BBB S.R.L.

Patent Trials and Appeals Board

Feb 2, 2021

2020002476 (P.T.A.B. Feb. 2, 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.
14/439,821 04/30/2015 Gabriele Bomba 1005.69.FV 6813
11982 7590 02/02/2021
Bay State IP, LLC
10 Post Office Square, Suite 800 South
Boston, MA 02109
EXAMINER
BRADEN, SHAWN M
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
02/02/2021 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):
abruno@baystatepatent.com
gmacinnis@baystatepatent.com
patents@baystatepatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GABRIELE BOMBA and VINCENZO BATTISTA
Appeal 2020-002476
Application 14/439,821
Technology Center 3700
Before BRETT C. MARTIN, CARL M. DeFRANCO, and
BRANDON J. WARNER, Administrative Patent Judges.
MARTIN, 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, 6, and 11. See Final Act. 1. 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 BBB S.r.l. Appeal
Br. 3.
Appeal 2020-002476
Application 14/439,821
2
CLAIMED SUBJECT MATTER
The claims are directed “to a device for the tearing of primary,
secondary or tertiary wrappings.” Spec. 1, ll. 4–5. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. Assembly of a package wrapping sheath with a tearing
device applied to any position of a complete sealed package (1,
2) made with said wrapping sheath, said tearing device
comprising: an adhesive label having a base layer (3) provided
with a first adhesive portion (31, 35, 31') and at least a second
non-adhesive, terminal portion (32, 33, 34, 32', 33'), the second
non-adhesive, terminal portion acting as gripping flap for
imparting a manual traction;
wherein the adhesive label is so arranged as to determine
at least two points of localized application of the stress, or a point
of stress application and a point of reaction to the stress, at a
distance of a few tenths of a millimeter to below a millimeter to
each other on said wrapping sheath, upon applying a traction on
said at least one, non-adhesive, terminal portion;
wherein at least one longitudinal weakening line or
preferred-rupture line (4, 41, 4') is furthermore provided on the
tearing device which crosses at least in part said first portion of
the base layer;
wherein said base layer is made of a material having an
ultimate tensile strength higher than that of said wrapping sheath
and a much lower tensile elongation that that of said wrapping
sheath; and
wherein the package includes a thin plastic film made of a
stretchable material applied to close the package.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Burke US 1,587,280 June 1, 1926
Sheehan US 2002/0157980 A1 Oct. 31, 2002

Appeal 2020-002476
Application 14/439,821
3
REJECTION
Claims 1, 6, and 11, are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Burke in view of Sheehan. Final Act. 2.
OPINION
Obviousness
Appellant argues, inter alia, that the Examiner erred in finding that
Burke discloses a sealed package, stating “that the label disclosed in Burke
is not a tearing device at all, but is a closure and opening means for a non-
sealed package.” Appeal Br. 8–9. According to Appellant, Burke discloses
a label that “is meant to be applied to a folded package and not a sealed
package” and that Burke “does not disclose a tearing device.” Appeal Br. 9.
Appellant is correct on both accounts. As stated in Burke, “the gripped tabs
are drawn apart about the contacted area at the bottom as a fulcrum, thereby
causing the entire wrapper to unfold from the contained article.” Burke, p.
1, ll. 77–81.
In response, the Examiner states that “[t]he device of Burke is clearly
a wrapper and in fig. 2 a user is shown grasping the tabs 8 & 9 and tearing
into the package.” Ans. 7. What is depicted in Burke, however, is the use of
tabs to pull apart a folded edge. There is no tearing of the package and, as
Appellant correctly states, Burke does not disclose a sealed package because
it is simply tin foil wrapped and folded around a product. There is no
weakening point in the package of Burke because it is not a sealed package.
The label in Burke, has weakening points, but the label is simply applied to
what is otherwise an unsealed package.
We further note that Sheehan operates in a different manner than that
claimed. The claims require use of the tabs to pull the packaging apart at a
Appeal 2020-002476
Application 14/439,821
4
weak point, whereas Sheehan uses a strip that is removed entirely, thus,
opening the packaging. The forces applied in Sheehan are completely
different than those recited in the claims and disclosed in Burke. Sheehan
pulls along the seam, while Burke and the claimed invention pull
perpendicular to the seams causing the packaging to pull apart at a weak
point, or in Burke’s case along a folded, unsealed edge. Adding the tabs of
Burke to Sheehan would do nothing for opening the package because even
with tabs, the user would still have to remove Sheehan’s strip to open the
package. At best, tabs applied to Sheehan could be used to further pull apart
what would then be a package that is opened via removal of the strip.
Accordingly, we do not sustain the Examiner’s rejection.
CONCLUSION
The Examiner’s rejection is REVERSED.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 6, 11 103(a) Burke, Sheehan 1, 6, 11

REVERSED