Ex Parte Adair et al

Board of Patent Appeals and Interferences

Aug 23, 2006

09954443 (B.P.A.I. Aug. 23, 2006)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte JAMES ROBERT ADAIR, JR., WILLIAM B. BOWER,
EDWARD JOSEPH CIGALLIO
and RICHARD VINCENT DOUGHERTY
__________

Appeal No. 2006-1862
Application No. 09/954,443
___________

HEARD: JULY 13, 2006
___________

Before FRANKFORT, OWENS and CRAWFORD, Administrative Patent
Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal is from a rejection of claims 9, 12-18 and 21-
26. Claims 1-8, 10, 11, 19 and 20 have been canceled.
THE INVENTION
The appellants claim a system and method for making one to
five ounce portion control sized packages of flowable liquid-
containing condiments wherein longitudinal heat tubes are used in

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Application No. 09/954,443

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sealing the packages. Claim 9 is illustrative:
9. A system for making portion control sized packaged
flowable liquid-containing condiments in a portion size in
the range from 1 to 5 ounces comprising:

a heat sealable material feeder;

a flowable material feeder for feeding a flowable liquid-
containing condiment; and

a form/fill/seal apparatus structured and arranged for
receiving the heat sealable material, forming a portion control
sized package with the heat sealable material, filling the
portion control sized package with the flowable liquid-containing
condiment in a portion size in the range from 1 to 5 ounces, and
sealing the portion control sized package so that the portion
control sized package has a portion size in the range from 1 to 5
ounces, the form/fill/seal apparatus including a heat seal die
comprising:

a first die member having a longitudinal axis and a die
face;

a second die member having a longitudinal axis and a die
face;

a first heating element engaged with the first die member
for heating the first die member;

a second heating element engaged with the second die member
for heating the second die member;

a first longitudinal heat tube tightly disposed in a first
longitudinal bore in the first die member between the first
heating element and the die face of the first die member for
maintaining a substantially uniform heat seal temperature along
the die face of the first die member; and

a second longitudinal heat tube tightly disposed in a first
longitudinal bore in the second die member between the second
heating element and the die face of the second die member for
maintaining a substantially uniform heat seal temperature along
the die face of the second die member.

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Application No. 09/954,443

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THE REFERENCES
Eisenstadt 3,228,170 Jan. 11, 1966
Nakamura et al. 6,301,859 Oct. 16, 2001
(Nakamura) (filed Apr. 23, 1999)

THE REJECTION
Claims 9, 12-18 and 21-26 stand rejected under
35 U.S.C. § 103 as being unpatentable over Eisenstadt in view of
Nakamura.
OPINION
We reverse the aforementioned rejection. We need to address
only the independent claims, i.e., claims 9 and 18. Claim 9
claims a system comprising a flowable material feeder for feeding
a flowable liquid-containing condiment to a portion control sized
package, and a form/fill/seal apparatus including a heat seal die
comprising two longitudinal heat tubes. Claim 18 claims a method
comprising feeding a flowable liquid-containing condiment to a
form/fill/seal apparatus, and sealing a portion control sized
package using a heat seal die comprising two longitudinal heat
tubes.
Eisenstadt discloses “machinery for making small packages of
liquids, semi-liquids, liquids of high viscosity such as mustard,
syrup, etc.” (col. 1, lines 10-12). The packages are sealed by
pressing their edges between heating elements (48, 65, 66)
(col. 2, line 47 – col. 3, line 40).
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Application No. 09/954,443

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The only disclosure in Nakamura relied upon by the examiner
is Nakamura’s discussion of a prior art heat sealer for forming a
sheet of synthetic resin into bags (answer, page 6). That prior
art heat sealer uses heat pipes (26a, 26b) (col. 2, line 64)
which correspond to the appellants’ heat tubes. Nakamura
discloses (col. 10, lines 1-20):
[T]he heat pipes employed in the prior art transverse heat-
sealing jaw are of a design wherein a wick is fitted to an
inner peripheral surface of each heat pipes [sic] having its
opposite ends closed and a working liquid is filled therein.
This design utilizes the phase change of the working liquid
which is vaporized when heated, but returns to a liquid
phase when cooled in contact with a portion of the
respective heat pipe where the temperature is low, so that
heat can be quickly and efficiently transmitted in the
lengthwise direction of the respective heat pipe. However,
as a result of a series of experiments conducted by the
inventors of the present invention, it has been found that
the heat pipe has not sufficient heat conductive
characteristic in a radial direction, and that the use of
the heat conducting members having a high heat
conductivity λ such as employed in the practice of the
present invention has exhibited an excellent heat conductive
characteristic in a radial direction and, also, a sufficient
heat conductive characteristic in a lengthwise direction
although somewhat lower than that exhibited by the heat
pipes.

The appellants argue that the above disclosure by Nakamura
is an express teaching that heat pipes should not be used in heat
sealing dies because they do not distribute heat adequately in
the radial direction (brief, page 8).

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Application No. 09/954,443

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The examiner argues that “Nakamura, in this disclosure,
simply emphasizes that the heat pipe is a better choice for
heating the heat-sealing jaws in the lengthwise direction, but
for the heating of the heat-sealing jaws in the radial direction,
the heat conducting member (other than the heat pipe) such as the
one discloses [sic] in the Nakamura present invention is more
suitable” (answer, page 6).
The examiner has not provided evidence that the prior art
heat pipes disclosed by Nakamura would provide adequate heating
of the heat-sealing jaws in the radial direction if the material
being bagged contains a liquid. The exemplified articles bagged
by those prior art heat pipes are potato chips, fruits, candies,
vegetables, screws, nails and bolts (col. 1, lines 23-25), and
Nakamura does not disclose that the prior art heat pipes are
effective for bagging liquids. The only apparatus relied upon by
the examiner for bagging liquids is that of Eisenstadt wherein
the heating elements used to seal the bags appear to be
electrically heated (as indicated by the wire attached to heating
element 48 in figure 3a), solid heating elements.
We therefore conclude that the examiner has not carried the
burden of establishing a prima facie case of obviousness of the
appellants’ claimed invention.
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Application No. 09/954,443

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DECISION
The rejection of claims 9, 12-18 and 21-26 under
35 U.S.C. § 103 over Eisenstadt in view of Nakamura is reversed.
REVERSED

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
) BOARD OF PATENT
) APPEALS
) AND
TERRY J. OWENS ) INTERFERENCES
Administrative Patent Judge )
)
)
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )

Appeal No. 2006-1862
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999 Peachtree Street, N.E.
Atlanta, GA 30309

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