Albert Lawrence. Baner et al.

Patent Trials and Appeals Board

Oct 9, 2019

14919022 - (D) (P.T.A.B. Oct. 9, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/919,022 10/21/2015 Albert Lawrence Baner 15069-US-NP 1092
69099 7590 10/09/2019
Nestle Purina Petcare Global Resources, Inc
Checkerboard Square
Intellectual Property Patents
ST. LOUIS, MO 63164
EXAMINER
HELVEY, PETER N.
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
10/09/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
purinapatentmail@purina.nestle.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ALBERT LAWRENCE BANER, RUSSELL LEEKER,
and SCOTT WILES

Appeal 2019-002372
Application 14/919,022
Technology Center 3700
____________

Before PHILIP J. HOFFMANN, BRUCE T. WIEDER, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–8 and 16–20. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Nestec, S.A.
Appeal Br. 3.
Appeal 2019-002372
Application 14/919,022

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BACKGROUND
The Specification states that “[t]he present disclosure relates generally
to thermoplastic packages or bags that are triple-folded and sealed by hot air
to provide resistance to insect infestation[,] and methods for making such
packages or bags.” Spec. ¶ 1.

CLAIMS
Claims 1, 16, and 20 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A method for sealing a thermoplastic bag comprising:
forming a first fold in a top end of the bag, the top end of
the bag including a first panel and a second panel;
forming a second fold in the top end comprising the first
fold;
folding the first fold to form a first portion of the first fold
and a second portion of the first fold, the second portion of the
first fold is folded onto the first portion of the first fold; and
heat sealing the first fold and the second fold to each other
and to a portion of the bag that faces the first fold, the heat sealing
comprising applying hot air to the bag.
Appeal Br. 21.
REJECTIONS
1. The Examiner rejects claims 1–6, 8, and 16–20 under 35 U.S.C. § 103 as
unpatentable over Porret2 in view of Schmacher.3

2 Porret et al., US 6,793,392 B1, iss. Sept. 21, 2004.
3 Schmacher, US 5,058,361, iss. Oct. 22, 1991.
Appeal 2019-002372
Application 14/919,022

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2. The Examiner rejects claim 7 under 35 U.S.C. § 103 as unpatentable over
Porret in view of Schmacher and Osborn.4
DISCUSSION
We are persuaded of error in the rejection of each of the independent
claims because the Examiner has not established that the proposed
combination of art would have resulted in the claimed method.
Claim 1 is directed to a method for sealing a thermoplastic bag
including the steps of forming first and second folds in the bag and then
“heat sealing the first fold and the second fold to each other and to a portion
of the bag that faces the first fold, the heat sealing comprising applying hot
air to the bag.” Appeal Br. 21. Similarly, independent claims 16 and 20
require heat sealing first and second folds to each other and to another
portion of the bag. See id. at 24–25. With respect to each of these claims,
the Examiner finds that Porret teaches the claimed methods except that
Porret does not teach heat sealing via hot air, as required by each claim.
Final Act. 3 (citing Porret col. 2, ll. 10–53). However, the Examiner finds
that “Schmacher teaches using hot air as a means to heat seal a bag
closure . . . as claimed.” Id. (citing Schmacher, Abstract). The Examiner
concludes:
Because Porret and Schmacher both teach sealed closures
for the opening of a pouch, it would have been obvious to one of
ordinary skill in the art to substitute the hot air heat sealing steps
taught by Schmacher for the generic welding step taught by
Porret to achieve the predictable result of securely closing the
bag.
Id.

4 Osborn, US 4,850,944, iss. July 25, 1989.
Appeal 2019-002372
Application 14/919,022

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Appellant argues, inter alia, that even if properly combine, the art of
record “would still fail to teach each and every element of the claims.”
Reply Br. 6. For the reasons discussed below, we agree that the Examiner
has failed to establish how the combination of art would result in the claimed
method or why it would have been obvious to arrive at a method as claimed.
The Examiner identifies the following first and second folds in
Porret’s device using an annotation of Figure 1:

Annotated Figure 1 is provided, which is a partial view of Porret’s
Figure 1 showing the portions of element 9, which the Examiner identifies as
the first fold, second fold, first portion, and second portion, as required by
claim 1.
Notably, although the Examiner identifies a first fold and a second
fold in Porret, the cited portion of Porret does not provide a description of
how these elements are sealed. Porret discloses that “the outer closure fold 9
may be supplemented, in order to keep [it] sealed, by any appropriate
welding . . . method or means, generally indicated as 20 in FIG. 1.” Porret,
col. 2, ll. 50–53. Although the Examiner indicates that Porret is relied upon
to teach the claimed sealing site, Porret does not otherwise disclose where
such welding may occur, and Porret does not expressly indicate that such
Appeal 2019-002372
Application 14/919,022

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welding occurs at the identified first and second folds or at a portion of the
bag facing the first fold, as required by claim 1. Thus, although the
Examiner provides a reason for combining Porret with the welding method
of Schmacher, the Examiner fails to show how or why the combination
would result in a method as claimed, i.e., the Examiner does not establish
that the combination would result in a method in which the first and second
folds are sealed to each other and to a portion of the bag that faces the first
fold, or that such a method step would have been obvious.
Based on the foregoing, we are persuaded of error in the rejection of
each of independent claims 1, 16, and 20. For the same reasons, we are
persuaded of error in the rejection of claims dependent claims 2–6, 8,
and 17–19. Further, because the Examiner does not rely on Osborn to cure
the discussed deficiency in the rejection of claim 1, we are also persuaded of
error in the rejection of claim 7. Accordingly, we do not sustain the
rejections of any of claims 1–8 and 16–20.

CONCLUSION
We REVERSE the rejections of claims 1–8 and 16–20.

REVERSED

Claims
Rejected
35 U.S.C. Basis Affirmed Reversed
1–6, 8, 16–20 § 103 Porret,
Schmacher
1–6, 8, 16–20
7 § 103 Porret,
Schmacher,
Osborn
7
Overall
Outcome
1–8, 16–20