Darius Maseiker et al.

Patent Trials and Appeals Board

Sep 4, 2019

13469114 - (D) (P.T.A.B. Sep. 4, 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.
13/469,114 05/11/2012 Darius MASEIKER 30376 9313
535 7590 09/04/2019
KF ROSS PC
311 E York St
Savannah, GA 31401-3814
EXAMINER
PLESZCZYNSKA, JOANNA
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
09/04/2019 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):
savannah@kfrpc.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DARIUS MASEIKER and JOCHEN BRAUER
____________

Appeal 2018-007654
Application 13/469,114
Technology Center 1700
____________

Before LINDA M. GAUDETTE, JAMES C. HOUSEL, and
BRIAN D. RANGE, Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL

Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 15–24. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.2

STATEMENT OF THE CASE
The invention relates to a film laminate provided with a tear line for
use in a tear-open package. Spec. 1:4–6.

1 Appellants identify Nordenia Deutschland Haue GmbH as the real party in
interest (Br. 1).
2 Our Decision refers to the Specification (“Spec.”) filed May 11, 2012,
Appellant’s Appeal Brief (“Br.”) filed July 8, 2017, and the Examiner’s
Answer (“Ans.”) dated May 3, 2018.
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Claim 15, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal (paragraphing added to
improve readability).
15. A laminate for a tear-open package, the laminate comprising
an inner heat-sealable polyethylene film and
an outer laser-cuttable polymer film laminated thereto,
the outer polymer film being formed with at least one linearly
extending laser scoring extending transversely at least partially
through a thickness of the outer polymer film and formed by removal
of material of the outer polymer film by heat from a laser beam that
also embrittles material of the polyethylene film at the laser scoring,
the polyethylene inner film being formed with a perforation line
along and in alignment with the laser scoring in the material
embrittled by the laser scoring,
the perforation line being comprised of a row of cuts spaced
along the scoring and separated by webs extending across the scoring,
the cuts being formed by cutting and extending transversely at least
partially through a thickness of the polyethylene inner film without
removal of material therefrom.

REJECTIONS
The Examiner maintains, and Appellants request our review of, the
following grounds of rejection under 35 U.S.C. § 103(a):
1. Claim 15 as unpatentable over Shinozaki3 in view of Huffer;4
2. Claims 15, 16, 18–20, 23, and 24 as unpatentable over Stoppelmann5
in view of Huffer;

3 Shinozaki et al., US 2010/0290723 A1, published November 18, 2010
(“Shinozaki”).
4 Huffer et al., US 2011/0038569 A1, published February 17, 2011
(“Huffer”).
5 Stoppelmann et al., US 2007/0284032 A1, published December 13, 2007
(“Stoppelmann”).
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3. Claim 17 as unpatentable over Stoppelmann in view of Huffer and
Kujat;6 and
4. Claims 21 and 22 as unpatentable over Stoppelmann in view of Huffer
and Otsuka.7

ANALYSIS
After review of the Examiner’s and Appellants’ opposing positions,
the applied prior art, and Appellants’ claims and Specification, we determine
that the Appellants’ arguments are insufficient to identify reversible error in
the Examiner’s obviousness rejections. In re Jung, 637 F.3d 1356, 1365
(Fed. Cir. 2011). Accordingly, we affirm the stated obviousness rejections
for substantially the fact findings and the reasons set forth by the Examiner
in the Examiner’s Answer. We offer the following for emphasis only.

Rejection 1
The Examiner finds that Shinozaki teaches a laminate comprising an
inner heat-sealable polyethylene film and an outer polymer film, the outer
film being formed with at least one linearly extending laser scoring
extending transversely at least partially through its thickness and the inner
film comprising a perforation line formed in alignment with the laser
scoring. Ans. 3–4. The Examiner further finds that although Shinozaki
teaches the perforation line comprises a row of cuts extending at least
partially through the inner film thickness, Shinozaki fails to teach that this
row of cuts include cuts separated by webs extending across the scoring. Id.
at 4. For this feature, the Examiner finds that Huffer teaches a laminate

6 Kujat, US 2011/0033133 A1, published February 10, 2011 (“Kujat”).
7 Otsuka et al., US 5,312,659, issued May 17, 1994 (“Otsuka”).
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having a perforation line comprised of a row of cuts separated by webs in
order to allow for controlled opening of a package made from the laminate.
Id. The Examiner concludes that it would have been obvious to form
Shinozaki’s perforation line as a row of cuts separated by webs to enable
control of tear-opening of Shinozaki’s laminate package. Id. at 4–5.
Moreover, although the Examiner also finds that Shinozaki fails to explicitly
teach that the inner polyethylene film is embrittled by the laser beam at the
laser scoring, the Examiner finds that such would have been inherent in
Shinozaki’s embodiments in which the intermediate layer is omitted because
Shinozaki’s laser scoring process and inner polyethylene film are the same
process and material Appellants use. Id. at 4.
Appellants argue that Shinozaki fails to teach a row of perforations,
instead teaching a scored portion formed by a number of shallow grooves.
Br. 7. Appellants urge that a perforation is a through-going hole or “a hole,
or one of a series of holes, bored or punched through something.” Id.
Appellants also assert that Shinozaki teaches that the scored portion may be
formed so as not to reach the intermediate layer and is randomly formed and
positioned. Id. Moreover, Appellants argue that neither Shinozaki nor
Huffer teaches the three-way combination of a laser groove in the outer film
or layer, a row of cuts through the inner film or layer along the laser score
line,8 and embrittlement of the inner layer along the laser score line. Id. at
8–9. Appellants contend that the combination of Shinozaki and Huffer lacks
the feature that the formation of the laser scoring or groove in the outer layer

8 Appellants argue “a row of cuts through both layers at the score line.” Br.
8. We note none of the claims on appeal recite that the row of cuts extends
through any film or layer other than the inner polyethylene film.
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embrittles the adjacent inner layer. Id. at 9. Appellants also contend that
embrittlement cannot be presumed due to the presence of a thick
intermediate layer in Shinozaki. Id. at 7.
These arguments are not persuasive of reversible error. To begin, we
note Appellants argue Shinozaki and Huffer individually, rather than as
applied in the Examiner’s proposed combination of these two references. In
re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references. . . .
[The reference] must be read, not in isolation, but for what it fairly teaches
in combination with the prior art as a whole.”)
In addition, as the Examiner responds (Ans. 10), Appellants’ proffered
definition of “perforation” is inconsistent with claim 15 which recites that
the cuts extend transversely “at least partially through a thickness of the
polyethylene inner film.” See In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993) (rejecting appellants’ nonobviousness argument as based on
limitation not recited in claim); In re Self, 671 F.2d 1344, 1348 (CCPA
1982) (“Many of appellant’s arguments fail from the outset because, as the
solicitor has pointed out, they are not based on limitations appearing in the
claims.”). Indeed, we also note that Shinozaki teaches that the scored
portion may be formed using a metallic processing cutter which would
produce a cut or cuts in the film. Further, the Examiner relies on Huffer for
teaching a row of cuts separated by webs as known in the art. Appellants
fail to address this latter aspect of the Examiner’s rejection.
Turning next to the embrittlement feature recited in claim 15,
Appellants’ argument fails to persuade us of reversible error in the
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Examiner’s finding that this feature is inherent in Shinozaki. Appellants
disclose that the laser groove or scoring is made by a laser beam in the outer
layer such that a large part of the thickness of the cover layer is removed in
the area of the scoring. Spec. 5:3–6. Appellants further disclose that “[a]t
the same time, a slight embrittlement occurs in the remaining laminate
material, in particular also in the adjoining sealing [inner] layer.” Id. at 5:6–
8. This disclosure implies that a slight embrittlement occurs in the
remaining laminate material, including the intermediate layer and the inner
layer, due to the laser scoring process. As the Examiner finds, Shinozaki
teaches the same laser scoring process and uses the same material for the
inner film or layer. In addition, we note that, like Shinozaki, Appellants’
laminate may include a metallized polymer intermediate film between the
inner and outer film. Compare Spec. 6:10–17 and claim 18, with Shinozaki
¶¶ 52, 53. Thus, Appellants’ argument that Shinozaki’s laser process would
not inherently form an embrittlement in the inner polyethylene film due to
the presence of the intermediate layer is inconsistent with the Specification
and claims.
Accordingly, we sustain the Examiner’s obviousness rejection based
on the combination of Shinozaki and Huffer.
Rejection 2
Appellants argue the claims subject to this rejection as a group. In
accordance with 37 C.F.R. § 41.37(c)(1)(iv), we select claim 15 to address
Appellants’ arguments. The remaining claims stand or fall with claim 15.
The Examiner finds that Stoppelmann teaches a laminate comprising
an inner heat-sealable polyethylene film and an outer polymer film, the outer
film being formed with at least one linearly extending laser scoring
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extending transversely at least partially through its thickness. Ans. 5.
Although the Examiner acknowledges that Stoppelmann fails to explicitly
teach that the inner polyethylene film is embrittled by the laser beam at the
laser scoring, the Examiner finds that such would have been inherent in
Stoppelmann because Shinozaki’s laser scoring process and inner
polyethylene film are the same process and material Appellants use. Id. The
Examiner further acknowledges that Stoppelmann fails to teach that the
inner film comprises a perforation line formed in alignment with the laser
scoring. Id. However, the Examiner finds that Huffer teaches a laminate
having a perforation line comprised of a row of cuts separated by webs in
order to allow for controlled opening of a package made from the laminate.
Id. at 6. The Examiner concludes that it would have been obvious to form a
perforation line as a row of cuts separated by webs in alignment with
Stoppelmann’s laser scoring to enable control of tear-opening of Shinozaki’s
laminate package. Id.
Appellants argue that Stoppelmann fails to teach either embrittlement
or a perforation line in the inner film. Br. 10. As to Huffer, Appellants
argue that this reference merely teaches that perforations are known in
plastic films and that Stoppelmann does not suggest perforating the inner
film. Id. at 11.
Appellants’ arguments are not persuasive of reversible error. Again,
we note that Appellants argue the references individually, rather than for
what they teach or suggest to one of ordinary skill in the art in combination.
See Merck, 800 F.2d at 1097. We also note that Appellants fail to address
the Examiner’s inherency finding with regard to the embrittlement feature.
To the extent that Appellants’ arguments raised against the inherency
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finding of Rejection 1 apply here, those arguments are likewise not
persuasive for the reasons given above. Finally, as the Examiner finds (Ans.
12–13), Huffer provides a rationale for adding a perforation line comprising
a row of cuts, namely that the row of cuts would allow for controlled
opening of a package made from the laminate. Appellants do not dispute or
otherwise address this rationale.
Accordingly, we sustain the Examiner’s obviousness rejection based
on the combination of Stoppelmann and Huffer.
Rejection 3
Claim 17 depends from claim 15, and further requires that the outer
polymer film is composed of an oriented polyamide, an oriented
polypropylene, or a biaxially oriented polypropylene.
The Examiner acknowledges that Stoppelmann, as modified in view
of Huffer, fails to teach that the outer polymer film is composed of one of
the materials recited in claim 17. Ans. 7–8. The Examiner finds
Stoppelmann teaches that the outer film can be polyester. Id. at 8.
However, the Examiner finds that Kujat teaches a packaging bag comprising
a laminate having an outer layer consisting of polyester, biaxially oriented
polypropylene, or an oriented polyamide. Id. Therefore, the Examiner
concludes that, given Kujat’s teaching that biaxially oriented polypropylene
and oriented polyamide are known alternatives to polyester as the outer film
of a packaging bag laminate, it would have been obvious to substitute
Stoppelmann’s polyester outer film with either biaxially oriented
polypropylene or an oriented polyamide. Id.
Appellants argue that the Examiner’s rejection is based on an
“unsupported statement of interchangeability.” Br. 11. We disagree.
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Kujat’s listing of biaxially oriented polypropylene and an oriented
polyamide, along with polyester, as alternative materials for the outer film of
a laminate is a clear suggestion that any of these materials may be used as
alternatives with a reasonable expectation of success. Appellants fail to
otherwise challenge this finding with either persuasive technical reasoning
or evidentiary showing.
Accordingly, we sustain the Examiner’s obviousness rejection based
on the combination of Stoppelmann, Huffer, and Kujat.
Rejection 4
Claim 21 depends from claim 15, and further requires that the outer
polymer film has a second laser scoring adjacent to the laser scoring and the
inner film is mechanically intact below the second laser scoring so that the
second laser scoring forms an intercept line.
Claim 22 depends from claim 21, and further requires that the laser
scorings are transversely spaced by less than 2 mm.
The Examiner acknowledges that Stoppelmann, as modified in view
of Huffer, fails to teach the features of claims 21 and 22. Ans. 8. However,
the Examiner finds that Otsuka teaches a laminate comprising a second laser
scoring adjacent a first laser scoring to impart ease of tearing the laminate,
wherein the scoring lines may have different structures. Id. The Examiner
concludes that it would have been obvious to provide Stoppelmann’s
laminate with an additional laser scoring line forming an intercept line to
control tearing of the laminate. Id. at 8–9.
Appellants argue that Otsuka merely describes scoring in the outer
layers and does not suggest a perforation line in the inner layer. Br. 12.
This argument is not persuasive because the rejection does not rely on
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Otsuka to teach a perforation line. Appellants fail to challenge or otherwise
address the Examiner’s findings regarding Otsuka or the Examiner’s
obviousness conclusion based thereon.
Accordingly, we sustain the Examiner’s obviousness rejection based
on the combination of Stoppelmann, Huffer, and Otsuka.

DECISION
Upon consideration of the record, and for the reasons given above and
in the Examiner’s Answer, the decision of the Examiner rejecting claims 15–
24 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED