Ex Parte BatarsehDownload PDFPatent Trial and Appeal BoardNov 7, 201713936609 (P.T.A.B. Nov. 7, 2017) 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. 13/936,609 07/08/2013 Esther Khawaja Batarseh D7209 8000 27851 7590 BENJAMIN A. ADLER 8011 CANDLE LANE HOUSTON, TX 77071 11/09/2017 EXAMINER HELVEY, PETER N. ART UNIT PAPER NUMBER 3782 NOTIFICATION DATE DELIVERY MODE 11/09/2017 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): Ben@ adlerandassociates.com Colleen @ adlerandassociates.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ESTHER KHAWAJA BATARSEH Appeal 2017-0023161 Application 13/936,6092 Technology Center 3700 Before NINA L. MEDLOCK, KENNETH G. SCHOPFER, and BRADLEY B. BAYAT, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1, 5—8, 16, and 18—21. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Our decision references the Appeal Brief (“Appeal Br.,” filed Mar. 7, 2016) and Reply Brief (“Reply Br.,” filed Nov. 22, 2016), and the Examiner’s Answer (“Ans.,” mailed Sept. 22, 2016) and Final Office Action (“Final Act.,” mailed June 9, 2015). 2 The Appeal Brief does not identify the real party in interest; therefore, we assume that the named inventor, Esther Khawaja Batarseh, is the real party in interest. See 37 C.F.R. § 41.37(c)(l)(i). Appeal 2017-002316 Application 13/936,609 BACKGROUND According to Appellant, “the present invention relates to resealable storage bags with features for improved loading and removing of items, for example, foodstuffs.” Spec. 1,11. 10-11. REPRESENTATIVE CLAIM Claim 1 is illustrative of the appealed claims and recites: 1. A resealable storage bag, comprising: a bag having an opening to an interior thereof formed by pliable front and back panels each having first and second straight side edges, straight bottom edges and outwardly curved top edges and upper portions independently foldable back over the respective front and back panels, said first side edges having a minimal length such that a diameter across a mouth of the bag is increased over a width of the bag at the straight bottom edges, said front and back panels sealed together along respective side and bottom edges; and means for sealing and opening said bag. Appeal Br. 12. REJECTION The Examiner rejects claims 1, 5—8, 16, and 18—21 under 35 U.S.C. § 102(a)(1) as anticipated by Greco.3 DISCUSSION We are persuaded by Appellant’s argument that Greco does not disclose a resealable storage bag as claimed in either independent claim 1 or independent claim 16. In particular, we agree that Greco does not disclose first side edges having a minimal length as required by the claims. 3 Greco et al., US 2010/0278457 Al, pub. Nov. 4, 2010. 2 Appeal 2017-002316 Application 13/936,609 The Examiner finds that Greco discloses a resealable bag as claimed including, in relevant part, that Greco discloses a bag including first side edges 110 having a minimal length. Final Act. 2—A. Further regarding this claim requirement, the Examiner finds: Absent specific, alternative definition in the disclosure as originally filed, the examiner is required to apply the broadest reasonable interpretation to the claim terms. The term “minimal” is broadly defined as “small in amount or degree” by the American Heritage Dictionary. Thus, without further clarification in the claim language, the term “minimal” is simply a matter of degrees. As Greco teaches one set of side edges (110) which are smaller than the other set of side edges (108), comparatively, Greco teaches that one set of side edges has “a minimal length” as claimed. Further, Fig. 1 A clearly shows proportions which meet the scope of the claimed orientation “a diameter across a mouth of the bag is increased over a width of the bag at the straight bottom edges” as claimed. Id. at 5. Thus, we understand that the Examiner interprets the claim limitations “first side edges having a minimal length” (claim 1) and “first side edges of minimal equal length” (claim 16) to require only that the first side edges are shorter than the second side edges. In contrast, Appellant argues that the claim language requires that the first side edges have “the shortest possible length.” Appeal Br. 9. Appellant also asserts “that the term ‘minimal’ refers to a minimum amount, quantity, or degree without specifying the minimum amount and that the term ‘minimum’ refers to the least or smallest amount or quantity possible, attainable or required.” Reply Br. 3. Appellant continues: For example, Merriam-Webster gives the full definition of minimal as relating to or being a minimum as 1. the least possible, 2. barely adequate, 3. very small or slight. This corresponds to Appellant’s specification on page 11, lines 19— 3 Appeal 2017-002316 Application 13/936,609 22 disclosing that one set of seamed edges 406a, 406b have lengths LI, L2 that encompass storage bags where one or both of LI, L2 are “effectively zero or of only such minimal length as to accommodate the slider clip on the closure member”. Id. During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the Specification. In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Prater, 415 F.2d 1393, 1404—05 (CCPA 1969). Looking first at the claim language itself, we find that the language of independent claim 16 supports Appellant’s position regarding the broadest reasonable interpretation of “minimal” as used in the claims here. Claim 16 not only requires that the first side edges have “minimal equal length,” but also requires that the second side edges have “equal but longer length than said first side edges.” Thus, if the claim were interpreted as the Examiner proposes, the language requiring that the second side edges have “longer length than said first side edges” would be completely superfluous. Any interpretation that leads to claim language being read out of the claim is not likely to be reasonable. See Texas Instr. Inc. v. United States Int'l Trade Comm ’n, 988 F.2d 1165, 1171 (Fed. Cir. 1993) (claim language cannot be mere surplusage); Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1563 (Fed. Cir. 1991) (two distinct claim elements should each be given full effect). Further, we find that Appellant’s proposed interpretation is consistent with both the plain meaning of the term minimal, as noted by Appellant, and with how the term is used in the Specification, which only indicates that a minimal length is the smallest length possible that will allow for the device to function as required, i.e. the smallest length possible that is sufficient to accommodate the closing means. 4 Appeal 2017-002316 Application 13/936,609 See, e.g., Spec. 9,11. 9—11. We note that this interpretation is not inconsistent with the Specification’s disclosure that the length of the side seams is not limited. See id. at 9,1. 7. We consider this language to refer to unclaimed alternative embodiments of the device in which the length of one side is not minimal. Based on the foregoing, we agree with Appellant’s proposed interpretation of the claim language at issue. Thus, we are persuaded of reversible error in the rejection of the independent claims because Greco does not meet the requirement in both independent claims that the first side edges have a minimal length, i.e. the shortest possible length that still allows the bag to function as required. Accordingly, we do not sustain the rejection of claims 1 and 16. We also do not sustain the rejection of dependent claims 5—8 and 18—21 for the same reasons. CONCLUSION We REVERSE the rejection of claims 1, 5—8, 16, and 18—21 for the reasons provided herein. REVERSED 5 Copy with citationCopy as parenthetical citation