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Broken-Line Boundaries: No Patent Protection for Crest Bottle

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By Robyn Hagan Cain on March 27, 2013 10:01 AM

The next time you see a bottle of Crest mouthwash, take a moment to appreciate the angles of the bottle. Particularly the trapezoidal-shaped surface near the top. Crest really cares about that trapezoid, so much that its parent company, Proctor and Gamble, tried to patent it, Patently-O reports.

We say tried, because the Federal Circuit Court of Appeals ruled this week that P&G did not succeed.

In 2006, Timothy Owens filed a patent design application ('172 application) that was the continuation of a 2004 application ('709 application). The '709 application claimed a design for a bottle. That patent was ultimately issued in 2006.

Owens then filed the '172 application in 2006, seeking the benefit of the '709 application's 2004 priority date under 35 U.S.C. §120. The examiner rejected the '172 application based on the addition of the broken line, which the examiner understood as defining an entirely new trapezoidal-shaped surface that was considered new matter.

That was a problem for Owns because, as he conceded during prosecution, if denied the earlier effective filing date, the '172 application would be unpatentable if the earlier effective filing date was denied. The reason? He had sold bottles embodying his design more than one year before filing his continuation.

The subject of the appeal is the broken line that Owens introduced in his continuation application. The parties agree that the '709 application discloses no boundary that corresponds (either explicitly or implicitly) to this newly-added broken line. However, the parties also agree that a design patentee may, under certain circumstances, introduce via amendment a straight broken line without adding new matter, even "where no [corresponding] boundary line is shown in a design application as originally filed."

The parties refer to these broken-line boundaries as unclaimed boundary lines. When an unclaimed boundary line divides a previously claimed area, it indicates that the applicant has disclaimed the portion beyond the boundary while claiming the area within it. Where permissible, unclaimed boundary lines allow the patentee to adjust his patent coverage and encompass embodiments that differ slightly but insignificantly from the originally-filed design.

However, these lines must comply the written description requirement to receive the benefit of priority under §120.

The question here, for written description purposes, is whether a skilled artisan would recognize upon reading the '709 disclosure that the trapezoidal top portion of the front panel might be claimed separately from the remainder of that area.

The Board of Patent Appeals found that nothing in the '709 application's disclosure suggested anything uniquely patentable about the top portion of the bottle's front panel. That finding was supported by substantial evidence -- the '709 disclosure didn't distinguish the now-claimed top trapezoidal portion of the panel from the rest of the pentagon in any way -- so the Federal Circuit affirmed that decision.

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