11333425 (B.P.A.I. Jul. 14, 2011)

Ex Parte Ausnit et al

Board of Patent Appeals and InterferencesJul 14, 2011

11333425 (B.P.A.I. Jul. 14, 2011)

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. 11/333,425 01/17/2006 Steven Ausnit 769-328 Div. 2 6581 51468 7590 07/14/2011 DAY PITNEY LLP ACCOUNT: ILLINOIS TOOL WORKS INC. 7 TIMES SQUARE NEW YORK, NY 10036-7311 EXAMINER PASCUA, JES F ART UNIT PAPER NUMBER 3782 MAIL DATE DELIVERY MODE 07/14/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte STEVEN AUSNIT and DONALD L. CREVIER ____________________ Appeal 2009-012481 Application 11/333,425 Technology Center 3700 ____________________ Before: WILLIAM F. PATE III, JENNIFER D. BAHR, and FRED A. SILVERBERG, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-012481 Application 11/333,425 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims 12, 13, 15, 16, and 18 under 35 U.S.C. § 103(a) as being unpatentable over Kuge (US 5,275,491, iss. Jan. 4, 1994) and Healy (US 6,461,043 B1, iss. Oct. 8, 2002). We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. THE INVENTION The claims are directed to reclosable plastic bags. Claim 12, reproduced below, is illustrative of the claimed subject matter: 12. A reclosable plastic bag formed from a bag-making film comprising: a front wall and a rear wall, a first end and a second end and opposed sides formed from a common sheet of bag-making film with edges sealed together thereby forming a fin seal; at least one side gusset in each said side; and a zipper having first and second interlockable profiles joined by their interlocking elements extending across said bag between opposed sides, said first profile sealed to the front wall and said second profile sealed to a face of said at least one side gusset with the remaining portion of said second profile and an opposite face of said at least one side gusset sealed to the rear wall of said reclosable plastic bag; said zipper further including a slider for opening and closing said zipper. Appeal 2009-012481 Application 11/333,425 3 OPINION Each of Appellants’ independent claims 12 and 18 requires a bag formed from a common sheet of bag-making film with edges sealed together to form a fin seal, the bag further comprising a zipper including a slider. Claim 12 further requires a first profile of the zipper to be sealed to the front wall of the bag, a second profile of the zipper to be sealed to one face of a side gusset and to the rear wall of the bag, and an opposite face of the side gusset to be sealed to the rear wall of the bag. Claim 18 further requires a flange of the first profile of the zipper to be sealed to the front wall of the bag and a face of a side gusset and a flange of the second profile to be sealed to an opposite face of the side gusset and to the rear wall of the bag. The Examiner found that Kuge discloses a bag as claimed in claims 12 and 18 “except for the zipper including a slider.” Ans. 3. The Examiner found that the provision of a slider on the zipper of such a bag was known in the art, as shown by Healy, and concluded that it would have been obvious to provide Kuge’s zipper with a slider to facilitate opening and closing of the zipper. Id. Appellants do not take issue with the Examiner’s conclusion that the provision of a slider on Kuge’s zipper would have been obvious. Appellants argue that Kuge’s figures 12-15 indicate that “the zippers are not attached to an area with a gusseted structure.” App. Br. 5. Specifically, Appellants argue that in Kuge’s figures 12-15 “the walls which would otherwise form a gusset are turned outwardly so that no gusset is formed in the area where the zipper is attached.” Id. Appellants additionally argue that the claimed “fin seal” is not “a trivial distinction over the Kuge or Healy references.” App. Br. 6. Accordingly, the issues raised in this appeal are whether Kuge describes a bag (1) formed from a common sheet of bag-making film with Appeal 2009-012481 Application 11/333,425 4 edges sealed together to form a fin seal and (2) comprising a first zipper profile sealed to the front wall of the bag and a second zipper profile sealed to the rear wall and to a face of a gusset, as called for in claim 12, or comprising a first zipper profile sealed to the front wall of the bag and a face of a gusset and a second zipper profile sealed to the rear wall and to an opposite face of the gusset, as called for in claim 18. In response to Appellants’ arguments, the Examiner articulated specific findings as to where the contested limitations of claims 12 and 18 are described by Kuge. See Ans. 4-5. Specifically, the Examiner found that Kuge shows a bag having a fin seal in figure 11 and, further, that Kuge discloses that forming the front and rear walls of a bag from a common sheet of bag-making film with edges sealed together thereby forming a fin seal was known. Ans. 5. In particular, we find that Kuge discloses forming a gusset bag in accordance with the embodiments disclosed therein by first preparing a bag body having a tubular structure. Col. 2, ll. 21-23; col. 3, ll. 31-33; col. 4, ll. 25-27. Kuge further discloses that the conventional method of preparing a tubular bag body involves sealing edges together to form a “protruded edge like sealed portion” (col. 11, ll. 55-63), which we find to be a “fin seal.” Accordingly, Kuge supports the Examiner’s finding that Kuge’s gusset bags are formed from a common sheet of bag-making film with edges sealed together to form a fin seal, as called for in claims 12 and 18. Further, Appellants have not specifically disputed the Examiner’s finding that Kuge satisfies the “fin seal” limitation of claims 12 and 18. Rather, Appellants merely point out that the fin seal of Appellants’ invention provides benefits. See App. Br. 6. Appeal 2009-012481 Application 11/333,425 5 The Examiner further found, in addressing claim 12, that Kuge shows in figure 19 a first profile (male member 131) sealed to one wall (at surface 111a) and a second profile (female member 135) sealed to an opposite surface (113a), wherein the opposite surface (113a) includes one of the faces of the side gussets (side portions 121) and an opposing wall (back flat portion 113), and wherein the opposite faces of the side gussets are attached to the opposing wall (back flat portion 113). Ans. 4. Consequently, the Examiner concluded that the embodiment of figures 17-22 of Kuge satisfies the limitation “said first profile sealed to the front wall and said second profile sealed to a face of said at least one side gusset with the remaining portion of said second profile and an opposite face of said at least one side gusset sealed to the rear wall” in claim 12. Ans. 5. We agree with the Examiner’s finding, which has not been challenged by Appellants. As clearly illustrated in figures 19 and 20 of Kuge, the female member 135 is sealed to the surface 113a of back flat portion 113 and to the gusset portions folded against surface 113a (and ultimately sealed to surface 113a in figure 21), while the male member 131 is sealed to the surface 111a of front flat portion 111. In addressing claim 18, the Examiner found that figure 14 of Kuge shows a first profile (male member 31) including a flange (base plate 32)1 sealed to one wall (surface 51a) and sealed to a face (surface 61a) of the side gussets (side portions 61), and a second profile (female member 35) including a flange (base plate 36)2 sealed to an opposite wall (51a) and 1 A flange (base plate 32) of male member 31 is illustrated in figure 9 of Kuge. 2 A flange (base plate 36) of female member 35 is illustrated in figure 9 of Kuge. Appeal 2009-012481 Application 11/333,425 6 sealed to an opposite face (surface 61a) of the side gussets (side portions 61). Ans. 4. We agree with the Examiner’s finding. Appellants’ only challenge to the Examiner’s findings with respect to figure 14 is that the walls (surfaces 61a) to which the zipper profiles (male member 31 and female member 35) are sealed “which would otherwise form a gusset are turned outwardly so that no gusset is formed.” App. Br. 5. It is not apparent, and Appellants have not cogently explained, why the outward turning of the surfaces 61a, which Appellants concede would otherwise form gussets, causes these surfaces to cease to be gussets. For the above reasons, Appellants have not persuaded us that the Examiner erred in rejecting claims 12 and 18, and dependent claims 13, 15, and 16, for which Appellants have not presented any separate arguments,3 as being unpatentable over Kuge and Healy. DECISION The Examiner’s decision 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 hh 3 Dependent claims 13, 15, and 16 fall with independent claim 12. See 37 C.F.R. § 41.37(c)(1)(vii).