In re Stover, Patent Appeal No. 4921.

• Decision Date: 11 December 1944
• Docket Number: Patent Appeal No. 4921.
• Citation: 146 F.2d 299
• Parties: In re STOVER.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

146 F.2d 299 (1944)

In re STOVER.

Patent Appeal No. 4921.

Court of Customs and Patent Appeals.

December 11, 1944.

Harry C. Alberts, of Chicago, Ill., for appellant.

W. W. Cochran, of Washington, D. C. (R. F. Whitehead, of Washington, D. C., of counsel), for Commissioner of Patents.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, Associate Judges.

O'CONNELL, Associate Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the action of the examiner finally rejecting all of the claims in an application for a patent which relates to an elongated paper container particularly adapted for receiving and packaging ice cream, or other plastic foodstuffs, for subsequent sale to the public in sanitary and predetermined units.

As it leaves the freezer in its plastic condition, it appears that ice cream contains a large volume or overrun of air which has been injected during the process of manufacture for the purpose of improving the texture, smoothness, and to some extent the taste of the product.

As described in the specification, this semiliquid material is poured into the container and subsequently frozen in the hardening room while in the container. Markings or creases are calibrated along the exterior of the container to designate predetermined units of ice cream, and a longitudinal seam flap is provided to facilitate the separation of the container for the removal of the contents.

The bottom of the container is provided with small air vents so that the air may escape from the container as the plastic material is poured into it.

Claim 9, which is illustrative of the appealed claims, reads as follows: "9. A package for normally liquid material frozen to a substantially solid state comprising an elongated paper container of such thinness that is not self-sustaining nor form-retaining, said container being folded to define an end enclosure to normally assume a flat collapsed position along predetermined crease lines, said elongated container being of such restricted cross-section to normally preclude the filling thereof by the gravity flow of the aforesaid material therein, there being air vent openings in said container to permit the escape of air therethrough when the container is being filled with contents poured therein in its plastic state through the urge of gravity, predetermined markings on the exterior of said container, said markings being calibrated along the length thereof to designate predetermined units therealong, and an extended longitudinal seam flap on said container to facilitate the separation of the container for the removal thereof from the contents."

The appellant does not rely upon the elements per se as novel, but contends, first, that patentable invention is involved in a new combination of old elements that is responsible for an improved self-contained package for special purposes; and, secondly, that the examiners of the Patent Office tribunals, arbitrarily and erroneously dissected the new combination into separate and distinct elements to establish that they were old per se in a number of prior art patents that were collectively relied upon as the basis for the rejection.

The examiner cited the following patents: Tiffany 397,475 February 5, 1889; Ortner 1,760,959 June 3, 1930; Clearwater 2,062,249 November 24, 1936; Massey 2,162,853 June 20, 1939.

He rejected the claims of appellant on the basis of the disclosures of the Clearwater patent in view of the other named references.

The Clearwater patent relates to a method by which plastic ice cream may be packed in a container of any convenient length, say 36 inches, formed of material such as cellophane.

The specification therein provides for a filler tube which may be used in any desired way to fill the container, but as a general rule the tube is...