In re Schreiber

Stephen Schreiber (plaintiff) filed a patent application covering a device for dispensing popped popcorn. A patent examiner rejected several patent claims in the application, including claim 1. Claim 1 described the invention as a cone-shaped dispensing top with a large opening at one end that attached to a cylindrical container holding popcorn and a smaller opening at the other end that would dispense a few kernels of popcorn when shaken while upside down. The examiner concluded that claim 1 was anticipated by a Swiss patent held by Harz. The Harz patent covered a spout for canisters that was tapered in a conical fashion, with a large opening at one end and a small opening at the other. The patent stated that the spout was useful for dispensing oil from an oil can. The figure of the invention in the Harz patent was very similar to the figure in Schreiber’s patent application. The examiner concluded that the Harz patent disclosed a conical dispensing top that was clearly capable of dispensing popped popcorn and therefore anticipated Schreiber’s patent claim and required that the claim be rejected. Schreiber appealed the examiner’s decision to the United States Patent and Trademark Office’s Board of Patent Appeals and Interferences (board) (defendant). The board upheld the examiner’s determination. Schreiber then filed suit in the United States Court of Appeals for the Federal Circuit, seeking review of the board’s decision.