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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MPL BRANDS NV, INC.
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`Petitioner,
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`v.
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`BUZZBALLZ, LLC
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`Patent Owner.
`
`
`
`
`
`PTAB Case No. PGR2024-00035
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`U.S. Patent No. 11,932,441
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`DECLARATION OF NATHAN J. DELSON, PH.D., IN SUPPORT OF
`PETITION FOR POST-GRANT REVIEW OF U.S. PATENT NO. 11,932,441
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`EX-1002 PGR2024-00035
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`DECLARATION OF NATHAN J. DELSON, PH.D.
`IN SUPPORT OF PETITION FOR POST-GRANT REVIEW
`OF U.S. PATENT NO. 11,932,441
`
`INTRODUCTION .......................................................................................... 4
`QUALIFICATIONS AND EXPERIENCE .................................................... 4
`A.
`Education and Experience .................................................................... 4
`B. Materials Reviewed .............................................................................. 6
`C.
`Level of Ordinary Skill in the Art ........................................................ 7
`D.
`Summary of Opinions .......................................................................... 8
`III. OVERVIEW OF THE TECHNOLOGY ........................................................ 9
`A.
`Priority Date of the Claims ................................................................... 9
`B.
`Overview of the Relevant Technology When the ’441 Patent
`Was Filed ............................................................................................ 10
`The ’441 Patent .................................................................................. 12
`C.
`Prosecution History ............................................................................ 16
`D.
`The Challenged Claims ...................................................................... 17
`E.
`Claim Construction............................................................................. 17
`F.
`IV. UNPATENTABILITY OF THE ’441 PATENT CLAIMS ......................... 18
`A.
`Standards for Invalidity ...................................................................... 18
`1.
`Obviousness ............................................................................. 18
`Ground 1: The Coca-Cola PET Can alone or in combination
`with Applicant Admitted Prior Art (AAPA) renders claims 1-8
`obvious. .............................................................................................. 19
`Ground 2: The Coca-Cola PET Can and Protais render claims
`9-20 obvious. ...................................................................................... 72
`D. Ground 3: Metzger, Protais, and Kaminski render claims 1-20
`obvious ............................................................................................. 103
`Ground 4: Gardiner, Pedmo, and Moen render claims 1-20
`obvious ............................................................................................. 189
`Conclusion .................................................................................................. 282
`
`B.
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`C.
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`E.
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`
`I.
`II.
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`V.
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`LIST OF APPENDICES
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`Appendix A
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`Curriculum Vitae of Nathan Delson, Ph.D.
`
`Appendix B
`
`A Clino-Cladistic Look at Pull and Push Tab Patents ca. 1950-
`1980, William D. Schroeder,
`https://soda.sou.edu/cans/ANTH02m_schr.xx.02.pdf.
`
`Appendix C
`
`U.S. Patent No. 4,286,728 to Fraze
`
`Appendix D
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`U.S. Patent No. 6,234,336 to Neiner
`
`Appendix E
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`U.S. Patent No. 4,522,779 to Jabarin
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`Appendix F
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`U.S. Patent No. 8,468,785 to Thomasset
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`I.
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`INTRODUCTION
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`1. My name is Nathan J. Delson. I am a Senior Teaching Professor at the
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`University of California, San Diego (UCSD).
`
`2.
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`I have been engaged by MPL Brands NV, Inc. (“MPL”) as a consultant
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`in connection with MPL’s Petition for Post-Grant Review of U.S. Patent No.
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`11,932,441 (the “’441 Patent”).
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`3.
`
`I understand that the ’441 Patent has been assigned to BuzzBallz, LLC
`
`(“BuzzBallz”). BuzzBallz is also referred to as the “Patent Owner” in this
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`declaration.
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`4.
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`This declaration is based on the information currently available to me.
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`To the extent that additional information becomes available, I reserve the right to
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`continue my investigation and study, which may include a review of documents and
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`information that may be produced, as well as testimony from depositions that not yet
`
`been taken.
`
`II. QUALIFICATIONS AND EXPERIENCE
`
`A. Education and Experience
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`5.
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`I obtained my Ph.D. degree in Mechanical Engineering from
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`Massachusetts Institute of Technology (MIT) in 1994.
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`6.
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`I have worked for 27 years as a faculty teaching mechanical engineering
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`design, first at Yale University and now at the University of California at San Diego.
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`My current position is Senior Teaching Professor in the Department of Mechanical
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`and Aerospace Engineering. I have performed research in Robotics, Medical
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`Devices, and Design Education. I have also worked for 2 years in the Aerospace
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`Industry for United Technologies. I have consulted in mechanical engineering for
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`companies such as Design Continuum, Sixense, DriveCam, and others. I have
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`received awards from the National Inventors Hall of Fame and for teaching design.
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`7.
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`I have worked on and supervised a wide range of engineering projects.
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`These projects have included ones with vessels under pressure or vacuum, and
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`containers with seals to contain liquid or gas. I have worked on a project with a
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`component that has a pre-weakened area that was created by a thinning of metal
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`along a line which created a structure that remained intact under certain conditions
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`but then detached under other conditions. I advise on material selection for products
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`which include both metal and plastic components. I teach and supervise projects
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`where Design For Manufacturability (DFM) is a primary consideration and where
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`design decisions are based on reducing the cost of a product while maintaining its
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`functional performance. I also teach Computer Aided Design where the geometric
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`constraints of the parts need to be defined. I am familiar with technology and history
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`of beverage contain design and fabrication, and how technology has improved over
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`the years to meet a wide range of needs in the container industry.
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`8.
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`This experience is directly relevant to the technology described in the
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`patents in suit. The above outline of my experience with mechanical devices and
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`manufacturing is not comprehensive of all of my experience over my years of
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`technical experience. Additional details of my background are set forth in my
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`curriculum vitae, attached to this declaration as Appendix A, which provides a more
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`detailed summary of my education, work experience, publications, and teaching
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`history.
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`B. Materials Reviewed
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`9. My opinions expressed in this declaration are based on documents and
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`materials identified in this declaration, including the ’441 patent, the prior art
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`references and background materials discussed in this declaration, and the other
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`references specifically identified in this declaration. I have considered these
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`materials in their entirety, even if only portions are discussed here. The following is
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`an exemplary list of the materials on which I based my opinion.
`
`Exhibit
`Ex. 1001
`Ex. 1004
`Ex. 1006
`Ex. 1007
`Ex. 1008
`Ex. 1009
`Ex. 1010
`
`Description
`U.S. Patent No. 11,932,441 B1 (“’441 patent”)
`Prosecution File History of ’441 patent
`Coca-Cola Plastic Can Marketing Material
`The American Heritage Dictionary
`U.S. Patent No. 8,524,349 B2 to Protais et al. (“Protais”)
`U.S. Patent No. 4,405,546
`U.S. Patent No. 8,141,741 B2 to Metzger et al.
`(“Metzger”)
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`Exhibit
`Ex. 1011
`Ex. 1012
`Ex. 1013
`Ex. 1014
`Ex. 1015
`Ex. 1016
`Ex. 1017
`
`
`Description
`U.S. Patent No. 4,465,204 to Kaminski (“Kaminski”)
`U.S. Patent No. 6,729,495 to Gardiner (“Gardiner”)
`U.S. Patent No. 6,585,123 to Pedmo (“Pedmo”)
`U.S. Patent No. 4,024,981 to Brown (“Brown”)
`The 1985 Los Angeles Times Article
`The 1985 New York Times Article
`Handbook of Engineering and Specialty Thermoplastics
`
`10.
`
`I have also relied on my own experience and expertise in mechanical
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`engineering and design technologies.
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`C. Level of Ordinary Skill in the Art
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`11.
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`I am not an attorney and offer no legal opinions. I have been informed
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`about certain aspects of the law for purposes of my analyses and opinions.
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`12.
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`I understand that in analyzing questions of invalidity and infringement,
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`the perspective of a person having ordinary skill in the art (“POSITA”) is often
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`implicated, and the Court may need assistance in determining that level of skill.
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`13.
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`I understand that the claims and written description of a patent must be
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`understood from the perspective of a POSITA. I have been informed that the
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`following factors may affect the level of skill of a POSITA: (1) the educational level
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`of the inventor; (2) the type of problems encountered in the art; (3) the prior-art
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`solutions to those problems; (4) the pace of innovation; (5) the sophistication of the
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`technology; and (6) the educational level of active workers in the field. A person of
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`ordinary skill in the art is also a person of ordinary creativity in the art.
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`14. Based on my experience with packaging design technologies, as well
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`as my reading of the ’441 patent, it is my opinion that a person of ordinary skill with
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`respect to the subject matter of the ’441 patent at either (a) the time of the alleged
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`priority date of the ’441 patent in April 2010 or (b) the time the ’441 patent was filed
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`in November 10, 2023 would have at least an associate’s or a bachelor’s degree in
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`mechanical, industrial, or manufacturing engineering and would have at least two to
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`three years of practical experience with designing or manufacturing mechanical
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`products such as food or beverage packaging.
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`15.
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`I am at least a person of ordinary skill in the art and was so on the date
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`to which the ’441 patent claims priority. As shown by my qualifications, I am aware
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`of the knowledge and skill possessed by a person of ordinary skill in the art at the
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`time of the priority date of the ’441 patent. In performing my analysis, I have applied
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`the standard set forth above.
`
`D.
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`16.
`
`Summary of Opinions
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`I have reviewed and analyzed the ’441 Patent.
`
`17. Based on my review and analysis, it is my opinion that claims 1-20 of
`
`the ’441 patent are invalid based on the following grounds:
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`Ground Basis Reference(s)
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`Challenged Claims
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`
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`§ 103 The Coca-Cola PET Can
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`1-8
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`§ 103 The Coca-Cola PET Can and Protais
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`9-20
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`§ 103 Metzger, Protais, and Kaminski
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`§ 103 Gardiner, Pedmo, and Brown
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`1-20
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`1-20
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`1
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`2
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`3
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`4
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`
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`III. OVERVIEW OF THE TECHNOLOGY
`
`A.
`
`18.
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`Priority Date of the Claims
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`I have been informed that a U.S. patent application may claim the
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`benefit of the filing date of an earlier patent application if the earlier patent
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`application disclosed each limitation of the invention claimed in the later-filed U.S.
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`patent application. I have also been informed that priority is determined on a claim-
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`by-claim basis so that certain claims of a patent may be entitled to the priority date
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`of an earlier-filed patent application even if other claims of the same patent are not
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`entitled to that priority date.
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`19.
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`I have also been informed that a patented claim is invalid if the claimed
`
`invention was patented, described in a printed publication, or in public use, on sale,
`
`or otherwise available to the public before the effective filing date of the claimed
`
`invention, or the claimed invention was described in an issued patent or a published
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`patent application that was effectively filed before the effective filing date of the
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`claimed invention.
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`20.
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`I understand that the ’441 patent claims a priority date of April 19,
`
`2010. I also understand that the ’441 patent was filed on November 10, 2023, and
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`issued on March 19, 2023. (Ex. 1001, front page). I am informed and understand that
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`the effective priority date may, in fact, be no earlier than November 10, 2023, due
`
`to the introduction of previously undisclosed new matter. For the purposes of this
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`declaration, the prior art analyzed all predate the earliest priority date April 19, 2010.
`
`B. Overview of the Relevant Technology When the ’441 Patent Was
`Filed
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`21. For decades, containers having an easy-open-end have been
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`manufactured using a metal lid. Such metal lids have been attached to containers to
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`create a variety of food packaging products. Containers with an easy-open lid are
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`especially popular for marketing canned beverages such as beer or soda. As one
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`example, the pop-top lid is fairly inexpensive to purchase and is popular among
`
`consumers due to its ease of use. Appendix B summarizes a brief history of
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`innovation related to metal container lids. Decades of innovations in lid design have
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`enhanced the ease of opening containers, reduced material and manufacturing
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`expenses, reduced waste, and mitigated failure modes. The following patents
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`describe just two examples from this extensive history:
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`• U.S. Patent No. 4,286,728 to Fraze, filed in April 1980 (Appendix C). Fraze
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`described a “tab for easy opening ends” that included flanges to increase
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`longitudinal rigidity of the tab. (Appx. C, Abstract). This tab could be
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`manufactured with thinner sheet stock to reduce material costs, while still
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`maintaining sufficient rigidity to open a container without bending. (Appx. C,
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`1:42-59; 2:41-46).
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`• U.S. Patent No. 6,234,336 to Neiner, filed in November 1996 (Appendix D).
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`Neiner described a stay-on-tab lid that reduced stress across a scored panel on
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`the lid's surface, thereby reducing the likelihood of stress-induced fatigue
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`cracking. (Appx. D, Abstract).
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`22. When beverage containers have metal bodies, the container bodies are
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`formed from cutting metal and drawing the metal to elongate the metal into a desired
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`shape. Drawing and elongating the metal places restrictions on the types of shapes
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`that can be made. Metal beverage container bodies are typically not cast into a mold
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`in the modern era. Casting metal into a mold is relatively expense in a mass-produced
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`product due to the requirement to heat the metal until it becomes a molten liquid,
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`and the need for expensive heat-resistant molds. Thus, it is often difficult to achieve
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`a distinctive design in order to increase the desirability of the metal beverage
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`containers. In contrast, plastic containers are easier to mold into a wide range of
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`shapes, can be mass produced at low cost, and may therefore achieve various designs
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`in order to increase the attractiveness and market value of the container.
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`23. Plastic containers for beverages or other food items have been in use
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`for decades. Many of these containers are made from polyethylene terephthalate
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`(PET), and many are produced by blow-molding. The following patents are
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`illustrative snapshots within the history of plastic container innovation:
`
`•
`
`U.S. Patent No. 4,522,779 to Jabarin, filed in November 1983,
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`described a process for producing PET containers via blow molding.
`
`(Appendix E).
`
`•
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`U.S. Patent No. 8,468,785 to Thomasset, claiming priority to a
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`European patent application filed in November 2007, described
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`considerations for manufacturing heat-resistant PET containers, for
`
`example for hot-filled containers. (Appendix F).
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`C. The ’441 Patent
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`24. The specification of the ’441 patent is directed to a container for storing
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`a liquid or solid which “may be formed from molding plastic or other appropriate
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`material and a metal lid to cooperate with the container body which may include a
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`pop top (or easy-open) lid.” (Ex. 1001, 2:17-20).
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`25. Figure 1 of the ’441 patent describes a container with a convex side
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`wall 107 that forms a “truncated spherical body” (id., 2:22-27, Fig. 1), while Figure
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`2 displays a second container with a cylinder side wall 107 that is substantially
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`vertical (id., 2:53-57, Fig. 2).
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`26. Figure 3 of the ’441 patent illustrates the bottom of the container which
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`includes some depression 115, 115b. (Id., 3:19-30). Figure 4 shows what appears to
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`be a standard lid with a “pull top” arm that can be pivoted to deform a scored or
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`weakened area of the lid to create an opening to allow access to the interior of the
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`container. (Id., 3:31-41).
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`27. Figure 5 of the ’441 patent shows an exaggerated view of the lip of the
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`container that engages with a corresponding lip of the lid to seal the container, which
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`may hold a liquid or a solid therein. (Id., 3:42-46, 2:64-3:3, Fig. 5).
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`28. Figure 6 of the ’441 patent describes an alternate lid where substantially
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`the entire lid can be pulled away using the tab. (Id., 3:47-56; Fig. 6). Figures 7 and
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`8 present more detailed versions of Figure 1 with additional markings that designate
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`dimensions. (Id., 3:57-64). Figure 9 appears to be similar to Figure 3. (Id., 3:57-64).
`
`29. The ’441 patent has 20 claims and 2 independent claims.
`
`D.
`
`Prosecution History
`
`30. The claims 1-20 of the ’441 patent were filed on November 10, 2023,
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`as part of patent application no. 18/506,711. (Ex. 1004, 3-38). Those original claims
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`were allowed in a first-action allowance on February 12, 2024. (Id., 211-215). The
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`examiner stated that the claims were allowed because Zimmer (U.S. Pat. No.
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`10,336,496) did not describe the geometrical limitations of claims 1 and 15, as well
`
`as certain features including the container body being made of a resin and the lid
`
`being made of a metal. (Id., 216-227).
`
`The Challenged Claims
`
`I understand that Petitioner is challenging claims 1-20 in the ’441
`
`E.
`
`31.
`
`patent.
`
`F. Claim Construction
`
`32.
`
`I understand that claim terms generally are construed in accordance
`
`with the ordinary and customary meaning they would have to a POSITA at the time
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`of the invention in light of the claim language, the specification, and the prosecution
`
`history. I understand that dictionaries and other extrinsic evidence may be
`
`considered as well, though such evidence is typically regarded as less significant
`
`than the intrinsic record in determining the meaning of the claim language.
`
`33. For all terms of the challenged claims of the ’441 patent, I have
`
`interpreted them as they would have been understood by a POSITA at the time of
`
`the invention.
`
`34.
`
`It is my opinion that there are no terms that require construction to
`
`address this petition; I do not address terms that may require construction in the
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`district court.
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`IV. UNPATENTABILITY OF THE ’441 PATENT CLAIMS
`
`A.
`
`Standards for Invalidity
`
`1. Obviousness
`
`35.
`
`I am informed and understand that a patent cannot be properly granted
`
`for subject matter that would have been obvious to a person of ordinary skill in the
`
`art at the time of the alleged invention, and that a patent claim directed to such
`
`obvious subject matter is invalid under 35 U.S.C. § 103. It is also my understanding
`
`that in assessing the obviousness of claimed subject matter, one should evaluate
`
`obviousness in light of the prior art from the perspective of a person having ordinary
`
`skill in the art at the time the alleged invention was made (and not from the
`
`perspective of either a layman or a genius in that art). It is my further understanding
`
`that the question of obviousness is to be determined based on:
`
`• The scope and content of the prior art;
`
`• The difference or differences between the subject matter of the claim
`
`and the prior art (whereby in assessing the possibility of obviousness
`
`on should consider the manner in which a patentee and/or a Court has
`
`construed the scope of a claim);
`
`• The level of ordinary skill in the art at the time of the alleged invention
`
`of the subject matter of the claim; and
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`• Any relevant objective factors (the “secondary indicia”) indicating
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`nonobviousness,
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`including evidence of any of
`
`the following:
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`commercial success of the products or methods covered by the patent
`
`claims; a long-felt need for the alleged invention; failed attempts by
`
`others to make the alleged invention; copying of the alleged invention
`
`by others in the field; unexpected results achieved by the alleged
`
`invention; praise of the alleged invention by the alleged infringer or
`
`others in the field; the taking of licenses under the patent by others and
`
`the nature of those licenses; expressions of surprise by experts and those
`
`skilled in the art at the subject matter of the claim; and whether the
`
`patentee proceeded contrary to accepted wisdom of the prior art.
`
`B. Ground 1: The Coca-Cola PET Can alone or in combination with
`Applicant Admitted Prior Art (AAPA) renders claims 1-8 obvious.
`
`36. The Coca-Cola PET Can is a plastic container manufactured and
`
`distributed in the 1980s. The body of the Coca-Cola PET Can is formed from
`
`polyethylene terephthalate (“PET”). PET is a common thermoplastic polymer resin
`
`and is often used to manufacture clothing as well as food or liquid containers. The
`
`lid of the Coca-Cola PET Can is aluminum and features a widely used “pop-top”
`
`arm which allows the consumer to puncture an opening to the container.
`
`37. Marketing material distributed in connection with the Coca-Cola PET
`
`can explains features of the can in order to educate the general public on the
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`products’ differences when compared to traditional aluminum beverage cans. (Ex.
`
`1006). The Coca-Cola Marketing Material displays a copyright date of 1985.
`
`38. On May 6, 2024, I had the opportunity to examine one of the Coca-Cola
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`PET Cans. The container body was made of plastic and had identification images of
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`a Caffeine Free Sprite can. The top of the can was made of metal which had the
`
`properties of Aluminum. The can was unchanged from what it would have been on
`
`a supermarket shelf except for two small holes in the bottom, approximately 1-3mm
`
`in diameter, and that the fluid had been removed. I observed and made measurements
`
`of the exterior of the container. I used the tab to puncture the top, and indeed it
`
`operated as expected for a beverage can opening device. At that point a Perkins Coie
`
`employee used a hack saw to cut the plastic container across its longitudinal axis.
`
`This allowed me to observe and measure the geometry of the can in numerous
`
`locations, but did not allow me to observe the seal between the lid and the container.
`
`Accordingly, I returned on May 8, 2024, with a Dremel tool. I used this tool to cut
`
`perpendicular to the seam through the lid and container. Once cut, I could view the
`
`seam clearly. My observations were used to inform my conclusions which are
`
`described in the discussion below.
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`1.
`
`Claim 1:
`
`a.
`
`Element [1.Pre]: “A container comprising:”
`
`39. The Coca-Cola PET Can is a container because it contained, or was
`
`capable of containing, a liquid or beverage. Photographs of one representative
`
`example of the Coca-Cola PET Can are provided below.
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`b.
`
`Element [1.A]: “a container body, the container body
`defining a first opening to an interior of the container
`body; and”
`
`40. The Coca-Cola PET Can has a container body, as identified in the
`
`photograph below. Although a lid is attached to the container body in these
`
`photographs, the lid covers a first opening to an interior of the container body. In the
`
`figure below, the right photograph has been annotated to highlight the claim
`
`limitations.
`
`41. The first opening is also evident from the cross-sectional view of the
`
`top section of the Coca-Cola PET Can below, which was cut in my presence and
`
`then further cut by me.
`
`
`
`- 23 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`
`
`c.
`
`Element [1.B]: “a lid connected to the container body
`and covering the first opening to the interior of the
`container body;”
`
`42. The side and top view photographs of the Coca-Cola PET Can illustrate
`
`a lid, which is connected to the container body. The lid is connected to the body such
`
`that it covers the first opening to the interior of the container.
`
`
`
`- 24 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`
`
`d.
`
`Element [1.C]: “wherein the container body is made
`out of a resin;”
`
`43. The Coca-Cola PET Can is made of polyethylene terephthalate (PET),
`
`which is a resin. (See, Ex. 1007, 5 (defining polyethylene as “a polymerized ethylene
`
`resin, used especially for containers”). This claim is further rendered obvious based
`
`on the patent marking at the bottom of the Coca-Cola PET Can: “Petainer” and US
`
`Pat. 4,405,546. Petainer is a global company that provides packaging solutions, and
`
`according
`
`to
`
`their website (https://www.petainer.com/about/), started PET
`
`production in 1983, and PET refillable bottles in 1991. The patent on the bottom of
`
`the Can (U.S. Pat. No. 4,405,546 - Ex. 1009) also corroborates that the Can is made
`
`of PET based on its title, “Method for producing a tubular object of polyethylene
`
`terephthalate or similar thermoplastic material from a tubular blank of amorphous
`
`material,” and explanations in the abstract and in the patent. (Ex. 1009).
`
`- 25 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`e.
`
`Element [1.D]: “wherein the lid is made out of a
`metal;”
`
`44. As shown in the above photographs, the lid of the Coca-Cola PET Can
`
`is made of metal, specifically aluminum, which is explained in the Coca-Cola
`
`advertising material. (Ex. 1015). Based on my personal examination of the lid, it
`
`appeared to be made of Aluminum, similar to a typical Coke can.
`
`f.
`
`Element [1.E]: “wherein the container body comprises
`a container side wall and a base portion connected to
`the container side wall;”
`
`45. The photographs below illustrate that the container body of the Coca-
`
`Cola PET Can has a container side wall. Also annotated on the photographs is a base
`
`portion, representing a portion of a lower end of the container when the container is
`
`standing upright.
`
`- 26 -
`
`EX-1002 PGR2024-00035
`
`

`

`Container side
`
`Base portion
`
`wall Base portion
`
`Container side
`
`wall
`
`
`
`
`
`
`
`- 27 -
`-27 -
`
`EX-1002 PGR2024-00035
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`g.
`
`Element [1.F]: “wherein the base portion comprises a
`bottom and a first depression formed therein, the first
`depression extending upwardly from the bottom;”
`
`46. The base portion of the Coca-Cola PET Can has a bottom (e.g., a
`
`substantially flat surface on which the can rests when standing upright).
`
`Furthermore, the base portion of the Can has a first depression in the form of a
`
`hemispherical structure that extends upward from the bottom of the Can, toward the
`
`interior of the container.
`
`
`
`h.
`
`Element [1.G]: “wherein the first depression at least
`partially defines a first outline;”
`
`47. The ’441 patent does not provide any explanations regarding an
`
`“outline,” and this term is only recited in the claims. Consistent with its dictionary
`
`definition of “[a] line described in the plane of vision by the outer boundary of any
`
`object or figure” (Ex. 1007, 4), the Coca-Cola PET Can included the claimed outline.
`
`As shown above, the lower end of the Coca-Cola PET Can has a bottom surface on
`
`which the can rests when standing upright. An inner edge of this bottom surface
`
`- 28 -
`
`EX-1002 PGR2024-00035
`
`

`

`marks a transition between the bottom surface and the curvature of the depression.
`
`This inner edge represents a first outline that is at least partially defined by the
`
`depression.
`
`
`
`
`
`i.
`
`Element [1.H]: “wherein the base portion further
`comprises a center element centered with respect to the
`first outline at least partially defined by the first
`depression;”
`
`48. This feature is taught or suggested by the Coca-Cola PET Can. The base
`
`of the Coca-Cola PET Can has central bump or discontinuity at the middle of the
`
`bottom surface of the depression, representing a center element. As shown in the
`
`annotated photographs below, the center element is centered, at least approximately,
`
`with respect to the first outline described in [1.G].
`
`- 29 -
`
`EX-1002 PGR2024-00035
`
`

`

`Center
`
`element
`
`
`
`
`
`First outline
`
`Center
`
`
`
`
`
`First outline
`
`
`element
`
`- 30 -
`- 30 -
`
`EX-1002 PGR2024-00035
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`
`
`j.
`
`Element [1.I]: “wherein each of the center element, and
`the first outline at least partially defined by the first
`depression, is centered with respect to the container
`side wall;”
`
`49. The central marking on the bottom of the Coca-Cola PET Can (the
`
`center element) is approximately centered with respect to the first outline and with
`
`respect to the container side wall, as shown in the photograph below. The first outline
`
`is also centered with respect to the container side wall, as shown below; thus, this
`
`feature is taught by or obvious in view of the Coca-Cola PET Can.
`
`- 31 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`
`
`k.
`
`Element [1.J]: “wherein each of the center element,
`and the first outline at least partially defined by the
`first depression, is centered with respect to the base
`portion;”
`
`50. As shown in the annotated photograph below, the center element and
`
`first outline are both centered with respect to the base portion of the Coca-Cola PET
`
`Can, rendering this limitation taught by or obvious in view of the Coca-Cola PET
`
`Can.
`
`- 32 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`
`
`l.
`
`Element [1.K]: “wherein the cross-sectional diameter
`of the first opening to the interior of the container body
`is less than a cross-sectional diameter of a middle
`portion of the container side wall;”
`
`51. The container side wall of the Coca-Cola PET container has a middle
`
`portion, as shown below.
`
`- 33 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`52. As is apparent from the photographs, the cross-sectional diameter of the
`
`first opening to the can is less than the cross-sectional diameter of the middle portion
`
`
`
`of the can.
`
`- 34 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`
`
`m. Element [1.L]: “wherein the base portion defines a
`diameter that is less than the cross-sectional diameter
`of the middle portion of the container side wall;”
`
`53. As is apparent in the photographs of the Coca-Cola PET Can, the base
`
`portion has a diameter that is less than the cross-sectional diameter of the middle
`
`portion.
`
`- 35 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
` sess)
`
`
`
`.meeeeeeeeeeeeeeeeeeee=
`
`/‘
`
`Diameter
`defined by base
`portion
`
`Cross-sectional diameter
`of middle portion of
`containerside wall
`
`
`
`- 36 -
`
`EX-1002 PGR2024-00035
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`n.
`
`Element [1.M]: “wherein a lower portion of the
`container side wall extends downwardly from the
`middle portion of the container side wall to the base
`portion of the container body, the lower portion along
`its entirety being greater in diameter along its entirety
`than the base portion, including the bottom, thereby
`rendering the container body stemless;”
`
`54. The container side wall of the Coca-Cola PET Can has a lower portion
`
`(annotated in yellow) that extends downwardly from the middle portion to the base
`
`portion, as annotated on the photograph below:
`
`
`
`55. This lower portion has, or would be obvious to have, a greater diameter
`
`along its entirety than does the base portion because the lower portion has a
`
`monotonic slope that causes the cross-section to monotonically decrease from an
`
`upper side of the lower portion to the top of the base portion:
`
`- 37 -
`
`EX-1002 PGR2024-00035
`
`

`

`
`
`
`
`56. With respect to the clause, “thereby rendering the container body
`
`stemless,” the ’441 patent does not define a “stem” or what it means for a container
`
`to be “stemless.” This clause is ambiguous, and it is not clear to me whether the
`
`earlier claim limitations are sufficient to make the container body stemless, or
`
`whether the container body must be stemless regardless of the limitations prior to
`
`the “the