BBB S.R.L.Download PDFPatent Trials and Appeals BoardFeb 2, 20212020002476 (P.T.A.B. Feb. 2, 2021) Copy Citation 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 Copy with citationCopy as parenthetical citation