AMCOR FLEXIBLES, INC

Patent Trials and Appeals Board

Sep 22, 2021

2021002380 (P.T.A.B. Sep. 22, 2021)

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.
13/677,475 11/15/2012 Katherine Isobel Diviesti AMCOR-020-US 3075
30482 7590 09/22/2021
AMCOR FLEXIBLES NORTH AMERICA, INC.
Office of Intellectual Property Counsel
P.O. Box 669
Neenah, WI 54957
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
09/22/2021 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):
legal@amcor.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KATHERINE ISOBEL DIVIESTI,
JESSE BLAKE, and ADAM JAN DWORAK

Appeal 2021-002380
Application 13/677,475
Technology Center 3700
____________

Before JOHN C. KERINS, EDWARD A. BROWN, and
BRANDON J. WARNER, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–14, 16, 17, and 31–36. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies AMCOR FLEXIBLES LLC as the real
party in interest. Appeal Br. 3.
Appeal 2021-002380
Application 13/677,475

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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a sterilizable pouch. Claim 1 is
illustrative, and is reproduced below:
1. A sterilizable pouch comprising:
front and back sheets, each of a flexible, continuous film joined
to each other along opposite side and bottom edges to define a
pouch having an interior space for receiving an article therein,
said front sheet comprising a multilayer film having a first outer
layer defining an outer surface of the pouch, and a second outer
heat seal layer defining an inner surface of the pouch that is
heat sealed to an opposing surface of the back sheet;
an opening formed in said front sheet and being spaced apart
from said opposite side and bottom edges, the opening for
providing communication between an exterior environment of
the pouch and said interior space;
a breathable material overlying and covering said opening, and
being joined to an outer surf ace of said front sheet with a
continuous heat seal, said breathable material comprising an
uncoated fibrous material that is impervious to microorganisms,
but pervious to gases;
wherein said front sheet includes a layer having a peel feature
such that the breathable material can be peelably removed from
said outer surface without tearing of the breathable material;
and
wherein the first outer layer has a lower melting threshold than
the second outer heat seal layer.

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Application 13/677,475

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THE REJECTION
The Examiner rejects claims 1–14, 16, 17, and 31–36 under 35 U.S.C.
§ 103(a) as being unpatentable over Mori (JP 2010-268967 A, published
Dec. 2, 2010)2 in view of Christopherson (US 5,965,254, issued Oct. 12,
1999).

ANALYSIS
The Examiner finds that Mori discloses a number of the limitations set
forth in claim 1, including a breathable material that is peelably removable
from an outer surface of a front sheet, but fails to teach (1) a breathable
material comprising an uncoated fibrous material; (2) a front sheet
comprising a multilayer film made up of a first outer layer defining the outer
surface of the pouch and a second outer heat seal layer defining an inner
surface of the pouch, with the front sheet having a peel feature; and (3) the
first outer layer having a lower melting threshold than the second outer heat
seal layer. Final Act. 3–4.
The Examiner turns to Christopherson as teaching:
an improved film structure which avoids stringing when the
breathable material is removed from the flexible film layer . . .
[which] comprises a multilayer film having a first outer layer
(1) of a polymer material having a low melting threshold that
defines an outer surface of the flexible film structure and a layer
(2) having a peel feature, the layers of the multilayer film being
configured such that the breathable material can be peelably

2 Citations and discussion herein relative to Mori are directed to the English-
language translation dated June 12, 2017, which is of record in the
application.
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Application 13/677,475

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removed from the outer surface of the flexible film layer
without tearing of the breathable material.
Id. at 4. The Examiner additionally finds that Christopherson discloses that
the two specified layers of the multilayer film are additionally capable of
being present as additional layers on a wide variety of polymeric films, by
either adhering them directly thereto or by using a tie layer, so that the heat
seal layer forms an external surface of the resulting multilayer film. Id. at
4–5, citing Christopherson, col. 5, ll. 44–64.
The Examiner concludes that it would have been obvious to modify
Mori with the improved material structure taught by Christopherson so as to
provide a breathable material comprising an uncoated fibrous material, and
to include, as additional layers to the outer Mori film layer, a multilayer film
structure constructed in accordance with Christopherson, “in order to form
an improved sterilizable pouch which avoids the production of fibrous
particles and prevents contamination of the pouch and its contents during
removal of the breathable material.” Final Act. 5, 19. The Examiner further
explains that “[t]he 103 rejection of Mori in view of Christopherson is
intended to produce an improved structure which specifically locates the
point of failure away from the uncoated breathable material so as to ensure
that stringing and contamination is prevented.” Ans. 5.
Appellant argues that there is no recognition in Mori that its polymer-
coated or polymer-containing breathable material would pose any problem
in terms of generating particles or contamination, or stringing, as the
material is pulled from the film to which it is adhered. Appeal Br. 14–15.
Thus, according to Appellant, the reason articulated by the Examiner for
modifying Mori does not exist in the cited prior art for coated breathable
material, but instead relies entirely on improper hindsight reconstruction. Id.
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Appellant also argues that the Examiner has not established that, even if the
proposed combination were brought into effect, the resulting structure would
have a first outer layer that has a lower melting threshold than the second
outer heat seal layer, as claimed. Appeal Br. 15–16; Reply Br. 10.
Appellant additionally argues, inter alia, that the Examiner
misinterprets the teachings of Christopherson, in that Christopherson does
not imply that the two layers described therein would be applied to the
exterior of an existing outer heat sealable layer, such as in Mori, as proposed
by the Examiner. Id. at 15. Appellant avers that, instead, once an uncoated
nonwoven or paper sheet is adhered to the heat seal layer, the heat seal layer
“is intended to end up as a layer on the inside of a package,” and, “[i]f
anything, it is the so-called wide variety of polymeric films, e.g., base layer
of Christopherson[,] that would end up on the outside of a package.” Id.,
citing to a Declaration of Roy Christopherson Under 37 C.F.R. § 1.132,
dated March 23, 2018, made of record previously. Appellant additionally
quotes from Declarations by Brian Ingraham and Adam Dworak, to the
effect that, in the films of Christopherson, heat seal layer 1 would not define
an outer surface of the bag, rather, base layer 3 would form an outer surface
of the bag. Id. at 13.
As to these latter contentions regarding the Christopherson disclosure,
we find that the statements of Declarants Christopherson, Ingraham, and
Dworak are simply not credible. We reproduce below Figures 2 and 3 of
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Christopherson, in which the reference numerals identify the films and
layers as follows:
1 - heat seal layer
2 - peelable intermediate layer
3 - base layer
4 - heat seal area
A - film consisting of 1, 2, and 3
B - sheet of paper (peelable breathable material)

Depicted above are Figures 2 and 3 of Christopherson, which are schematic
side or sectional views of the construction of a heat seal layer, a peelable
intermediate layer, and a base layer.
Although Mr. Christopherson’s testimony is largely couched in terms
of what was contemplated or envisioned, it is directly at odds with the actual
disclosure pointed to by the Examiner that “the two specified layers [heat
seal layer and intermediate layer] can merely be adhered directly to the
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surface of such a film [one further polymeric layer] so that the heat seal
layer forms an external surface of the resulting multilayer film.”
Christopherson, col. 5, ll. 49–52. Appellant’s attempt to explain that the
reference to the heat seal layer being external is so that it is to “be available
for sealing to an uncoated nonwoven or paper sheet,” is unavailing. The
identification of an “intermediate layer” joined to the heat seal layer already
connotes the order or position of the two layers, i.e., the intermediate layer is
positioned between the heat seal layer and the film to which the two layers
would be joined. Thus, prior to package formation with a back panel or the
like, the heat seal layer would be understood to be an external surface of the
film, even without specific mention thereof. Most significantly, were heat
seal layer 1 the internal surface of the package, and not the external surface,
and were base layer 3 to form the outer surface of the bag or package, as
affirmatively asserted by Messrs. Ingraham and Dworak, such an
arrangement would result in a package in which the sheet of paper or other
fibrous material, intended to be peeled off by a user, would also be at the
interior of the bag or package, and inaccessible to the user without opening
the package elsewhere. Such a construction appears nonsensical.
Appellant’s other arguments fare better. The argument directed to the
absence of rational underpinnings in the articulated reason to modify Mori is
persuasive of error in the rejection. Appellant is correct that Mori at least
inferentially addresses any potential problem associated with stringing or
contaminants being loosed as a fibrous material is peeled from a package,
either by coating the entire fibrous material or by coating the portion of the
fibrous material that is bonded to the package, with a polymeric material.
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The Examiner does not demonstrate how modifying Mori with the
Christopherson construction would better address the problem.
In addition, although the Examiner states that Christopherson
“provides clear teaching and motivation” to use a material with a higher melt
temperature together with its heat seal layer 1 and peelable layer 2, we do
not see any such clear teaching. Further, the Examiner is proposing to apply
layers 1 and 2 to the front panel in Mori (which then corresponds to the
claimed second outer heat seal layer), and does not point to evidence that the
Mori front panel necessarily has a higher melting threshold than heat seal
layer 1 of Christopherson, as would be required to meet the claim.
Accordingly, we do not sustain the rejection of claim 1 as being
unpatentable over Mori and Christopherson. The Examiner employs the
same rationale in rejecting independent claims 8, 12, and 36, and the
rejection is not sustained as to those claims as well. The rejection is also not
sustained as to the dependent claims that are also currently pending.

CONCLUSION
The rejection of claims 1–14, 16, 17, and 31–36 under 35 U.S.C.
§ 103(a) is reversed.

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–14, 16,
17, 31–36
103(a) Mori,
Christopherson
1–14, 16,
17, 31–36

REVERSED