Ex Parte Anzini et alDownload PDFPatent Trial and Appeal BoardFeb 27, 201411974627 (P.T.A.B. Feb. 27, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/974,627 10/15/2007 David J. Anzini 121981-00261 5812 51468 7590 02/28/2014 McCarter & English LLP ACCOUNT: ILLINOIS TOOL WORKS INC. 245 Park Avenue NEW YORK, NY 10167 EXAMINER BATSON, VICTOR D ART UNIT PAPER NUMBER 3677 MAIL DATE DELIVERY MODE 02/28/2014 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 ____________ Ex parte DAVID J. ANZINI and MURRAY EDWARD BRUCE LEIGHTON ____________ Appeal 2012-003347 Application 11/974,627 Technology Center 3600 ____________ Before GAY ANN SPAHN, MICHAEL C. ASTORINO, and THOMAS F. SMEGAL, Administrative Patent Judges. SPAHN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s rejection of claims 1, 2, and 4-14. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2012-003347 Application 11/974,627 2 Claimed Subject Matter The claimed subject matter relates to “transverse placement of zippers on a moving film, particularly in the production of reclosable packages wherein the reliability of the tracking and placement of the zipper are improved, thereby leading to the possibility of higher production rates.” Spec. 2, ll. 12-14. Claim 1, reproduced below, with emphasis added, is illustrative of the appealed subject matter. 1. A zipper for a reclosable package, including: a first profile including a first interlocking element and a first flange; a second profile including a second interlocking element and a second flange; and the first flange including a first row of apertures; wherein the first row of zippers is constructed and arranged to be engaged by a roll thereby resulting in feeding of the zipper.[1] Rejections The following Examiner’s rejections are before us for review: I. claims 1, 2, and 4-13 under 35 U.S.C. § 112, second paragraph, as indefinite for failing to particularly point out and distinctly claim the subject matter which Appellants regard as the invention; II. claims 1, 2, 4, 5, and 7-12 under 35 U.S.C. § 102(b) as anticipated by Chou (US 2002/0157221 A1, pub. Oct. 31, 2002); III. claim 6 under 35 U.S.C. § 103(a) as unpatentable over Chou and Kawahara (US 2004/0045140 A1, pub. Mar. 11, 2004); 1 Claim 1 is quoted from the “Amendment” filed on Nov. 4, 2010 in the electronic file wrapper of the application underlying this appeal because the Claims Appendix in the Appeal Brief has an incorrect version of claim 1. Appeal 2012-003347 Application 11/974,627 3 IV. claim 13 under 35 U.S.C. § 103(a) as unpatentable over Chou and Hetzel (US 2,701,222, iss. Feb. 1, 1955); and V. claim 14 under 35 U.S.C. § 103(a) as unpatentable over JP ʼ510 (JP 2003-170510 A, pub. Jun. 17, 2003) and either Ausnit (US 4,832,505, iss. May 23, 1989) or ErkenBrack (US 6,581,253 B2, iss. Jun. 24, 2003). OPINION Rejection I – Indefiniteness Appellants argue claims 1, 2, and 4-13 as a group and we select independent claim 1 as the representative claim. See Br. 5; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 2 and 4-13 fall with claim 1. The Examiner determines that the recitation of “the first row of zippers,” in line 7, of claim 1 as quoted supra, is indefinite for lack of antecedent basis. See Ans. 4 and 8-10. Appellants appear to agree that the word “zippers” in claim 1 is incorrect, as Appellants indicate that the recitation of “zippers” in claim 1 “has been corrected” in the Claims Appendix in the Appeal Brief, and Appellants also indicate that they “can provide a formal amendment when the application is otherwise in condition for allowance.” Br. 5. Regardless, Appellants argue the Examiner’s “rejection has been overcome.” Id. We are not persuaded by Appellants’ sole argument that the Examiner’s rejection has been overcome, because it does not provide any reason why the Examiner erred. Instead, Appellants merely comment on what original claim 3 recited and explain that when Appellants amended claim 1 by attempting to insert the subject matter of claim 3 thereinto, the subject matter of claim 3 was incorrectly “transcribed” into claim 1. See Br. Appeal 2012-003347 Application 11/974,627 4 5. Appellants’ comment, explanation, and sole argument do not apprise us of error in the Examiner’s rejection. Accordingly, we sustain the Examiner’s rejection of independent claim 1, and claims 2 and 4-13 which fall therewith, under 35 U.S.C. § 112, second paragraph, as indefinite. Rejections II - IV – Anticipation based on Chou and Obviousness based on Chou and Kawahara and Chou and Hetzel, respectively Having determined that claims 1, 2, and 4-13 are indefinite for the reasons discussed supra, we do not sustain the rejections of: claims 1, 2, 4, 5, and 7-12 under 35 U.S.C. § 102(b) as anticipated by Chou; claim 6 under 35 U.S.C. § 103(a) as unpatentable over Chou and Kawahara; and claim 13 under 35 U.S.C. § 103(a) as unpatentable over Chou and Hetzel. In order to sustain the rejections of these claims, we would be required to resort to speculation as to the scope of the claims. See In re Steele, 305 F.2d 859, 862-63(CCPA 1962) (holding that the Board erred in affirming a rejection of indefinite claims under 35 U.S.C. § 103(a), because the rejection was based on speculative assumptions as to the meaning of the claims). Rejection V – Obviousness based on JP ʼ510 and either Ausnit or ErkenBrack Independent claim 14 recites a zipper for a reclosable package and includes, inter alia, a first profile having a first flange which includes a rail protruding therefrom and being constructed and arranged for engagement between opposed first and second rolls for feeding the zipper[;] wherein the rail has a T-shaped cross section formed by a stem extending perpendicularly from the flange . . . [;] and wherein the stem of the rail is configured and arranged to be engaged between and driven by two drive rolls. Appeal 2012-003347 Application 11/974,627 5 Br., Clms. App’x. The Examiner finds that JP ʼ510 discloses “a zipper for a reclosable package including: a first profile including . . . a first flange 7; . . . the first flange including a rail 7bb protruding therefrom, the rail inherently being constructed and arranged for engagement between opposed first and second rolls for feeding the zipper.” Ans. 8. However, the Examiner also finds that “the rail 7bb isn’t T-shaped,” and the Examiner turns to either Ausnit or ErkenBrack to disclose a T-shaped rail. Id. (citing Ausnit, figs. 2-3, element 33, and ErkenBrack, Figs. 18-19, elements 59, 60). The Examiner concludes that it would have been obvious to one of ordinary skill in the art “to modify the device of JP . . . [ʼ]510 so that rather than having the rail configuration as shown to have a T-shaped rail as shown by either Ausnit . . . or Erkenbrack because such a configuration provides enhanced guidance of the profiles.” See id. Appellants argue that JP ʼ510’s element 7bb “is little more than a ‘nub’ which can fit into a groove and therefore serve as a passive guide” and “has insufficient structure to be engaged between first and second rolls.” Br. 7. Appellants also argue that JP ʼ510’s element 7bb “has insufficient structure for ‘the stem of the rail . . . [to be] configured and arranged to be engaged between and driven by two drive rolls” so that “there is nothing about element 7bb which would indicate that it could be used for driving.” Id. Finally, Appellants also argue that “the cited structures of the secondary reference appear to be for guiding and not for driving.” Id. We are not persuaded by Appellants’ arguments. The Examiner’s rejection modifies projected rim 7bb of JP ʼ510 to be T-shaped by the Appeal 2012-003347 Application 11/974,627 6 teachings of either Ausnit or Erkenbrack. See Ans. 8; see also JP ʼ5102, para. [0006], l. 14. Appellants’ arguments that projected rim 7bb of JP ʼ510 “is little more than a ‘nub’ which can fit into a groove,” “has insufficient structure to be engaged between first and second rolls,” and “has insufficient structure for ‘the stem of the rail . . . [to be] configured and arranged to be engaged between and driven by two drive rolls” addresses JP ʼ510 individually. One cannot show nonobviousness by attacking references individually where the rejections are based on a combination of references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 426 (CCPA 1981). Since Appellants’ argument addresses JP ‘510 individually, it does not explain error in the Examiner’s combination of JP ‘510 and either Ausnit or ErkenBrack and therefore, is not persuasive. However, even assuming arguendo that projected rim 7bb of JP ʼ510’s remains “little more than a ‘nub’” after modification to be T-shaped by the teaching of either Ausnit or Erkenbrack, Appellants have not provided any technical reasoning or evidence that the resulting T-shaped projected rim 7bb fails to satisfy claim 14’s language of “being constructed and arranged for engagement between first and second rolls for feeding the zipper.” We note that the size of the rail or how far it projects from the surface of the flange does not appear to affect whether the rail is “constructed and arranged for engagement between opposed first and second rolls for feeding the zipper,” because Appellants’ embodiment depicted in Figures 8 and 9 shows “notches or indentations 44,” which appear to be 2 Our references to JP ʼ510 are to the English machine translation provided by the Examiner on Sep. 14, 2011 as an attachment to the Examiner’s Answer and which can be found in the electronic file wrapper of the application underlying this appeal. Appeal 2012-003347 Application 11/974,627 7 small and are not even raised above the surface of zipper profile 30, but which exhibit sufficient structure to be constructed and arranged for engagement between first and second rolls 214 and 216 for feeding the zipper. See Spec. 6, ll. 16-22 and Figs. 8-9. Thus, Appellants have not explained why projected rim 7bb of JP ʼ510 as modified to be T-shaped by the teaching of either Ausnit or Erkenbrack would not satisfy the claim language of “the rail being constructed and arranged for engagement between opposed first and second rolls for feeding the zipper” and “wherein the stem of the rail is configured and arranged to be engaged between and driven by two drive rolls.” With respect to Appellants’ arguments that “there is nothing about element 7bb which would indicate that it could be used for driving,” and “the cited structures of the secondary reference appear to be for guiding and not for driving,” we note that claim 14 does not require the rail to be used for driving. Rather, claim 14 recites that “the stem of the rail is configured and arranged to be engaged between and driven by two drive rolls.” We cannot ascertain why a structure that is configured for guiding would not be configured for driving. Therefore, Appellants’ arguments are not persuasive because they do not explain why a structure that can be guided is not also a structure that can be driven. Accordingly, we sustain the Examiner’s rejection of independent claim 14 under 35 U.S.C. § 103(a) as unpatentable over JP ʼ510 and either Ausnit or Erkenbrack. Appeal 2012-003347 Application 11/974,627 8 DECISION We AFFIRM the Examiner’s rejections of: claims 1, 2, and 4-13 under 35 U.S.C. § 112, second paragraph, as indefinite; and claim 14 under 35 U.S.C. § 103(a) as unpatentable over JP ʼ510 and either Ausnit or Erkenbrack. We REVERSE the Examiner’s rejections of: claims 1, 2, 4, 5, and 7- 12 under 35 U.S.C. § 102(b) as anticipated by Chou; claim 6 under 35 U.S.C. § 103(a) as unpatentable over Chou and Kawahara; and claim 13 under 35 U.S.C. § 103(a) as unpatentable over Chou and Hetzel. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls Copy with citationCopy as parenthetical citation