Ex Parte Blau

Board of Patent Appeals and Interferences

Sep 16, 2008

10990261 (B.P.A.I. Sep. 16, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DAN BLAU
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Appeal 2008-4982
Application 10/990,261
Technology Center 3700
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Decided: September 16, 2008
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Before ERIC GRIMES, LORA M. GREEN, and
JEFFREY N. FREEDMAN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-3. We have jurisdiction under 35
U.S.C. § 6(b).

Appeal 2008-4982
Application 10/990,261

STATEMENT OF THE CASE
The claims are directed to a display bag. Claims 1 and 3 are
representative of the claims on appeal, and read as follows:
1. A display bag comprising:
a front panel, a back panel, a bottom panel, and a pair of side panels,
said front and back panels formed from a deformable transparent material;
a closure flap integral with said back panel;
a top gusset member interconnecting the front panel, the side panels,
and the rear panel, said top gusset member providing a rectangular opening
for inserting objects into said plastic bag;
front and rear gusset members securing the front and back panels to
the side and bottom panels and to the top gusset member;
a first hook and loop closure member on said closure flap of said bag,
and a second hook and loop closure member on the front panel bag, said
closure members attached to said bag by means of zig-zag stitching around
the entire periphery of the closure members leaving no exposed edge that a
child could use to pull the closure member from the bag.

3. A display bag comprising:
a front panel that is made of a deformable transparent material;
a back panel that is made of a deformable transparent material;
a bottom panel and a pair of side panels;
a closure flap that is integral with the back panel;
a top gusset member that interconnects the front panel, the side
panels, and the rear panel and provides a rectangular opening for inserting
objects into the plastic bag;
front and rear gusset members that secure the front and back panels to
the side and bottom panels and to the top gusset member;
two co-operating hook-and-loop closure members;
zig-zag stitching that passes over the outside edge of one of the hook-
and-loop closure members, holding that closure member to the closure flap
and leaving no exposed edge that a child could use to pull the closure
member from the bag; and
zig-zag stitching that passes over the outside edge of the other one of
the hook-and loop closure members, holding that closure member to one of
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the panels of the bag and leaving no exposed edge that a child could use to
pull the closure member from the bag.

The Examiner relies on the following references:
Burke 3,422,460 Jan. 21, 1969
Redfern 4,402,690 Sep. 6, 1983
Foster Des.408,992 May 4, 1999
Dancyger D465,323 S Nov. 12, 2002

We affirm.

ISSUE (Indefiniteness)
The Examiner contends that claim 3 is indefinite. Specifically, the
examiner contends that “the rear panel” in line 6 and “the plastic bag” in line
7 lack antecedent basis (Ans. 3).
As Appellant does not argue the merits of the rejection,1 we
summarily affirm it.

ISSUE (Obviousness)
The Examiner contends that the use of zig-zag stitching to attach the
hook and loop closures as required in the claimed display bag would have
been obvious to the ordinary artisan.

1 Appellant notes that an amendment after final was filed on August 25,
2006, to address the second paragraph issue, but that the Examiner denied
entry (App. Br. 2).
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Application 10/990,261

Appellant contends that neither Foster nor Dancyger, nor the
references in combination, provide motivation to replace the straight line
stitches of Foster or Dancyger with zig-zag stitches.
Thus, the issue on Appeal is: Would it have been prima facie obvious
to the ordinary artisan to replace the straight line stitches attaching the hook
and loop closures of the bags of Foster or Dancyger with zig-zag stitching?

FINDINGS OF FACT
FF1 The invention is drawn to a system “for adhering hook-and-loop (e.g.,
‘Velcro’) fasteners to plastic bags by means of zig-zag stitching . . . . The
system lessens the likelihood that the fasteners will detach from the
substrates or plastic panels to which they are attached.” (Spec. Abstract.)
FF2 Claims 1-3 stand rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Foster or Dancyger as combined with Redfern and
Burke. As Appellant does not argue claims 2 and 3 separately, they stand or
fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii).
FF3 Foster and Dancyger are relied upon for teaching the elements of the
claim 1 except for: 1) the front and back panels being formed from
transparent material; and 2) the closure members being attached by zig-zag
stitching around their entire peripheries (Ans. 4).
FF4 As to the use of a deformable transparent material for the front and
back panels, the Examiner finds that it would have been “within the general
skill of a worker in the art to select a known material on the basis of its
suitability for the intended use as a matter of obvious design choice.”
(Ans. 4.)
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FF5 Redfern is relied upon for teaching “that it is known in the art of
attaching hook and loop fasteners to material to use zig-zag stitching.”
(Ans. 4.)
FF6 Specifically, Redfern teaches the use of zig-zag stitches to attach hook
and loop closures to a diaper (Redfern, figures; see also Redfern, col. 3, l.
54-col. 4, l. 25).
FF7 Burke is cited as further “extrinsic evidence showing that a person
having ordinary skill in the art would have found it obvious to replace
running stitches with zig-zag stitches in order to secure the periphery of one
material to another.” (Ans. 4.)
FF8 Thus, according to the Examiner, it “would have been obvious to one
having ordinary skill in the art at the time the invention was made to secure
the entire peripheries of the closure members of Foster or Dancyger with the
zig-zag stitching of Redfern, in order to reduce exposure of the closure
member peripheries.” (Ans. 4.)

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
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creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007). “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” Id. at 1739. Moreover, an
“[e]xpress suggestion to substitute one equivalent for another need not be
present to render such substitution obvious.” In re Fout, 675 F.2d 297, 301
(CCPA 1982).

ANALYSIS
Appellant argues that in the pouches of Foster and Dancyger the
fasteners are attached with straight-line running stitches, and that neither
reference provides motivation for replacing those stitches with zig-zag
stitches (App. Br.2 5-6). According to Appellant, “[t]he issue may be a close
one, but the rejection should be reversed.” (Id. at 6.)
According to Appellant, neither Foster nor Dancyger teach that the
stitching can be changed, and although Redfern “shows zigzag stitches used
to hold a fastener on a diaper, it does not appear to show that the traditional,
straight-line, running stitches shown in [Foster and Dancyger] could or
should be changed.” (Id.) Appellant argues further that Redfern is also not
“directed to the same specific kind of product being claimed in the present
application: a bag made of transparent, flexible material.” (Id.)
Appellant’s arguments and the case-law cited in the Appeal
Brief have been carefully considered, but are not deemed to be

2 All references to the Appeal Brief are to the Amended Appeal Brief dated
February 27, 2007.
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convincing. Claim 1 requires the use of zig-zag stitching to attach a
hook and loop fastener, and we agree with the Examiner it would have
been obvious to the ordinary artisan to substitute zig-zag stitching,
which is taught by Redfern to be known to be used in attaching hook
and loop fasteners, for the straight line stitches used to attach the hook
and loop fasteners in the bags of Foster and Dancyger. As noted by
the United States Supreme Court,

If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and
a person of ordinary skill would recognize that it would
improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.

KSR, 127 S.Ct. at 1740. Moreover, “[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton.” Id. at 1742.
CONCLUSIONS OF LAW
Thus, we conclude that it have been prima facie obvious to the
ordinary artisan to replace the straight line stitches attaching the hook and
loop closures of the bags of Foster or Dancyger with zig-zag stitching, and
the rejection 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).

AFFIRMED

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