Ex Parte ANZINI et al

Patent Trials and Appeals Board

Aug 25, 2017

13734346 - (D) (P.T.A.B. Aug. 25, 2017)

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.
121981-00420 6937
EXAMINER
BATTISTI, DEREK J
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
13/734,346 01/04/2013 David ANZINI
51468 7590 08/28/2017
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
245 Park Avenue
NEW YORK, NY 10167
08/28/2017 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 ANZINI and ERIC PLOURDE
Appeal 2016-000694
Application 13/734,3461
Technology Center 3700
Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’
decision rejecting claims 1, 5—12, and 16—21. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 The Appellants identify Illinois Tool Works Inc. as the real party in
interest. Appeal Br. 2.
Appeal 2016-000694
Application 13/734,346
ILLUSTRATIVE CLAIM
1. A polymeric bag or container, including:
a front wall and a rear wall, sealed together at edges
thereof thereby forming a mouth;
a reclosure extending around the mouth, thereby making
the mouth reclosable;
a semi-rigid element extending around and attached to
the mouth with a sufficient modulus for the mouth of the bag to
maintain an open position after being placed in an open
position;
wherein the semi-rigid element is made of polyethylene,
including at least a portion of high density polyethylene, and
has undergone steps of extruding and stretching; and
wherein the step of stretching increases the modulus of
the semi-rigid element in order for the semi-rigid element to
maintain a bent or folded position of the mouth.
REJECTIONS
I. Claims 1, 5—8, 10—12, 16—19, and 21 are rejected under pre-
AIA 35 U.S.C. § 102(b) as anticipated by Cook et al. (US 5,174,658, iss.
Dec. 29, 1992) (“Cook”).
II. Claims 9 and 20 are rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Cook and Kohl et al. (US 6,827,491 B2, iss. Dec. 7,
2004) (“Kohl”).
FINDINGS OF FACT
We rely upon and adopt the Examiner’s findings stated in the Final
Office Action at pages 2—6 and the Answer at pages 2—3, except as stated
otherwise in the Analysis below. Additional findings of fact may appear in
the Analysis below.
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Appeal 2016-000694
Application 13/734,346
ANALYSIS
The Appellants argue independent claims 1 and 12 together. See
Appeal Br. 5. Claim 1 is selected for analysis herein, in accord with
37C.F.R. §41.37(c)(l)(iv).
The Appellants argue that independent claim 1 was rejected
erroneously because Cook fails to disclose:
a semi-rigid element. . . with a sufficient modulus for the
mouth of the bag to maintain an open position after being
placed in an open position;
wherein the semi-rigid element. . . has undergone [a]
step[ ] of stretching; and
wherein the step of stretching increases the modulus of
the semi-rigid element in order for the semi-rigid element to
maintain a bent or folded position of the mouth.
See Appeal Br. 5.
According to the Appellants, Cook discloses a “stay” that has a
memory, causing it to “spring back to its original shape.” Id. (citing Cook,
col. 4,11. 22—282). By contrast, the Appellants argue that the claimed “semi­
rigid element takes a dead-fold and tends to stay the shape into which it is
formed rather than springing back to an original shape such as disclosed in
the Cook reference.” Id.
The Appellants’ argument is not persuasive of error, because the
Appellants misinterpret the relevant claim language. As the Examiner
explains, the identified language of claim 1 does not require the “semi-rigid
element” to remain in the shape into which it has been positioned, rather
2 The Appellants may have intended to cite Cook’s column 5, lines 22—28,
which more closely aligns with the Appeal Brief’s characterization of the
reference.
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Appeal 2016-000694
Application 13/734,346
than springing back into an original shape. Answer 3. Although the
Specification refers to “creating a high modulus semi-rigid element 10 to a
degree necessary to maintain an open (or closed) position of the bag 100 as
shown in Figure 5B” (Spec. 118), the language of claim 1 is not so narrow.
Rather, the claimed “rigid element” need have only a “sufficient
modulus for the mouth of the bag to maintain an open position after being
placed in an open position,” “in order for the semi-rigid element to maintain
a bent or folded position of the mouth.” See Answer 3. The claim language
does not preclude the recited “semi-rigid element” from being biased in the
“open position” (or the “bent or folded position”) — such that, like Cook’s
embodiment, it springs back or “returns to its original unstressed
configuration.” Id. (quoting Cook, col. 5,11. 22—28). Claim 1 merely
requires the “semi-rigid element” to “maintain” the “open position”/“bent or
folded position” “after being placed in” such position — regardless of
whether or not the “semi-rigid element” might be so biased. Therefore,
Cook meets the identified claim limitation.
Accordingly, we sustain the rejection of independent claims 1 and 12
— as well as claims 5—8, 10, 11, 16—19, and 21 depending therefrom
(whether directly or indirectly) — under pre-AIA 35 U.S.C. § 102(b). In
addition, the Appellants relying upon the same arguments presented for
claims 1 and 12, we sustain the rejection of claims 9 and 20 under pre-AIA
35 U.S.C. § 103(a).
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1, 5—8, 10—12,
16-19, and 21 under pre-AIA 35 U.S.C. § 102(b).
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Appeal 2016-000694
Application 13/734,346
We AFFIRM the Examiner’s decision rejecting claims 9 and 20 under
pre-AIA 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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