Ex Parte Arora et al

Patent Trial and Appeal Board

Feb 23, 2016

12583749 (P.T.A.B. Feb. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/583,749 08/25/2009 AtulArora
7590 02/24/2016
Sealed Air Corporation (US)
P.O. Box464
Duncan, SC 29334
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
D-44307-01 9592
EXAMINER
HARMON, CHRISTOPHER R
ART UNIT PAPER NUMBER
3649
MAILDATE DELIVERY MODE
02/24/2016 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 ATUL ARORA, MITCHELL W. SMITH SR., KENNETH
CHRISMAN, KENNETH J. MIERZEJEWSKI, DAVID SEEBAUER,
JOHN WYSMULLER, and GLEN VINCENT 1
Appeal2013-001366
Application 12/583,749
Technology Center 3600
Before JOSIAH C. COCKS, BARRY L. GROSSMAN, and
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COCKS, Administrative Patent Judge.
DECISION ON APPEAL
1 The real party in interest is SEALED AIR CORPORATION (US).
Appeal2013-001366
Application 12/583,749
I. STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from a final rejection
of claims 1-21 of Application No. 12/583,749 ("the '749 Application"). 2
We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
A. References Relied on by the Examiner
Cheich
Wetsch
2009/0082187 Al
2009/0075800 Al
B. The Rejections on Appeal
Mar. 26, 2009
Mar. 19, 2009
The Examiner rejected claims 1, 4, and 8-21 under 35 U.S.C. § 102(a),
( e) as anticipated by Cheich. Ans. 3--4.
The Examiner rejected claims 1-8, 11-16, 20, and 21under35 U.S.C.
§ 102(a), (e) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a)
as unpatentable over Wetsch. Id. at. 4--5.
The Examiner rejected claims 9, 10, and 17-19 under 35 U.S.C.
§ 103(a) as unpatentable over Wetsch and Cheich. Id. at. 6.
C. The Invention
The invention disclosed in the '749 Application is a machine
and a method for producing a connected series of packaging cushion
units by successively feeding sheets at a first speed and crumpling the
2 In this opinion, we make reference to: the Appeal Brief filed August 17,
2012 ("App. Br."); the Examiner's Answer mailed September 20, 2012
("Ans."); and the Reply Brief mailed November 1, 2012 ("Reply Br.").
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Application 12/583,749
sheets at a second speed, thereby producing overlap between
successive sheets to generate the connected series. Spec. 2-3. Figure
4 of the '749 Application is reproduced below and illustrates an
embodiment according to the invention:
~ 54
L___c _ _,,,~-= --~-~ "'i m-- - - -- -- -----· ...... , r_.._ . ._ .• _. .. _.._..._ ................................ _ . ., ____ . __
i
FIG. 4
M1
32----l
L----·· --............. -----··. ---- .. ----· ·---·. ----··· ----·· · ............................ ,_. .......... -·--- ------·---~:·;:;.;.~--42
As shown in Figure 4 above, feed mechanism 12 advances sheets 18
from supply 30 into crumpling mechanism 14. Spec. 5. First sheet 18a is
fed by feed mechanism 12 towards crumpling mechanism 14 at a first speed.
Id. at 9. Second, successive sheet 18b is then fed by feed mechanism 12
towards crumpling mechanism 14 at the first speed. Id. at 10. At the same
time, first sheet l 8a is crumpled by crumpling mechanism 14 at a second,
slower speed. Id. At least one of the first and second speeds is controlled to
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Application 12/583,749
produce a desired degree of overlap 26 between successive sheets 18. Id.
That overlap 26 generates connected series 28 of packaging cushion units
24. Id.
Claims 1 and 13 are independent and are reproduced below:
L A method for producing packaging cushioning, comprising:
a. successively feeding sheets of a substrate at a first
speed to a crumpling mechanism;
b. crumpling said sheets in said crumpling mechanism,
said crumpling mechanism crumpling said sheets at a second
speed to convert said sheets into packaging cushion units; and
c. controlling at least one of said first and second speeds
to produce a desired degree of overlap between successive
sheets, thereby generating a connected series of said packaging
cushion units, wherein said connected series of packaging
cushion units has a density that is proportional to said degree of
overlap behveen successive sheets.
13. A. machine for producing packaging cushioning,
compnsrng:
CL a feed 111ec11ar1isrn fOr s-uccessi ve]y~ ·feedir1g s11eets crf a
substrate at a first speed;
b. a crumpling mechanism for receiving said sheets from
said feed mechanism and crumpling said sheets at a second
speed to convert said sheets into packaging cushion units; and
c, a controller for controlling at least one of said first and
second speeds to produce a desired degree of overlap between
successive sheets~ thereby generating a connected series of said
packaging cushion units, wherein said connected series of
packaging cushion units has a density that is proportional to
said degree of overlap between successive sheets,
II. ISSUES
1. Did the Examiner correctly determine that Cheich discloses the
requirements of claims 1 and 13 directed to the following:
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Application 12/583,749
controlling at least one of said first and second speeds to
produce a desired degree of overlap between successive sheets,
thereby generating a connected series of said packaging cushion
units, wherein said connected series of packaging cushion units
has a density that is proportional to said degree of overlap
between successive sheets.
2. Did the Examiner correctly determine that Wetsch discloses the
above-quoted feature, or alternatively that the feature would have been a
matter of design choice to one of ordinary skill in the art?
3. Did the Examiner correctly determine that claims 9, 10, and 17-
19 would have been obvious over the combined teachings of W etsch and
Cheich?
III. ANALYSIS
The Examiner rejected: (1) claims 1, 4, and 8-21 as anticipated by
Cheich; (2) claims 1-8, 11-16, 20, and 21 as anticipated by or, in the
alternative, as unpatentable as obvious in view of Wetsch; and (3) claims 9,
10, and 17-19 as unpatentable as obvious in view ofWetsch and Cheich.
A. Anticipation by Cheich
Claims 1 and 13 are independent and claims 4, 8-12, and 14--21
ultimately depend from one of those independent claims. Claims 1 and 13
are directed to a method and machine, respectively, for producing packaging
cushions. Claim 1 includes the following step:
controlling at least one of said first and second speeds to
produce a desired degree of overlap between successive sheets,
thereby generating a connected series of said packaging cushion
units, wherein said connected series of packaging cushion units
has a density that is proportional to said degree of overlap
between successive sheets.
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Application 12/583,749
Claim 13 includes a corresponding controller for performing that step.
The above-quoted limitation is central to the disagreement between the
Examiner and the Appellants. The Appellants contend that various
requirements of that limitation are absent from Cheich. App. Br. 4--10. In
connection with Cheich's disclosure, we focus on the following
requirements: "controlling at least one of said first and second speeds to
produce a desired degree of overlap between successive sheets" so as to
produce a series of packaging cushion units that "has a density that is
proportional to said degree of overlap between successive sheets."
Cheich is titled "Dunnage Conversion Machine and Method," and is
operable "for making a wrappable dunnage products from a sheet stock
material." Cheich 1, i-f 2. Cheich' s Figure 5 is reproduced below:
Fig. 5
Figure 5 above depicts a dunnage conversion machine according to
Cheich's invention. Cheich 3, i-f 24. As shown in Figure 5, dunnage
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Application 12/583,749
conversion machine 36 includes bunching assembly 38, feed mechanism 40,
and connecting mechanism 42. Id. at 5, i-f 75. Cheich describes that
"multiple sheets P1, P2, and P3 of stock material are fed from the supply 46."
Id. at 7, i-f 92. Sheets P 1 and P2 are expressed as being "laterally-inwardly
bunched" in bunching assembly 38, and fed via wheels 60, 61 of feed
mechanism 40 to gears 70, 71 of connecting mechanism 42. Id. Because
gears 70, 71 of connecting mechanism 42 rotate slower than wheels 60, 61
of feed mechanism 40, sheets P1 and P2 bunch up in tunnel 80, thus
crumpling the sheets. Id. Sheet P3 bypasses feed mechanism 40 and is
connected with crumpled sheets P 1 and P2 at connecting mechanism 42 to
form connected strip 73 of dunnage. Id.
At the outset, the Examiner has identified sheets P1-P3 as constituting
"successively [fed] sheets." Ans. 3. It is clear from the Specification of the
'7 49 Application, and from the ordinary meaning of the term "successive,"
that sheets viewed as successive to one another are understood as coming
one after another, or in series. 3 Yet, as described above, sheets P1-P3 pass
through Cheich's system concurrently with, or in parallel to, one another,
rather than in any order viewed as in series. It is not apparent why those
sheets are understood properly as "successive sheets" as is required by
claims 1 and 13.
In any event, even assuming that Cheich does disclose successive
sheets, we observe that the Examiner pointed to content of Cheich at
"figures 1, 5, [and] paragraph[s] 72, 120" as constituting disclosures of
3 "Successive" means "following one after the other in a series: following
each other without interruption." See http://www.merriam-
webster.com/dictionary/successive (last accessed February 5, 2016).
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"controlling at least one speed to change the overlapping sheets and
therefore modify the density." Id. Figure 1 is a schematic representation of
a dunnage conversion machine operating in a manner similar to that of
Figure 5. As discussed above in the context of Figure 5, although gears 70,
71 are described as operating slower than wheels 60, 61, there is no
disclosure that any speed of those components is controlled with the intent to
influence a degree of overlap of sheets. To that end, we also agree with
Appellants (App. Br. 5) that, as depicted in Figure 5, Cheich does not
disclose any variability in the overlap of its sheets P 1-P 3 as those sheets are
maintained fully overlapped with one another. Cheich's paragraph 72 also
includes no descriptive content recognizable as disclosing the required speed
control to obtain desired sheet overlap.
Cheich' s paragraph 120 describes another embodiment of Cheich' s
invention. As a part of that embodiment, Cheich does express that separate
motors may be used "to control the relative speeds" of various components.
Cheich 10, i-f 120. That disclosure of controlling speed, however, is not
associated with accomplishing any overlap of sheet material, or obtaining
any desired density of a dunnage product that is proportional to any sheet
overlap.
To establish anticipation under 35 U.S.C. § 102, each and every
element in a claim, arranged as is recited in the claim, must be found in a
single prior art reference. Karsten Mfg. Corp. v. Cleveland Golf Co., 242
F.3d 1376, 1383 (Fed. Cir. 2001). Here, for the foregoing reasons, we are
not persuaded that the Examiner has established that all the elements
required by claims 1, 4, and 8-21 are found in Cheich, much less arranged in
the same manner required by those claims. In that respect, the Examiner's
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rejection is based seemingly on an amalgamation of multiple embodiments
of Cheich, rather than being based on an arrangement that Cheich, itself,
contemplates. Furthermore, on the record before us, we are not satisfied that
Cheich discloses "controlling at least one of said first and second speeds to
produce a desired degree of overlap between successive sheets" resulting in
a series of packaging cushion units that "has a density that is proportional to
said degree of overlap between successive sheets." Accordingly, we do not
sustain the Examiner's rejection of claims 1, 4, and 8-21 as anticipated by
Cheich.
B. Unpatentability over Wetsch taken alone
The Examiner also proposes that claims 1-8, 11-16, 20, and 21 are
anticipated by, or alternatively would have been obvious in view of, W etsch.
As with the ground based on Cheich, the Appellants contend that W etsch
lacks various features required by the claims, and, in particular, claims 1 and
13. App. Br. 10-14. With respect to Wetsch's disclosure, we also focus on
the requirements in claims 1 and 13 directed to controlling at least one speed
to obtain a desired degree of overlap of successive sheets, and producing a
series of packaging units having a density that is proportional to that desired
degree of overlap.
Wetsch is titled "Sheet-Fed Dunnage Apparatus." Wetsch describes
its invention as a dunnage apparatus that includes "a crumpling device
configured for crumpling sheets of a substrate to produce low-density
packaging dunnage." Wetsch 1, i-f 9. Wetsch's Figures 1 and 2 are
reproduced below:
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Application 12/583,749
•. ~~
FIG. 1
FIG.2
30
20
/
/'/
Figures 1 depicts an embodiment of a dunnage apparatus according to
Wetsch's invention, and Figure 2 depicts a paper feeder thereof. Wetsch 2,
i-fi-121, 22. As shown in the figures, dunnage apparatus 10 includes paper
feeder 20, tray 30, and paper crumpler 40. Id. at 2, i129. Paper from tray 30
is fed to crumpler 40 via operation of driver rollers 21 a, 21 b. Id. at 2-3,
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ilil 30-32. As shown in Figure 1, crmnpler 40 is composed of longitudinally
extending fingers 41 for accomplishing crumpling of the paper. Id. at 3,
ii 37.
The Examiner contends the following:
Wet[ s ]ch discloses a process and apparatus for producing
cushioning products comprising successively feeding sheets by
a tray sheet feeder 20 including rollers 21 (a and b) to a
crumpling mechanism 40 at a first rate; crumpling the sheets at
a second rate; controlling the density of the cushioning
material; see para. 10, 39-40; figures 1, 2, 5.
Ans. 4.
The Examiner, however, does not explain meaningfully how the noted
figures and portions of W etsch disclose controlling a speed to produce
desired sheet overlap resulting in a desired density of produced cushioning
material proportional to such overlap. It simply is not apparent how the
operation of tray sheet feed 20, rollers 21 a, 21 b, and crumpling mechanism
40; shown; for instance; in Figures 1 and 2 above; describe the pertinent
feature of claims 1 and 13. Paragraphs 39 and 40 referenced by the
Examiner describe alternative embodiments, including an embodiment set
forth in Figure 5, which include a crumpling mechanism that incorporates
two sets of rollers, 51a, 51b, and 52a, 52b. That the Examiner's rejection
requires aspects of multiple, separate embodiments of Wetsch' s disclosure
does not establish that W etsch discloses the elements of claims 1 and 13
arranged as required by those claims.
Moreover, in the embodiment of Wetsch's Figure 5, and similar to the
crumpling operation disclosed in Cheich, the downstream set of rollers
simply rotates slower than the upstream set so as to produce a "crumpling
zone" therebetween. Wetsch 3, ii 40. Although Wetsch's rollers operate at
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different speeds, we determine that Wetsch fails to disclose that those speeds
are controlled so as to obtain a desired degree of overlap between successive
sheets.
Accordingly, we do not sustain the Examiner's rejection of claims 1-
8, 11-16, 20, and 21 as anticipated by Wetsch.
With respect to the Examiner's alternative position of obviousness,
the Examiner offers the following:
At the time the invention was made, it would have been an
obvious matter of design choice to a person of ordinary skill in
the art to create a desired product by controlling the feeding
speed and degree of overlap between successively fed sheets to
the crumpling mechanism of Wet[ s ]ch in a normal operating
mode. Note that Wet[s]ch provides for multiple motors for
actively controlling rates; see para. 33.
Ans. 5.
Thus, the Examiner stakes out a theory of "design choice" to account
for the required speed control to produce desired sheet overlap.
"[R ]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006). Here, the
Examiner does not justify his "design choice" theory with articulated
reasoning, offering instead merely a conclusory statement that paraphrases
the limitations of claims 1 and 13. The Examiner also does not explain how
or why Wetsch's paragraph 33 provides support for the position on which
the Examiner relies. We determine that paragraph 33 does not describe
altering or controlling the rate of a motor or doing so to control the overlap
of successive sheets.
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Accordingly, we do not sustain the Examiner's rejection of claims 1-
8, 11-16, 20, and 21 based on obviousness in view ofWetsch alone.
C. Unpatentability over Wetsch and Cheich
The Examiner further takes the position that claims 9, 10, and 17-19
are unpatentable over the combination of Wetsch and Cheich. Claims 9 and
10 depend from claim 1 and claims 1 7-19 depend from claim 13. Claims 9,
10, and 1 7-19, thus, require all the features of either claims 1 or 13. As
discussed above, we are not persuaded that either W etsch or Cheich
discloses "controlling at least one of said first and second speeds to produce
a desired degree of overlap between successive sheets" as recited in claims 1
and 13. The Examiner does not explain how the combined teachings of
those reference make up for the noted deficiencies in that respect.
Accordingly, we do not sustain the Examiner's rejection of claims 9,
10, and 17-19 as unpatentable over Wetsch and Cheich.
IV. CONCLUSION
1. The Examiner did not determine correctly that Cheich discloses
the requirement of claims 1 and 13 directed to the following:
controlling at least one of said first and second speeds to
produce a desired degree of overlap between successive
sheets, thereby generating a connected series of said
packaging cushion units, wherein said connected series of
packaging cushion units has a density that is proportional to
said degree of overlap between successive sheets.
2. The Examiner did not determine correctly that Wetsch discloses
the above-quoted feature of claims 1 and 13, or that the feature would have
been regarded as a matter of design choice to one of ordinary skill in the art.
3. The Examiner did not determine correctly that claims 9, 10, and
17-19 would have been obvious in view of Cheich and Wetsch.
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V. ORDER
The Examiner's decision to reject claims 1-21 over the prior art is
reversed.
REVERSED
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