Benno, In re, 85-882

Citation226 USPQ 683,768 F.2d 1340
Decision Date26 July 1985
Docket NumberNo. 85-882,85-882
PartiesIn re Edward L. BENNO. Appeal
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

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.

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 plastics material, said second tube having an initial axial length substantially no greater than the distance between the opposed body portions of the end ranks of said containers in said group and an initial circumferential dimension substantially less than the circumferential dimension about a rank of said containers in said group taken in a flat plane perpendicular to the longitudinal direction of said rows and through the vertical central axes of said containers in said rank, and said second tube being stretched and applied in a tensioned condition circumferentially about the ranks of containers between the end ranks of containers of said group and over the outer surface of said first tube, and the tensioned condition of said second tube being sufficient to maintain at least the upper and lower edge portions of said first tube which are intersected by the edges of second tube indented. [Emphasis added.]

There is no need to discuss the other claims. The PTO dealt with them all on the same ground. Some are dependent and merely add limitations. Others are independent and are merely different ways of describing the same combination with cylindrical containers of two elastic bands employed as defined in claim 1, claim 13 alone being directed to a method of making such a multipackage. Some claims are specific to six-packs.

The References

There are only two references. The first is U.S. patent 4,300,681, entitled BOTTLE PACKAGE AND PACKAGING DEVICE and issued to Illinois Tool Works, Inc., Nov.

17, 1981, as assignee of M.J. Klygis and his coinventor Edward L. Benno, the applicant here. It particularly discloses packaging large two-liter capacity plastic beverage bottles by means of film such as appellant uses in the present invention, but it discloses only a single band applied in a horizontal direction, in conjunction with rigid plastic clips which serve as handles and engage the necks of the bottles to produce either a two-pack or a four-pack as shown in the drawings below.

KLYGIS AND BENNO

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

In Fig. 1 is shown a pair of "typical two-liter bottles made of deformable plastic containing liquid contents 26" which have shoulder portions 18 and necks 20 provided with flanges 24. A single elastic plastic film band 14 holds the two bottles together. (The rectangular area 32 on the band merely represents a label which may be printed on the band.) Fig. 2 is a top view of the two-bottle package (without any handle). Fig. 7 is a variation in which four bottles are similarly joined but additionally shows a rigid plastic "single handle device 136 similar to handle 36 [which] may be used in such package if desired." Referring to Figs. 5 and 6, they show the handle device 36 and the manner of its attachment to the necks 20 of the bottles abutting the flanges 24. The central strut portion 38 is the part to be grasped as a handle.

There is in the specification of this patent a passage made much of by the PTO which reads:

The four-pack shown in Fig. 7 is merely illustrative of the fact the invention can be adapted for use in any variety of arrays, such as 2, 3, 4, 6, or any other reasonable multiple.

But no arrays other than two and four are shown in drawings or otherwise described.

The second reference is U.S. patent 4,304,332 issued December 8, 1981, to Bernard R. Danti. Figs. 1, 3, and 4 appear below.

DANTI

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

Danti's specification begins with reference to the problem of packaging a case of beer consisting of 24 cans. His specific embodiment deals with packaging 24 cans, 12 on top of 12 in three rows of 4 cans each, as shown. While Fig. 1 alone fails to show that there are 24 cans in the package, the specification is unambiguous, saying of Fig. 1:

... there is seen a package 10 formed of two congruently and vertically-stacked groups of cans 12. The total number of cans is 24....

The PTO appears to find it of significance that the plastic wrappings employed are described as "two tensioned polymer film wraps, each wrap arranged at right angles to the other." It is necessary to examine the disclosure closely to see what this means. Referring to Fig. 1, the specification says that on the stacked cans there "is wrapped, under tension a transparent, [sic] sheet 14 of 2-mil thick ethylenevinyl acetate film. The film is heat-sealed, typically, along lines 14s, one of which will be on each side of the package." From this description it is clear that the film is wrapped around the stacked cans in a vertical direction. From the statement the film is "wrapped, under tension," one would infer that Danti does not use tubing. His disclosure is silent about when and how the wrapped film is heat sealed. We have quoted above the most explicit statement in the specification about how the...

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