Ex Parte 7922614 et al

Patent Trials and Appeals Board

Aug 30, 2018

95002200 - (D) (P.T.A.B. Aug. 30, 2018)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
90/012,374 06/22/2012 7,922,614 B2 469506.10026 8487
27526 7590 08/31/2018
HUSCH BLACKWELL LLP
4801 Main Street, Suite 1000
KANSAS CITY, MO 64112
EXAMINER
GRAHAM, MATTHEW C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
08/31/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

CP PACKAGING, LLC
Appellant, Third Party Requester1
v.
Patent of MULTIVAC, INC.
Respondent, Patent Owner
________________

Appeal 2018-002978
Inter partes Reexamination Control 95/002,200
Ex parte Reexamination Control 90/012,374
Patent US 7,922,614 B22
Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, BRETT C. MARTIN and
JON M. JURGOVAN, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

NEW DECISION UNDER 37 C.F.R. § 41.77(f)

1 CP Packaging, LLC, of Appleton, Wisconsin is the real party in
interest. CP Packaging is also identified as the Third Party Requester in the
“Request for Inter partes Reexamination,” dated September 12, 2012, in
Reexamination Control Number 95/002,220.
2 Issued April 12, 2011 to Ivo Ruzik and Elmar Ehrman (the “’614
patent”). The ’614 patent issued from Appl. 11/990,186. Pages 1 and 2 of
the “Patent Owner’s Respondent Brief,” dated October 30, 2014, identifies
stayed litigation involving the ’614 patent.
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SUMMARY 1
We specifically WITHDRAW the new grounds of rejection entered 2
against claims 1, 21 and 23 in our Final Decision, mailed May 19, 2016 3
(“Prior Board Decision”). 4
We enter NEW GROUNDS OF REJECTION against claim 21 under 5
pre-AIA 35 U.S.C. § 112, second paragraph, for indefiniteness. 6
We enter NEW GROUNDS OF REJECTION against claims 1 and 21 7
under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over either Lovas 8
(US 3,303,628, issued Feb. 24, 1967) or Hepner (US 3,029,007, issued Apr. 9
10, 1962) and Petershack (US 4,353,459, issued Oct. 12, 1982). 10
We AFFIRM the Examiner’s decision not to adopt the remaining 11
grounds of rejection proposed by the Requester in this proceeding, albeit, in 12
some instances, for reasons other than those articulated by the Examiner. 13
14
PROCEDURAL HISTORY, JURISDICTIONAL STATEMENT AND 15
ISSUES 16
This is an appeal in a merged reexamination proceeding combining 17
Inter partes Reexamination Control 95/002,200 and Ex parte Reexamination 18
Control 90/012,374. In the Prior Board Decision, the Board reversed the 19
Examiner’s decision favorable to the patentability of claims 1, 21 and 23; 20
and entered new grounds of rejection against those claims under pre-AIA 35 21
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U.S.C. § 102(e)3 as being anticipated by Buchko ʼ114 (US 7,575,114 B2, 1
issued Aug. 18, 2009).4 In addition, the Board affirmed the Examiner’s 2
decision not to adopt proposed rejections of claims 5–7 and 24. The Board 3
did not reach the remaining grounds of rejection proposed by the Requester 4
against claims 1, 21 and 23. 5
In the wake of the Prior Board Decision, the Patent Owner filed 6
“Patent Owner’s Response to the May 19, 2016 Decision on Appeal and 7
Request to Reopen Prosecution,” dated June 8, 2016 (“Request to Reopen” 8
or “Req. Reopen”). The Request to Reopen sought to amend claims 1, 21 9
and 23 to overcome the new grounds of rejection. The Requester, in 10
“Appellant and Third Party Requester CP Packaging, LLC’s Comments on 11
Patent Owner’s Request to Reopen Prosecution,” dated July 13, 2016 12
(“Requester’s Comments on the Request to Reopen” or “Req’r Comm. on 13
Req. Reopen”), opposed the re-opening of prosecution. The amendments to 14
claims 1, 21 and 23 were entered, and the proceeding was remanded to the 15
Examiner, in an “Order Remanding Inter partes Reexamination to the 16

3 Because the ʼ614 patent issued from an application filed prior to
March 16, 2013, the claims of the patent are subject to review for
compliance with pre-AIA standards of patentability. See Leahy-Smith
America Invents Act, PL 112-29, 125 Stat. 284, § 3(n)(1) (uncodified).
4 “Buchko ʼ114” was referred to merely as “Buchko” in the Prior Board
Decision.
A section title on page 8 of the Prior Board Decision incorrectly
indicated that a new ground of rejection was entered against claim 24. The
accompanying text correctly indicated that the new grounds of rejection
were entered only against claims 1, 21 and 23.
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Examiner under 37 C.F.R. § 41.77(d),” mailed April 6, 2017 (“Order 1
Reopening Prosecution”). 2
The Requester also proposed new grounds of rejection of amended 3
claims 1, 21 and 23 in the Requester’s Comments on the Request to Reopen. 4
Although it does not say so expressly, 37 C.F.R. § 41.77(c) permitted the 5
Requester to include in the comments “new evidence and arguments directed 6
towards amended or new claims if necessitated by [P]atent [O]wner’s 7
submission under 37 CFR 41.77(b)(1).” MANUAL OF PATENT EXAMINING 8
PROCEDURE § 2682 II.B.2. (Aug. 2017). Hence, 37 C.F.R. § 41.77(c) 9
authorized the Requester to propose the new rejections. 10
In an “Examiner’s Determination pursuant to 37 C.F.R. 41.77(d),” 11
mailed July 5, 2017 (“Determination”), the Examiner “determine[d] that . . . 12
amendments to claims 1, 21 and 23 on [June 8, 2016] by the Patent Owner 13
[overcame] the PTAB’s new ground of rejection as being anticipated by 14
Buchko [ʼ114].” (Determination 3). Having reached that determination, the 15
Examiner did not address new grounds of rejection proposed in the 16
Requester’s Comments on the Request to Reopen. The Requester responded 17
to the Determination with the “Appellant and Third Party Requester CP 18
Packaging, LLC’s Comments on Examiner’s Determination,” dated August 19
7, 2017 (“Req’r Comm. on Determination”). The Patent Owner responded 20
with “Patent Owner’s Reply to Third Party Requester’s Comments on the 21
Examiner’s Determination,” dated September 7, 2017 (“PO Reply to Req’r 22
Comm. on Determination”). 23
The proceeding has returned to the Board for issuance of a New 24
Decision under 37 C.F.R. § 41.77(f). Because this merged proceeding 25
includes an inter partes reexamination requested prior to September 16, 26
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2012, we have jurisdiction to review the Examiner’s determination, as well 1
as the Examiner’s silence regarding the proposed new grounds of rejection 2
against claims 1, 21 and 23, as decisions favorable to the patentability of the 3
claims. See pre-AIA 35 U.S.C. § 134(c); pre-AIA 35 U.S.C. § 315(b); 4
Leahy-Smith America Invents Act, PL 112-29, 125 Stat. 284, §§ 6(c)(2)(A) 5
& 7(e)(2) (uncodified). A New Decision “is deemed to incorporate the 6
earlier decision, except for those portions specifically withdrawn.” 37 7
C.F.R. § 41.77(f). 8
Claim amendments entered during the course of a reexamination are 9
reviewed for compliance with the requirements of pre-AIA 35 U.S.C. § 112. 10
See 37 C.F.R. § 1.552(a). The Requester proposes new grounds of rejection 11
against claim 21 under the first paragraph of § 112 for indefiniteness; and 12
against claims 1, 21 and 23 under the first paragraph of § 112 for lack of 13
written description and non-enablement. (See Req’r Comm. on Req. Reopen 14
5–12; Req’r Comm. on Determination 25–31). We address the proposed 15
new grounds of rejection as the First Issue, Second Issue and Third Issue, 16
respectively, to be discussed in this opinion. Pursuant to our authority under 17
37 C.F.R. § 41.77(b), we enter NEW GROUNDS OF REJECTION against 18
claim 21 under § 112, second paragraph, for failure to particularly point out 19
and distinctly claim the subject matter regarded as the invention. We 20
SUSTAIN the Examiner’s decision not to adopt the proposed rejections of 21
claims 1, 21 and 23 under the first paragraph of § 112, albeit for reasons 22
different than those of the Examiner. 23
We address the new grounds of rejection entered in the Prior Board 24
Decision as the Fourth Issue to be discussed in this opinion. We adopt the 25
findings of the Examiner on pages 3 and 4 of the Determination, including 26
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the Examiner’s finding that Buchko ʼ114 does not anticipate claims 1, 21 1
and 23. Based on these findings, we WITHDRAW the new grounds of 2
rejection entered in the Prior Board Decision. 3
In the Prior Board Decision, we did not reach proposed rejections of 4
claims 1, 21 and 23 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable 5
over Buchko ʼ114 in view of either Natterer (US 4,601,421, issued July 22, 6
1986) or Hamilton (US 3,524,298, issued Aug. 18, 1970); alone or further in 7
view of either Webster (US 6,896,125 B2, issued May 24, 2005), 8
Petershack, Case (US 2, 971,392, issued Feb. 14, 1961), Casgrain (US 9
538,895, issued May 7, 1895) or St. Louis (US 389,179, issued Sept. 4, 10
1888); once again, alone or even further in view of Weisgerber (5,056,773, 11
issued Oct. 15, 1991), Frenker-Hackfort (US 4,747,261, issued May 31, 12
1988), Strickland (US 4,082,007, issued Apr. 4, 1978) or Wolfelsperger (US 13
3,610,501, issued Oct. 5, 1971). (Prior Board Decision 3 & 4; see also 14
“Appellant and Third Party Requester CP Packaging’s Appeal Brief,” dated 15
Sept. 11, 2014 (“Req’r App. Br.”), at 25–38; “Patent Owner’s Respondent 16
Brief,” dated Oct. 30, 2014 (“PO Resp. Br.”), at 21–27; “Appellant and 17
Third Party Requester CP Packaging’s Rebuttal Brief,” dated Jan. 20, 2015 18
(“Req’r Reb. Br.”), at 16–21). Because we now withdraw the new grounds 19
of rejection entered against claims 1, 21 and 23 under § 102(e), we address 20
these alternative grounds of rejection now as the Fifth Issue to be discussed. 21
See Smith & Nephew, Inc. v. Hologic, Inc., 721 Fed. Appx. 943, 949 (Fed. 22
Cir. 2018). We retain the jurisdiction to address these proposed grounds of 23
rejection under pre-AIA 35 U.S.C. § 134(c); pre-AIA 35 U.S.C. § 315(b); 24
and the Leahy-Smith America Invents Act, PL 112-29, 125 Stat. 284, 25
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§§ 6(c)(2)(A) & 7(e)(2) (uncodified). We SUSTAIN the Examiner’s 1
decision not to adopt these proposed grounds of rejection. 2
At the same time that the Patent Owner filed the Request to Reopen, 3
the Requester sought rehearing of the Prior Board Decision in the “Appellant 4
and Third Party Requester CP Packaging, LLC’s Request for Rehearing,” 5
dated June 20, 2016. The Patent Owner responded in “Patent Owner’s 6
Comments in Opposition to Third Party Requester’s Request for Rehearing,” 7
dated July 18, 2016. The Requester argues that the Board overlooked 8
arguments that claims 5–7 and 24 of the ʼ614 patent are anticipated by, or 9
would have been obvious from, Buchko ʼ114. We need not address these 10
arguments separately, as they are moot in view of our finding that Buchko 11
ʼ114 fails to anticipate amended, parent claims 1 and 23; and our conclusion 12
that the subject matter of amended claims 1 and 23 would not have been 13
obvious from the combined teachings of Buchko ʼ114 and either Natterer or 14
Hamilton. On this basis, we DENY the Requester’s request for rehearing. 15
The Requester proposes new grounds of rejection against claims 1, 21 16
and 23 under § 103(a) as being unpatentable over any one of Hepner; Lovas; 17
Hamilton; Rogiers (US 3,653,175, issued Apr. 4, 1972); Jezuit (US 18
3,767,349, issued Sept. 24, 1971); Buchko ʼ611 (US 5,170,611, issued Dec. 19
15, 1992); or Canamero (US 3,773,235, issued Nov. 20, 1973) in view of 20
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one or more of Petershack; Wehner (US 3,282,121, issued Nov. 1, 1966);5 1
Grevich (US 4,336,680, issued June 29, 1982); Buchko ʼ114; Arnold (US 2
3,868,053, issued Feb. 25, 1975); Dove (US 4,072,260, issued Feb. 7, 2978); 3
Blidung (US 4,650,453, issued Mar. 17, 1987); and Aiuola (US 4,774,796, 4
issued Oct. 4, 1988).6 5
We address the proposed rejections of claims 1 and 21 as unpatentable 6
over Lovas or Hepner in view of Petershack as the Sixth Issue to be 7
discussed in this opinion. Pursuant to our authority under 37 C.F.R. 8
§ 41.77(b), we enter NEW GROUNDS OF REJECTION against claims 1 9
and 21 under § 103(a) as being unpatentable over the combined teachings of 10
Lovas or Hepner and Petershack. 11
We address the proposed rejections of claims 1 and 21 as unpatentable 12
over Lovas or Hepner in view of Wehner as the Seventh Issue to be 13

5 During the original prosecution of Application US 11/990,186 (“ʼ186
application”), the application which issued as the ʼ614 patent, the Examiner
rejected part of the then-pending claims under § 102(b) as being anticipated
by Wehner. (See Non-Final Office Action, mailed Aug. 17, 2010, at 3). The
Patent Owner rewrote allowed claims in independent form; and either
cancelled or changed the dependency of the rejected claims to secure
allowance. (See “Amendment under 37 C.F.R. § 1.111,” dated Oct. 5,
2010). The Examiner did not reject any claims in the ʼ186 application under
§ 103(a) as being unpatentable over any combination of references including
Wehner. Therefore, the rejections proposed by the Requester under § 103(a)
over combinations of references including Wehner are properly before us in
this proceeding.
6 We limit our review to those claims subject to new grounds of
rejection in the Prior Board Decision, namely, claims 1, 21 and 23. We will
not re-open this reexamination proceeding with respect to those claims as to
which we sustained the Examiner’s decision not to adopt proposed grounds
of rejection, namely, claims 5–7 and 24.
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discussed in this opinion. We SUSTAIN the Examiner’s decision not to 1
adopt the proposed rejection of claims 1 and 21 under § 103(a) as being 2
unpatentable over Lovas or Hepner and Wehner, albeit for reasons different 3
than those of the Examiner. 4
We address the proposed rejections of claims 1 and 21 as unpatentable 5
over Hamilton, Rogiers, Jezuit, Buchko ʼ611 or Canamero in view of either 6
Petershack or Wehner as the Eighth Issue to be discussed in this opinion. 7
We SUSTAIN the Examiner’s decision not to adopt these proposed grounds 8
of rejection, albeit for reasons different than those of the Examiner. 9
We address the proposed rejections of claims 1, 21 and 23 as 10
unpatentable over Lovas in view of one or more of Grevich, Arnold and 11
Blidung as the Ninth Issue to be discussed in this opinion. Pursuant to our 12
authority under 37 C.F.R. § 41.77(b), we enter NEW GROUNDS OF 13
REJECTION against claims 1, 21 and 23 under § 103(a) as being 14
unpatentable over the combined teachings of Lovas and either Grevich or 15
Arnold. We SUSTAIN the Examiner’s decision not to adopt the proposed 16
rejection of claims 1, 21 and 23 under § 103(a) as being unpatentable over 17
Lovas and Blidung, albeit for reasons different from those of the Examiner. 18
We address the proposed rejections of claims 1, 21 and 23 as 19
unpatentable over Hamilton, Hepner, Rogiers, Jezuit, Buchko ʼ611 or 20
Canamero in view of one or more of Grevich, Arnold and Blidung as the 21
Tenth Issue and Eleventh Issue to be discussed in this opinion. We 22
SUSTAIN the Examiner’s decision not to adopt these proposed rejections, 23
albeit for reasons different from those of the Examiner. 24
We address the proposed rejections of claims 1, 21 and 23 as 25
unpatentable over Hamilton, Hepner, Lovas, Rogiers, Jezuit, Buchko ʼ611 or 26
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Canamero in view of one or more of Dove and Aiuola as the Twelfth Issue to 1
be discussed in this opinion. We SUSTAIN the Examiner’s decision not to 2
adopt these propose rejections, albeit for reasons different from those of the 3
Examiner. 4
Finally, we address the proposed rejections of claims 1, 21 and 23 as 5
unpatentable over Grevich in view of Hamilton as the Thirteenth Issue to be 6
discussed in this opinion. We SUSTAIN the Examiner’s decision not to 7
adopt this propose rejection, albeit for reasons different from those of the 8
Examiner. 9
10
THE CLAIMED SUBJECT MATTER 11
The ’614 patent teaches a packaging machine 25 such as a 12
thermoforming machine for wrapping comestibles in a packaging film 29. 13
The packaging machine 25 includes a link chain 31 with grippers for 14
gripping the packaging film; drawing the film off of a roll; and transporting 15
the packaging film to a processing station. (ʼ614 patent, col. 1, ll. 8–18 & 16
38–41; col. 5, ll. 11–21; & Fig. 9). The ’614 patent also teaches that the 17
articulations between individual rigid links of prior art chains formed gaps 18
that collected dirt and were difficult to clean. The articulations between the 19
links also required lubrication. The combination of collected dirt and 20
lubrication interfered with efforts to maintain the level of hygiene necessary 21
to safely package comestibles. (ʼ614 patent, col. 1, ll. 19–34). The ʼ614 22
patent addresses the problem by providing a chain of alternating rigid chain 23
links and flexible chain links, with grippers that are included with the rigid 24
links. (ʼ614 patent, col. 1, ll. 42–59). 25
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Claims 1, 21 and 23 are independent. All three claims still at issue in 1
this appeal are reproduced below. Claim language present in the claims as 2
last amended on April 30, 2014 (that is, language present in the claims at the 3
time of the Prior Board Decision), but deleted in the amendments entered 4
with the Request to Reopen, is struck out below. Language added to the 5
claims in the amendments entered with the Request to Reopen, is underlined. 6
Claim 1. A packaging machine having a chain for transport 7
of a continuous packaging film material, wherein the chain has a 8
series of successive rigid chain links, connected to one another 9
in a movable manner, and flexible chain links provided between 10
the rigid chain links, the flexible chain links being fixed to the 11
rigid chain links, wherein one or more of the rigid chain links 12
include clamping units for clamping the packaging film wherein 13
the gripping a portion of the continuous packaging film and thus 14
transporting the gripped portion of the continuous packaging 15
film through a plurality of work stations of the packaging 16
machine by a movement of the chain, wherein the gripped 17
portion of the continuous packaging film is in a substantially 18
horizontal plane, wherein a plurality of the rigid chain links 19
further comprising one or more downwardly extending guide 20
elements for resisting movement of the chain and the clamped 21
gripped portion of the continuous packaging film material in a 22
direction transverse to a direction of travel of the chain, and the 23
packaging machine having a guide rail wherein said guide 24
elements engage said guide rail. 25
Claim 21. A packaging machine having a chain for 26
transporting a continuous food packaging film through a 27
plurality of work stations of the packaging machine, wherein the 28
chain has a series of successive rigid chain links connected to one 29
another in a movable manner, and flexible chain links provided 30
between the rigid chain links and are fixed to the rigid chain 31
links, and wherein at least some of the rigid chain links include 32
a clamping unit for clamping the, each clamping unit having a 33
pair of opposing clamping lips for gripping a portion of the 34
continuous food packaging film, the packaging machine further 35
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comprising a guide rail, and wherein at least some of the rigid 1
links having a pair of opposing downwardly extending legs 2
configured to engage the guide rail to substantially prevent 3
displacement of the chain and the gripped portion of the 4
continuous food packaging film in a direction substantially 5
transverse to a direction of travel of the chain, wherein the chain 6
transports the gripped portion of the continuous food packaging 7
film through the plurality of workstations of the thermoforming 8
packaging machine by a movement of the chain. 9
Claim 23. A packaging machine having a chain for 10
transporting a continuous food packaging film through a 11
plurality of work stations of the packaging machine, wherein the 12
chain has a plurality of flexible chain links and a plurality of rigid 13
chain links, the flexible chain links provided between the rigid 14
chain links, the flexible chain links being fixed to the rigid chain 15
links, wherein the rigid chain links are in successive series and 16
are connected to one another in a movable manner, wherein the 17
chain comprises a continuous flexible traction element and the 18
rigid chain links are clamped on the continuous flexible traction 19
element, wherein the regions of the flexible traction element in-20
between the rigid chain links are the flexible chain links, wherein 21
at least some of the rigid chain links include a clamping unit for 22
clamping the packaging film, each clamping unit having a pair 23
of opposing lips for gripping a portion of the continuous 24
packaging film as the gripped portion of the continuous 25
packaging film is transported through the plurality of 26
workstations of the packaging machine, and wherein one or more 27
of the rigid chain links further comprising one or more 28
downwardly extending guide elements for resisting movement of 29
the chain and the clamped gripped portion of the continuous 30
packaging film material in a direction transverse to a direction of 31
travel of the chain, and the food packaging machine having a 32
guide rail wherein said guide elements engage said guide rail. 33
Our findings regarding the written disclosure of the ʼ614 patent appear later. 34
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FINDINGS OF FACT 1
We find the following by a preponderance of the evidence. See 2
Rambus Inc. v. Rea, 731 F.3d 1248, 1255 (Fed. Cir. 2013); Ethicon, Inc. v. 3
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988). 4
5
The Disclosure of the ʼ614 Patent 6
1. The ’614 patent teaches a packaging machine 25 such as a 7
thermoforming machine for wrapping comestibles in a packaging film 29. 8
The packaging machine 25 includes a link chain 31 with grippers for 9
gripping the packaging film; drawing the film off of a roll; and transporting 10
the packaging film to a processing station. (ʼ614 patent, col. 1, ll. 8–18 & 11
38–41; col. 5, ll. 11–21; & Fig. 9). 12
2. Figure 9 of the ʼ614 patent schematically depicts a 13
thermoforming packaging machine 25. (See ʼ614, col. 3, ll. 47 & 48.) 14
The thermoforming packaging machine 25 includes a plurality of work 15
stations 26–28; and the chain 31 for transporting a packaging film 29 16
through the work stations. (ʼ614 patent, col. 5, ll. 11–13 & 18–21). Within 17
the packaging machine 25, “[c]avities 30 are formed, in the forming station 18
26, from a film 29 which is drawn off from a roll. Once the cavities 30 have 19
been filled, they are sealed in the sealing station [27] and separated from one 20
another in the cutting station 28.” (ʼ614 patent, col. 5, ll. 13–17). The chain 21
31 “transports the film 29, with the cavities 30 formed therein, up to the 22
discharge belt 36 of the machine.” (ʼ614 patent, col. 5, ll. 19–21). 23
3. According to an embodiment depicted in Figures 4–6 of the 24
ʼ614 patent, a chain 14 includes rigid chain links 15 including pairs of 25
opposed side plates 18 connected by cylindrical transverse pins 17. Strip-26
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like, flexible chains links 16 connect transverse pins 17 of adjacent rigid 1
chain links 15 to form an endless loop. (See ʼ614 patent, col. 4, ll. 23–37). 2
The ʼ614 patent teaches that this arrangement facilitates cleaning and 3
improves hygiene by eliminating narrow gaps between adjacent chain 4
elements. (See ʼ614 patent, col. 1, ll. 42–53). Within the packaging 5
machine 25, as depicted in Figure 8, portions of the side plates 18 extend 6
downwardly into engagement with a guide rail 23 to resist movement of the 7
chain 14 and the gripped portion of the film 29 in a direction transverse to a 8
direction of travel of the chain. (See ʼ614 patent, col. 5, ll. 3–10). 9
4. According to another embodiment depicted in Figures 1 and 2, 10
a chain 1 includes a continuous flexible metal strip. The chain 1 includes 11
segments 2 including portions 21, 22 punched and folded over to define rigid 12
chain links; and regions defining flexible chain links 4 between the folded 13
over segments 2. (See ʼ614 patent, col. 3, ll. 52–63 & Fig. 2). The folded 14
portions 22 of the rigid links 2 mount clamping units 9. The downwardly-15
extending folded portions 21, 23 engage a guide rail 23 to resist movement 16
of the chain 1 and the gripped portion of the film 29 in a direction transverse 17
to a direction of travel of the chain. (See ʼ614 patent, col. 4, ll. 55–62 & Fig. 18
7). 19
20
Buchko ʼ114 21
5. Buchko ʼ114 does not anticipate claim 1, claim 21 or claim 23. 22
6. Buchko ʼ114 describes a linear motion reciprocating vacuum 23
packaging system 100 for use in evacuating and sealing plastic bags pre-24
filled with comestibles. The system 100 includes a conveyor 102 and 25
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evacuation chambers 116a, 116b, 116c. (See Buchko ʼ114, col. 3, l. 66 – 1
col. 4, l. 4; col. 4, ll. 29–31; col. 18, ll. 7–16 & 57–61; & Fig. 1). 2
7. The conveyor 102 described in Buchko ʼ114 includes a flexible 3
conveyor belt 218 wrapped around pulleys 212, 214. One of the two pulleys 4
212, 214 is driven to move the conveyor belt below the evacuation chambers 5
116a, 116b, 116c. (See Buchko ʼ114, col. 6, ll. 16–23; col. 18, ll. 17–21; & 6
Figs. 1, 12 & 19). 7
8. The flexible conveyor belt 218 may be either single-sectioned 8
or multi-sectioned. (See Buchko ʼ114, col. 6, ll. 43–46). If the flexible belt 9
218 is multi-sectioned, clamps 220 splice the sections of the belt together. 10
(See Buchko ʼ114, col. 6, ll. 36–42; col. 8, ll. 49–59; & Figs. 16–18). 11
Whether the flexible belt 218 is single-sectioned or multi-sectioned, the 12
clamps 220 also serve to tighten the flexible conveyor belt 218 around the 13
pulleys 212, 214. (See Buchko ʼ114, col. 8, ll. 39–44). 14
9. Buchko ʼ114 does not appear to describe the materials from 15
which the flexible conveyor belt 218 and the clamps 220 are made. 16
10. Platens 108 support the pre-filled bags as the bags move along 17
the conveyor 102. (See Buchko ʼ114, col. 2, ll. 5–7; col. 18, ll. 7–21; and 18
Figs. 3, 16 & 17). Each platen 108 is fastened to one of the clamps 220. 19
(See Buchko ʼ114, col. 7, l. 63 – col. 8, l. 7). The clamps 220 and the 20
platens 108 combine to form integral, rigid bodies (see, e.g., Buchko ʼ114, 21
Figs. 16 & 18). 22
11. As the Requester points out (see Req’r Comm. on Req. Reopen 23
36), Buchko ʼ114 identifies problems with the use of chains for mounting 24
conveying member, such as platens: 25
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A conveyor with individual conveying members, such as platens, 1
typically utilizes a chain or the like that carries the conveying 2
members. While this construction provides satisfactory 3
operation, use of a chain in a conveyor results in certain 4
drawbacks. For example, a chain will stretch over time due to 5
wear in the components of the chain, which detracts from 6
performance and requires periodic maintenance. Conveyor belts 7
have been developed that eliminate belt stretch, typically by 8
incorporating flexible, non-stretchable materials such as 9
Kevlar®. 10
(Buchko ʼ114, col. 1, ll. 18–27). Having made this point, Buchko ʼ114 then 11
points out a drawback to the use of conveyor belts: “However, a conveyor 12
belt typically requires the use of a belt tensioner to tighten the belt onto the 13
rotatable members of the conveyor. Furthermore, there is not a known 14
satisfactory means for mounting individual conveying members to a 15
conveyor belt.” (Buchko ʼ114, col. 1, ll. 27–31). Buchko ʼ114 addresses the 16
latter problem by using the clamps 220, which act as belt tensioners, to 17
mount the platens 108 on the flexible belt 218. (See Buchko ʼ114, col. 6, ll. 18
43–55; col. 7, l. 63 – col. 8, l. 7; & Fig. 14). 19
12. Each platen 108 includes platen guide blocks 268 attached to a 20
front end and a back end of a bottom surface of the platen. Each platen 21
guide block has a slot 270. (See Buchko ʼ114, col. 8, ll. 10–15 & Fig. 14). 22
13. The support frame 110 of the system 100 described by Buchko 23
ʼ114 mounts a pair of guide rails 272. The guide rails 272 engage the slots 24
270 in the platen guide blocks 268 to restrain the platens 108 to travel in a 25
straight line along the length of the system 100. (See Buchko ʼ114, col. 8, ll. 26
12–19 & Fig. 16). 27
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14. Each of the platens 108 also includes a clamp and seal member 1
278 rigidly attached to a top surface of the platen. (See Buchko ʼ114, col. 8, 2
ll. 32–38; col. 17, ll. 11–17; & Fig. 13). 3
15. Each evacuation chamber 116a, 116b, 116c rigidly mounts an 4
upper bag sealing member 710 on its underside. When a platen 108 aligns 5
with one of the evacuation chambers 116a, 116b, 116c, the upper bag 6
sealing member 710 mounted by the evacuation chamber aligns with the 7
clamp and seal member 278 mounted by the platen. (See Buchko ʼ114, col. 8
17, ll. 11–17 & 22–28; & Fig. 33). 9
16. During a packaging operation conducted on the system 100 10
described by Buchko ʼ114, the platens 108 position the pre-filled bags under 11
the evacuation chambers 116a, 116b, 116c. (See Buchko ʼ114, col. 18, ll. 7–12
16). When one of the evacuation chambers 116a, 116b, 116c pivots 13
downwardly onto one of the platens 108, the evacuation chamber and the 14
platen cooperate to form an evacuated space around the bag. (See Buchko 15
ʼ114, col. 18, ll. 34–43 & Fig. 36). The vacuum drawn in this evacuated 16
space draws any air from the bag. 17
17. When one of the evacuation chambers 116a, 116b, 116c pivots 18
downwardly onto one of the platens 108, the upper bag clamp member 710 19
mounted on the underside of the evacuation chamber presses the open end of 20
the bag against the clamp and seal member 282 of the platen 108. As such, 21
the clamp and seal member 278 is designed for clamping the plastic film at 22
the open end of the bag in place on the platen 108. (See Buchko ʼ114, col. 23
17, ll. 22–28 & Fig. 41). 24
18. While the film at the open end of the bag is clamped in place on 25
the top surface of the platen 108, a heated seal bar 552 and a knife 556 act 26
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against heat seal strip 706 of the clamp and seal member 278 to seal the bag 1
and trim any excess film from the sealed end. (See Buchko ʼ114, col. 16, ll. 2
16–24; col. 18, ll. 43–50; & Figs. 42 & 43). 3
19. The Examiner correctly finds that the platens 108 and the 4
evacuation chambers 116a, 116b, 116c described by Buchko ʼ114 are not 5
capable of transporting a continuous packaging film. (See Determination 3). 6
As mentioned earlier, Buchko ʼ114 describes a linear motion reciprocating 7
vacuum packaging system 100 for use in evacuating and sealing plastic bags 8
pre-filled with comestibles. (See Buchko ʼ114, col. 18, ll. 7–16). The 9
system 100 is not designed to either convert or transport continuous 10
packaging film. (See Determination 3; see also Req. Reopen 8; Prior Board 11
Decision 18, ll. 10 & 11). The Requester has not identified any evidence or 12
technical reasoning explaining how the platens 108 and the evacuation 13
chambers 116a, 116b, 116c might be capable of transporting a continuous 14
packaging film. 15
20. Indeed, the Requester does not appear to challenge the 16
Examiner’s finding that the platens 108 and the evacuation chambers 116a, 17
116b, 116c described by Buchko ʼ114 are not capable of transporting a 18
continuous packaging film. The closest that the Requester appears to have 19
come to challenging this finding is the conclusory assertion that “it would 20
have been obvious to a person of skill in the art to substitute a sheet of 21
packaging film in lieu of preformed packaging bags or receptacles.” (Req’r 22
App. Br. 24 & 25). Such an argument does not persuade us that the 23
Examiner’s finding that the platens 108 and the evacuation chambers 116a, 24
116b, 116c described by Buchko ʼ114 are incapable of transporting a 25
continuous packaging film is in error. 26
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21. Therefore, Buchko ʼ114 does not describes a system including 1
“clamping units for clamping the packaging film wherein the gripping a 2
portion of the continuous packaging film and thus transporting the gripped 3
portion of the continuous packaging film through a plurality of work stations 4
of the packaging machine by a movement of the chain,” as recited in claim 5
1; a “chain [that] transports the gripped portion of the continuous food 6
packaging film through the plurality of workstations of the thermoforming 7
packaging machine by a movement of the chain,” as recited in claim 21; or 8
clamping units, “each clamping unit having a pair of opposing lips for 9
gripping a portion of the continuous packaging film as the gripped portion of 10
the continuous packaging film is transported through the plurality of 11
workstations of the packaging machine,” as recited in claim 23. 12
13
Hamilton 14
22. Hamilton describes an automatic package forming apparatus for 15
packaging comestibles such as stacks of luncheon meat in evacuated, 16
hermetically sealed cup-like packages formed from continuous packaging 17
films. (See Hamilton, col. 1, ll. 13–28 (Abstract) & 53–56; see also id., col. 18
4, ll. 26–39). Hamilton’s machine is a thermoforming machine. 19
23. Hamilton’s packaging machine includes sprockets 22, 24 20
mounting a pair of endless side-by-side chains 26. (See Hamilton, col. 2, ll. 21
28–32 & Fig. 2). As depicted in Figures 3–5, the chains 26 are roller chains 22
of conventional construction, including successive chain links in the form of 23
alternating pairs of inner and outer side plates held together by pins. (Cf. 24
Weisgerber, col. 4, ll. 4–8; & Figs. 2 & 3 (describing conventional roller 25
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chains); Wolfelsperger, col. 2, ll. 42–49; & Figs. 1 & 2 (describing 1
conventional roller chains)). 2
24. Hamilton’s chain links also include spring-loaded clips 36 for 3
gripping side edge portions of a packaging film 30 dispensed from a roll 28. 4
(See Hamilton, col. 2, ll. 35–38 & 41–47). Each clip 36, as depicted in 5
Figures 4–6, includes an upper finger 38 rigidly coupled to an outer plate of 6
one of the chains 26. In addition, each clip 36 includes a lower finger 40 7
pivotally connected to the corresponding upper finger 38. As depicted in 8
Figures 4–6, a torsion spring 42 biases each lower finger 40 against a 9
downturned end of the corresponding upper finger 38. (See Hamilton, col. 10
2, ll. 48–60). 11
25. Hamilton’s packaging machine also includes a forming station 12
50 and a package finishing station 124. (See Hamilton, col. 2, l. 70 – col. 3, 13
l. 3; col. 3, ll. 24–26 & 55–63; col. 4, ll. 26–39; & Fig. 2). The clips 36 grip 14
the side edge portions of the packaging film 30 such that the motion of the 15
chains 26 over the sprockets 22, 24 transports the gripped side edge portions 16
of the film through the forming and package finishing stations 50, 124. 17
26. As the packaging film 30 is dispensed from the roll 28, discs 46 18
mounted near the chains 26 separate the upper and lower fingers 38, 40 of 19
the clips 36 to receive the side edges of the film. (See Hamilton, col. 2, ll. 20
61–69 & Fig. 4). As each clip 36 moves past the discs 46, the torsion spring 21
42 of the clip biases the lower finger 40 against the downturned portion of 22
the upper finger 38 to grip the side edge of the film 30. As depicted in 23
Figure 3, the entire portion of the packaging film 30 lying between opposing 24
clips 36, including the side edge portions gripped by the opposing clips, lies 25
in a substantially horizontal plane. 26
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27. Guides 27 partially surround the links of the chains 26 to resist 1
lateral movement of the chains as the clips 36 conduct the packaging film 30 2
through the machine. (See Hamilton, col. 2, ll. 41–44; & Figs. 3 & 4). As 3
depicted in Figures 3 and 4, the guides 27 are “C”-shaped in contour. 4
Portions of the side plates of the chain links extending upwardly and 5
downwardly relative to the pins or rollers embrace upper and lower lips of 6
the “C”-shaped contour in a manner likely to restrain lateral movement of 7
the chain relative to the machine direction. The downwardly extending 8
portions of the side plates constitute downwardly extending guide elements 9
engaging a guide rail in the form of the lower lip of the “C”-shaped contour 10
of the guide 27 for resisting movement of the chains 26 and the gripped 11
portions of the continuous packaging film in a direction transverse to a 12
direction of travel of the chain, as recited in claim 1. (Compare Hamilton, 13
Figs. 3 & 4 with ʼ614 patent, Fig. 8 (depicting and embodiment of 14
downwardly extending guide elements within the scope of claim 1); see also 15
FF 3). 16
28. When a portion 30a of the packaging film 30 drawn from the 17
roll 26 and conducted through the machine by the opposing clips 36 reaches 18
the forming station 50, the portion is heated by a heating plate 74 and then 19
drawn by a vacuum into a cavity of a forming die 76 to form a cup-like 20
receptacle or pocket (“cup”) 100. (See Hamilton, col. 3, ll. 32–42 & 55–63; 21
& Fig. 7). In addition, the film 30 is slit, as at reference numeral 112 in 22
Figure 7, by a slitting knife 108 at a location immediately forward of the cup 23
100 in the machine direction. (See Hamilton, col. 3, l. 73 – col. 4, l. 9). 24
29. Once each cup 100 is formed in the forming station 50, the 25
chains 26 advance the clips 36 to conduct the film 30 to position each cup 26
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beneath a loading conveyor 116 to fill the cup with the product to be 1
packaged. The chains 26 then move the film 30 to advance the cup 100 2
toward the package finishing station 124. As each cup 100 passes beneath a 3
roll 120, the roll applies a second plastic film 122 over the open end of the 4
cup. (See Hamilton, col. 4, ll. 26–39 & Fig. 2). 5
30. At the package finishing station 124, each cup 100A is received 6
in a sealing die cavity 148 in a sealing die 146. A top clamp 150 clamps the 7
portion of the second plastic film 122 overlying the cup 100A against the 8
sides of the cup. (See Hamilton, col. 4, ll. 56–65 & Fig. 8). The cup 100A is 9
then evacuated through the slit 112 in the film 30 and a vertical evacuation 10
passageway 154. (See Hamilton, col. 5, ll. 3–8 & Fig. 8). As the cup 100A 11
is evacuated, a heat seal is formed between the cup and the portion of the 12
second plastic film 122 overlying the cup. (See Hamilton, col. 5, ll. 36–42 & 13
Fig. 8). 14
31. Once each cup 100 is evacuated and sealed, the chains 26 15
advance the clips 36 to conduct the film 30 to advance the next cup 100A in 16
line to the package finishing station. As the next cup 100A in line is 17
evacuated, a serrated knife 168 in the forward wall 170 of the sealing die 18
146 separates the finished cup 100 from the packaging film 30. (See 19
Hamilton, col. 5, ll. 20–25 & Fig. 8). 20
32. The packaging film 30 constitutes a web or sheet that remains 21
connected, at least along edge portions peripheral to the cups 100 and the 22
slits 112, from the time that it is dispensed from the roll 28 until it is cut by 23
the knife 168 in the forward wall 170 of the package finishing station 124. 24
Although the film 30 is slit at the forming station 50, Hamilton’s teaching 25
that finished packages are separated by the knife 168 at the forward end of 26
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the package finishing station 124 indicates that the slits 112 do not separate 1
precursors of individual packages. Therefore, Hamilton’s chains 26 and 2
clips 36 transport a continuous packaging film 30 through a plurality of 3
stations 50, 124. 4
33. The Abstract of Hamilton uses the word “continuous” to 5
describe the webs of plastic packaging material exemplified by films 30, 6
122. (See Hamilton, col. 1, ll. 13–28). Since both films 30, 122 remain 7
connected until cut by the serrated knife 168, Hamilton’s usage of the term 8
is evidence that the ordinary meaning of the word “continuous,” as applied 9
to a packaging film, encompasses webs or sheets that remain connected 10
through a portion of the machine. Hamilton does not use the adjective 11
“continuous” to describe any endless loop of packaging material. 12
34. Hamilton does not describe: 13
A packaging machine having a chain for transport of a 14
continuous packaging film, wherein the chain has a series of 15
successive rigid chain links connected to one another in a 16
movable manner, and flexible chain links provided between the 17
rigid chain links, the flexible chain links being fixed to the rigid 18
chain links, 19
as recited in claim 1. Neither does Hamilton describe: 20
A packaging machine having a chain for transporting a 21
continuous food packaging film through a plurality of work 22
stations of the packaging machine, wherein the chain has a series 23
of successive rigid chain links connected to one another in a 24
movable manner, and flexible chain links provided between the 25
rigid chain links and are fixed to the rigid chain links, 26
as recited in claim 21. Likewise, Hamilton does not describe: 27
A packaging machine having a chain for transporting a 28
continuous food packaging film through a plurality of work 29
stations of the packaging machine, wherein the chain has a 30
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Patent US 7,922,614 B2

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plurality of flexible chain links and a plurality of rigid chain 1
links, the flexible chain links provided between the rigid chain 2
links, the flexible chain links being fixed to the rigid chain links, 3
. . . wherein the chain comprises a continuous flexible traction 4
element and the rigid chain links are clamped on the continuous 5
flexible traction element, wherein the regions of the flexible 6
traction element in-between the rigid chain links are the flexible 7
chain links, 8
as recited in claim 23. 9
10
Natterer 11
35. Natterer describes a deep-drawing packaging machine 1. (See 12
Natterer, col. 2, ll. 29–31 & Fig. 1). We take Official Notice that a deep-13
drawing packaging machine is a type of thermoforming packaging machine. 14
36. Natterer’s packaging machine 1, shown in schematic form in 15
Figure 1, includes sprocket wheels 10, 11 mounting a pair of chains 8, 9. 16
(See Natterer, col. 2, ll. 45–48 & Fig. 1). As depicted in Figures 3–6, one 17
embodiment of the chain 8 is a conventional roller chain including 18
successive chain links in the form of alternating pairs of inner and outer side 19
plates held together by pins or bolts 14. 20
37. Natterer’s chain links also include spring-loaded clamps 12 for 21
gripping side edge portions of a packaging film 4 dispensed from a reel 3. 22
(See Natterer, col. 2, ll. 31–44, 52 & 53; & Figs. 3 & 4). The clamps 12, as 23
depicted in Figures 4–6, include fixed clamping members 13 and moveable 24
clamping members 15 biased toward the fixed clamping members by 25
compression springs 23. The fixed clamping members having fixed 26
clamping jaws 131. The movable clamping members 15 include movable 27
clamping jaws 151 having edges 153 extending toward the fixed clamping 28
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members 13 to grip the packaging film 4 between the edges 153 and notches 1
138 in the fixed clamping jaws 131. (See Natterer, col. 2, l. 53 – col. 3, l. 5 2
& Figs. 3–6). 3
38. Figures 3–5 of Natterer depict the links of the chain 8 engaging 4
the teeth of the sprocket 10. Figures 3 and 5 depict side plates of the chain 8 5
engaging sides of the teeth of the sprocket 10. 6
7
Hepner 8
39. Hepner describes an automatic package forming apparatus for 9
packaging products in molded plastic “bubble” packages formed from 10
continuous packaging films. (See Hepner, col. 1, ll. 9–20; col. 4, ll. 53–59; 11
& Fig. 2). Hepner’s machine is a thermoforming machine, at least in the 12
sense that it preheats and then vacuum forms sections of a packaging film to 13
produce pockets or cavities into which products may be filled for packaging. 14
(See Hepner, col. 5, ll. 48–63 (steps (b)–(e))). 15
40. Hepner’s packaging machine includes a pair of endless chain 16
loops 75 driven by a pair of drive sprockets 76. As depicted in Figures 13, 17
15, 16, 18, 28 & 32, the drive sprockets 76 rotate about vertical axes. (See 18
Hepner, col. 7, ll. 44–55 & col. 8, ll. 37–42). 19
41. Hepner’s chain loops 75 include resilient clips for gripping side 20
edge portions of a packaging film 13 dispensed from a roll 14. (See Hepner, 21
col. 8, l. 62 – col. 9, l. 5; see also id., col. 4, ll. 60–65 & Fig. 2). The clips, 22
as depicted in Figures 14–17, include spring fingers 121, 122 rigidly coupled 23
to brackets 115, 116. The spring fingers 121, 122 each terminate in jaw 24
portions 125, 126 with alternately disposed teeth 127, 128. Cam portions 25
123, 124 of the spring fingers 121, 122 bias the jaw portions 125, 126 26
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toward each other so as to capture side edges of the packaging film 13. (See 1
Hepner, col. 8, ll. 24–36 & Figs. 13–17). As depicted in Figures 13, 15–18, 2
28 & 32, the entire portion of the packaging film 13 lying between opposing 3
clips, including the side edge portions gripped by the opposing clips, lies in a 4
substantially horizontal plane. 5
42. Hepner’s chain loops 75 also include links connecting the 6
brackets 115, 116, and, thus, the resilient clips, in endless loops. As 7
depicted in Figures 14–16, these links include pairs of side plates. Pins 8
pivotally couple ends of the side plates to corresponding ends of the brackets 9
115, 116 to join the brackets and the side plates in an endless loop. The 10
pins, in turn, mount rollers positioned between the side plates that engage 11
the teeth of the drive sprockets 76. (Cf. Hepner, col. 8, ll. 24–29 & 42–50). 12
43. Hepner’s packaging machine also includes a forming press 24 13
for preheating and vacuum forming the packaging film 13; a printing unit for 14
printing indicia on a closure sheet 27 dispensed from a roll 26; and a sealing 15
press 29 for bonding the closure sheet over the package cavities formed in 16
the packaging film. (See Hepner, col. 5, l. 48–56 & 64–74 (steps (b), (c) & 17
(f)–(h)); see generally id., col. 9, l. 17 – col. 10, l. 59 (description of the 18
forming press); col. 11, l. 18 – col. 12, l. 19 (description of the printing unit); 19
col. 12, l. 22 – col. 13, l. 36 (description of the sealing press); & Figs. 2 & 20
18–30). At least the forming press 24 and the sealing press 29 define 21
stations within the packaging machine. The clips included in the chains 75 22
grip the side edge portions of the packaging film 13 such that the motion of 23
the chains driven by the drive sprockets 76 transports the gripped side edge 24
portions of the film through the plurality of stations defined by the forming 25
press 24 and the sealing press 29. (See Hepner, col. 8, l. 70 – col. 9, l. 5). 26
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44. The endless chain loops 75 are positioned in tracks 11, 12 that 1
extend from the drive sprockets 76 to the opposite end of the packaging 2
machine. Each track 11, 12 includes a supporting beam 102 that mounts a 3
chain guide plate 101. (See Hepner, col. 8, ll. 5–14 & Fig. 15). As depicted 4
in Figure 15, the horizontally-extending side plates of the chain links 5
connecting the clips engage upper and lower side surfaces of the chain guide 6
plate 101. The rollers mounted on the pins of the chain links roll across the 7
vertical end surfaces of the chain guide plate 101. Inner ends of the spring 8
fingers 121, 122 carry small, vertically-extending rectangular slide blocks 9
117, 118 positioned within channels 113, 114 recessed into the upper surface 10
of the supporting beams 102 to provide additional guidance for the chain 11
loops 75 as the chain loops move along the tracks 11, 12. (See Hepner, col. 12
8, ll. 14–19 & 24–29). 13
45. The clips described by Hepner, including the spring fingers 14
121, 122 and the brackets 115, 116 depicted in Figures 14–16, are “rigid 15
chain links,” as that term is used in claims 1, 21 and 23. As the Requester 16
correctly points out, the small rectangular slide blocks 118 are guide 17
elements extending downwardly from the rigid chain links, that is, from the 18
spring fingers 122. (See Req’r Comm. on Req. Reopen 16). The term 19
“guide rail,” as used in claims 1, 21 and 23, reads on Hepner’s supporting 20
beams 102, or at least those portions of each support beams between the 21
channels 114. The “downwardly extending guide elements,” that is, the 22
small rectangular slide blocks 118, engage the “guide rails,” that is, the 23
portions of the support beams 102 between the channels 114, to resist 24
movement of the chains 75 in any direction substantially transverse to the 25
length of the tracks 11, 12. 26
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46. Hepner’s endless chain loops 75 and clips transport the 1
continuous packaging film 13 through a plurality of stations 24, 29. (See 2
Hepner, col. 4, ll. 53–59). The packaging film 13 remains connected until 3
die cut by a punch press 31 of a die cutting unit. (See Hepner, col. 13, ll. 4
39–46 & Figs. 2, 27 & 32). 5
47. Hepner uses the word “continuous” to describe the “narrow 6
strip 13 of sheet plastic material” conducted through the machine by the 7
endless chain loops 75. (See Hepner, col. 4, ll. 53–59). Hepner’s usage of 8
the term is evidence that the ordinary meaning of the word “continuous,” as 9
applied to a packaging film, encompasses webs or sheets that remain 10
connected until cut at the die cutting station. Hepner does not use the 11
adjective “continuous” to describe any endless loop of packaging material. 12
48. Hepner does not describe: 13
A packaging machine having a chain for transport of a 14
continuous packaging film, wherein the chain has a series of 15
successive rigid chain links connected to one another in a 16
movable manner, and flexible chain links provided between the 17
rigid chain links, the flexible chain links being fixed to the rigid 18
chain links, 19
as recited in claim 1. Neither does Hepner describe: 20
A packaging machine having a chain for transporting a 21
continuous food packaging film through a plurality of work 22
stations of the packaging machine, wherein the chain has a series 23
of successive rigid chain links connected to one another in a 24
movable manner, and flexible chain links provided between the 25
rigid chain links and are fixed to the rigid chain links, 26
as recited in claim 21. Likewise, Hepner does not describe: 27
A packaging machine having a chain for transporting a 28
continuous food packaging film through a plurality of work 29
stations of the packaging machine, wherein the chain has a 30
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plurality of flexible chain links and a plurality of rigid chain 1
links, the flexible chain links provided between the rigid chain 2
links, the flexible chain links being fixed to the rigid chain links, 3
. . . wherein the chain comprises a continuous flexible traction 4
element and the rigid chain links are clamped on the continuous 5
flexible traction element, wherein the regions of the flexible 6
traction element in-between the rigid chain links are the flexible 7
chain links, 8
as recited in claim 23. 9
10
Lovas 11
49. Lovas describes a packaging machine 100 for packaging 12
products in pockets or cavities formed in composite plastic films. (See 13
Lovas, col. 7, ll. 22–49 & Fig. 2). Lovas’s machine is a thermoforming 14
machine, at least in the sense that the machine heats and then vacuum forms 15
a lower plastic web 200 drawn from a lower web roll 107 to form the 16
pockets or cavities. (See Lovas, col. 7, ll. 50–59 & Fig. 5). One object of 17
Lovas’s disclosure is “to provide a packaging machine wherein [the] lower 18
web in which the package pockets or cavities are vacuum formed is 19
supported at its marginal edges only, substantially throughout its travel.” 20
(Lovas, col. 1, ll. 62–66; see also id., col. 10, ll. 61–71). 21
50. Lovas’s packaging machine includes two pairs of sprockets, 22
namely, chain drive sprockets 203 near the discharge end of the machine and 23
take-up sprockets 212 near the lower web roll 107. The sprockets 203, 212 24
mount a pair of endless chains 202. (See Lovas, col. 9, ll. 32–40; col. 10, l. 25
75 – col. 11, l. 4; col. 11, ll. 21–24; & Figs. 5, 5A, 10, 11 & 14). As 26
depicted in Figures 11, 12, 14 and 16–20, the chains 202 are roller chains of 27
conventional construction, including successive chain links in the form of 28
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alternating pairs of inner and outer side plates held together by pins. (See 1
Lovas, col. 10, l. 75 – col. 11, l. 2). The pins, in turn, mount rollers. (Cf. 2
Lovas, Figs. 17–20 (depicting the rollers positioned between the inner and 3
outer plates; and ends of the pins, which are narrower than the rollers, 4
extending beyond the widths of the inner and outer plates)). 5
51. Each of Lovas’s chain links also includes a clamp 217 for 6
gripping side edge portions of the lower web 200. (See Lovas, col. 10, ll. 7
65–71; col. 11, ll. 33–35; col. 12, ll. 38–41; & Figs. 16–20). The clips 217, 8
as depicted in Figures 17–20, include bases 218 coupled to brackets 9
extending from the side plates of the links; and clamp springs 220 coupled to 10
the bases by means of spring presser plates 222 and mounting screws 221. 11
(See Lovas, col. 11, ll. 33–37 & Fig. 17). Gripping ends 235 of the clamp 12
springs 220 press against corresponding ends of the bases 218 to trap the 13
side edges of the lower web 200 between the gripping ends and the bases. 14
According to Lovas, “the marginal edges of the web 200 are securely 15
gripped by the action of spring ends 235 against clamp bases 218, as shown 16
in FIGURE 20, the web thus being held horizontal and taut.” (Lovas, col. 17
12, ll. 33–37). 18
52. Lovas’s packaging machine also includes a lower web heating 19
and pocket forming station, indicated generally by the forming heaters 300, 20
301, and the molds 304, 305. (See generally Lovas, col. 13, l. 14 – col. 14, l. 21
58 & Fig. 5). In addition, the packaging machine includes a main sealing 22
station, designated generally 500, that “serve[s] to seal the peripheries of the 23
clusters [of pockets formed in the web 200] and the major portion of the 24
junctions or intersecting pocket corner defining wall portions of the package 25
pockets within the clusters.” (Lovas, col. 17, ll. 44–48; see generally id., 26
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col. 17, l. 44 – col. 20, l. 38 & Figs. 7, 25–27 & 30–38). The clamps 217 1
grip the side edge portions of the lower web 200 such that the motion of the 2
chains 200 over the sprockets 203, 212 transports the gripped side edge 3
portions of the web through the lower web heating and pocket forming 4
station; and the main sealing station 500. (See Lovas, col. 7, ll. 50–59 & col. 5
12, ll. 38–41; see also id., col. 12, l. 61 – col. 13, l. 3 & Fig. 5A (indicating 6
that packages are not released from the clamps 217 until the packages reach 7
the discharge end clamp opening assemblies 240, downstream of the main 8
sealing station 500)). 9
53. The lower web 200 described by Lovas remains connected from 10
the time that it is dispensed from the lower web roll 107 until it is cut 11
between the blade 602 and the groove strike bar 603 downstream of the main 12
sealing station 500. (See Lovas, col. 7, ll. 22–49; col. 12, ll. 38–41; col. 16, 13
ll. 26–46; col. 23, l. 69 – col. 70, l. 10; Figs. 1, 5, 5A (depicting the location 14
of the blade 602 and the groove strike bar 603 relative to the main seal 15
station 500), 15 (depicting the lower web 200 as continuous throughout the 16
length of the drawing figure), 16 (simile) & 35–45). Although the lower 17
web 200 is continuous, it is depicted in “dash-dot” broken lines in Figures 5 18
and 21. 19
54. Lovas’s packaging machine also includes slide rails 216 20
“utilized to support the weight of the chains [202] as [the chains] ride 21
through the machine.” (Lovas, col. 11, ll. 29–32; see also id., Fig. 12). As 22
depicted in Figure 12, portions of the side plates of the links of the chain 202 23
extending downwardly relative to the pins and rollers to embrace the slide 24
rail 216 in a manner likely to restrain lateral movement of the chain relative 25
to the machine direction. As indicated in Figure 7, a schematic sectional 26
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view taken through the main sealing station 500 (see Lovas, col. 5, ll. 15 & 1
16; & Fig. 5A), the slide rails 216 (which are not labeled in the figure) 2
appear to extend along the length of the machine. 3
55. As depicted in Figures 17–20 of Lovas, the inner side plates of 4
the roller chain 202 are “L”-shaped in section, having upper, horizontally-5
extending portions coupled to the bases 218 of the clamps 217. The 6
horizontally-extending portions of the inner side plates also are affixed to 7
downwardly-extending shafts rotatably mounting guide rollers 225. Lovas’s 8
machine, in turn, includes “C”-shaped upper guide channels 245. (See 9
Lovas, col. 11, ll. 53–56; & Figs. 10 & 12). As indicated in Figure 7, the 10
upper guide channels 245 appear to extend along the length of the machine. 11
Lovas teaches that the “guide rollers 225 are used to obtain horizontal web 12
tension absorption in cooperation with the upper guide channels 245.” 13
(Lovas, col. 11, ll. 53–56). This description implies that the downwardly 14
extending guide rollers 225 engage the inner, upwardly extending lips of the 15
upper guide channels 245 in a manner likely to restrain lateral movement of 16
the chain relative to the machine direction. (See Req’r Comm. on Req. 17
Reopen 18). 18
56. Lovas does not describe: 19
A packaging machine having a chain for transport of a 20
continuous packaging film, wherein the chain has a series of 21
successive rigid chain links connected to one another in a 22
movable manner, and flexible chain links provided between the 23
rigid chain links, the flexible chain links being fixed to the rigid 24
chain links, 25
as recited in claim 1. Neither does Lovas describe: 26
A packaging machine having a chain for transporting a 27
continuous food packaging film through a plurality of work 28
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stations of the packaging machine, wherein the chain has a series 1
of successive rigid chain links connected to one another in a 2
movable manner, and flexible chain links provided between the 3
rigid chain links and are fixed to the rigid chain links, 4
as recited in claim 21. Likewise, Lovas does not describe: 5
A packaging machine having a chain for transporting a 6
continuous food packaging film through a plurality of work 7
stations of the packaging machine, wherein the chain has a 8
plurality of flexible chain links and a plurality of rigid chain 9
links, the flexible chain links provided between the rigid chain 10
links, the flexible chain links being fixed to the rigid chain links, 11
. . . wherein the chain comprises a continuous flexible traction 12
element and the rigid chain links are clamped on the continuous 13
flexible traction element, wherein the regions of the flexible 14
traction element in-between the rigid chain links are the flexible 15
chain links, 16
as recited in claim 23. 17
18
Rogiers 19
57. Rogiers describes a conditioning machine for converting a 20
thermoplastics film 2 into packaging for foodstuffs or pharmaceuticals. 21
Rogiers’s machine is a thermoforming machine in the sense that the machine 22
includes heating and forming stations for forming hollow containers 15 from 23
the thermoplastics film 2. (See Rogiers, col. 1, ll. 7–18; col. 4, ll. 34–60; & 24
Fig. 1). 25
58. Rogiers’s packaging machine includes sprockets 10, 11 26
mounting a pair of endless side-by-side chains 9. (See Rogiers, col. 4, ll. 27
45–51). The endless chains 9 are shown schematically in Figure 1a. Despite 28
the Requester’s assertion to the contrary (see Req’r Comm. on Req. Reopen 29
21), Rogiers neither describes nor depicts the chains 9 as roller chains. 30
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Figure 1 depicts the chain 9 schematically, without sufficient detail to 1
identify the chain as being a conventional roller chain. Figure 2 might be 2
viewed superficially as suggestive of a conventional roller chain having side 3
plates engaging upper and lower rails, except that the drawing figure labels 4
the apparent upper rail with the reference numeral 9. Labeling the apparent 5
rail with the reference numeral 9 indicates that what appears superficially to 6
be an upper rail is in fact part of the chain, configured in a manner 7
inconsistent with a conventional roller chain. 8
59. Rogiers’s chain links include spring-loaded clips 21 for 9
gripping side edge portions of the thermoplastics film 2 after the film is 10
dispensed from a roll supported by a roller 1. (See Rogiers, col. 4, ll. 34–40; 11
col. 5, ll. 25–31; & Fig. 2). The clips 21, as depicted in Figures 2 and 2a, 12
include fixed stops 22 rigidly coupled to links of the chains 9. The fixed 13
stops 22 are generally cylindrical in shape with flared ends defining conical 14
contact faces. The clips 21 also include movable stops 23 slidable along 15
axes parallel to the axes of the fixed stops 22. Springs 24 bias the movable 16
stops 23 toward the flared contact faces of the fixed stops 22 along the 17
common axes to capture the side edge portions of the thermoplastic film 2 18
between the movable and fixed stops. Fingers 23b of the movable stops 23 19
extend upwardly for engagement with cams on the conditioning machine to 20
open the clamps to receive the thermoplastic film 2. (See Rogiers, col. 5, ll. 21
7–31). 22
60. Rogiers’s conditioning machine also includes a heating station 23
for heating the thermoplastics film 2; a forming station 14 “in which are 24
made the hollow containers 15 intended for receiving the material to be 25
packed;” and a filling station 16 in which the containers are filled with the 26
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product. (See Rogiers, col. 4, ll. 45–65 & Fig. 1). The clips 21 grip the side 1
edge portions of the thermoplastics film 2 upstream of the heating station 2
and transport the film as a connected sheet or web through at least the 3
heating, forming and filling stations. (See Rogiers, col. 4, ll. 45–51 & col. 5, 4
ll. 1–6). 5
61. Despite the Requester’s assertion to the contrary (see Req’r 6
Comm. on Req. Reopen 21), Rogiers neither describes nor depicts 7
downwardly extending guide elements for resisting movement of the chain; 8
or a guide rail engaged by such guide elements. 9
62. Rogiers does not describe: 10
A packaging machine having a chain for transport of a 11
continuous packaging film, wherein the chain has a series of 12
successive rigid chain links connected to one another in a 13
movable manner, and flexible chain links provided between the 14
rigid chain links, the flexible chain links being fixed to the rigid 15
chain links, . . . and wherein a plurality of the rigid chain links 16
further comprising one or more downwardly extending guide 17
elements for resisting movement of the chain and the gripped 18
portion of the continuous packaging film in a direction transverse 19
to a direction of travel of the chain, and the packaging machine 20
having a guide rail wherein said guide elements engage said 21
guide rail, 22
as recited in claim 1. Neither does Rogiers describe: 23
A packaging machine having a chain for transporting a 24
continuous food packaging film through a plurality of work 25
stations of the packaging machine, wherein the chain has a series 26
of successive rigid chain links connected to one another in a 27
movable manner, and flexible chain links provided between the 28
rigid chain links and are fixed to the rigid chain links, . . . and 29
wherein at least some of the rigid links having a pair of opposing 30
downwardly extending legs configured to engage the guide rail 31
to substantially prevent displacement of the chain and the 32
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gripped portion of the continuous food packaging film in a 1
direction substantially transverse to a direction of travel of the 2
chain, 3
as recited in claim 21. Likewise, Rogiers does not describe: 4
A packaging machine having a chain for transporting a 5
continuous food packaging film through a plurality of work 6
stations of the packaging machine, wherein the chain has a 7
plurality of flexible chain links and a plurality of rigid chain 8
links, the flexible chain links provided between the rigid chain 9
links, the flexible chain links being fixed to the rigid chain links, 10
. . . wherein the chain comprises a continuous flexible traction 11
element and the rigid chain links are clamped on the continuous 12
flexible traction element, wherein the regions of the flexible 13
traction element in-between the rigid chain links are the flexible 14
chain links, . . . and wherein one or more of the rigid chain links 15
further comprising one or more downwardly extending guide 16
elements for resisting movement of the chain and the gripped 17
portion of the continuous packaging film in a direction transverse 18
to a direction of travel of the chain, and the packaging machine 19
having a guide rail wherein said guide elements engage said 20
guide rail, 21
as recited in claim 23. 22
23
Jezuit 24
63. Jezuit describes a packaging apparatus 15 for packaging 25
comestibles such as luncheon meat in air-impervious packages defined by 26
pockets P formed in a continuous plastic sheet or web F′. (See Jezuit, col. 1, 27
ll. 4–11; col. 1, l. 61 – col. 2, l. 2; col. 3, ll. 30–35; & Figs. 1 & 2). Jezuit’s 28
apparatus is a thermoforming machine because the pockets are formed by 29
heat and pressure applied between a heating platen 100 and a forming die 30
112. (See Jezuit, col. 2, ll. 3–27; see generally col. 5, l. 57 – col. 6, l. 58 & 31
Fig. 4). 32
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64. Jezuit’s packaging apparatus 15 includes sprockets 167, 169 1
mounting a pair of endless side-by-side chains 172, 173. (See Jezuit, col. 6, 2
l. 59 – col. 7, l. 1). As depicted in Figures 5 and 8–10, the chains 172, 173 3
appear to be roller chains of conventional construction, including successive 4
chain links in the form of alternating pairs of inner and outer side plates held 5
together by pins; and rollers mounted on the pins. 6
65. Jezuit’s chain links include spring-loaded clip retainers 175 for 7
gripping side edge portions of the sheet or web F′ after the sheet is dispensed 8
from a lower supply roll 16. (See Jezuit, col. 3, ll. 35–43; col 7, ll. 1–5; & 9
Figs. 5, 9 & 10). Each clip retainer 175, as depicted in Figures 9 and 10, 10
includes a lower member 176 affixed to a link of the chains 172, 173; an 11
upper member 183 pivotable with respect to a corresponding lower member; 12
and a coil spring 190 for holding the upper and corresponding lower 13
members together. The coil spring 190 also biases the upper and lower 14
members 176, 183 so that fingers portions 181, 187 of the members pivot 15
toward each other to grip the side edges of the sheet or web F′. (See Jezuit, 16
col 7, ll. 6–15 & Figs. 9 & 10). 17
66. Jezuit’s packaging apparatus 15 also includes a forming station 18
18; and a sealing and evacuation station 22. (See Jezuit, col. 3, ll. 35–43 & 19
50–60; & Fig. 2). The clips 175 grip the side edge portions of the sheet or 20
web F′ such that the motion of the chains 172, 173 over the sprockets 167, 21
169 transports the gripped side edge portions of the sheet through the 22
forming station 18; and the sealing and evacuation station 22. (See id.) 23
Figure 4, which depicts a section of the machine immediately downstream of 24
the forming station 18 (see Jezuit, col. 3, ll. 9 & 10 & Fig. 3), depict the 25
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sheet or web F′ as lying in a substantially horizontal plane as the sheet is 1
transported through the apparatus by the chains 172, 173. Figure 2 indicates 2
that the sheet or web F′ remains connected as the sheet is transported 3
through the forming station 18; and through the sealing and evacuation 4
station 22. The sheet or web F′ finally is cut by a cutter 26 downstream of 5
the sealing and evacuation station 22. (See Jezuit, col. 3, ll. 60–62 & Fig. 2). 6
67. The Requester asserts that, “[a]s shown but not labeled in 7
Figure 4, two cross-hatched guide rails (unlabeled) guide chains 172, 173 by 8
interacting with the chain[s’] downwardly-extending side rails. An elevation 9
of those guide rails is also visible (but unlabeled) in Fig. 5, beneath the 10
upper reach of chain 172.” (Req’r Comm. on Req. Reopen 23). Although 11
the written description of Jezuit does not mention these structures, drawing 12
Figures 4 and 5 support the Requester’s proposed finding by a 13
preponderance of the evidence. In other words, the downwardly extending 14
portions of the side plates of the roller chains 172, 173 constitute 15
downwardly extending guide elements engaging the guide rails depicted in 16
Figures 4 and 5. The engagement between the chains 172, 173 and the guide 17
rails is calculated to resist movement of the chains and the gripped portions 18
of the continuous sheet or web F′ in a direction transverse to a direction of 19
travel of the chains, as recited in claim 1. (Compare Jezuit, Figs. 4 & 5 with 20
ʼ614 patent, Fig. 8 (depicting an embodiment of downwardly extending 21
guide elements within the scope of claim 1); see also FF 3). 22
68. Jezuit uses the word “continuous” to describe the film or web F′ 23
fed from the lower supply roll 16 and used to form the pockets P (see Jezuit, 24
col. 3, ll. 35–43); as well as the sheet or layer of film F′ drawn off from the 25
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upper film supply roll 24 to cover the pockets P formed from the web F′ (see 1
id., ll. 50–55). Since both films 30, 122 remain connected until cut by the 2
cutter 26 (see, e.g., Jezuit, Fig. 2), Jezuit’s usage of the term is evidence that 3
the ordinary meaning of the word “continuous,” as applied to a packaging 4
film, encompasses connected, but not endless, webs or sheets. 5
69. Jezuit does not describe: 6
A packaging machine having a chain for transport of a 7
continuous packaging film, wherein the chain has a series of 8
successive rigid chain links connected to one another in a 9
movable manner, and flexible chain links provided between the 10
rigid chain links, the flexible chain links being fixed to the rigid 11
chain links, 12
as recited in claim 1. Neither does Jezuit describe: 13
A packaging machine having a chain for transporting a 14
continuous food packaging film through a plurality of work 15
stations of the packaging machine, wherein the chain has a series 16
of successive rigid chain links connected to one another in a 17
movable manner, and flexible chain links provided between the 18
rigid chain links and are fixed to the rigid chain links, 19
as recited in claim 21. Likewise, Jezuit does not describe: 20
A packaging machine having a chain for transporting a 21
continuous food packaging film through a plurality of work 22
stations of the packaging machine, wherein the chain has a 23
plurality of flexible chain links and a plurality of rigid chain 24
links, the flexible chain links provided between the rigid chain 25
links, the flexible chain links being fixed to the rigid chain links, 26
. . . wherein the chain comprises a continuous flexible traction 27
element and the rigid chain links are clamped on the continuous 28
flexible traction element, wherein the regions of the flexible 29
traction element in-between the rigid chain links are the flexible 30
chain links, 31
as recited in claim 23. 32
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Buchko ʼ611 1
70. Buchko ’611 describes a packaging machine 10 for packaging 2
comestibles such as hot dogs, other meats, cheese and pharmaceuticals in 3
sealed, evacuated cup-like packages formed from a continuous lower web 4
14. (See Buchko, col. 3, ll. 40 & 41; col. 8, ll. 63–68; col. 9, ll. 26–31; & 5
Figs. 1 & 2). The packaging machine 10 described by Buchko ’611 is a 6
thermoforming machine in the sense that it uses heat and vacuum to form 7
product cavities 102 in the lower web 14. (See generally Buchko ’611, col. 8
5, l. 42 – col. 6, l. 23). 9
71. The packaging machine described in Buchko ’611 includes 10
drive sprockets mounting a pair of gripper chains 88a, 88b. (See Buchko 11
’611, col. 5, ll. 11–19 & 29–33). As depicted schematically in Figures 6 and 12
7, the chains 88a, 88b are roller chains of conventional construction, 13
including successive chain links having laterally-spaced side plates. 14
72. The successive chain links of the chains 88a, 88b also include 15
clips for gripping side edge portions of the lower web 14 after the lower web 16
is dispensed from a roll 16. (See Buchko ’611, col. 4, ll. 8–12; col. 5, ll. 37–17
41; & Figs. 1 & 3). The clips, as depicted schematically in Figures 6 and 7, 18
include upper and lower jaws having end portions that embrace the side 19
edges of the lower web 14. 20
73. The packaging machine 10 described in Buchko ’611 also 21
includes a forming station 18, a loading station 20 and a downstream station 22
26. The clips of the gripper chains 88a, 88b grip the side edge portions of 23
the lower web 14 such that the motion of the gripper chains transports the 24
gripped side edge portions of the film through the forming station 18, the 25
loading station 20 and the downstream station 26. (See Buchko ’611, col. 3, 26
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ll. 41–48 & Figs. 1 & 2; see generally id., col. 5, l. 42 – col. 8, l. 68 & col. 9, 1
ll. 26–40). Figures 6 and 7 depict the lower web 14 as lying in a 2
substantially horizontal plane as the sheet is transported through the 3
apparatus by the gripper chains 88a, 88b. 4
74. Facing blocks 94a, 94b each define upper and lower slots. 5
Upper runs 90a, 90b and lower runs 92a, 92b of the gripper chains 88a, 88b 6
are mounted within the slots in the blocks 94a, 94b. (See Buchko ’611, col. 7
5, ll. 11–19; & Figs. 6 & 7). The facing blocks are depicted schematically in 8
Figures 6 and 7. Figures 6 and 7 indicate that the slots in the blocks 94a, 9
94b are “C”-shaped in contour; and that portions of the side plates of the 10
chain links embrace upper and lower lips of the “C”-shaped contour in a 11
manner likely to restrain lateral movement of the chain relative to the 12
machine direction. The downwardly extending portions of the side plates 13
constitute downwardly extending guide elements engaging a guide rail in the 14
form of the lower lip of the “C”-shaped contour of the slots for resisting 15
movement of the gripper chains 88a, 88b and the gripped portions of the 16
continuous packaging film in a direction transverse to a direction of travel of 17
the chain, as recited in claim 1. (Compare Buchko ’611, Figs. 6 & 7 with 18
ʼ614 patent, Fig. 8 (depicting and embodiment of downwardly extending 19
guide elements within the scope of claim 1); see also FF 3). 20
75. The lower web 14 constitutes a connected web or sheet from 21
the time that it is dispensed from the roll 16 until it is cut by a cross-cut 22
mechanism 220 at a cutting station 218. (See Buchko ’611, col. 9, l. 41 – 23
col. 10, l. 31). Therefore, the gripper chains 88a, 88b and clips 36 transport 24
a continuous packaging film 30 through a plurality of stations 18, 20, 26. 25
76. Buchko ’611 does not describe: 26
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A packaging machine having a chain for transport of a 1
continuous packaging film, wherein the chain has a series of 2
successive rigid chain links connected to one another in a 3
movable manner, and flexible chain links provided between the 4
rigid chain links, the flexible chain links being fixed to the rigid 5
chain links, 6
as recited in claim 1. Neither does Buchko ’611 describe: 7
A packaging machine having a chain for transporting a 8
continuous food packaging film through a plurality of work 9
stations of the packaging machine, wherein the chain has a series 10
of successive rigid chain links connected to one another in a 11
movable manner, and flexible chain links provided between the 12
rigid chain links and are fixed to the rigid chain links, 13
as recited in claim 21. Likewise, Buchko ’611 does not describe: 14
A packaging machine having a chain for transporting a 15
continuous food packaging film through a plurality of work 16
stations of the packaging machine, wherein the chain has a 17
plurality of flexible chain links and a plurality of rigid chain 18
links, the flexible chain links provided between the rigid chain 19
links, the flexible chain links being fixed to the rigid chain links, 20
. . . wherein the chain comprises a continuous flexible traction 21
element and the rigid chain links are clamped on the continuous 22
flexible traction element, wherein the regions of the flexible 23
traction element in-between the rigid chain links are the flexible 24
chain links, 25
as recited in claim 23. 26
27
Canamero 28
77. Canamero describes a vacuum packaging machine 10. (See 29
Canamero, col. 3, ll. 39–44 & Fig. 1). Canamero’s machine 10 forms 30
hermetically sealed packages formed from continuous packaging films. (See 31
Canamero, col. 1, ll. 9–14). Canamero’s machine 10 is a thermoforming 32
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machine in the sense that it uses heat and vacuum to form receptacles 32 in a 1
continuous packaging film 18. (See generally Canamero, col. 5, l. 55 – col. 2
6, l. 24 & Figs. 3–4c). 3
78. Canamero’s vacuum packaging machine 10 includes sprockets 4
23 mounting a pair of endless side-by-side chain belts 22. (See Canamero, 5
col. 4, ll. 38–44 & Fig. 2). As depicted in Figures 5–8, the chains 22 are 6
roller chains of conventional construction, including successive chain links 7
in the form of alternating pairs of inner and outer side plates held together by 8
pins 22a. (Cf. Canamero, col. 4, ll. 54–59 (describing the pins 22a as 9
forming “part of the linkage of the belt 22”)). 10
79. Canamero’s chain links also include spring-loaded clamps 24 11
for gripping longitudinal edges of the packaging film 18 dispensed from a 12
roll 16. (See Canamero, col. 4, ll. 49–54 & Fig. 5). The clamps 24, as 13
depicted in Figures 5–8, include “L”-shaped flanges 25 rigidly coupled to 14
pins 22a of the chain belts 22. In addition, the clamps 24 include “C”-15
shaped clips 26 slidable along pins 26 obliquely mounted by the flanges 25. 16
As depicted in Figures 5 & 8, compression springs 27 bias upper jaw 17
portions 26a of the clips 26 against lower jaw portions 25a of the flanges 25 18
to grip the longitudinal edges of the packaging film 18 between the upper 19
and lower jaw portions. (See Canamero, col. 4, l. 54 – col. 5, l. 8). 20
80. Canamero’s vacuum packaging machine 10 also includes a 21
forming unit or station 30; a filling zone or station 40; and an evacuation 22
unit or station 100. (See generally Canamero, col. 5, l. 55 – col. 6, l. 33; col. 23
7, ll. 56 – col. 8, l. 6; & Fig. 2). The clamps 24 grip the longitudinal edges 24
of the packaging film 18 such that the motion of the chain belts 22 over the 25
sprockets 23 transports the gripped edges of the film through the forming, 26
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filling and evacuation stations 30, 40, 100. (Cf. Canamero, col. 5, ll. 38–44 1
(describing the chain belts 22 as transporting the packaging film 18 through 2
the entire length of the machine 10)). 3
81. Canamero does not appear to describe any guides for resisting 4
lateral movement of the chain belts 22 as the clamps 24 conduct the 5
packaging film 18 through the machine. Instead, Figures 10–12 and 15 6
appear to show the absence of such guides in the vicinity of the evacuation 7
unit or station 100. (Cf. Canamero, col. 3, ll. 11–20 & 28–32 (describing 8
Figures 10–12 and 15 as describing structure in or near the vacuation unit 9
100)). The Requester cites Figure 7 of Canamero as showing such a guide. 10
(Req’r Comm. on Req. Reopen 26). Figure 7 depicts a roller and two side 11
plates of a chain belt 22 engaging one of the sprockets 23, not a guide for 12
resisting lateral movement of the chain belt as the chain belt moves through 13
the machine 10. (See Canamero, col. 2, l. 67 – col. 3, l. 2). 14
82. The packaging film 18 constitutes a connected web or sheet 15
from the time that it is dispensed from the roll 16 until it is cut by cross 16
cutting devices 210 downstream of the evacuation unit or station 100. (Cf. 17
Canamero, col. 11, l. 60 – col. 12, l. 14; & Figs. 2, 3 & 4). Therefore, 18
Canamero’s chain belts 22 and clamps 24 transport a continuous packaging 19
film 18 through a plurality of stations 30, 40, 100. 20
83. Canamero uses the word “continuous” to describe sheets of 21
plastic packaging material exemplified by the film or sheet 18. (See, e.g., 22
Canamero, col. 1, ll. 45–50 & col. 2, ll. 6–11). Since the film 18 remains 23
connected from the time that it is dispensed from the roll 16 until it is cut by 24
cross cutting devices 210, Canamero’s usage of the term is evidence that the 25
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ordinary meaning of the word “continuous,” as applied to a packaging film, 1
encompasses connected, but not endless, webs or sheets. 2
84. Canamero does not describe: 3
A packaging machine having a chain for transport of a 4
continuous packaging film, wherein the chain has a series of 5
successive rigid chain links connected to one another in a 6
movable manner, and flexible chain links provided between the 7
rigid chain links, the flexible chain links being fixed to the rigid 8
chain links, . . . and wherein a plurality of the rigid chain links 9
further comprising one or more downwardly extending guide 10
elements for resisting movement of the chain and the gripped 11
portion of the continuous packaging film in a direction transverse 12
to a direction of travel of the chain, and the packaging machine 13
having a guide rail wherein said guide elements engage said 14
guide rail, 15
as recited in claim 1. Neither does Canamero describe: 16
A packaging machine having a chain for transporting a 17
continuous food packaging film through a plurality of work 18
stations of the packaging machine, wherein the chain has a series 19
of successive rigid chain links connected to one another in a 20
movable manner, and flexible chain links provided between the 21
rigid chain links and are fixed to the rigid chain links, . . . and 22
wherein at least some of the rigid links having a pair of opposing 23
downwardly extending legs configured to engage the guide rail 24
to substantially prevent displacement of the chain and the 25
gripped portion of the continuous food packaging film in a 26
direction substantially transverse to a direction of travel of the 27
chain, 28
as recited in claim 21. Likewise, Canamero does not describe: 29
A packaging machine having a chain for transporting a 30
continuous food packaging film through a plurality of work 31
stations of the packaging machine, wherein the chain has a 32
plurality of flexible chain links and a plurality of rigid chain 33
links, the flexible chain links provided between the rigid chain 34
links, the flexible chain links being fixed to the rigid chain links, 35
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. . . wherein the chain comprises a continuous flexible traction 1
element and the rigid chain links are clamped on the continuous 2
flexible traction element, wherein the regions of the flexible 3
traction element in-between the rigid chain links are the flexible 4
chain links, . . . and wherein one or more of the rigid chain links 5
further comprising one or more downwardly extending guide 6
elements for resisting movement of the chain and the gripped 7
portion of the continuous packaging film in a direction transverse 8
to a direction of travel of the chain, and the packaging machine 9
having a guide rail wherein said guide elements engage said 10
guide rail, 11
as recited in claim 23. 12
13
Webster 14
85. Webster describes a conveyor belt assembly 4 for transporting 15
articles in baskets or bins attached to the belt. (See Webster, col. 1, ll. 11–14 16
& col. 2, ll. 63 & 64). Webster’s conveyor belt assembly 4 includes an 17
endless, flexible belt body 8 including a plurality of teeth 20 projecting from 18
one surface of the belt body. (See Webster, col. 2, l. 64 – col. 3, l. 3; col. 3, 19
ll. 6–9; & Fig. 1). 20
86. For the most part, the teeth 20 project at regular intervals from 21
the surface of the belt body 8. Periodically, however, certain of the teeth are 22
replaced by hardened teeth 32 comprising a hardened plastic or metal. At 23
each such site, a hardened tooth 32 is affixed to the surface of the belt body 24
8 from which the teeth 20 project; and a guide member 48 is affixed to the 25
opposite surface of the belt body in alignment with the hardened tooth. 26
Threaded fasteners 44 extending through the belt body 8 to couple the 27
hardened teeth 32 and the corresponding guide members 48 to the body. 28
The guide members 48 provide attachment points for attaching baskets or 29
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bins to the assembly 4 for use in transporting articles. (See Webster, col. 3, 1
ll. 23–27 & 40–55; & Figs. 1–4). 2
3
Petershack 4
87. Petershack describes a conveyor chain mountable on sprockets 5
70 for transporting articles lying on planar surfaces defined by the chain 6
links. (See Petershack, col. 1, ll. 7–9; col. 2, ll. 66–68; col. 3, ll. 9–14; col. 7
4, ll. 45–52; & Figs. 1–4). Petershack suggests that the conveyor chain may 8
be used as a substitute for conventional roller chain designs. (See 9
Petershack, col. 2, ll. 5–10). 10
88. Petershack’s conveyor chain includes alternating block links 10 11
and flexible links 12. (See Petershack, col. 2, ll. 66–68 & Fig. 1). One may 12
infer from the description in Petershack that the block links 10 are rigid. In 13
particular, each block link includes a pair of longitudinal slots 17 for 14
receiving ends of the flexible links 12; and throughbores 16 for receiving 15
connecting pins 14. The block links 10 immobilize the connecting pins 14 16
by means of press fits within the bores 16. The connecting pins 14 pin the 17
ends of the flexible links 12 within the longitudinal slots 17. (See 18
Petershack, col. 3, ll. 1–9 & 15–21; & Figs. 1 & 2). In addition, the block 19
links define planar support surfaces 18 for supporting articles to be conveyed 20
by the conveyor chain; and planar lower surfaces 20 enabling the chain to 21
slide along a floor or table. (See Petershack, col. 3, ll. 9–14 & Fig. 1). One 22
may infer from these features of Petershack’s block links, as well as from 23
the capacity of the block links to engage teeth of the sprockets 70 (see 24
Petershack, col. 4, ll. 45–52 & Fig. 3), that the block links are rigid. 25
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89. Petershack teaches that one advantage of conveyor chains 1
including a combination of metal links and links fabricated from a lubricious 2
plastic, over conveyor chains fabricated from metal alone, is that the 3
inclusion of lubricious plastic links “can eliminate the need to lubricate the 4
chain, a particularly attractive advantage in certain markets where the 5
conveyed article is sensitive to contamination, as in the food industry.” 6
(Petershack, col. 1, ll. 36–42). 7
90. Although Petershack suggests that the conveyor chain may be 8
used as a substitute for conventional roller chain designs (see Petershack, 9
col. 2, ll. 5–10), Petershack’s conveyor chains are not roller chains. In 10
particular, Petershack’s conveyor chains lack side plates and rollers for 11
engaging chain guides. Petershack does not appear to teach any structure for 12
guiding a conveyor chain as described in the reference along a straight path. 13
14
Wehner 15
91. Wehner describes a drive chain C mountable on non-coplanar 16
sprockets A, B, D–G for transferring power between the sprockets. (See 17
Wehner, col. 2, ll. 21–36 & Figs. 1 & 6). Wehner suggests that the drive 18
chain C is an improvement over conventional roller chain for this power 19
transfer application. (See, e.g., Wehner, col. 1, ll. 30–35). 20
92. Wehner’s drive chain includes alternating rigid links 20 and 21
flexible links 22. (See Wehner, col. 2, ll. 40–45 & Fig. 2). Each of the rigid 22
links 20 includes a pair of spaced side plates 26, 28 coupled together by pins 23
24. Each pin 24 mounts a bushing 36. Opposite ends of the flexible links 22 24
are affixed to the bushings 36 to pivotably couple the flexible links to the 25
rigid links 20. Rollers 38, 40 mounted over the bushings 36 on opposite 26
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axial sides of the ends of the flexible links 22 engage the teeth of the 1
sprockets A, B, D–G. (See Wehner, col. 2, ll. 40–62 & Fig. 3). 2
93. Wehner does not appear to teach any structure for guiding a 3
conveyor chain as described in the reference along a straight path. On the 4
contrary, Wehner’s drive chain C does not follow straight, coplanar paths 5
between the sprockets A, B or the sprockets D–G in Figures 1 and 6. (See 6
Wehner, col. 2, ll. 21–36). 7
8
Grevich 9
94. Grevich does not anticipate claim 1, claim 21 or claim 23. 10
95. Grevich describes a vacuum packaging machine 10 for 11
packaging comestibles in evacuated, hermetically sealed packages formed 12
from continuous packaging webs 11, 12. (See Grevich, col. 1, ll. 10–17; see 13
generally col. 3, ll. 5–46; & Figs. 1–4). 14
96. Grevich’s vacuum packaging machine 10 includes toothed 15
sprockets 21 mounting a pair of elongate, endless stainless steel bands 19. 16
As depicted in Figure 2, the bands 19 have a series of apertures 20 for 17
receiving the teeth 22 of the sprockets 21. (See Grevich, col. 3, ll. 51–61). 18
97. Grevich’s bands 19 mount spaced clips 23 for gripping 19
marginal edge portions 11.3 of the web 11 after the web is dispensed from a 20
roll 11.1. (See Grevich, col. 3, ll. 62–68 & Fig. 4). Each clip 23 consists of 21
a resilient strip of metal defining a web clamping jaw 23.1 at one end and a 22
downturned flange 23.4 at the other end. A headed stud 24 intermediate the 23
two ends of the clip 23 holds the clip in place on the band 19. The 24
downturned flange 23.4 bears against the band 19 to bias the web clamping 25
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jaws 23.1 so as to clamp a marginal edge portion 11.3 of the web 11 between 1
the jaws and the band. (See Grevich, col. 3, l. 68 – col. 4, l. 16 & Fig. 6). 2
98. As portions of the bands 19 pass over the sprockets 21, the 3
sprocket teeth 22 extend through the apertures 20 and engage the clips 23 to 4
open the clips to either grip the web 11 dispensed from the roll 11.1 or to 5
release finished packages. (See Grevich, col. 4, ll. 21–29 & Fig. 5). 6
99. Grevich does not appear to describe any structure for guiding a 7
conveyor chain as described in the reference along a straight path. On the 8
contrary, Figure 4 of Grevich depicts the bands 19, albeit schematically, as 9
circulating between the sprockets 21 without any guides constraining lateral 10
movement of the band. In particular, Grevich does not teach using the 11
headed stud 24 as a downwardly-extending guide element. (See PO Reply to 12
Req’r Comm. on Determination 5). Figure 5 of Grevich depicts an aperture 13
20 through one of the bands 19 engaging a tooth 22 of a sprocket 21 and not 14
the headed stud 24 engaging a guide rail. 15
100. Grevich teaches that one problem with then-conventional 16
vacuum packaging machines using roller chains mounting clamps to 17
transport plastic web or film material through the machines was that the “use 18
of such roller chains in close proximity to foodstuffs is quite unsanitary 19
because the chains present an unsanitary condition which cannot be easily 20
corrected.” (Grevich, col. 1, ll. 23–26). Grevich additionally teaches that 21
such roller chains were subject to excessive wear because the frequent 22
cleaning required to keep such chains as sanitary as possible precluded 23
proper lubrication. (See Grevich, col. 1, ll. 32–35). Grevich describes the 24
bands 19 and the clips 23 described therein as addressing the problems of 25
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cleanliness and lubrication. (See Grevich, col. 2, ll. 28–34; see also Req’r 1
Comm. on Req. Reopen 36 & 37). 2
101. Grevich uses the word “continuous” to describe the web 11 3
prior to the cutting of the web into separate packages near the downstream 4
end of the machine 10. (See Grevich, col. 1, ll. 48–53). Grevich’s usage of 5
the term is evidence that the ordinary meaning of the word “continuous,” as 6
applied to a packaging film, encompasses connected, but not endless, webs 7
or sheets. Grevich also uses the term “continuous” to describe endless roller 8
chains used to transport plastic webs through vacuum packaging machines 9
(see Grevich, col. 1, ll. 21–23); as well as to describe the endless bands 19 10
used to transport the web 11 through Grevich’s machine 10 (see Grevich, 11
col. 2, ll. 12–17). Grevich’s usage of the term is evidence that the ordinary 12
meaning of the word “continuous,” as applied to a chains or bands used to 13
transport plastic webs through packaging machines, implies that the chains 14
or bends are endless. Hence, Grevich’s usage of the term “continuous” is 15
evidence that one of ordinary skill in the art would have understood the term 16
continuous differently depending on the noun the term modified. 17
18
Arnold 19
102. Arnold describes a toothed belt 3 bearing ball clamping devices 20
4. Arnold describes the toothed belt 3 as being mounted on pulleys 5, 6 for 21
transporting a sheet of paper gripped by the clamping devices 4 through a 22
high-speed printer. (See Arnold, col. 1, ll. 2–5; col. 2, ll. 62–67; & Fig. 1). 23
103. Each of Arnold’s ball clamping devices 4 includes a casing 12 24
defining a cavity with two parallel walls 14; a counter-clamping plate 11 25
affixed to the casing; and a ball 9 trapped in the cavity between the two 26
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parallel walls for clamping engagement against the counter-clamping plate. 1
(See Arnold, col. 3, ll. 50–54 & Fig. 4). Differential acceleration between 2
the ball 9 and the counter-clamping plate 11 as the ball clamping device 3
transitions between linear movement between the pulleys 5, 6 and 4
curvilinear movement over one of the pulleys causes the ball to press the 5
marginal edges of a sheet of paper 1 against the counter-clamping plate, 6
thereby gripping the paper for transport. (See generally Arnold, col. 3, ll. 7–7
45 & Fig. 2). 8
104. Arnold does not appear to describe any structure for guiding a 9
conveyor chain as described in the reference along a straight path between 10
the pulleys 5, 6. (See, e.g., Arnold, Fig. 3). 11
12
Dove 13
105. Dove describes a film processing tank 1 including a continuous 14
belt 10 bearing a plurality of spring-loaded clips 20. The belt 10 is mounted 15
on a wheel 13 for transporting photographic film or film print materials 16
through a plurality of baths 3–8. (See Dove, col. 1, ll. 6–10, 46–51 & 57–62; 17
col. 2, ll. 54–56 & Fig. 1). 18
106. Each clip 20 includes a “U”-shaped member 21; a “U”-shaped 19
film engaging member 23 defining a rod portion at one end extending 20
through aligned apertures 24 in parallel legs of the “U”-shaped member 21; 21
and a coil spring 25 positioned on the rod portion of the “U”-shaped film 22
engaging member 23 for biasing a pointed end 26 of the member 23 against 23
one of the parallel legs of the member 21. The clip 20 grasps the lateral 24
edges of the film between the pointed end 26 of the “U”-shaped film 25
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engaging member 23 and the associated leg of the “U”-shaped member 21. 1
(See Dove, col. 2, ll. 56–66). 2
107. Dove teaches providing “guide means for guiding the belt [10] 3
along the predetermined path.” (Dove, col. 1, ll. 26–32). The guide means 4
described by Dove do not include either a guide rail or a downwardly-5
extending guide element, as recited in claims 1, 21 and 23, however. 6
Instead, Dove’s guide means includes a “U-shaped yoke 39 partially 7
surround[ing] the core 28 [of the wheel 13] in order to prevent movement of 8
the clips 20 perpendicular to the plane of the wheel 30 when [the clips] are 9
engages by the cam followers 33.” (Dove, col. 3, ll. 61–64; see also id., 10
Fig. 3). 11
12
Blidung 13
108. Blidung describes an apparatus for converting portions of a 14
continuous running web 1 of paper, metal foil plastic film or the like into a 15
series of discrete rectangular sections 32 for use as wrappings for block-16
shaped articles. (See Blidung, col. 1, ll. 7–11; col. 4, ll. 29–32; & Fig. 1). 17
109. The apparatus includes conveyors in the form of either endless 18
flexible toothed belts 14a, 14b or endless chains mounted on toothed pulleys 19
22, 23. (See Blidung, col. 5, ll. 2–9, 26 & 27; col. 10, ll. 6–9; & Fig. 1). The 20
belts 14a, 14b or chains mount holders 13a, 13b. The holders 13a, 13b 21
include flat surfaces 16a, 16b pierced by suction ports 17a, 17b. (See 22
Blidung, col. 5, ll. 2–9 & 15–17; see also id., Figs. 2a–2c). The holders 13a, 23
13b engage longitudinally extending, marginal portions of the web 1 by 24
means of suction immediately upstream of a severing station 25 at which the 25
web is cut into the discrete rectangular sections 32. The belts 14a, 14b 26
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conduct the web through the severing station and the rectangular sections 1
through the remainder of the apparatus until the sections are expelled at a 2
station A. (See Blidung, col. 5, ll. 2–12; col. 6, ll. 6–12; col. 7, ll. 49–64; & 3
Fig. 1). 4
110. Blidung teaches that: 5
Both sides of the web 1 and both sides of each section 32 can be 6
guided by stationary guide means in the form of strips or rails 7
34a, 34b, and 36a, 36b which are mounted in or on the housing 8
H between the stations 25 and A. 9
(Blidung, col. 6, ll. 12–16; see also id., Fig. 1). As depicted in Figure 3, the 10
rails 34a, 34b, 36a, 36b are positioned between the belts 14a, 14b to form 11
nips for engagement with the web 1. Blidung does not describe downwardly 12
guide elements extending from the belts 14a, 14b or the chain for 13
engagement with any of the rails 34a, 34b, 36a, 36b for resisting movement 14
of the belts 14a, 14b or the chain in a direction transverse to the direction of 15
travel of the web, as recited in claims 1, 21 and 23. 16
17
Aiuola 18
111. Aiuola describes device 1 for advancing a packaging band 2 19
comprising adjacent pockets 4 toward a filling station. The packaging band 20
2 is fabricated by folding a strip of material longitudinally and then 21
introducing periodic, transverse welding lines 3 defining individual pockets. 22
As depicted in Figure 1, each transverse welding line 3 extends from the 23
longitudinal fold to a position spaced from the transverse edges of the strip 24
of material, leaving flaps 5, 5a at the open ends of the pockets 4. An eyelet 25
6 pierces each transverse welding line 3 near the flaps 5, 5a. (See Aiuola, 26
col. 1, ll. 8–13; col. 2, ll. 4–18; & Figs. 1 & 2). 27
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112. Aiuola’s device 1 includes an endless, steel belt 7 mounted on 1
pulleys 8, 9. A pin 13 projects from the upper end of each of a series of 2
columns 11 affixed at intervals along the belt 7. The pins 13 fit into the 3
eyelets 6 of the packaging band 2 so that each individual pocket 4 hangs 4
between adjacent columns 11. A folder 14 having a diamond-shaped cross-5
section separates the flaps 5, 5a over each pocket 4 as the band advances the 6
pockets toward the pulley 9. The movement of the belt 7 and the packaging 7
band 2 around the pulley 9 helps to maintain the separation between the 8
flaps 5, 5a, to hold each pocket 4 open to facilitate loading. (See Aiuola, 9
col. 2, ll. 19–47; & Figs. 1 & 2). 10
113. Aiuola does not appear to describe any structure for guiding a 11
belt 7 along a straight path between the pulleys 8, 9. (See, e.g., Aiuola, Fig. 12
1). 13
14
Case 15
114. Case describes an endless, toothed belt 9 mountable on a pair of 16
sprockets 13, 14 to transfer power from one sprocket to the other. The belt 9 17
includes a non-articulated metal band 10 and metallic teeth 11 integral with 18
the band. (See Case, col. 1, l. 66 – col. 2, l. 6 & Fig. 1). The belt 9 is 19
designed for use in applications, such as guided missiles, requiring the belt 20
to operate at high or extremely low temperatures, at high speeds, and in the 21
presence of lubricating oil. (See Case, col. 1, ll. 20–25 & 39–53). 22
23
Casgrain 24
115. Casgrain describes a power transmitting band including either a 25
single metallic belt d to which driving members in the form of pairs of 26
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cylindrical bars c are affixed at intervals; or a pair of metallic belts a coupled 1
together in parallel by means of spaced drive members in the form of 2
cylindrical bars b. (See Casgrain 1, ll. 55–79; 2, ll. 78–95; & Figs. 3–5a). In 3
either case, ends b′, c′ of the cylindrical bars b, c are slotted so as to receive 4
the belt d or the belts a; and retaining pins b2, c2 inserted into the ends b′, c′ 5
of the cylindrical bars b, c capture the belt d or the belts a in the slots by 6
press fits. (See Casgrain 1, ll. 64–79, 1, l. 98 – 2, l. 2; 2, ll. 84–105; & Figs. 7
4 & 5). As depicted in Figure 1, the power transmitting belt may be 8
mounted on sprocket wheels such that the drive members of the power 9
transmission belt engage teeth of the sprocket wheel to facilitate the 10
transmission of power. (See Casgrain 2, ll. 9–17). Casgrain teaches that the 11
configurations the power transmission belts constitute an improvement over 12
belts in which fasteners are used to attach drive members to the belts. (See 13
Casgrain 2, ll. 18–38). 14
15
St. Louis 16
116. St. Louis describes an endless, metallic sprocket belt 14 17
mounted on a pair of sprockets 2, 6 for use in an elevator, conveyor or saw-18
mill machine. (See St. Louis, ll. 7–13 & 35–37; & Fig. 1). At intervals 19
along the belt 14, pairs of metallic bars or cross-pieces 16 are attached to the 20
belt 14 by means of rivets extending between cross-pieces aligned on 21
opposite surfaces of the belt. The cross-pieces 16 engage recesses 10 on the 22
periphery of the sprockets 2, 6 to facilitate driving the belt. (See St. Louis, 23
ll. 35–45 & Fig. 1). St. Louis teaches that elevator buckets or the like may 24
be attached to the belt in a conventional manner. (See St. Louis, ll. 55–61). 25
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Weisgerber 1
117. Weisgerber describes a printing machine including a pair of 2
transversely-spaced, endless conveyor chains 5 for delivering printed sheets 3
from a pressure cylinder 1 to a stapling table 9; and for stacking the sheets 4
on the table. (See Weisgerber, col. 3, ll. 38–45; col. 3, l. 65 – col. 4, l. 3; & 5
Fig. 1). Each conveyor chain 5 is a conventional roller chain including 6
gripping pads 7 for gripping and transporting individual sheets. (See 7
Weisgerber, col. 4, ll. 4–15; & Figs. 2 & 3). Each gripping pad 7 includes a 8
gripper 17 in the form of a clamp actuated by a torsion spring 18 for 9
gripping the marginal edges of the sheets. (See Weisberger, col. 4, ll. 16–26 10
& Fig. 2). 11
118. Chain guides 33 partially surround the links of the chains 5 to 12
resist lateral movement of the chains as the gripping pads 7 conduct the 13
sheets to the stapling table 9. “Each chain guide 33 is comprised of a 14
generally C-profile section of rigid, curved track which thereby provides an 15
upper curved chain guide flank 34 and a lower curved chain guide flank 35.” 16
(Weisberger, col. 4, ll. 42–46). As depicted in Figure 3, portions of the side 17
plates of the chain links of chains 5 extend downwardly relative to the pins 18
or rollers to embrace the lower chain guide flanks 35 of the chain guide 33 in 19
a manner likely to restrain lateral movement of the chain relative to the 20
machine direction. 21
22
Frenker-Hackfort 23
119. Frenker-Hackfort describes an endless chain 1 particularly 24
designed for transmitting power from a hydraulic cylinder to raise or lower 25
the lifting fork of a fork lift. (See Frenker-Hackfort, col. 1, ll. 7–15). One 26
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problem encountered by extant power transmission chains was that such 1
chains might swing about during the lifting of the fork, thereby striking, and 2
potentially damaging, the piston rod of the hydraulic cylinder. (See Frenker-3
Hackfort, col. 1, ll. 15–31). 4
120. Frenker-Hackfort addresses this problem by means of a chain 1 5
including links having side-by-side metallic outer link plates 2, metallic 6
intermediate links plates 3 and polymeric protective links plates 5 pivotably 7
coupled together by pins 4 extending the width of the chain through the 8
outer, intermediate and protective link plates. The protective links plates 5, 9
as depicted in Figure 3, are trapezoidal in shape, having wider sections 10
adjacent straight base edges 6 bored, as at 10, to receive the pins 4; and 11
narrower, projecting portions 11 extending beyond the perimeters of the 12
outer and intermediate link plates 3, 4. As depicted in Figure 4, the 13
projecting portions 11 of the protective links plates 5 include 14
perpendicularly extending flanges 13. (See generally Frenker-Hackfort, col. 15
3, l. 29 – col. 4, l. 2; & Figs. 1–8). 16
121. According to Frenker-Hackfort: 17
In use, the portions of the protective link plates projecting at at 18
least one side of the chain, that is[,] the side remote from that 19
which in use engages the chain guiding wheel or wheels[,] come 20
into contact with the piston rod of the hydraulic cylinder as the 21
chain vibrates and thus act as deflectors. They may also fulfill a 22
guiding function, since the oscillating of the chain is limited and 23
the movement of the chain in the prescribed movement path is 24
assisted. 25
(Frenker-Hackfort, col. 1. ll. 52–60; see also id., col. 2, ll. 11–20). This 26
teaching is too remote to have suggested independently to one of ordinary 27
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skill in the art reason to provide structure to guide a conveyor chain along a 1
straight path through a packaging machine. 2
3
Strickland 4
122. Strickland describes a chain 24 mounted on a pair of sprocket 5
wheels 20, 22. (See Strickland, col. 2, ll. 30–33 & Fig. 1). The chain 24 6
consists of rigid links 46 pivotably coupled together by pins 48. (See 7
Strickland, col. 2, ll. 66–68). Strickland teaches that conventional conveyor 8
chains were unable to accurately position entrained articles because the 9
chains tended to deflect laterally of the transport direction; twist; or tilt the 10
entrained articles. (See Strickland, col. 1, ll. 8–38). Strickland addresses 11
this problem by providing certain links 46 of the chain 24 with angled 12
fingers 50 for engagement in reentrant, horizontal channels 42 at the base of 13
an upwardly opening slot 38 in a stationary track member 36. (See 14
Strickland, col. 2, l. 53 – col. 3, l. 5 & Fig. 4). The engagement of the 15
angled fingers 50 projecting from the links 46 in the reentrant channels 42 of 16
the track member 36 constrain the chain 24 against lateral deflection, 17
twisting or tilting. (See generally Strickland, col. 3, l. 28 – col. 4, l. 2). 18
19
Wolfelsperger 20
123. Wolfelsperger criticizes the use of clamps carried by roller 21
chains as a means for transporting plastic films, particularly thin plastic 22
films of one-thousandth of an inch to two-thousandths of an inch in 23
thickness or less, through thermoforming machines. In particular, 24
Wolfelsperger teaches that “[m]any of the conventional and known clamps 25
are both expensive and partially unreliable in that as the film varies in 26
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thickness or is pulled by forming action the film slips from the clamps.” 1
(Wolfelsperger, col. 1, ll. 17–20). 2
124. Instead, Wolfelsperger teaches clamping the edges of a plastic 3
film 40 between the downwardly extending portions of the inner side plates 4
12 of a conventional roller chain 10; and the narrower surface of a “V” belt 5
30 pressed between the side plates 12, 14. (See Wolfelsperger, col. 3, ll. 14–6
35 & Fig. 1). 7
125. Wolfelsperger also teaches providing a downwardly extending 8
backup bar 20 adapted to engage the inner side plates 12 of the roller chain 9
10 to precisely position the roller chain in space as individual chain links 10
transport the plastic film 40 along a path. (See Wolfelsperger, col. 2, ll. 50–11
57 & Fig. 1). The configuration of the base 36 beneath the “V” belt 30, as 12
depicted in Figure 1 of Wolfelsperger, is designed to accommodate the 13
rollers 32 used to drive the “V” belt. 14
15
Heitmann (US 4,901,740, issued Feb. 20, 1990) 16
126. The Requester cites Heitmann as evidence that “[i]t was well 17
known in the art of packaging machines that one may substitute a belt 18
conveyor for a roller chain conveyor.” (See Req’r Comm. on Req. Reopen 19
35). Heitmann describes a threading mechanism for threading a web 21 of 20
cigarette paper or the like into a complicated path connecting a roll 22 of the 21
web with multiple operating stations, such as printing stations 23, 57 and a 22
“bronzing” station 54. (See Heitmann, col. 8, ll. 6–11; see also id., col. 7, ll. 23
13–41 & Figs. 1 & 2). One such threading mechanism includes an endless 24
flexible chain 62 (depicted as a roller chain in Fig. 4) mounted on a plurality 25
of sprocket wheels. (See Heitmann, col. 8, ll. 6–24 & Figs. 2 & 4). The 26
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flexible chain 62 includes at least one pin-shaped entraining member 71 that 1
extends outwardly from the pins of the roller chain to engage a looped 2
portion 74 at the leader of each new web 21. At least some of the sprocket 3
wheels mounting the flexible chain 62 align with rollers used to draw the 4
web 21 through the operating stations 23, 54, 57, so that the entrainment 5
member 71 extending from the chain may draw the web through the rollers 6
defining the path P to be taken by the web through the operating stations. 7
(See Heitmann, col. 8, ll. 46–60 & Fig. 3). 8
127. Heitmann describes an alternative threading mechanism 9
including a toothed belt 162 mounted on a plurality of toothed pulleys 169. 10
The toothed belt 162 includes at least one clamping device 171 for engaging 11
the leader of each new web 21. At least some of the toothed pulleys 169 12
mounting the toothed belt 162 align with rollers used to draw the web 21 13
through the operating stations 23, 54, 57 so that the clamping device 171 14
may draw the web through the rollers defining the path P to be taken by the 15
web through the operating stations. (See Heitmann, col. 8, l. 61 – col. 9, l. 16
14 & Fig. 5). 17
18
Layne (US 6,202,834 B1, issued Mar. 20, 2001) 19
128. The Requester cites Layne as evidence that one of ordinary skill 20
in the art “would also have [had] the choice of many downwardly extending 21
guide element[s] and their accompanying guide rails.” (See Req’r Comm. 22
on Req. Reopen 38). Layne describes a gang of modular link conveyor belts 23
12 mounted on pairs of sprockets, including drive sprockets 44, for 24
movement along converging paths. (See Layne, col. 6, ll. 23–34; col. 8, ll. 25
16–21; col. 9, ll. 40–43; & Figs. 1 & 4). Each modular link conveyor belt 12 26
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comprises “W”-shaped modular links 18 having widths comparable to the 1
width of the belt as a whole. (See Layne, col. 6, l. 57 – col. 7, l. 2 & Fig. 2). 2
The links 18 are coupled to each other by pins 19 received in oblong slots 3
34a, 34b elongated in a direction parallel to the direction of travel of the belt 4
12. This arrangement permits each link 18 to pivot, at least to a limited 5
extent, in both the pitch and yaw directions relative to the plane of the belt 6
12 and the direction of travel. In this way, the belt 12 can accommodate 7
changes in the direction of travel, both within the plane of the belt and 8
perpendicular to that plane. (See Layne, col. 7, ll. 10–14 & 25–60; & Fig. 9
2). 10
129. Layne also describes I-beam shaped guide rails 14 for guiding 11
the belts 12 along curvilinear, and potentially converging, paths. (See 12
Layne, col. 6, ll. 23–34 & Figs. 1 & 1a). Each guide rail 14 is “T”-shaped, 13
including opposed upper and lower flanges defining upper and lower guide 14
tracks 40, 42. (See Layne, col. 7, l. 61 – col. 8, l. 2 & Fig. 5). Each modular 15
link 18 includes a pair of downwardly extending arms 26 bearing reentrant 16
tabs 28 for engagement with the guide tracks 40, 42 to slidably couple the 17
belt 12 to a corresponding guide rail 14. (See Layne, col. 8, ll. 8–15 & Fig. 18
3). Layne teaches forming the modular links 18 and the guide rails 14 to 19
reduce friction and facilitate cleaning. (See Layne, col. 7, ll. 3–9 & col. 8, ll. 20
49–53). 21
22
Mensch (US 5,620,084, issued Apr. 15, 1997) 23
130. The Requester cites Mensch as evidence that one of ordinary 24
skill in the art “would also have [had] the choice of many downwardly 25
extending guide element[s] and their accompanying guide rails.” (See Req’r 26
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Comm. on Req. Reopen 38). Mensch describes a chain propelled belt 1
conveyor 10 including an endless belt 12 affixed to a roller chain 14 2
mounted on a pair of sprockets, including an end sprocket 68. (See Mensch, 3
col. 2, ll. 47–51; col. 3, ll. 62–64; col. 4, ll. 27–30 & Fig. 2). The roller 4
chain 14 includes alternating pairs of inner and outer side plates 26, 28 5
pivotably coupled by means of pins 37. Each pin 37 mounts a roller 24. 6
(See Mensch, col. 3, ll. 5–18 & Figs. 3 & 4). The roller chain 14 also 7
includes trolley brackets 40, 42 extending downwardly with respect to the 8
side plates 26, 28. The trolley brackets 40, 42 mount trolley wheels 44, 46 9
near lower ends of the brackets. (See Mensch, col. 3, ll. 21–23 & Fig. 3). 10
131. Mensch also describes a track assembly 23 for guiding and 11
supporting the chain propelled belt conveyor 10. (See Mensch, col. 2, ll. 51–12
55 & Fig. 2). The chain propelled belt conveyor 10 includes a pair of 13
spaced, oppositely facing, C-shaped channel sections 30, 32 bridged by a 14
center rail 22. The center rail 22 has a flat upper surface recessed from the 15
upper surface of the two channel sections 30, 32 to define a trough 41. (See 16
Mensch, col. 2, ll. 56–64 & Fig. 3). During an upper load bearing run of a 17
section of the conveyor 10, the rollers 24 of that section of the conveyor roll 18
within the trough 41 to support and guide the section over the track assembly 19
23. During a lower load bearing run, the trolley wheels 44, 46 associated 20
with that section engage lower flanges 45 of depending C-shaped channel 21
sections 30, 32 to support and guide the section beneath the track assembly 22
23. (See Mensch, col. 3, ll. 24–32; col. 4, ll. 22–26 & Figs. 1–3). 23
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Demny (US 5,060,786, issued Oct. 29, 1991) 1
132. The Requester cites Demny as evidence that one of ordinary 2
skill in the art “would also have [had] the choice of many downwardly 3
extending guide element[s] and their accompanying guide rails.” (See Req’r 4
Comm. on Req. Reopen 38). Demny describes an endless belt 1 mounted on 5
a pair of conveyor wheels 2, 3 for use in a cigarette packaging machine. 6
(See Demny, col. 2, ll. 37 & 38; & Fig. 1). Base strips 19 clamp cells 18 to 7
the belt 1 at intervals along the belt. (See Demny, col. 2, ll. 35–37; col. 3, ll. 8
1–7; & Fig. 2a). A wheel 2 drives the belt 1 to transport articles such as 9
cigarettes contained within the cells 18. (See Demny, col. 1, ll. 9–15; col. 2, 10
ll. 38–41; col. 3, ll. 8–10; & Fig. 1). Opposite ends of the base strips 19 11
extend horizontally beyond the width of the belt 1 to engage guide grooves 12
in lateral guide rails 20. (See Demny, col. 3, ll. 13–15 & Fig. 2a). 13
14
Shaffer (US 1,767,860, issued June 24, 1930) 15
133. The Requester cites Shaffer as evidence that “discontinuous 16
films can easily be drawn off a roll.” (Req’r Comm. on Determination 27; 17
see also Req’r Comm. on Req. Reopen 6 & 7). Shaffer describes a roll of 18
separate, interleaved sheets of paper, such as napkins or toilet paper, 19
packaged for sale in a cheap, disposable carton. (See generally Shaffer 1, ll. 20
1–14 & 31–55; & Figs. 1–3). Shaffer does not appear to describe, or 21
suggest, rolling packaging material on such a roll or feeding material from 22
such a roll into a packaging machine. 23
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Jones (US 6,399,184 B1, issued June 4, 2002) 1
134. The Requester cites Shaffer as evidence that “discontinuous 2
films can easily be drawn off a roll.” (Req’r Comm. on Determination 27; 3
see also Req’r Comm. on Req. Reopen 6 & 7). Jones describes 4
thermoformer machine 16. (See Jones, col. 1, ll. 42–44; col. 2, ll. & 43–45; 5
& Fig. 4). More specifically, Jones’ machine includes a heating station 20 6
for heating packaging stock material; a forming station 24 for forming blister 7
shapes in the material; a cutting station 28 for separating blister-shaped webs 8
12 along cut areas 14; and a placing station 30 for placing the webs 12 in 9
trays of a heat sealer machine. (See generally Jones, col. 2, l. 49 – col. 3, l. 10
12 & Fig. 4). 11
135. Jones criticizes traditional thermoforming machines using trim 12
presses to cut stock to the finished shape of blister packages, saying that the 13
trimming step produces unnecessary scrap and adds time to the production 14
process. (See Jones, col. 1, ll. 27–33). Jones instead teaches thermoforming 15
blister packages from a roll 10 divided into a sequence of webs 12. As 16
depicted in Figure 1A, the stock material is precut to a depth D1 on each 17
lateral side between each pair of adjacent webs 12. According to Figure 1A, 18
the depth D1 is less than half the overall width W is the stock material, so 19
that each web 12 remains connected to adjacent webs by a cut area 14 20
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having a width D2. (See Jones, col. 2, ll. 27–37).7 Jones teaches that the use 1
of stock material precut in this fashion eliminates the need for a trim press. 2
(Jones, col. 3, ll. 19–24). 3
136. Thus, Jones’ stock material remains connected by the cut areas 4
14 from the time that the stock material is drawn off of the roll 10 until it is 5
cut along the cut areas at the cutting station 28. In other words, Jones’ stock 6
material remains a continuous packaging material as it moves through a 7
plurality of work stations 22, 26. 8
9
Lotto (US 5,588,644, issued Dec. 31, 1996) 10
137. The Requester cites Lotto as evidence that “discontinuous films 11
can easily be drawn off a roll.” (Req’r Comm. on Determination 27; see 12
also Req’r Comm. on Req. Reopen 6 & 7). Lotto describes apparatuses for 13
winding rolls of plastic bags on turret winders. (Lotto, col. 1, ll. 20–22). 14
The apparatuses use rollers turning at various speeds, as well as air blowers 15
and vacuum ports, to separate the bags along lines of perforation; arrange the 16

7 Jones teaches that, “[p]referably, each of the webs 12 would be precut
so that the depth D1 would be about 25% to 90% of the overall width W of
the web 12 with the corners of each web 12 having a radius R in the range of
about 0.125 inches to 0.500 inches.” (Jones, col. 2, ll. 33–37). If, as Figure
1A depicts, each lateral side of the stock material is precut to a depth D1,
then the quoted statement is understood to say that the total depth of both
cuts, twice D1 as depicted in Figure 1A rather than D1 itself, would be about
25% to 90% of the overall width W. If depth of the cut into each lateral side
of the stock material exceeded 50% of the total width W, the cuts would
overlap. Hence, any value of D1 exceeding 50% of the total width W would
be meaningless, as it would represent merely an extension of one cut into the
other cut. Therefore, we interpret the quoted teaching to mean that the width
D2 of the cut area 14 would be between 75% and 10% of the total width W.
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bags such that trailing portions of bags interleave with, or overlap, leading 1
ends of adjacent bags; and wind the interleaves bags into rolls. (See Lotto, 2
col. 3, ll. 17–19; see generally col. 4, l. 60 – col. 5, l. 44; col. 5, l. 66 – col. 6, 3
l. 2; & Figs. 2–7). 4
138. Lotto describes the web or sheet from which individual bags are 5
separated prior to winding as “continuous,” despite the presence of cross 6
seals and perforation lines. (See Lotto, col. 3, ll. 33–36). 7
8
Langer (US 3,177,746, issued Apr. 13, 1965) 9
139. The Requester cites Langer as evidence that “[m]any packaging 10
machines cut sheets of a roll and then use grippers to transport discontinuous 11
film sheets through the machine, one sheet at a time.” (Req’r Comm. on 12
Determination 27; see also Req’r Comm. on Req. Reopen 7). Langer 13
describes a machine for cutting lengths of a thin sheet or film material from 14
a roll “carrying a long or continuous length of the film.” (Langer, col. 2, ll. 15
22–25; see also col. 1, ll. 13–18; col. 4, ll. 59–62; & Fig. 3). The machine 16
transports the film F by means of grippers 60 mounted on belts 40, 42. (See 17
Langer, col. 3, ll. 21–25 & Fig. 4). The grippers 60 are cut to form arrays of 18
vertical, finger-like, resilient segments 62. (See Langer, col. 3, ll. 35–40 & 19
Fig. 4). The grippers 60 press against transversely-opposed portions of the 20
film F to draw or pull the film past a cutter 66. (See Langer, col. 3, ll. 45–21
65). 22
23
Vogel (US 3,728,921, issued Apr. 24, 1973) 24
140. The Requester cites Vogel as evidence that “[m]any packaging 25
machines cut sheets of a roll and then use grippers to transport discontinuous 26
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film sheets through the machine, one sheet at a time.” (Req’r Comm. on 1
Determination 27; see also Req’r Comm. on Req. Reopen 7). Vogel 2
describes an apparatus for cutting a flexible sheet or film into individual 3
lengths for use as wrappings. (See Vogel, col. 1, ll. 5–14). Vogel’s 4
apparatus includes a stationary knife 17 and a rotary knife 19 for cutting a 5
web W of the flexible material into sheets S. (See Vogel, col. 5, ll. 54–56 & 6
Fig. 2). A pair of belts 31 mount pads 51. Nips created between the pads 51 7
and facing belts 37 engage the sheets S and transport the sheets from a 8
gripping point GP downstream of the knives 17, 19 to a release point RP. 9
(See Vogel, col. 4, ll. 14–30; col. 5, l. 64 – col. 6, l. 3; & Figs. 2 & 7). 10
11
Claudio (US 4,520,613, issued June 4, 1985) 12
141. The Requester cites Claudio as evidence that “[m]any 13
packaging machines cut sheets of a roll and then use grippers to transport 14
discontinuous film sheets through the machine, one sheet at a time.” (Req’r 15
Comm. on Determination 27; see also Req’r Comm. on Req. Reopen 7). 16
Claudio describes a machine for wrapping trays of fruit or the like with 17
lengths of stretchable plastic foil. (See Claudio, col. 1, ll. 48–64; see also 18
id., col. 1, ll. 17–21). The device uses gripper clamps or tongs 10 mounted 19
on endless chains 22 to grasp a stretchable foil 18 and draw the foil off of a 20
supply roll. (See Claudio, col. 2, ll. 34–50 & Fig. 2). The gripper tongs 10 21
grip the foil 18 as a cutter 48 cuts the film into lengths. (See Claudio, col. 3, 22
ll. 27–31 & Fig. 2). 23
142. Claudio describes no means other than chain reversing wheels 24
20 for guiding the chains 22 and the gripping tongs 10 along their path. (See 25
Claudio, col. 2, l. 65 – col. 3, l. 1). In particular, Claudio does not appear to 26
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describe a guide rail for engaging the chains 22 to resist lateral movement of 1
the chains and the gripper tongs 10. 2
3
CLAIM INTERPRETATION 4
During a reexamination proceeding, claims are given their broadest 5
reasonable interpretation. In re American Acad. of Sci. Tech Ctr., 367 F.3d 6
1359, 1364 (Fed. Cir. 2004). Absent a formal definition or a clear 7
disclaimer of scope in the written description, it is presumed that technical 8
terms within a claim are to be interpreted in the manner that one of ordinary 9
skill in the art ordinarily would have used the terms. ICON Health & 10
Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). Properties of preferred 11
embodiments described in the written description that are not recited in a 12
claim do not limit the reasonable scope of the claim. E-Pass Techs., Inc. v. 13
3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003). Nevertheless, where 14
possible, claim language should be construed sufficiently broadly to 15
encompass at least one disclosed preferred embodiment. Hoechst Celanese 16
Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1581 (Fed. Cir. 1996). 17
It is a canon of claim interpretation that a word or phrase typically 18
should bear the same meaning throughout the claims and written description. 19
See Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1356 (Fed. 20
Cir. 1999). This canon is not absolute, however. See CAE Screenplates, 21
Inc. v. Heinrich Fiedler GmbH, 224 F.3d 1308, 1317 (Fed. Cir. 2000); see 22
also Renishaw PLC v. Marposs SpA, 158 F.3d 1243, 1248 (Fed. Cir. 1998) 23
(“no canon of construction is absolute in its application”). For example, the 24
meaning of a term might vary, even within a single claim, when used in 25
different contexts. 26
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The Requester argues that the term “continuous packaging film,” as 1
used in claim 1, and the term “continuous food packaging film,” as used in 2
claims 21 and 23, should be interpreted as being limited to a film configured 3
as an endless loop. (See Req’r Comm. on Req. Reopen 8–10; Req’r Comm. 4
on Determination 29 & 30). Instead, one of ordinary skill in the art would 5
have understood the terms “continuous packaging film” and “continuous 6
food packaging film” to refer to a sheet or web that remains connected until 7
severed at a work station within the machine. One of ordinary skill in the art 8
would not have understood the terms to include endless loops of plastic 9
material. 10
The ʼ614 patent does not formally define the adjective “continuous” 11
or clearly disclaim coverage of sheets or webs severed at a work station 12
within the machine. Turning to extrinsic evidence within the field of 13
endeavor to illustrate how one of ordinary skill in the art would have 14
understood the term “continuous packaging material,” Hamilton describes 15
webs or sheets 30, 122 of film as being “continuous” prior to being cut by a 16
serrated knife 168 immediately downstream of the package finishing station 17
124. (See PO Reply to Req’r Comm. on Determination 21; see also FF 22 & 18
30–33). This is true even though, prior to being cut by the serrated knife 19
168, the web or sheets are heated and drawn into dies 76 to form the pockets 20
100; and then slit, as at 112, to facilitate evacuation of the pockets at the 21
package finishing station. (See FF 28–31). Although the webs or sheets 30, 22
122 appear to remain connected as they pass through plural work stations in 23
Hamilton’s apparatus (see generally FF 28–30), the fact that the webs or 24
sheets are cut by the serrated knife 168 implies that the webs or sheets are 25
not endless. Hence, Hamilton uses the word “continuous” sufficiently 26
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broadly to describe webs or sheets 30, 122 that remain connected as they 1
pass through the work stations, but are not endless. 2
Hepner, Jezuit and Canamero likewise use the adjective “continuous” 3
to describe webs or sheets that are not endless. (See FF 49, 70 & 85). These 4
examples imply that one of ordinary skill in the art would have understood a 5
“continuous packaging film” or a “continuous food packaging film” to 6
remain connected as it passes through plural work stations, but which is cut 7
at a cutting station within the machine. On the other hand, none of the 8
references of record appears to use the adjective “continuous” to refer to an 9
endless loop of packaging material. Indeed, there is no evidence that one of 10
ordinary skill in the art would have understood a “continuous packaging 11
film” or a “continuous food packaging film” to encompass endless loops of 12
packaging film. 13
This interpretation is consistent with the written description of the 14
ʼ614 patent. Neither the phrase “continuous packaging film,” nor the phrase 15
“continuous food packaging film,” appears in the written description. 16
Nevertheless, Figure 9 of the ʼ614 patent schematically depicts a 17
thermoforming packaging machine 25 including a chain 31 for transporting 18
a packaging film 29 through a plurality of work stations 26, 27 before the 19
film is cut at a cutting station 28. (See FF 2). The understanding that a 20
“continuous packaging film” remains connected through the work stations 21
26, 27 is consistent with the configuration of the packaging film in this 22
embodiment. On the other hand, the cutting of the packaging film 29 at the 23
cutting station 28 implies that the film is not endless. An interpretation that 24
limited the terms “continuous packaging film” and “continuous food 25
packaging film” to webs or sheets configured as endless loops would 26
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exclude the embodiment depicted in Figure 9, which is the only embodiment 1
of a packaging machine disclosed in the ʼ614 patent. Hence, the written 2
description supports interpreting the terms “continuous packaging film” and 3
“continuous food packaging film” as being sufficiently broad to encompass 4
a sheet or web that remains connected through multiple work stations before 5
being cut at a cutting station; but as excluding endless loops of packaging 6
film. 7
The ʼ614 patent uses the adjective “continuous” in the phrases 8
“continuous flexible traction element” (see ʼ614 patent, col. 2, ll. 39–43), 9
“continuous elastic belt” (see ‘614 patent, col. 2, ll. 43–45) and “continuous 10
flexible metal strip” (see ʼ614 patent, col. 3, ll. 53–55) to refer to belts, strips 11
or elements configured as endless loops. Claim 23 recites both a 12
“continuous food packaging film” and a “continuous flexible traction 13
element.” The Requester argues that an interpretation that does not limit the 14
phrase “continuous packaging film” to a film configured as an endless loop 15
is inconsistent with this usage of the adjective “continuous” in the written 16
description and in claim 23. (See Req’r Comm. on Req. Reopen 8 & 9). 17
Although, as discussed earlier, claim terms usually bear the same 18
meaning throughout the written description and the claims of a patent, that 19
rule is not absolute. Grevich, for example, applies the adjective 20
“continuous” both to a packaging web 11 cut near the downstream end of a 21
vacuum packaging machine; and to presumably endless roller chains used to 22
transport such a web through vacuum packaging machines. (See FF 101; see 23
also PO Reply to Req’r Comm. on Determination 21). Grevich’s disclosure 24
is evidence that one of ordinary skill in the art would have recognized that a 25
continuous traction element might be endless, whereas a “continuous 26
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packaging film” might not be. Therefore, the terms “continuous packaging 1
film” and “continuous food packaging film” may be reasonably interpreted 2
as sufficiently broad to encompass a sheet or web that remains connected 3
until severed at a work station within the machine. The terms exclude 4
endless loops of packaging film. 5
6
ANALYSIS 7
First Issue 8
Claim 21 recites: 9
A packaging machine having a chain for transporting a 10
continuous food packaging film through a plurality of work 11
stations of the packaging machine, . . . wherein the chain 12
transports the gripped portion of the continuous food packaging 13
film through the plurality of workstations of the thermoforming 14
packaging machine by a movement of the chain. 15
The Requester correctly points out that the amendment of claim 21 to 16
include the words “the thermoforming packaging machine” near the end of 17
the claim rendered the claim indefinite. (See Req’r Comm. on Req. Reopen 18
11 & 12; Req’r Comm. on Determination 31). 19
More specifically, the Requester points out that the term, “the 20
thermoforming packaging machine,” as used in claim 21 lacks antecedent 21
basis. (See Req’r Comm. on Req. Reopen 11). Lack of antecedent basis is 22
not, in and of itself, a basis for concluding that a claim is indefinite. Instead, 23
lack of antecedent basis must be taken into account in determining whether 24
one of ordinary skill in the art would have been able to determine the scope 25
of the claim. See Energizer Holdings, Inc. v. International Trade Comm’n, 26
435 F.3d 1366, 1369 & 1370 (Fed. Cir. 2006). 27
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In the present case, one of ordinary skill in the art would not have 1
been able to ascertain whether the Patent Owner intends the recitation of 2
“the thermoforming packaging machine” to limit the packaging machine 3
recited in the preamble and the body of claim 21 to a thermoforming 4
packaging machine. (See Req’r Comm. on Determination 31; Req’r Comm. 5
on Req. Reopen 11). None of the other limitations of claim 21 resolves this 6
ambiguity. 7
Although the Patent Owner insists that “[t]here is no confusion as to 8
Patent Owner’s intended scope of the claim” (PO Reply to Req’r Comm. on 9
Determination 22), the Patent Owner does not take a position as to whether 10
or not the packaging machine recited in claim 21 is limited to a 11
thermoforming packaging machine. Neither does the Patent Owner explain 12
why it believes the intended scope of the claim is without confusion. 13
The Patent Owner’s alternative argument, that the appearance of the 14
word “thermoforming” is an obvious typographical error (see id.), is not 15
persuasive. The Patent and Trademark Office has an affirmative duty to 16
ensure the clarity and precision of new or amended claims under 17
examination or reexamination. Cf. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 18
1989) (“[D]uring patent prosecution when claims can be amended, 19
ambiguities should be recognized, scope and breadth of language explored, 20
and clarification imposed.”). That affirmative duty is not met by permitting 21
a typographical error that renders the scope of a claim ambiguous to pass 22
unchallenged. 23
Therefore, we agree with the Requester that the language of claim 21, 24
as amended, does not clearly define the exclusive right at issue. Pursuant to 25
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our authority under 37 C.F.R. §41.77(a), we enter new grounds of rejection 1
against claim 21 under §112, second paragraph, as indefinite. 2
Second Issue 3
Claim 1 has been amended to recite: 4
A packaging machine having a chain for transport of a 5
continuous packaging film, . . . wherein one or more of the rigid 6
chain links include clamping units for gripping a portion of the 7
continuous packaging film and thus transporting the gripped 8
portion of the continuous packaging film through a plurality of 9
work stations of the packaging machine by a movement of the 10
chain. 11
Both claims 21 and claim 23 have been amended to recite a “packaging 12
machine having a chain for transporting a continuous food packaging film 13
through a plurality of work stations of the packaging machine.” The 14
Requester argues that the transport of a continuous packaging film is not 15
adequately described in the ʼ614 patent. (See Req’r Comm. on Req. Reopen 16
5–7). 17
The test for compliance with the written description requirement is 18
“whether the disclosure of the application relied upon reasonably conveys to 19
those skilled in the art that the inventor had possession of the claimed 20
subject matter as of the filing date.” Ariad Pharmas., Inc. v. Eli Lilly & Co., 21
598 F.3d 1336, 1351 (Fed. Cir. 2010). The inquiry is one of fact. See id. 22
The Requester, as the party advocating rejection of claims 1, 21 and 23, 23
bears the burden of proving lack of written description by a preponderance 24
of the evidence. See Rambus Inc. v. Rea, 731 F.3d 1248, 1255 (Fed. Cir. 25
2013); cf. 5 U.S.C. § 556(d). 26
The Requester has not met its burden. More specifically, the 27
Requester has not proven that column 5, lines 11–21, and Figure 9, of the 28
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ʼ614 patent fail to provide adequate written description support for the 1
quoted limitations. (See Req. Reopen 7). 2
Figure 9 is a schematic view of a thermoforming machine. The 3
passage at column 5, lines 13–17, describes that machine as drawing a film 4
29 off from a roll; forming cavities 30 in the film at a forming station 26; 5
filling and sealing the cavities; and then separating the cavities from one 6
another in a cutting station 28. (See FF 2). As the Requester correctly 7
points out, the ʼ614 patent does not say that the packaging film 29 remains 8
continuous from the time that the film is drawn from the roll until the film is 9
cut. (See Req’r Comm. on Req. Reopen 5). Indeed, the ʼ614 patent does not 10
limit its use of the noun “film” to continuous films. For example, it 11
describes the chain 31 as “transport[ing] the film 29, with the cavities 30 12
formed therein, up to the discharge belt 36 of the machine” (FF 2, quoting 13
ʼ614 patent, col. 5, ll. 19–21), a point beyond that at which the film is cut at 14
the cutting station 28. 15
Nevertheless, the patent does not describe cutting the film before the 16
film reaches the cutting station 28. (See PO Reply to Req’r Comm. on 17
Determination 17). In particular, the ʼ614 patent does not describe any 18
cutting operation performed between the roll and the forming station 26. 19
One of ordinary skill in the art could have understood the absence of such a 20
cutting operation to mean that the film 29 remains continuous until cut at the 21
cutting station 28. 22
The Requester points out that Figure 9 of the ʼ614 patent depicts the 23
film 29 from the forming station 26 forward in broken lines. (See Req’r 24
Comm. on Req. Reopen 5). The written description of the ʼ614 patent does 25
not explain the significance of these broken lines. The Requester argues that 26
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one of ordinary skill in the art would have understood these broken lines as 1
indicating that the packaging film 29 was cut between the pockets 30 formed 2
in the film. (See Req’r Comm. on Req. Reopen 5 & 6; Req’r Comm. on 3
Determination 25). This is not the only reasonable explanation for these 4
broken lines, however. Lovas, for example, describes a packaging machine 5
100 in which pockets or cavities are formed in a continuous lower plastic 6
web 200 as the continuous web is drawn through the machine. (See FF 49). 7
Although the written description of Lovas indicates that the lower web 200 8
is continuous, Figures 5 and 21 of Lovas depict that web in “dash-dot” 9
broken lines. (See FF 53). In view of the disclosure of Lovas, the Requester 10
has not shown that one of ordinary skill in the art would have interpreted the 11
broken lines in Figure 9 as discontinuities in the packaging film 29. 12
Furthermore, the patents cited by the Requester as evidence that rolled 13
plastic web or sheet material necessary is continuous (see Req’r Comm. on 14
Determination 27; see also Req’r Comm. on Req. Reopen 6 & 7), or that a 15
continuous plastic sheet or web drawn off a roll necessarily will remain 16
continuous when transported through plural work stations of a machine . 17
(see id.), do not persuade us that the written description of the ʼ614 failed to 18
convey the subject matter of claims 1, 21 and 23. Jones, for example, 19
describes a thermoforming packaging machine in which a continuous, that 20
is, connected, plastic stock material is drawn off of a roll and transported 21
through a plurality of work stations before individual packages are cut from 22
the material. (See FF 134–36). Jones’s teachings are not evidence that one 23
of ordinary skill in the art would have understood the thermoforming 24
packaging machine depicted in Figure 9 of the ʼ614 to have behaved 25
differently. Shaffer and Lotto describe rolls of interleaved, discontinuous 26
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sheet material. (See FF 133 & 137). Langer, Vogel and Claudio describe 1
machines for drawing continuous webs or films from rolls; and then cutting 2
the webs or sheets into lengths of material for use as wrappings. (See FF 3
139–141). None of these references described thermoforming packaging 4
machines having forming and filling work stations upstream of cutting 5
stations. None of the cited teachings persuade us that one of ordinary skill in 6
the art would have interpreted Figure 9 of the ʼ614 patent as disclosing a 7
thermoforming packaging machine that failed to transport a continuous film 8
material through a plurality of work stations. 9
Based on the evidence before us, the Requester has not proven by a 10
preponderance of the evidence that the written description, drawing figures 11
and claims of the ʼ614 patent would not have reasonably conveyed to one of 12
ordinary skill in the art that the named inventors had possession of the 13
subject matter of claims 1, 21 and 23 as of the filing date. Therefore, we 14
sustain the Examiner’s decision not to adopt the proposed rejection of claims 15
1, 21 and 23 under the first paragraph of § 112 for lack of written 16
description, albeit for reasons different than those on which the Examiner 17
relied. 18
19
Third Issue 20
The preamble of claim 1 recites a “packaging machine having a chain 21
for transport of a continuous packaging film.” The preamble of each of 22
claims 21 and 23 recites a “packaging machine having a chain for 23
transporting a continuous food packaging film through a plurality of work 24
stations of the packaging machine.” As discussed earlier, the Requester 25
argues that the phrases “continuous packaging film” and “continuous food 26
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packaging film” are limited to endless loops of packaging film. (See Req’r 1
Comm. on Req. Reopen 8–10; Req’r Comm. on Determination 29 & 30). 2
Assuming that the phrase “for transport of a continuous packaging film” 3
limits claim 1; and that the phrase “for transporting a continuous food 4
packaging film” limit claims 21 and 23, the Requester contends that the 5
written description of the ʼ614 patent fails to enable a packaging machine 6
capable of operating on an endless loop of packaging film. (See Req’r 7
Comm. on Req. Reopen 10; Req’r Comm. on Determination 27–31). 8
Although “the scope of the claims must bear a reasonable correlation 9
to the scope of enablement provided by the specification to persons of 10
ordinary skill in the art,” see In re Fisher, 427 F.2d 833, 839 (CCPA 1970), 11
the written description need not enable subject matter outside the scope of 12
the claims. As discussed earlier, one of ordinary skill in the art would have 13
understood the terms “continuous packaging film” and “continuous food 14
packaging film” to refer to a sheet or web that remains connected until 15
severed at a work station within the machine. The terms exclude endless 16
loops of plastic material. Therefore, the ʼ614 patent need not enable 17
operation on an endless loop of packaging material. The Requester’s 18
contention is not persuasive. 19
On the other hand, nothing in claims 1, 21 and 23 expressly excludes 20
a packaging machine including only a single chain for transport of a 21
continuous packaging film. The Requester asserts that a packaging machine 22
having only a single chain for transport of a continuous packaging film 23
cannot keep a packaging film moving through the machine horizontal and 24
under adequate tension. (See Req’r Comm. on Determination 27 & 28). 25
The Requester contends that the written description of the ʼ614 patent fails 26
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to enable the full scope of claims 1, 21 and 23, because a packaging machine 1
with a single chain, that cannot keep a packaging film horizontal and under 2
adequate tension, is not operable. (See Req’r Comm. on Req. Reopen 11; 3
Req’r Comm. on Determination 28). See Trustees of Boston Univ. v. 4
Everlight Elecs. Co., 896 F.3d 1357 (Fed. Cir. 2018) (“Boston Univ.”) (“We 5
can safely conclude that the specification does not enable what the experts 6
agree is physically impossible.”).8 7
“[I]t is well established that enablement requires that the specification 8
teach those in the art to make and use the invention without undue 9
experimentation.” In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). Factors 10
to be considered in determining whether the experimentation that one of 11
ordinary skill in the art might have to undertake to make and use the claimed 12
subject matter is reasonable include: 13
the quantity of experimentation necessary; 14
the amount of direction or guidance presented; 15
the presence or absence of working examples; 16
the nature of the invention; 17
the state of the prior art; 18
the relative skill of those in the art; 19
the predictability or unpredictability of the art; and 20
the breadth of the claims. 21
Id. 22

8 Pagination is not yet available for this opinion in the WESTLAW
database.
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Although the issue here relates, in particular, to the last of the Wands 1
factors, we must address the Requester’s proposed rejection in view of all 2
applicable factors. Considering these factors as a whole, we conclude that 3
the written description of the ʼ614 is reasonably correlated with the scope of 4
claims 1, 21 and 23. 5
The claims at issue are directed to a mechanical device, namely, a 6
packaging machine. The Requester argues that claims 1, 21 and 23 read on 7
inoperative embodiments because they fail to recite an element, namely, a 8
second chain side-by-side with the first, necessary to keep a web of 9
packaging material moving through the machine horizontal and sufficiently 10
taut. (See Req’r Comm. on Determination 27 & 28). 11
As mentioned earlier, Lovas teaches or suggests at least the 12
desirability, if not the necessity, of keeping the web horizontal and 13
adequately taut as the web moves through a packaging machine. (See FF 14
51). The Examiner makes no findings on the subject. Although the Patent 15
Owner argues that the “Requester has not provided any evidence that for 16
Patent Owner’s claimed invention to work, there needs to be two chains 17
having all the limitations claimed by Patent Owner” (PO Reply to Req’r 18
Comm. on Determination 22 (italics added for emphasis)), the Patent Owner 19
does not appear to challenge the Requester’s assertion that two side-by-side 20
chains or belts of some configuration are required. We assume that the 21
Requester’s contention is correct for purposes of this opinion. 22
The written description of the ʼ614 patent does enable a packaging 23
machine having two side-by-side chains for conveying packaging film 24
through the machine. The ʼ614 patent describes working embodiments of a 25
packaging machine, a chain and a belt for use in such machines. (See FF 1–26
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4). Although the description of the packaging machine is terse, the art, 1
which is mechanical in nature, is sufficiently predictable; and the prior art 2
references of record are sufficiently detailed in their cumulative teachings, to 3
support a finding that one of ordinary skill in the art could have made and 4
used packaging machines covered by claims 1, 21 and 23 without undue 5
experimentation. The Requester does not appear to contend otherwise. 6
Consequently, the Patent Owner argues that: 7
Because independent claims 1, 21, and 23 are open ended, 8
Patent Owner’s claims do not preclude a second chain from 9
being used in its packaging machine. Moreover, it has been 10
fully established in the art that gripping such a film on both 11
edges in thermoforming and vacuum packaging machines is a 12
common practice and known in [the] art. . . . It would [have] 13
be[en] well within the skill of a [person of ordinary skill in the 14
art] to utilize a second chain having some or all of the claimed 15
elements of the chain in Patent Owner’s claim. 16
(PO Reply to Req’r Comm. on Determination 21). 17
Arguments such as that advanced by the Patent Owner have had 18
varying success before our reviewing court. In Re Skrivan, 427 F.2d 801 19
(CCPA 1970), a predecessor of our reviewing court addressed claims to a 20
process of continuously preparing a finely divided refractory oxide by 21
admixing a metallic reactant with a stream of heated gaseous fluid including 22
at least a stoichiometric amount of oxygen. See id. at 804 (independent 23
claim 9). The specification of the application at issue taught, in paraphrase, 24
that, “in order to properly mix the reactants, maintain a relatively constant 25
particle size distribution of the product, and prevent reactor plugging, the 26
streams must be combined at an angle of between about 25° and 160°, 27
preferably between 70° and 120°.” Id. at 803. The specification further 28
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taught that an attempt to combine a stream containing titanium with an 1
oxygenated stream straight on (that is, at a 180° angle) had to be 2
discontinued quickly due to titanium oxide deposition. See id. The 3
Examiner rejected as non-enabled claims that failed to recite ranges of 4
angles at which the streams combined. See id. at 805. 5
The court emphasized that: 6
the disputed limitation deals only with a physical operating 7
condition of an admittedly old process. We see no more reason 8
for requiring that appellant recite the specific angles at which the 9
reactants in his process are to be combined than we do for 10
requiring the recitation of flow rates or size of reactor or any 11
other physical operating condition which might be required in 12
order to obtain an operable process. Those limitations deal with 13
factors which must be presumed to be within the level of ordinary 14
skill in the art. We hold that claims need not recite such factors 15
where one of ordinary skill in the art, to whom the specification 16
and claims are directed, would consider them obvious. 17
Skrivan at 806. 18
On the other hand, in Re Vaeck, 947 F.2d 488 (Fed. Cir. 1991), our 19
reviewing court addressed claims to a chimeric gene that were rejected by 20
the Patent and Trademark Office (“PTO”) for, among other reasons, lack of 21
enablement. See id. at 489 & 490. In rejecting the claims, the examiner 22
found that the class of bacteria by which the gene might be expressed had 23
not yet been thoroughly researched; and that the limited guidance provided 24
by the specification was insufficient given the limited knowledge and 25
predictability of the field. See id. at 492 & 493. Our reviewing court held 26
that: 27
However, there must be sufficient disclosure, either through 28
illustrative examples or terminology, to teach those of ordinary 29
skill how to make and how to use the invention as broadly as it 30
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is claimed. This means that the disclosure must adequately guide 1
the art worker to determine, without undue experimentation, 2
which species among all those encompassed by the claimed 3
genus possess the disclosed utility. Where, as here, a claimed 4
genus represents a diverse and relatively poorly understood 5
group of microorganisms, the required level of disclosure will be 6
greater than, for example, the disclosure of an invention 7
involving a “predictable” factor such as a mechanical or 8
electrical element. 9
Id. at 496. The court concluded that: 10
Taking into account the relatively incomplete understanding of 11
the microbiology of cyanobacteria as of appellants’ filing date, 12
as well as the limited disclosure by appellants of particular 13
cyanobacterial genera operative in the claimed invention, we are 14
not persuaded that the PTO erred in rejecting claims 1–46 and 15
50–51 under § 112, first paragraph. There is no reasonable 16
correlation between the narrow disclosure in appellants’ 17
specification and the broad scope of protection sought in the 18
claims encompassing gene expression in any and all 19
cyanobacteria. 20
Id. at 495. 21
In Liebel-Flarsheim Co. v. Medrad Inc., 481 F.3d 1371 (Fed. Cir. 22
2007), our reviewing court addressed claims to, as paraphrased by the court, 23
“a front-loading fluid injector with a replaceable syringe capable of 24
withstanding high pressure for delivering a contrast agent to a patient.” See 25
id. at 1373. Initially, the claims that later issued in the patents at issue 26
recited pressure jackets. During prosecution, the eventual patent owner 27
removed the pressure jacket limitations from the claims to cover a 28
competitor’s product. See id. at 1374. During subsequent litigation with the 29
competitor, the district court found that, not only did the patents at issue 30
teach away from jacketless injectors, but also that the patent owner had 31
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abandoned efforts to develop such injectors because such efforts would have 1
required more research and experimentation than the patent owner was 2
prepared to invest. See id. at 1379. 3
In its affirmance of the district court’s conclusion that the claims at 4
issue were not enabled, our reviewing court held that: 5
Liebel argues that language in Spectra-Physics, Inc. v. 6
Coherent, Inc., 827 F.2d 1524 (Fed. Cir. 1987), that states that if 7
an invention pertains to an art where the results are predictable, 8
e.g., in the mechanical arts, then disclosure of a single 9
embodiment can enable a broad claim, supports its position. 10
Liebel asserts that because the specification enables one mode of 11
making and using the invention in its preferred embodiment, viz., 12
an injector with a pressure jacket, the enablement requirement is 13
satisfied and the inquiry should end there. See Engle Indus., Inc. 14
v. Lockformer Co., 946 F.2d 1528 (Fed. Cir. 1991). . . . 15
The facts of this case are, in fact, more analogous to [AK 16
Steel Corp. v. Sollac, 344 F.3d 1234 (Fed. Cir. 2003),] than to 17
Spectra-Physics. In AK Steel, the patentee argued, as it does 18
here, that the patent disclosed several embodiments within the 19
properly construed claim, and that the specification need not 20
teach the full claimed scope in order for the claims to be enabled. 21
344 F.3d at 1243. The claims in AK Steel read on steel strips 22
containing either a Type 1 or a Type 2 aluminum coating. The 23
specification clearly described only Type 2 aluminum coating. 24
We stated, however, that “as part of the quid pro quo of the patent 25
bargain, the applicant’s specification must enable one of ordinary 26
skill in the art to practice the full scope of the claimed invention.” 27
Id. at 1244 (latter emphasis added). 28
We explained that the specification need not necessarily describe 29
how to make and use every embodiment of the invention 30
“because the artisan's knowledge of the prior art and routine 31
experimentation can often fill in the gaps.” Id. However, 32
because the full scope of the claims included both Type 1 and 33
Type 2 aluminum coating, the relevant inquiry became whether 34
one skilled in the art would have been able to make and use a 35
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steel strip containing a Type 1 aluminum coating at the time of 1
the patent's effective filing date. Id. We held that the 2
specification taught against using a Type 1 aluminum coating, 3
and therefore that the claims were invalid for lack of enablement. 4
Similarly, in this case, the asserted claims read on, and the 5
full scope of the claimed invention includes, an injector system 6
with and without a pressure jacket. There must be “reasonable 7
enablement of the scope of the range” which, in this case, 8
includes both injector systems with and without a pressure jacket. 9
Id. 10
Liebel-Flarsheim at 1379 & 1380. 11
In a recent decision, Boston Univ., our reviewing court addressed 12
claims to a semiconductor device (preferably a light emitting diode) 13
including a buffer layer consisting essentially of gallium nitride (“GaN”) 14
grown on a substrate; and a growth layer comprising GaN and a dopant 15
grown on the buffer layer. Our reviewing court held that the claims at issue 16
were sufficiently broad to encompass devices having monocrystalline 17
growth layers formed directly on amorphous buffer layers. The experts who 18
testified at trial agreed that it was impossible to grow a monocrystalline 19
growth layer directly on an amorphous buffer layer. 20
The patent owner argued that its patent need not describe how to make 21
devices having monocrystalline growth layers formed directly on amorphous 22
buffer layers because the patent described how to make five other 23
“permutations” based on buffer layer phase and growth layer proximity. In 24
the course of affirming the district court’s conclusion that the claims were 25
not enabled, our reviewing court responded that: 26
precedents make clear that the specification must enable the full 27
scope of the claimed invention. . . . This is not to say that the 28
specification must expressly spell out every possible iteration of 29
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every claim. For instance, “a specification need not disclose 1
what is well known in the art.” . . . “[T]he artisan’s knowledge of 2
the prior art and routine experimentation can often fill gaps, 3
interpolate between embodiments, and perhaps even extrapolate 4
beyond the disclosed embodiments, depending upon the 5
predictability of the art.” . . . But this gap-filling is merely 6
supplemental; it cannot substitute for a basic enabling disclosure. 7
Boston Univ. (citations and internal quotation marks omitted). 8
Of the four decisions of our reviewing court summarized above, 9
Skrivan is the most closely analogous. For example, in Skrivan, the claims 10
failed to positively recite a range of angles at which streams containing 11
metal reactant and oxygen were to be combined to properly mix the 12
reactants, maintain a relatively constant particle size distribution of the 13
product and prevent reactor plugging. See id. at 803. It was contended that 14
the claims were non-enabled because the claimed subject matter was 15
inoperative when the streams were combined at angles outside that range. 16
See id. at 805. The Requester contends that each of claims 1, 21 and 23 fails 17
to recite a second chain; that, as such, the claims are sufficiently broad to 18
encompass a packaging machine having only a single chain for transporting 19
a packaging film; and that a machine having only a single chain is 20
inoperable. (See Req’r Comm. on Req. Reopen 11; Req’r Comm. on 21
Determination 28). The positive recitation of a second chain here, like the 22
recitation of the range of angles in Skrivan, might have addressed the 23
contention. 24
The prior art references summarized in the Findings of Fact indicate 25
that the claims at issue in this appeal relate to improvements to old 26
machines, just as the claims at issue in Skrivan related to improvements to 27
old processes. See Skrivan at 806. In this respect, the facts of the present 28
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appeal are distinguishable from those of Vaeck, which involved a class of 1
bacteria that was not well understood or researched. See Vaeck at 492 & 2
493. Likewise, the technology here is mechanical. The Requester does not 3
contend that the technology is unpredictable to the same degree as the class 4
of bacteria at issue in Vaeck; or the growth of ordered or unordered semi-5
conductive layers, as addressed in Boston Univ. Although we do not hold 6
that the single packaging machine described in the written description of the 7
ʼ614 patent is enabling solely because claims 1, 21 and 23 relate to the 8
mechanical arts, as the patent owner appeared to argue in Liebel-Flarsheim, 9
the predictability of the art and the state of the prior art are factors that we 10
have considered in concluding that the claims are enabled. 11
As Vaeck points out, “the disclosure must adequately guide the art 12
worker to determine, without undue experimentation, which species among 13
all those encompassed by the claimed genus possess the disclosed utility.” 14
Id. at 496. Here, the problem of maintaining a horizontal orientation and 15
adequate tautness in a packaging film would have been at least suggested by 16
Lovas (see FF 51); and the inability of a single chain to keep a packaging 17
film horizontal and adequately taut would have been apparent, with little or 18
no experimentation, even to a lay observer. Furthermore, the solution would 19
have been obvious. The ʼ614 patent enables a packaging machine with two 20
side-by-side chains. Even if the ʼ614 patent itself did not enable a packaging 21
machine with two side-by-side chains, the prior art, including without 22
limitation Hamilton, Natterer, Hepner, Lovas, Rogiers, Jezuit, Buchko ʼ611, 23
Canamero and Grevich, would have rendered the use of a second chain 24
obvious. (See FF 22, 23, 35, 36, 39, 40, 49, 50, 57, 58, 63, 64, 70, 71, 77, 25
78, 95 & 96). What our reviewing court said in Skrivan applies equally 26
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here: “We hold that claims need not recite such factors where one of 1
ordinary skill in the art, to whom the specification and claims are directed, 2
would consider them obvious.” Skrivan at 806. 3
The scope of claims 1, 21 and 23 bears a reasonable correlation to the 4
scope of enablement provided by the written description of the ʼ614 patent. 5
That is, claims 1, 21 and 23 encompass genuses, including packaging 6
machines having side-by-side chains for transporting packaging material, to 7
which improvements inherent in the claimed subject matter would apply. 8
On the other hand, the Requester presents no evidence that the number or 9
scope of packaging machine embodiments having single chains for 10
transporting packaging film is unreasonably large in comparison with the 11
full scope of the claimed subject matter. Based on our analysis, we conclude 12
that the Requester has not proven that the written description of the ʼ614 13
patent fails to enable the subject matter of claims 1, 21 and 23. Therefore, 14
we sustain the Examiner’s decision not adopt the proposed rejection of 15
claims 1, 21 and 23 under the first paragraph of § 112 for lack of written 16
description, albeit for reasons different from those on which the Examiner 17
relied. 18
19
Fourth Issue 20
In the Prior Board Decision, we entered new grounds of rejection 21
against claims 1, 21 and 23 under § 102(e) as being anticipated by Buchko 22
ʼ114. After the Patent Owner amended claims 1, 21 and 23 (see Req. 23
Reopen 2–5), the Examiner determined that the amendments overcame the 24
new grounds of rejection (see Determination 3 & 4). We agree with 25
Examiner’s finding that: 26
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Buchko [ʼ114] is not capable of performing the recited . . . 1
intended use of being “for transporting a continuous packaging 2
film,” because Buchko’s “[c]onveyor 102 includes a series of 3
platens 108, each of which is adapted to receive and support 4
article A contained within receptacle R,” with the receptacle R 5
being “any satisfactory open-ended receptacle sized to receive 6
article A and suitable for use in vacuum packaging” (col. 4, ll. 9–7
11 and 13–16). Buchko’s packaging machine (i.e., linear motion 8
reciprocating vacuum packaging system 100) is for evacuating, 9
sealing and trimming pre-filled bags of comestibles (see 5/19/16 10
PTAB decision and Buchko, col. 1, ll. 13–16, col. 3, l. 66 – col. 11
4, l. 4, and col. 4, ll. 9–16; see also App. Br. Req’r 13 and 21), 12
but does not appear to be capable of handling a continuous 13
packaging film. 14
(Determination 3; see also FF 5–21). We withdraw the new grounds of 15
rejection entered in the Prior Board Decision against claims 1, 21 and 23. 16
17
Fifth Issue 18
In the original appeal, the Requester proposed rejections of claims 1, 19
21 and 23 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over 20
Buchko ʼ114 in view of either Natterer or Hamilton; alone or further in view 21
of either Webster, Petershack, Case, Casgrain or St. Louis; and, once again, 22
alone or even further in view of Weisgerber, Frenker-Hackfort, Strickland or 23
Wolfelsperger. (See Req’r App. Br. 25–38; PO Resp. Br. 21–27; Req’r Reb. 24
Br. 16–21). In the Prior Board Decision, we did not address these proposed 25
rejections in view of the new grounds of rejection entered against claims 1, 26
21 and 23. Nevertheless, we sustained the Examiner’s decision not to adopt 27
proposed rejections of dependent claims 5–7 and 24 under § 103(a) as being 28
unpatentable over the same references; as well as proposed rejections of 29
claims 1, 5–7, 21, 23 and 24 under § 103(a) as being unpatentable over 30
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Spada (US 5,564,556, issued Oct. 15, 1996) in view of the same secondary, 1
tertiary and quaternary references. (See Prior Board Decision 18–22). For 2
similar reasons, we now sustain the Examiner’s decision not to adopt the 3
proposed rejections of claims 1, 219 and 23 that we did not address earlier. 4
Buchko ʼ114 does not teach the conveyance or use of continuous 5
webs or sheets of plastic film. (See FF 19–21). On the other hand, Natterer 6
and Hamilton describe thermoforming packaging machines that use spring-7
loaded clamps mounted on conventional roller chains to transport continuous 8
webs of packaging film. (See FF 24–26, 34 & 37–39). 9
The Requester says that “it would have been obvious to a person of 10
skill in the art to substitute a sheet of packaging film in lieu of preformed 11
packaging bags or receptacles” (Req’r App. Br. 24 & 25), but does not 12
explain why. Elsewhere, the Requester argues that: 13
A person of ordinary skill in the art would [have been] 14
motivated10 to combine the teachings of Buchko [ʼ114] and 15
Natterer. The methods to combine these mechanical devices 16
[were] well known and [would have] yield[ed] predictable 17
results. See, e.g., MPEP 2243.A. Both Buchko [ʼ114] and 18
Natterer are packaging machines using different kinds of chains, 19

9 Earlier in this opinion, we concluded that claim 21 was indefinite
under the second paragraph of § 112. Because we sustain the Examiner’s
decision not to adopt any ground of rejection relying on the teachings of
Buchko ʼ114 for reasons unrelated to the indefinite language in claim 21;
and because each of the primary references cited in the rejections proposed
by the Requester in response to the amendments describes a thermoforming
machine, we may address the proposed art rejections without interpreting the
indefinite claim language.
10 See In re Wright, 999 F.2d 1557, 1563 n.8 (Fed. Cir. 1993); Hybritech
Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1383 n.6 (Fed. Cir.
1986).
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and Buchko [ʼ114] teaches that its traction element chain is a 1
replacement for conventional chains (i.e., as used by Natterer). 2
See Buchko [ʼ114] at 1:17–45, Buchko Provisional p. 6 ll. 1–2, 3
p. 7 ll. 3–4 (discussing substitution of one for the other). It would 4
[have been] a simple substitution for a person of ordinary skill in 5
the art to [have] take[n] Buchko [ʼ114’s] conveyor chain and 6
add[ed] Natterer’s pairs of packaging film grippers to each platen 7
or to the clamping assembly itself, and the results of this 8
mechanical substitution would easily [have] be[en] predicted. 9
See, e.g., MPEP 2243.B. Similarly, the resemblance (in cross 10
section) of Buchko [ʼ114’s] guide elements 268 and Natterer’s 11
guide elements (side plates of chain 8) would [have] allow[ed] 12
substitution of one for the other. Id. 13
(See Req’r App. Br. 26; see also Req’r Reb. Br. 16). The Requester makes 14
similar arguments regarding the combination of Buchko ʼ114 and Hamilton 15
(See App. Br. Req’r 35 & 36). 16
Nevertheless, as the Patent Owner correctly points out, one of 17
ordinary skill in the art would not have had reason to merely substitute 18
clamps of the type described by Natterer or Hamilton for the clamp and seal 19
members 278 described by Buchko ʼ114. (See PO Resp. Br. 22, 23 & 26). 20
Each clamp and seal member 278 on the platens 108 described by Buchko 21
ʼ114 acts as an anvil against which an upper bag clamp member 710 presses 22
to clamp an open end of a pre-filled bag in place for heat sealing. (See FF 23
17). If one were to have substituted the clamps described by Natterer or 24
Hamilton for the clamp and seal members 278, the upper bag clamp 25
members 710 would not have properly engaged the substituted clamps to 26
secure the open ends of the pre-filled bags in place on the platens 108 for 27
heat sealing and trimming. 28
Instead of a mere substitution of one known clamping unit for another, 29
the proposed replacement would have required one of ordinary skill in the 30
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art to further modify the platens 108 and the evacuation chambers 106a, 1
106b, 106c of the system 100 described by Buchko ʼ114 to provide either for 2
clamping engagement of the upper bag clamp member 710 against the 3
substituted clamp; or an additional mechanism to open and close the 4
substituted clamp. The Requester has not provided a persuasive reason why 5
one of ordinary skill in the art might have undertaken the substitution in 6
view of the further modification required for implementation. This is 7
particularly true in view of the different functions carried out by the 8
described clamps, namely, immobilizing the film plies at the open end of a 9
bag for heat sealing and trimming, in the case of the clamp and seal member 10
278 of Buchko ʼ114; and conveying a continuous web of film material 11
through a packaging machine, in the case of Natterer and Hamilton. The 12
Requester does not persuade us that it would have been obvious to modify 13
the system 100 described by Buchko ʼ114 in view of the teachings of 14
Natterer or Hamilton. 15
Each of the tertiary references, Webster, Petershack, Case, Casgrain 16
and St. Louis, describes a belt, band or chain. The Requester does not argue 17
that any of the tertiary references describes a belt, band or chain specifically 18
designed for a food packaging machine, however. (See generally Req’r 19
App. Br. 17–19; see also FF 87–92 & 116–18). As such, none of these 20
references would have provided one of ordinary skill in the art reason to 21
modify the system 100 of Buchko ʼ114 in view of the teachings of these 22
references. Likewise, the Requester’s proposal to use any one or more of 23
Weisgerber; Frenker-Hackfort; Strickland or Wolfelsperger to teach a guide 24
element (see, e.g., Req’r App. Br. 37–38; see also FF 119–27) does not 25
remedy the deficiencies in the combined teachings of the primary and 26
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secondary references. We sustain the Examiner’s decision not to adopt the 1
proposed rejections of claims 1, 21 and 23 under § 103(a) as being 2
unpatentable over Buchko ‘114 in view of either Natterer or Hamilton; alone 3
or further in view of either Webster, Petershack, Case, Casgrain or St. Louis; 4
once again, alone or even further in view of Weisgerber; Frenker-Hackfort; 5
Strickland or Wolfelsperger. (See PO Resp. Br. 21–27). 6
7
Sixth Issue 8
We now turn to the new grounds of rejection under § 103(a) proposed 9
by the Requester in response to the amendments. We first address the 10
proposed rejections of claims 1 and 21 as unpatentable over any one of 11
Hepner, Hamilton, Lovas, Rogiers, Jezuit, Buchko ʼ611 and Canamero, in 12
view of Petershack or Wehner.11 13
We begin with the combined teachings of Lovas and Petershack; and 14
of Hepner and Petershack. Lovas and Hepner each describe a packaging 15
machine that satisfies each limitation of claims 1 and 21 except: 16
A packaging machine having a chain for transport of a 17
continuous packaging film, wherein the chain has a series of 18
successive rigid chain links connected to one another in a 19
movable manner, and flexible chain links provided between the 20
rigid chain links, the flexible chain links being fixed to the rigid 21
chain links, 22

11 The Requester does not appear to propose rejecting claim 23 over any
one of Hepner, Hamilton, Lovas, Rogiers, Jezuit, Buchko ʼ611 and
Canamero, in view of Petershack or Wehner. Nevertheless, in the interest of
completeness, we note that none of these references, alone or in any
proposed combination, teaches “wherein the chain comprises a continuous
flexible traction element.”
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as recited in claim 1; or: 1
A packaging machine having a chain for transporting a 2
continuous food packaging film through a plurality of work 3
stations of the packaging machine, wherein the chain has a series 4
of successive rigid chain links connected to one another in a 5
movable manner, and flexible chain links provided between the 6
rigid chain links and are fixed to the rigid chain links, 7
as recited in claim 21. (See FF 48 & 56; see also Req’r Comm. on Req. 8
Reopen 33). Petershack describes a conveyor chain including alternating 9
rigid, metal block links; and flexible links made from lubricious plastic. 10
(See FF 88 & 89). 11
In its arguments addressing the combination of Hamilton and 12
Petershack, the Patent Owner points out that the chain described by 13
Petershack lacks structure for engaging a guide rail to resist transverse 14
movement of the chains and the gripped portions of the packaging film. 15
(See PO Reply to Comm. on Determination 12 & 13). The packaging 16
machine described by Lovas already includes such a structure, however. As 17
depicted in Figures 17–20, Lovas’s packaging machine includes roller 18
chains 202 having “L”-shaped inner and outer side plates. (See FF 55). The 19
clips 217 that Lovas’s machine uses to transport the packaging material 20
include bases 218 and clamp springs 220 coupled to the bases. (See FF 51). 21
Horizontally-extending portions of the “L”-shaped inner and outer side 22
plates mount the bases 218 of the clamps 217. In addition, the horizontally-23
extending portion of one of the side plates of each inner link is affixed to a 24
guide roller 225 rotatable about a depending stub shaft. As depicted in 25
Figure 10 of Lovas, stationary “C”-shaped upper guide channels 245 engage 26
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the guide rollers 225 to resist transverse movement of the chains and the 1
gripped portions of the packaging film. (See FF 55). 2
Likewise, as depicted in Figures 13–17, Hepner’s packaging machine 3
includes endless chain loops mounted on sprockets turning on vertical axes 4
for movement along the length of the machine within conveyor track 5
assemblies 11, 12. (See FF 40 & 44). Hepner’s chain loops 75 include 6
brackets 115, 116 pivotably coupled to each other by means of pairs of side 7
plates. (See FF 42). The brackets mount spring fingers 121, 122 terminating 8
in jaw portions 125, 126 for gripping packaging material as the material 9
moves through the machine. (See FF 41). Inner ends of the spring fingers 10
121, 122 carry small, vertically-extending rectangular slide blocks 117, 118 11
positioned within channels 113, 114 recessed into the upper surface of the 12
supporting beams 102 to provide additional guidance for the chain loops 75 13
as the chain loops move along the tracks 11, 12. (See FF 44). As the 14
Requester correctly points out, the small rectangular slide blocks 118 are 15
guide elements extending downwardly from the rigid chain links, that is, 16
from the spring fingers 122, for engagement with walls bounding the 17
channels 114 to resist movement of the chains 75 and the gripped portions of 18
the packaging film transverse to the direction of travel. (See FF 45, citing 19
Req’r Comm. on Req. Reopen 16). 20
As the Requester correctly points out, one of ordinary skill in the art 21
would have had reason to substitute chains having alternating rigid and 22
flexible links, as taught by Petershack, for the roller chains 202 in the 23
packaging machine described by Lovas or the drive chains 75 in the 24
packaging machine described by Hepner. The teachings of Petershack and 25
Grevich support the Requester’s assertion that one of ordinary skill in the art 26
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might have sought to simplify the cleaning of the chain, and to eliminate the 1
need for lubrication, at least when using such a chain to convey articles such 2
as comestibles that were sensitive to contamination. (See Req’r Comm. on 3
Req. Reopen 34; Req’r Comm. on Determination 20 & 21; see also FF 89 & 4
100). 5
Petershack describes its block-like rigid links as having planar support 6
surfaces 18 for supporting articles to be conveyed by the chain. (See FF 88). 7
In the course of substituting two of Petershack’s chains for the roller chains 8
202 of Lovas, it would have been obvious to retain Lovas’s clips 217 in 9
essentially the same structure described by Lovas; and to mount the bases 10
218 of the clips 217 on the horizontal planar support surfaces 18 of 11
Petershack’s chains. In particular, in view of Lovas’s teachings concerning 12
the desirability of keeping the packaging material horizontal and under 13
adequate tension while moving through the machine, it would have been 14
desirable to retain Lovas’s “C”-shaped upper guide channels 245 and guide 15
rollers 225 to help maintain tautness. (See FF 51 & 55). 16
Likewise, the spring fingers 121, 122 of Hepner’s clamps could have 17
been mounted on the two side surfaces of Petershack’s block-like rigid links. 18
(One of ordinary skill in the art would have been less likely to mount spring 19
fingers 121, 122 for gripping edges of a horizontally-extending packaging 20
film on the planar surfaces 18, 20 due to the vertical axes of rotation of the 21
sprockets 76.) In view of Lovas’s teachings concerning the desirability of 22
keeping the packaging material horizontal and under adequate tension while 23
moving through the machine (see FF 51), one of ordinary skill in the art 24
would have had reason to retain the small rectangular slide blocks 118 25
described by Hepner to help maintain tautness. 26
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Based on the evidence and arguments of record to date, we are 1
persuaded that the subject matter of claims 1 and 21 would have been 2
obvious from the combined teachings of either Lovas and Petershack; or 3
Hepner and Petershack. We are persuaded of this despite the arguments the 4
Patent Owner addressed to the combination of Hamilton and Petershack. 5
Nevertheless, we appreciate that the procedural posture in which the Patent 6
Owner found itself during the remand to the Examiner may have hampered 7
the Patent Owner in formulating and presenting arguments specific to the 8
combined teachings of either Lovas and Petershack; or Hepner and 9
Petershack. In order to provide the Patent Owner an opportunity to respond, 10
we enter NEW GROUNDS OF REJECTION pursuant to 37 C.F.R. 11
§ 41.77(b) against claims 1 and 21 under § 103(a) as being unpatentable 12
over Lovas or Hepner and Petershack. 13
14
Seventh Issue 15
Next, we address the combined teachings of Lovas and Wehner; and 16
of Hepner and Wehner. Wehner describes a drive chain including 17
alternating rigid links and flexible links. (See FF 92). The Requester 18
advances two rationales for combining the teachings of Lovas and Wehner; 19
or Hepner and Wehner: that one of ordinary skill in the art might have 20
merely substituted Wehner’s chain for the chains described by either Lovas 21
or Hepner, with predictable results, see KSR Int’l Co. v. Teleflex, Inc., 550 22
U.S. 398, 416 (2007); or, in the alternative, that one of ordinary skill in the 23
art might have substituted a chain similar to that described by Wehner to 24
simplify cleaning and eliminate the need for lubrication in machines 25
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designed to package articles such as comestibles sensitive to contamination. 1
(See Req’r Comm. on Req. Reopen 34). 2
The mere substitution rationale is not persuasive. Wehner’s drive 3
chain is designed for power transmission between non-coplanar sprockets 4
(see FF 91), not for transporting or conveying articles along straight paths 5
through a machine. Perhaps for this reason, Wehner does not teach or 6
suggest any structure for guiding its drive chain along a straight path. (See 7
FF 93). To the extent that one of ordinary skill in the art might have 8
believed it desirable to provide guide elements for guiding a chain along a 9
straight line as the chain transported packaging material through a machine, 10
that recognition would have been at least as likely to have discouraged the 11
substitution of Wehner’s chain as to have suggested the proposed 12
modification. Because Wehner’s drive chain was designed to function 13
differently than the transport chains of Lovas’s machine or Hepner’s 14
machine, the mere possibility of substituting the one for the other would not 15
have rendered such a substitution obvious. Cf. In re Gal, 980 F.2d 717, 719 16
(Fed. Cir. 1992) (obviousness by “design choice” is precluded when the 17
recited and prior art structures are designed to perform different functions). 18
Turning to the Requester’s alternative rationale, Grevich teaches that 19
one problem with then-conventional vacuum packaging machines using 20
roller chains mounting clamps to transport plastic web or film material 21
through the machines was that the “use of such roller chains in close 22
proximity to foodstuffs is quite unsanitary because the chains present an 23
unsanitary condition which cannot be easily corrected.” (FF 100, citing 24
Grevich, col. 1, ll. 23–26). Both Grevich and Petershack teach the 25
desirability of eliminating the need to lubricate chains used to transport 26
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articles such as comestibles subject to contamination. (See FF 89 & 100; see 1
also Req’r Comm. on Req. Reopen 34; Req’r Comm. on Determination 20 2
& 21). Although such teachings might have provided one of ordinary skill 3
in the art reason to substitute some chains including both rigid and flexible 4
links for the roller chains described by Lovas, these teachings would not 5
have provided one of ordinary skill in the art reason to substitute chains of 6
the particular construction described by Wehner for the roller chains of 7
Lovas’s machine or the drive chains of Hepner’s machine. The reason is 8
that Wehner’s chains include the rollers 38, 40 mounted on the bushings 36 9
that extend laterally between the side plates 26, 28 of the rigid links 20. (See 10
FF 92). One of ordinary skill in the art likely would have perceived it 11
difficult to clean between and about the bushings 36 and the rollers 38, 40; 12
and would have anticipated a need to lubricate between the bushings and the 13
rollers. 14
Therefore, we sustain the Examiner’s decision not to adopt the 15
proposed rejections of claims 1 and 21 under § 103(a) as being unpatentable 16
over Lovas and Wehner, or over Hepner and Wehner, albeit for reasons 17
different than those of the Examiner. 18
19
Eighth Issue 20
Next, we address the teachings of Hepner, Hamilton, Rogiers, Jezuit, 21
Buchko ‘611 and Canamero. Hamilton, Jezuit, Buchko ʼ611 and Canamero 22
describe packaging machines that use conventional roller chains including, 23
or at least bearing, clips or clamps for transporting packaging film through 24
the machines. (See FF 22–24, 26, 29, 31, 32, 63–66, 70–73, 75, 77–80 & 25
82). Hamilton, Jezuit and Buchko ʼ611 also teach guides defining guide 26
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rails for engaging downwardly-extending portions of the side plates of the 1
roller chains to resist transverse movement of the chains and the gripped 2
portions of the packaging film. (See FF 27, 67 & 74). Rogiers describes a 3
packaging machine that uses chains bearing clips or clamps to transport 4
packaging film through the machine. It does not describe the chains in a 5
manner sufficient to establish that the chains are conventional roller chains, 6
however. (See FF 57–59). Neither Rogiers nor Canamero appears to 7
describe guide rails for engaging the chains to resist transverse movement of 8
the chains and the gripped portions of the packaging film. (See FF 61 & 81). 9
Even if Rogiers or Canamero did describe guide rails for engaging the 10
chains to resist transverse movement of the chains and the gripped portions 11
of the packaging film, their teachings would be merely cumulative of the 12
teachings of any one of Hamilton, Jezuit and Buchko ʼ611. 13
Hamilton, Jezuit and Buchko ʼ611 each fail to describe: 14
A packaging machine having a chain for transport of a 15
continuous packaging film, wherein the chain has a series of 16
successive rigid chain links connected to one another in a 17
movable manner, and flexible chain links provided between the 18
rigid chain links, the flexible chain links being fixed to the rigid 19
chain links, 20
as recited in claim 1; or: 21
A packaging machine having a chain for transporting a 22
continuous food packaging film through a plurality of work 23
stations of the packaging machine, wherein the chain has a series 24
of successive rigid chain links connected to one another in a 25
movable manner, and flexible chain links provided between the 26
rigid chain links and are fixed to the rigid chain links, 27
as recited in claim 21. (See FF 34, 69 & 76; see also Req’r Comm. on Req. 28
Reopen 33). As noted earlier, Petershack describes a conveyor chain 29
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including alternating rigid, metal block links; and flexible links made from 1
lubricious plastic. (See FF 88 & 89). Petershack makes no provision for 2
guide elements to resist transverse movement of the chain. (See FF 90). 3
Section 103(a) authorizes the rejection of a claim only “if the 4
differences between the subject matter sought to be patented and the prior art 5
are such that the subject matter as a whole would have been obvious.” 6
(Italics added for emphasis.) The Requester correctly points out that one of 7
ordinary skill might have contemplated substituting Petershack’s chain for 8
any of those described by Hamilton, Jezuit or Buchko ʼ611 in order to 9
simplify cleaning and eliminate the need for lubrication. (See Req’r Comm. 10
on Req. Reopen 34; Req’r Comm. on Determination 20 & 21; see also FF 89 11
& 100). Nevertheless, substituting Petershack’s chain for the roller chains 12
described by Hamilton, Jezuit or Buchko ʼ611 would have removed the side 13
plates of the roller chains. To the extent that one of ordinary skill in the art 14
might have deemed transverse movement of the chains and the gripped 15
packaging material undesirable, it is these side plates that would have 16
engaged stationary guide rails to resist such transverse movement. (See FF 17
27, 67 & 74). Thus, in order to provide an adequate factual underpinning on 18
which to conclude that the subject matter of claims 1 and 21 as a whole 19
would have been obvious, the Requester must articulate some reason why 20
one of ordinary skill in the art would have modified further a packaging 21
machine in which roller chains had been replaced by chains similar to that of 22
Petershack so as to restore the functionality of the roller chain side plates. 23
Despite the Requester’s argument to the contrary (see Req’r Comm. 24
on Determination 21 & 22), Wolfelsperger does not remedy this deficiency. 25
Wolfelsperger, in fact, teaches away from the subject matter of claims 1 and 26
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21, criticizing the use of clamps mounted on chains to transport thin plastic 1
packaging films through packaging machines. (See FF 123). Instead, 2
Wolfelsperger teaches gripping the edges of the packaging material between 3
a roller chain and a “V” belt. The configuration of the base 36 beneath the 4
“V” belt 30, as depicted in Figure 1 of Wolfelsperger, is designed to 5
accommodate the rollers 32 used to drive the “V” belt. (See FF 124). One 6
of ordinary skill in the art would not have looked to that structure in 7
Wolfelsperger for guidance to resist transverse movement of a chain 8
mounting clamps for gripping and transporting a packaging film through a 9
packaging machine. 10
The Requester also cites Layne as evidence that one of ordinary skill 11
in the art “would also have [had] the choice of many downwardly extending 12
guide element[s] and their accompanying guide rails.” (See Req’r Comm. 13
on Req. Reopen 38). Layne describes a gang of converging or diverging 14
chains having relatively complex link configurations; and I-beam shaped 15
guide rails for engaging arms extending downwardly from the links to guide 16
the chains along the converging or diverging paths. (See FF 128 & 129). 17
Layne is addressing a more complicated problem than merely resisting 18
transverse movement of a chain as the chain moves along a straight path. It 19
is unlikely that one of ordinary skill in the art would have looked to Layne to 20
remedy the problem of resisting transverse movement of Petershack’s chain 21
after substitution for the roller chains described by Hamilton, Jezuit or 22
Buchko ʼ611. 23
Unlike the roller chains described in Hamilton, Jezuit and Buchko 24
ʼ611, the rigid links of Petershack’s chain have planar lower surfaces 25
enabling the chain to slide along a floor or table. (See FF 88). Petershack’s 26
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chain is not designed to resist transverse movement. One of ordinary skill in 1
the art, recognizing the desirability of a chain having structure for resisting 2
transverse movement, would be as likely to bypass Petershack’s chain as a 3
substitute for the roller chains described by Hamilton, Jezuit and Buchko 4
ʼ611; as to adopt Petershack’s change as a potential substitute and attempt to 5
modify the chain to resist transverse movement. We sustain the Examiner’s 6
decision not to adopt the proposed rejections of claims 1 and 21 under 7
§ 103(a) as being unpatentable over Hamilton, Rogiers, Jezuit, Buchko ‘611 8
and Canamero, in view of Petershack, albeit for reasons different than those 9
of the Examiner. 10
Likewise, we sustain the Examiner’s decision not to adopt the 11
proposed rejections of claims 1 and 21 under § 103(a) as being unpatentable 12
over Hamilton, Rogiers, Jezuit, Buchko ‘611 and Canamero, in view of 13
Wehner, for reasons similar to those discussed in our analysis of the Seventh 14
Issue. 15
16
Ninth Issue 17
We next address proposed rejections of claims 1, 21 and 23 as 18
unpatentable over any one of Hepner, Hamilton, Lovas, Rogiers, Jezuit, 19
Buchko ʼ611 and Canamero, in view of either Grevich, Arnold, Dove, 20
Blidung or Aiuola. We begin by considering the combined teachings of 21
Lovas and either Grevich, Arnold or Blidung. 22
Grevich describes a vacuum packaging machine 10 including toothed 23
sprockets 21 mounting a pair of elongate, endless stainless steel bands 19. 24
As depicted in Figure 2, the bands 19 have a series of apertures 20 for 25
receiving the teeth 22 of the sprockets 21. (See FF 97 & 98). Grevich’s 26
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bands 19 mount spaced clips 23. Each clip 23 consists of a resilient strip of 1
metal coupled to one of the bands 19 by a headed stud 24. (See FF 97). 2
Grevich describes configuration of the bands 19 and the clips 23 as 3
addressing problems of cleanliness and lubrication when the machine is used 4
to package comestibles. (See FF 100). 5
Arnold describes a toothed belt 3 mounted on pulleys 5, 6. Ball 6
clamping devices 4 affixed to the belt 3 grip a sheet of paper and 7
transporting the paper through a high speed printer. (See FF 102). Each ball 8
clamping device 4 includes a ball 9 that presses against a counter-clamping 9
plate 11 due to inertia generated as the clamp transitions between linear 10
movement between the pulleys 5, 6 and curvilinear movement over one of 11
the pulleys. (See FF 103). 12
Blidung describes an apparatus for converting portions of a 13
continuous running web 1 of paper, metal foil plastic film or the like into a 14
series of discrete rectangular sections 32 for use as wrappings for block-15
shaped articles. (See FF 108). The apparatus includes mount holders 13a, 16
13b affixed to either endless flexible toothed belts 14a, 14b or endless 17
chains. The holders 13a, 13b engage longitudinally extending, marginal 18
portions of the web 1 by means of suction to conduct the web, or sections of 19
the web, through the apparatus. (See FF 109). Rails 34a, 34b, 36a, 36b 20
positioned between the belts 14a, 14b form nips for guiding the web 1 along 21
a path through the apparatus. (See FF 110). Blidung does not describe 22
downwardly guide elements extending from the belts 14a, 14b or the chain 23
for engagement with any of the rails 34a, 34b, 36a, and 36b for resisting 24
movement of the belts 14a, 14b or the chain in a direction transverse to the 25
direction of travel of the web, as recited in claims 1, 21 and 23. 26
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Neither the clip described by Grevich, the ball clamping device 1
described by Arnold, nor the mount holders described by Blidung possesses 2
structure for engaging a guide rail to resist transverse movement of the 3
chains and the gripped portions of the packaging film. (See PO Reply to 4
Comm. on Determination 5; FF 99 & 104). Nevertheless, as discussed 5
earlier, Lovas’s stationary “C”-shaped upper guide channels 245 engage the 6
guide rollers 225 to resist transverse movement of the chains and the gripped 7
portions of the packaging film. (See FF 55). 8
As the Requester correctly points out, one of ordinary skill in the art 9
would have had reason to substitute endless bands, such as those described 10
by Grevich; toothed bands, such as those described by Arnold, for the roller 11
chains 202 in the packaging machine described by Lovas. Grevich’s 12
teachings support the Requester’s assertion that one of ordinary skill in the 13
art might have sought to simplify the cleaning of the chain, and to eliminate 14
the need for lubrication, at least when using such a chain to convey articles 15
such as comestibles that were sensitive to contamination. (See Req’r Comm. 16
on Req. Reopen 34; Req’r Comm. on Determination 20 & 21; see also FF 17
100). This motivation does not depend on the teachings of either Buchko 18
ʼ114 or Heitner. 19
In view of Lovas’s teachings concerning the desirability of keeping 20
the packaging material horizontal and under adequate tension while moving 21
through the machine, it would have been desirable to retain Lovas’s “C”-22
shaped upper guide channels 245 and guide rollers 225 to help maintain 23
tautness. (See FF 51 & 55). Hence, it would have been obvious to substitute 24
endless bands, such as those described by Grevich, or toothed bands, such as 25
those described by Arnold, for the roller chains 202 in the packaging 26
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machine described by Lovas; but to retain Lovas’s clips in lieu of the clips 1
described by Grevich nor the ball clamping devices described by Arnold, for 2
gripping the packaging material. In particular, Lovas’s clips would have 3
been affixed to a planar surface of one or both of Grevich’s endless belts, or 4
to the planar surface of either or both of Arnold’s toothed belts, in a manner 5
analogous to that in which Lovas teaches affixing the bases 218 of the clips 6
217 to the horizontal surfaces of the “L”-shaped inner side plates of the 7
roller chain 202. 8
On the other hand, Blidung teaches a wrapping machine, not a 9
thermoforming machine. Blidung teaches guide strips or rails directly 10
engaging the web, or cut sections of the web, to guide the web or sections 11
through the apparatus. The Requester has not persuaded us that one familiar 12
with the teachings of Lovas and Blidung would be persuaded to retain Lovas 13
clips in lieu of adopting Bliding’s vacuum actuated mount holders for use in 14
conducting the web or sections through the apparatus. 15
Lovas describes a packaging machine that satisfies each limitation of 16
claims 1, 21 and 23 except: 17
A packaging machine having a chain for transport of a 18
continuous packaging film, wherein the chain has a series of 19
successive rigid chain links connected to one another in a 20
movable manner, and flexible chain links provided between the 21
rigid chain links, the flexible chain links being fixed to the rigid 22
chain links, 23
as recited in claim 1. Neither does Lovas describe: 24
A packaging machine having a chain for transporting a 25
continuous food packaging film through a plurality of work 26
stations of the packaging machine, wherein the chain has a series 27
of successive rigid chain links connected to one another in a 28
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movable manner, and flexible chain links provided between the 1
rigid chain links and are fixed to the rigid chain links, 2
as recited in claim 21. Likewise, Lovas does not describe: 3
A packaging machine having a chain for transporting a 4
continuous food packaging film through a plurality of work 5
stations of the packaging machine, wherein the chain has a 6
plurality of flexible chain links and a plurality of rigid chain 7
links, the flexible chain links provided between the rigid chain 8
links, the flexible chain links being fixed to the rigid chain links, 9
. . . wherein the chain comprises a continuous flexible traction 10
element and the rigid chain links are clamped on the continuous 11
flexible traction element, wherein the regions of the flexible 12
traction element in-between the rigid chain links are the flexible 13
chain links, 14
as recited in claim 23. (See FF 56; see also Req’r Comm. on Req. Reopen 15
33). The Requester asserts that, when Lovas’s clips are affixed to endless 16
bands, such as those described by Grevich, the clips constitute rigid links 17
and the portions of the belts between the clips constitute flexible links. (See 18
Req’r Comm. on Req. Reopen 29). The Examiner made no findings 19
regarding this assertion. The Patent Owner has not challenge the assertion. 20
We assume that the Requester’s assertion is correct for purposes of this 21
opinion. The teeth in Arnold’s belt constitute rigid links and the spaces 22
between the teeth constitute flexible links. (Cf. FF 4 (noting that the ʼ614 23
refers to a flexible metal strip 1 as a chain; segments 2 of the flexible metal 24
strip including portions 21, 22 punched and folded over at right angle to the 25
surface of the strip, as rigid chain links; and the spaces 4 between the 26
segments 2, as flexible chain links)). 27
Lovas and Grevich together, or Lovas and Arnold together, taught or 28
suggested every limitation of claims 1, 21 and 23. The retention of Lovas’s 29
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clips implies that the machine obtainable by substituting belts in accordance 1
with the teachings of Grevich or Arnold for the roller chain described by 2
Lovas would still have guide elements engaging guide rails as recited in the 3
claims. Based on the evidence and arguments of record to date, we are 4
persuaded that the subject matter of claims 1, 21 and 23 would have been 5
obvious from the combined teachings of either Lovas and Grevich; or Lovas 6
and Arnold. Nevertheless, we appreciate that the procedural posture in 7
which the Patent Owner found itself during the remand to the Examiner may 8
have hampered the Patent Owner in formulating and presenting arguments 9
specific to these proposed rejections. In order to provide the Patent Owner 10
an opportunity to respond, we enter NEW GROUNDS OF REJECTION 11
pursuant to 37 C.F.R. § 41.77(b) against claims 1, 21 and 23 under § 103(a) 12
as being unpatentable over Lovas and either Grevich or Arnold. 13
On the other hand, we sustain the Examiner’s decision not to adopt 14
the proposed rejections of claims 1, 21 and 23 under § 103(a) as being 15
unpatentable over Lovas and Blidung, albeit for reasons different than those 16
of the Examiner. 17
18
Tenth Issue 19
Next, we address the combined teachings of Hepner and either 20
Grevich, Arnold or Blidung. As noted earlier, Hepner’s packaging machine 21
includes endless chain loops mounted on sprockets turning on vertical axes 22
for movement along the length of the machine within conveyor track 23
assemblies 11, 12. (See FF 40 & 44). If a belt were substituted for the drive 24
chains 75 described by Hepner, the axes of the sprockets 76 would have 25
been such as to orient the width of the belt vertically. This orientation would 26
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have made it difficult to mount spring fingers such as Hepner’s spring 1
fingers 121, 122 on the belt. Even were one of ordinary skill in the art to 2
replace Hepner’s sprockets 76 with sprockets rotatable about horizontal axes 3
perpendicular to the direction of travel of the packaging material through the 4
machine, Hepner’s spring fingers 122 (see FF 41) likely would interfere with 5
the movement of the belt over the sprockets. The Requester has not 6
suggested in a persuasive manner how Grevich’s clips 23 (see FF 97), 7
Arnold’s ball clamping devices 4 (see FF 103) or Blidung’s mount holders 8
(see FF 109) might remedy these deficiencies. Because the Requester has 9
not provided reasoning with some rational underpinning to overcome these 10
deficiencies in the combined teachings of Hepner and either Grevich, Arnold 11
or Blidung, we sustain the Examiner’s decision not to adopt the proposed 12
rejections of claims 1, 21 and 23 under § 103(a) as being unpatentable over 13
Hepner in view of either Grevich, Arnold or Blidung, albeit for reasons 14
different than those of the Examiner. 15
16
Eleventh Issue 17
Next, we address the combined teachings of Hamilton, Rogiers, 18
Jezuit, Buchko ‘611 and Canamero, in view of either Grevich, Arnold or 19
Blidung. As discussed earlier, Hamilton, Rogiers, Jezuit, Buchko ʼ611 and 20
Canamero each fail to describe: 21
A packaging machine having a chain for transport of a 22
continuous packaging film, wherein the chain has a series of 23
successive rigid chain links connected to one another in a 24
movable manner, and flexible chain links provided between the 25
rigid chain links, the flexible chain links being fixed to the rigid 26
chain links, 27
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as recited in claim 1. Neither do these references describe: 1
A packaging machine having a chain for transporting a 2
continuous food packaging film through a plurality of work 3
stations of the packaging machine, wherein the chain has a series 4
of successive rigid chain links connected to one another in a 5
movable manner, and flexible chain links provided between the 6
rigid chain links and are fixed to the rigid chain links, 7
as recited in claim 21. Likewise, none of the references describes: 8
A packaging machine having a chain for transporting a 9
continuous food packaging film through a plurality of work 10
stations of the packaging machine, wherein the chain has a 11
plurality of flexible chain links and a plurality of rigid chain 12
links, the flexible chain links provided between the rigid chain 13
links, the flexible chain links being fixed to the rigid chain links, 14
. . . wherein the chain comprises a continuous flexible traction 15
element and the rigid chain links are clamped on the continuous 16
flexible traction element, wherein the regions of the flexible 17
traction element in-between the rigid chain links are the flexible 18
chain links, 19
as recited in claim 23. (See FF 34, 62, 69, 76 & 84; see also Req’r Comm. 20
on Req. Reopen 33). Neither Grevich, nor Arnold nor Blidung remedies 21
these deficiencies. 22
In particular, neither Grevich, nor Arnold nor Blidung appears to 23
describe any downwardly-extending structure for guiding a conveyor chain 24
as described in the reference along a straight path. (See FF 99, 104 & 110). 25
Thus, if one of ordinary skill in the art were to substitute Grevich’s endless 26
bands, Arnold’s toothed bands, or Blidung’s endless flexible toothed belts or 27
endless chains for the chains, for the chains described by any of Hamilton, 28
Rogiers, Jezuit, Buchko ʼ611 and Canamero, one would eliminate from the 29
chains described in the proposed primary references the chain link side 30
plates or other structure that might resist movement of the belt and the 31
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gripper edges of the packaging material transverse to the direction of 1
transport through the machine. As a consequence, one of ordinary skill in 2
the art, recognizing the desirability of a chain having structure for resisting 3
transverse movement, would be as likely to set aside Grevich’s endless 4
bands, Arnold’s toothed bands, or Blidung’s endless flexible toothed belts or 5
endless chains, as substitutes for the chains described by Hamilton, Rogiers, 6
Jezuit, Buchko ʼ611 or Canamero, as to adopt either belt as a potential 7
substitute and attempt to modify the belt to resist transverse movement. 8
The Requester argues that either Mensch or Demny would have 9
suggested adding downwardly extending guide elements for engagement 10
with guide rails to resist such transverse movement. (See Req’r Comm. on 11
Req. Reopen 38). Neither Mensch nor Demny would have suggested the 12
addition of such downwardly extending guide elements. Mensch describes 13
trolley assemblies 40, 42 extending downwardly from a belt conveyor 10 for 14
engagement with a track assembly 23 to guide and support the belt 15
conveyor. (See FF 130 & 131). If one attempted to add a similar structure 16
to Grevich’s endless bands, Arnold’s toothed bands, or Blidung’s endless 17
flexible toothed belts or endless chains, the trolley assemblies would 18
interfere with the engagement between the sprockets and the belts or chains. 19
Demny describes base strips 19 for clamping cells 18 to an endless belt 1 at 20
intervals along the belt. Opposite ends of the base strips 19 extend 21
horizontally beyond the width of the belt 1 to engage guide grooves in lateral 22
guide rails 20. (See FF 132). Demny does not teach any downwardly 23
extending guide elements for engaging guide rails. Instead, Demny 24
describes horizontally extending base strips engaging horizontal grooves in 25
guide rails. Thus, neither Mensch nor Demny remedy the deficiencies in the 26
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teachings of Hamilton, Rogiers, Jezuit, Buchko ʼ611 or Canamero, in 1
combination with the teachings of Grevich or Arnold. 2
We sustain the Examiner’s decision not to adopt the proposed 3
rejections of claims 1, 21 and 23 under § 103(a) as being unpatentable over 4
Hamilton, Rogiers, Jezuit, Buchko ‘611 and Canamero, in view of either 5
Grevich, Arnold or Blidung, albeit for reasons different than those of the 6
Examiner. 7
8
Twelfth Issue 9
Next, we address the combined teachings of Hamilton, Rogiers, 10
Jezuit, Buchko ‘611 and Canamero, in view of either Dove or Aiuola. Dove 11
describes a film processing tank 1 including a continuous belt 10 bearing a 12
plurality of spring-loaded clips 20. The belt 10 is mounted on a wheel 13 for 13
transporting photographic film or film print materials through a plurality of 14
baths 3–8. (See FF 105). Aiuola describes device 1 for advancing a 15
packaging band 2 comprising adjacent pockets 4 toward a filling station. 16
(See FF 111). Given complicated nature of the path traveled by the 17
photographic film transported in Dove’s machine (see FF 102–04); and the 18
manner in which the pockets in the packaging band are transported through 19
Auiola’s machine (see FF 111–13), the teachings of Dove and Aiuola 20
arguably remedy the deficiencies in the teachings of either Hamilton, 21
Rogiers, Jezuit, Buchko ‘611 or Canamero only in hindsight. We sustain the 22
Examiner’s decision not to adopt the proposed rejections of claims 1, 21 and 23
23 under § 103(a) as being unpatentable over Hamilton, Rogiers, Jezuit, 24
Buchko ‘611 and Canamero, in view of either Dove or Aiuola, albeit for 25
reasons different than those of the Examiner. 26
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Thirteenth Issue 1
Finally, we address the teachings of Grevich in view of those of 2
Hamilton. Grevich fails to describe: 3
A packaging machine having a chain for transport of a 4
continuous packaging film, wherein the chain has a series of 5
successive rigid chain links connected to one another in a 6
movable manner, and flexible chain links provided between the 7
rigid chain links, the flexible chain links being fixed to the rigid 8
chain links, 9
as recited in claim 1; 10
A packaging machine having a chain for transporting a 11
continuous food packaging film through a plurality of work 12
stations of the packaging machine, wherein the chain has a series 13
of successive rigid chain links connected to one another in a 14
movable manner, and flexible chain links provided between the 15
rigid chain links and are fixed to the rigid chain links, 16
as recited in claim 21; or 17
A packaging machine having a chain for transporting a 18
continuous food packaging film through a plurality of work 19
stations of the packaging machine, wherein the chain has a 20
plurality of flexible chain links and a plurality of rigid chain 21
links, the flexible chain links provided between the rigid chain 22
links, the flexible chain links being fixed to the rigid chain links, 23
. . . wherein the chain comprises a continuous flexible traction 24
element and the rigid chain links are clamped on the continuous 25
flexible traction element, wherein the regions of the flexible 26
traction element in-between the rigid chain links are the flexible 27
chain links, 28
as recited in claim 23. (See FF 99). The Requester asserts that it would 29
have been obvious to add a “C”-shaped guide, such as the guide 27 30
described by Hamilton (see FF 27) to Grevich’s machine. More specifically, 31
the Requester asserts that it would have been obvious to position the “C”-32
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shaped guide for contact with the headed studs 24 of Grevich’s clips 23 to 1
resist outward transverse movement of the clips and the gripped edge 2
portions of the packaging material transported through Grevich’s machine. 3
(See Req’r Comm. on Determination 15 & 16). 4
Grevich does not describe using the headed studs 24 of Grevich’s 5
clips 23 to resist transverse movement of the belt or of the gripped edge 6
portions of the packaging material. (See PO Reply to Req’r Comm. on 7
Determination 5). Therefore, the Requester has not proven by a 8
preponderance of the evidence that one of ordinary skill in the art would 9
have had reason to modify Grevich’s machine as proposed. Even were one 10
of ordinary skill in the art to come to the epiphany that the headed studs 11
might be used to resist transverse movement, the Requester has not provided 12
a single example of a packaging machine in which outward transverse 13
movement was controlled, but neither inward transverse movement nor 14
packaging material tension was controlled. Given the fact that, under 15
normal circumstances, the elasticity of the packaging material itself controls 16
outward transverse movement of the clips to a certain extent, the Requester 17
has not demonstrated by a preponderance of the evidence the possibility of 18
controlling outward transverse movement alone would have provided one of 19
ordinary skill in the art sufficient reason to modify Grevich’s machine as 20
proposed. We sustain the Examiner’s decision not to adopt the proposed 21
rejections of claims 1, 21 and 23 under § 103(a) as being unpatentable over 22
Grevich in view of Hamilton, albeit for reasons different than those of the 23
Examiner. 24
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DECISION 1
We REVERSE the Examiner’s decision favorable to the patentability 2
of claims 1, 21 and 23. 3
More specifically, we WITHDRAW the new grounds of rejection 4
entered in the Prior Board Decision against claims 1, 21 and 23, namely, 5
under 35 U.S.C. § 102(b) as being anticipated by Buchko ʼ114. 6
We AFFIRM the Examiner’s decision not to adopt the proposed 7
rejections of claims 1, 21 and 23 under § 103(a) as being unpatentable over 8
Buchko ʼ114 in view of either Natterer or Hamilton; alone or further in view 9
of either Webster, Petershack, Case, Casgrain or St. Louis; once again, alone 10
or even further in view of Weisgerber, Frenker-Hackfort, Strickland or 11
Wolfelsperger. 12
We REVERSE the Examiner’s decision not to adopt the Requester’s 13
proposed rejection of claim 21 under § 112, second paragraph. Pursuant to 14
our authority under 37 C.F.R. § 41.77(b), we enter NEW GROUNDS OF 15
REJECTION against claim 21 under § 112, second paragraph, for failure to 16
particularly point out and distinctly claim the subject matter that the Patent 17
Owner regards as the invention. 18
We AFFIRM the Examiner’s decision not to adopt proposed 19
rejections of claims 1, 21 and 23 under § 112, first paragraph, for non-20
enablement or for lack of written description. 21
We REVERSE the Examiner’s decision not to adopt any of the 22
Requester’s proposed rejections of claims 1, 21 and 23 under § 103(a). 23
Pursuant to our authority under 37 C.F.R. § 41.77(b), we enter NEW 24
GROUNDS OF REJECTION against claims 1 and 21 under § 103(a) as 25
being unpatentable over either Hepner or Lovas in view of Petershack. In 26
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addition, we enter NEW GROUNDS OF REJECTION against claims 1, 21 1
and 23 under § 103(a) as being unpatentable over Lovas in view of either 2
Grevich or Arnold. 3
We AFFIRM the Examiner’s decision not to adopt proposed 4
rejections of claims 1 and 21 under § 103(a) as being unpatentable over 5
Hamilton, Rogiers, Jezuit, Buchko ‘611 and Canamero in view of 6
Petershack. In addition, we AFFIRM the Examiner’s decision not to adopt 7
proposed rejections of claims 1 and 21 under § 103(a) as being unpatentable 8
over Hamilton, Hepner, Lovas, Rogiers, Jezuit, Buchko ‘611 and Canamero 9
in view of Wehner. 10
We AFFIRM the Examiner’s decision not to adopt proposed 11
rejections of claims 1, 21 and 23 under § 103(a) as being unpatentable over 12
Lovas in view of Dove, Blidung and Aiuola. In addition, we AFFIRM the 13
Examiner decision not to adopt proposed rejections of claims 1, 21 and 23 14
under § 103(a) as being unpatentable over Hamilton, Hepner, Rogiers, 15
Jezuit, Buchko ‘611 and Canamero in view of Grevich, Arnold, Dove, 16
Blidung and Aiuola. 17
Finally, we AFFIRM the Examiner’s decision not to adopt the 18
proposed rejection of claims 1, 21 and 23 under § 103(a) as being 19
unpatentable over Grevich and Hamilton. 20
21
NEW GROUNDS OF REJECTION 22
This decision contains new grounds of rejection pursuant to 37 C.F.R. 23
§ 41.77(b), which provides that “[a]ny decision which includes a new 24
ground of rejection pursuant to this paragraph shall not be considered final 25
for judicial review.” Consequently, no portion of the decision is final for 26
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purposes of judicial review. The Patent Owner or the Requester may request 1
rehearing under 37 C.F.R. § 41.79, if appropriate; however, the Board may 2
elect to defer issuing any decision on such request for rehearing until such 3
time that a final decision on appeal has been issued by the Board. 4
For further guidance on new grounds of rejection, see 37 C.F.R. 5
§ 41.77(b)–(g). The decision may become final after it has returned to the 6
Board. 37 C.F.R. § 41.77(f). 7
37 C.F.R. § 41.77(b) also provides that the Patent Owner, WITHIN 8
ONE MONTH FROM THE DATE OF THE DECISION, must exercise one 9
of the following two options with respect to the new grounds of rejection to 10
avoid termination of the appeal as to the rejected claims: 11
(1) Reopen prosecution. The owner may file 12
a response requesting reopening of prosecution 13
before the examiner. Such a response must be 14
either an amendment of the claims so rejected or 15
new evidence relating to the claims so rejected, or 16
both. 17
(2) Request rehearing. The owner may 18
request that the proceeding be reheard under 19
§ 41.79 by the Board upon the same record. 20
Any request to reopen prosecution before the examiner under 21
37 C.F.R. § 41.77(b)(1) shall be limited in scope to the “claims so rejected.” 22
Accordingly, a request to reopen prosecution is limited to issues raised by 23
the new ground(s) of rejection entered by the Board. A request to reopen 24
prosecution that includes issues other than those raised by the new ground(s) 25
is unlikely to be granted. Furthermore, should the Patent Owner seek to 26
substitute claims, there is a presumption that only one substitute claim would 27
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be needed to replace a cancelled claim. Any claim amendments should 1
comply with the requirements of pre-AIA 35 U.S.C. § 112. 2
The Requester may file comments in reply to a Patent Owner 3
response. 37 C.F.R. § 41.77(c). The Requester’s comments under 37 C.F.R. 4
§ 41.77(c) shall be limited in scope to the issues raised by the Board’s 5
opinion reflecting its decision to reject the claims and the patent owner’s 6
response under paragraph 37 C.F.R. § 41.77(b)(1). A newly proposed 7
rejection is not permitted as a matter of right. A newly proposed rejection 8
may be appropriate if it is presented to address an amendment and/or new 9
evidence properly submitted by the patent owner, and is presented with a 10
brief explanation as to why the newly proposed rejection is now necessary 11
and why it could not have been presented earlier. 12
Compliance with the page limits pursuant to 37 C.F.R. § 1.943(b), for 13
all Patent Owner responses and Requester comments, is required. 14
The Examiner, after the Board’s entry of a Patent Owner response and 15
Requester comments, will issue a determination under 37 C.F.R. § 41.77(d) 16
as to whether the Board’s rejection is maintained or has been overcome. 17
The proceeding will then be returned to the Board together with any 18
comments and reply submitted by the owner and/or requester under 37 19
C.F.R. § 41.77(e) for reconsideration and issuance of a new decision by the 20
Board as provided by 37 C.F.R. § 41.77(f). 21
In the event neither party files a request for rehearing within the time 22
provided in 37 C.F.R. § 41.79, and this decision becomes final and 23
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must 24
timely serve notice on the Director of the United States Patent and 25
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983. 26
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dw

PATENT OWNER:
HUSCH BLACKWELL LLP
4801 Main Street
Suite 1000
KANSAS CITY, MO 64112

THIRD PARTY REQUESTER:
DECHERT LLP
P.O. BOX 390460
MOUNTAIN VIEW, CA 94039-0460