Ex Parte Anzini et al

Patent Trial and Appeal Board

Sep 13, 2013

11973769 (P.T.A.B. Sep. 13, 2013)

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.
11/973,769 10/10/2007 David J. Anzini 121981-00259 1857
51468 7590 09/13/2013
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
245 Park Avenue
NEW YORK, NY 10167
EXAMINER
GERRITY, STEPHEN FRANCIS
ART UNIT PAPER NUMBER
3721
MAIL DATE DELIVERY MODE
09/13/2013 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 RUSTY KOENIGKRAMER
____________

Appeal 2011-010881
Application 11/973,769
Technology Center 3700
____________
Before: JAMES P. CALVE, WILLIAM A. CAPP and JILL D. HILL
Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1-3, 5-13 and 15-28. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
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THE INVENTION
Appellants’ invention is a reclosable bag featuring a zipper. Spec. 2.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A reclosable package or bag, comprising:
a first panel and a second panel;
a first gusset between a first side of a first panel and a
first side of the second panel;
a second gusset between a second side of the first panel
and a second side of the second panel; and
a zipper comprising;
a first profile, including a first interlocking
element, a first exterior flange and an interior flange, the
first exterior flange being attached to the first panel;
a second profile, including a second interlocking
element and a second exterior flange, the second exterior
flange being attached to the second panel; and
a releasable connection between the interior flange
and the second exterior flange, the releasable connection
being more resistant to a shear force than to a peel force.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:

The following rejections are before us for review:
1. Claims 1, 2, 5-8, 11, 12, 15-18, 21-25 and 27 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Machacek and Hogan.
Simonsen
May
Buchman
Machacek
Hogan
Hartzell
US 5,017,021
US 5,513,915
US 6,273,606 B1
US 6,505,383 B2
US 2004/0066983 A1
US 6,979,482 B2
May 21, 1991
May 7, 1996
Aug 14, 2001
Jan 14, 2003
Apr. 8, 2004
Dec. 27, 2005
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2. Claims 3 and 13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Machacek, Hogan and May.
3. Claims 9, 10 and 19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Machacek and Buchman.
4. Claim 20 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Machacek, Hogan, Buchman and Simonsen.
5. Claims 26 and 28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Machacek, Hogan and Hartzell.
OPINION
Unpatentability of
Claims 1, 2, 5-8, 11, 12, 15-18, 21-25 and 27
Appellants argue claims 1, 2, 5-8, 11, 12, 15-18, 21-25 and 27 as a
group. App. Br. 6-7. We select claim 1as representative. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
The Examiner finds that Machacek discloses all of the elements of
claim 1 except for gussets on opposite sides of the first and second panels.
Ans. 4. The Examiner relies on Hogan as teaching that it is old and well
known in the art to provide a zippered, releasable package with side gussets.
Id. citing Hogan, Figs. 3, 4 and paras. [0032] – [0036]. The Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time of the invention to have provided the invention of Machacek
with Hogan’s gussets. Ans. 4. According to the Examiner, a person of
ordinary skill in the art would have done this to provide an expandable
package. Id.
Appellants traverse the Examiner’s rejection by first arguing that
Hogan’s gussets are not captured between the profiled closure members
when the zipper is closed. App. Br. 6. This argument does not apprise us of
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error. Claim 1 does not require the gussets to be captured between the
profiled closure members when the zipper is closed and, thus, Appellants’
argument is not commensurate with the scope of the claim.
Appellants next argue that Hogan’s zipper provides an opening that
extends beyond the walls of the package and thus is radically different from
the presently claimed invention. App. Br. 6. Again, this argument does not
apprise us of error as claim 1 is not so limited in scope such that Appellants’
argument is not commensurate with the scope of the claim.
Appellants next argue that Hogan is distinguishable because the
zipper ends are not joined together after the package is opened. App. Br. 6.
This argument is not factually supported as it focuses on Hogan’s’ Figure 1
embodiment and Hogan discloses an alternative embodiment with a zipper
that is joined at both ends. See Hogan, Figs. 3, 4; para. [0032].1
Next, Appellants argue that Hogan’s zipper structure and attachment
configuration is different from the claimed invention, such that it is improper
to combine Machacek’s zipper with Hogan’s reclosable bag. App. Br. 6.
The Examiner responds by stating that Machacek was relied on for the
structural elements of the zipper profile and that Hogan was relied on as
teaching a gusseted package with a reclosable zipper. Ans. 9. The
Examiner further states that Hogan discloses that the use of gusseted
packages with a zipper is well known in the art and that there is nothing in
Hogan that would render Machacek’s zipper inoperative or unsuitable for its
intended purpose. Id. According to the Examiner, the combination, as a
whole, would have been recognized as obvious to a person of ordinary skill

1 The Examiner’s rejection relied on the Figure 3, 4 embodiment of
Hogan. Ans. 4.
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in the art. Id. Appellants’ arguments do not persuade us of error in the
Examiner’s findings or conclusion of obviousness.
Finally, Appellants argue that the prior art does not disclose that the
releasable connection is more resistant to a shear force than to a peel force as
claimed. App. Br. 7. In response, the Examiner states that it is an inherent
feature of a peel seal to exhibit properties that make the area more conducive
to being ruptured by a peeling force than a shearing force. Ans. 10.
The Examiner had a sound basis for concluding that Machacek
discloses a zipper with the claimed structure to include a peel seal coating 38
that provides a releasable connection that is more resistant to a shear force
than to a peel force. See Machacek, col. 2, ll. 49-57; Fig. 3; Spec. 4-5,
Fig. 2. In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (“when the PTO
shows sound basis for believing that the products of the applicant and the
prior art are the same, the applicant has the burden of showing that they are
not.”). This is sufficient to shift the burden to Appellants to show that the
seemingly identical structures, in fact, possess different functional
characteristics. See In re Swinehart, 439 F.2d 210, 213 (CCPA 1971)
(“where the Patent Office has reason to believe that a functional limitation
asserted to be critical for establishing novelty in the claimed subject matter
may, in fact, be an inherent characteristic of the prior art, it possesses the
authority to require the applicant to prove that the subject matter shown to be
in the prior art does not possess the characteristic relied on”). Appellants do
not challenge the Examiner’s finding that a peel seal is inherently more
resistant to a shear force than a peel force. Thus, Appellants have failed to
rebut the Examiner’s inherency determination.
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With respect to whether Machacek and Hogan can be combined, we
agree with the Examiner that the two references are combinable. Ans. 5, 8-
10. Machacek discloses a zipper for reclosable bags. Machacek, col. 1, ll.
6-9. Machacek further discloses that the invention may be used on a “wide
variety of packages.” Machacek, col. 3, ll. 20-24. Appellants’ attorney
argument that the two references are not combinable is conclusory in nature.
See App. Br. 6. Otherwise, Appellants offer neither evidence nor technical
reasoning as to why a person of ordinary skill in the art, in the exercise of
mere ordinary creativity, would be unable to affix Machacek’s zipper onto
Hogan’s gusseted package. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
421 (2007) (a person of ordinary skill is a person of ordinary creativity, not
an automaton).
We sustain the Examiner’s unpatentability rejection of claims 1, 2, 5-
8, 11, 12, 15-18, 21-25 and 27.
Unpatentability of Claims 3 and 13
In traversing the rejection of claims 3 and 13, Appellants argue that
May does not obviate the deficiencies of Machacek or Hogan with respect
claims 1 or 11. App. Br. 7. Otherwise, Appellants rely on the same
arguments that we previously considered with respect to claim 1. For the
same reasons stated above with respect to claim 1, we sustain the rejection
of claims 3 and 13.
Unpatentability of Claims 9, 10 and 19
In traversing the rejection of claims 9, 10 and 19, Appellants argue
that Buchman does not obviate the deficiencies of Machacek or Hogan with
respect to claims 1 or 11. App. Br. 7. Otherwise, Appellants rely on the
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same arguments that we previously considered with respect to claim 1. For
the same reasons stated above with respect to claim 1, we sustain the
rejection of claims 9, 10 and 19.
Unpatentability of Claim 20
In traversing the rejection of claim 20, Appellants argue that Buchman
does not obviate the deficiencies of Machacek, Hogan and Buchman with
respect claims 1 or 11. App. Br. 7. Otherwise, Appellants rely on the same
arguments that we previously considered with respect to claim 1. For the
same reasons stated above with respect to claim 1, we sustain the rejection
of claim 20.
Unpatentability of Claims 26 and 28
In traversing the rejection of claims 26 and 28, Appellants argue that
Hartzell does not obviate the deficiencies of Machacek and Hogan with
respect claims 1 or 11. App. Br. 7. Otherwise, Appellants rely on the same
arguments that we previously considered with respect to claim 1. For the
same reasons stated above with respect to claim 1, we sustain the rejection
of claims 26 and 28.
DECISION
The decision of the Examiner to reject claims 1-3, 5-13 and 15-28 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED

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