S.P.Q. 683 In re Edward L. BENNO.
Case DateJuly 26, 1985
CourtUnited States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1340

768 F.2d 1340 (Fed. Cir. 1985)

226 U.S.P.Q. 683

In re Edward L. BENNO.

Appeal No. 85-882.

United States Court of Appeals, Federal Circuit

July 26, 1985

Page 1341

Edward L. Benno, Grayslake, Ill., pro se.

Richard E. Schafer, Associate Sol., U.S. Patent and Trademark Office, Arlington, Virginia, argued for appellee. With him on brief were Joseph F. Nakamura, Sol. and Fred E. McKelvey, Deputy Sol., Washington, D.C.

Before RICH, BALDWIN and BENNETT, Circuit Judges.

RICH, Circuit Judge.

This appeal is from the decision of the United States Patent and Trademark Office (PTO) Board of Appeals (board) affirming the examiner's rejection of all claims remaining in appellant's patent application, serial No. 291,845, filed August 10, 1981, entitled MULTIPACKAGES, THE PACKAGING ELEMENTS, AND THE METHOD FOR MAKING THE MULTIPACKAGES. We reverse. Appellant, long registered to practice before the PTO, appears pro se. He also prosecuted his own application.

The Invention

A "multipackage," as appellant uses the term, is typified by what is currently known in the vernacular as a "six-pack." However, the specification is inclusive of an eight-pack. Figs. 1-3 below illustrate the former. Fig. 3 is a section on the line 3-3 of Fig. 2. Cans may be substituted for the bottles.

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

Appellant's basic objective has been economical packaging by the use of elastic, blown plastic film material instead of paperboard or the like. A problem encountered with the plastic (polymer) film material is stated in the specification to be that "there is a great tendency of the group [of containers] to be rolled or slid from the desireable [sic] rectangular pattern into a diamond pattern or a generally circular pattern by the forces of the [horizontal] tensioned film band."

Another object is to produce a package which includes some sort of a handle by which it can be carried in one hand. The specification summarizes the objectives of the invention in the statement that it uses "no packaging elements other than two circumferentially continuous highly stretched plastics material film bands, and in which one of the package forming bands further functions as a comfortable package carrying handle." An example of the plastic used is blown, low density polyethylene film from 1 to 4 mils thick.

Referring to the above drawings, six bottles 10 are shown arranged in the usual rectangular grouping. The bottles are first encircled by a stretched, endless, plastic band 11 extending in a horizontal direction.

Page 1342

The band is initially shorter than the distance around the bottles but is not stretched beyond its elastic limit in applying it. It contracts through its inherent elasticity to bind the bottles together upon being released. In this condition, as above indicated, the bottles, upon being disturbed only slightly, have a tendency, under the pressure of the elastic band, to move out of their rectangular arrangement, as shown, into some other pattern, rolling or sliding upon one another. In other words, the package is quite unstable. However, the invention includes a second band 12 which is applied vertically around the center pair of bottles and over the outer surface of the first band. This immediately renders the entire six-pack very stable and capable of rough handling without disturbance of the rectangular configuration. Due to its elasticity, the band 12 contracts tightly and is pulled down over the tops of the center pair of containers and pulls inwardly on the segments of the first band 11 between the bottles as shown in Fig. 2. In the case of an eight-pack, the vertically arranged second band encompasses the two central ranks of containers instead of just one rank and the broader claims are inclusive of such structure. The package can be picked up by inserting a couple of fingers under that part of band 12 between the tops of the center containers. Thus, using the second band as a handle does not pull it away from the bottles sufficiently to interfere with the integrity of the package. Preferably, the second band is made of thicker, and hence stronger, material than the first band, for example, 4 mils instead of 2 mils.

The claims on appeal are 1, 3-6, and 8-13. No claim has been allowed. Illustrative is claim 1 which reads:

1. A package of six or eight containers in which the containers have substantially cylindrical body portions between the upper and lower ends thereof, said containers arranged upright in a group with said body portions in side-by-side abutting relationships and in two parallel rows of substantially perpendicular ranks, a first tube of an elastic plastics material, said first tube having an initial axial length greater than one half of the axial length of said body portions and an initial circumferential dimension substantially less than the circumferential dimension of said group measured in a horizontal direction about said body portions, said first tube being stretched and applied in a tensioned condition circumferentially of said group about said body portions, a second tube of an elastic...

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21 practice notes
  • Patents: Patent application examination— Written description requirement; guidelines; comment request,
    • United States
    • Federal Register December 21, 1999
    • December 16, 1999
    ...in the remainder of the specification, the applicant may amend the specification to include the claimed subject matter. In re Benno, 768 F.2d 1340, 226 USPQ 683 (Fed. Cir. See, e.g., In re Lukach, 442 F.2d 967, 169 USPQ 795 (CCPA 1971) (subgenus range was not supported by generic disclosure......
  • Reports and guidance documents; availability, etc.: Written description requirement; examination guidelines,
    • United States
    • Federal Register January 05, 2001
    • December 29, 2000
    ...in the remainder of the specification, the applicant may amend the specification to include the claimed subject matter. In re Benno, 768 F.2d 1340, 226 USPQ 683 (Fed. Cir. 18See, e.g., In re Lukach, 442 F.2d 967, 169 USPQ 795 (CCPA 1971) (subgenus range was not supported by generic disclosu......
  • 908 F.2d 931 (Fed. Cir. 1990), 89-1034, Northern Telecom, Inc. v. Datapoint Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • June 29, 1990
    ...entered the amendments. The original claims as filed are part of the patent specification. 35 U.S.C. Sec. 112, p 2; In re Benno, 768 F.2d 1340, 1346, 226 USPQ 683, 686-87 (Fed.Cir.1985). At the time the Rule 312 amendment was filed the claims had already been examined and allowed substantia......
  • 790 F.Supp.2d 868 (S.D.Ind. 2011), 1:06-cv-1642-RLY-TAB, Alcon Research, Ltd. v. Apotex Inc.
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • May 23, 2011
    ...capable of understanding. Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1262 (Fed.Cir.1989) (quoting In re Benno, 768 F.2d 1340, 1346 (Fed.Cir.1985)). 123. The generic disclosure of Lever would not enable a person of ordinary skill in the art to envision olopatadine. Th......
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18 cases
  • 908 F.2d 931 (Fed. Cir. 1990), 89-1034, Northern Telecom, Inc. v. Datapoint Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • June 29, 1990
    ...entered the amendments. The original claims as filed are part of the patent specification. 35 U.S.C. Sec. 112, p 2; In re Benno, 768 F.2d 1340, 1346, 226 USPQ 683, 686-87 (Fed.Cir.1985). At the time the Rule 312 amendment was filed the claims had already been examined and allowed substantia......
  • 790 F.Supp.2d 868 (S.D.Ind. 2011), 1:06-cv-1642-RLY-TAB, Alcon Research, Ltd. v. Apotex Inc.
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • May 23, 2011
    ...capable of understanding. Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1262 (Fed.Cir.1989) (quoting In re Benno, 768 F.2d 1340, 1346 (Fed.Cir.1985)). 123. The generic disclosure of Lever would not enable a person of ordinary skill in the art to envision olopatadine. Th......
  • 977 F.2d 1443 (Fed. Cir. 1992), 91-1026, In re Oetiker
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • October 13, 1992
    ...747 F.2d at 1460, 223 USPQ at 1263. This procedural tool is recognized in fields outside of the chemical arts. E.g., In re Benno, 768 F.2d 1340, 226 USPQ 683 (Fed.Cir.1985); In re McCarthy, 763 F.2d 411, 226 USPQ 99 (Fed.Cir.1985); In re De Blauwe, 736 F.2d 699, 222 USPQ 191 The Board's usa......
  • 403 F.Supp.2d 708 (W.D.Wis. 2005), 05-C-224, Haberman v. Playtex Products, Inc.
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • December 2, 2005
    ..."The scope of a patent's claims determines what infringes the patent, it is no measure of what it discloses." In re Benno, 768 F.2d 1340, 1346 (Fed.Cir.1985). Hence, the original 1840 telegraph patent may be broad enough to read on a modern telex, though the latter would not have ......
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1 firm's commentaries
  • Claims Found To Be "Essentially Free" Of Patentability
    • United States
    • Mondaq United States
    • December 9, 2020
    ...application (emphasis added); claim 1 of Serfontein (emphasis added). This brings to mind Judge Rich's classic opinion in In re Benno, 768 F.2d 1340 (Fed. Cir. 1985), in which the Federal Circuit emphasized that a patent claim is no measure of what a patent actually The scope of a Patent's ......
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