Ex Parte Caudle

Board of Patent Appeals and Interferences

Jul 28, 2006

09846714 (B.P.A.I. Jul. 28, 2006)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
___________

Ex parte TIMOTHY G. CAUDLE
___________

Appeal No. 2006-1481
Application No. 09/846,714
___________

ON BRIEF
___________

Before OWENS, NAPPI and FETTING, Administrative Patent
Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

This appeal is from the final rejection of claim 50,
which is the only claim pending in the application. Claims
1-49 and 51-55 were cancelled prior to appeal.
THE INVENTION

The appellant claims a single pouch comprising two
heat sealed lateral edges, each of the two edges comprising
a concave surface and a convex surface such that each edge
is substantially S-shaped.
Claim 50:

A single pouch comprising a first lateral edge and a
second lateral edge, each of the first and the second
lateral edges comprising a concave surface and a convex
Appeal No. 2006-1481
Application No. 09/846,714

surface, wherein the concave surface of the first lateral
edge is substantially opposite the convex surface of the
second lateral edge and the convex surface of the first
lateral edge is substantially opposite the concave surface
of the second lateral edge; wherein the first lateral edge
and the second lateral edge each comprise a heat seal; and
wherein both the first and the second lateral edges are
substantially S-shaped.

THE REFERENCES
Campbell GB 303,593 January 10, 1929
Hubbard 4,688,572 August 25, 1987

THE REJECTION
Claim 50 stands rejected under 35 U.S.C. §103(a) as
being unpatentable over Campbell (GB 303,593) in view of
Hubbard (U.S. 4,688,572).

OPINION

We affirm the aforementioned rejection.
Campbell teaches hot water bottles, each bottle being
formed by binding two shaped membranes along their
peripheral edges (Page 2, lines 60-61) to form a unitary
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Application No. 09/846,714

pouch of the same shape for holding fluid but does not
specifically teach the pouch wherein the peripheral edges
are joined by heat sealing.
Hubbard teaches that it is known in the art of sealed
pouches (e.g. bladders, thermal packs etc.) to form a pouch
by heat sealing together two flat sheets along their outer
peripheral edges (Col. 5 lines 55-60).
Examiner argues that it would have been obvious to one
of ordinary skill in the art at the time of the invention
to have incorporated heat sealing as taught by Hubbard in
the hot water bottles of Campbell given the teaching by
Hubbard that such sealed edges provide “integral
construction” (Col. 5 line 59) which would necessarily
result in a leak proof, or at least leak resistant,
peripheral seam (answer, page 4).
Appellant argues in the brief (page 10) that: (1)
Campbell does not disclose lateral edges comprising heat
seals thus precluding motivation to combine with Hubbard;
and that (2) Campbell does not disclose substantially
S-shaped edges to the degree claimed.
Appellant’s argument that a lack of heat sealing in
Campbell prevents combination with Hubbard is without
merit. Obviousness-type rejection does not require that
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Application No. 09/846,714

the primary reference teach the element for which the
secondary reference is relied upon. Thus, it is not
necessary that Campbell teach heat seals in order to
provide motivation for combining Campbell with Hubbard.
Such a teaching in Campbell would only be required in order
to maintain an anticipatory type rejection.
Appellant has not provided sufficient evidence to
overcome examiner’s reasonable determination of
obviousness. The appellant’s arguments are not persuasive
because the desire for a leak-proof seam provides
sufficient motivation for use of heat sealing as the means
for binding the peripheral edge of the pouches of Campbell.
One of ordinary skill in the art would have appreciated the
integral construction provided by the known heat sealing
method as taught by Hubbard.
Appellant’s argument that Campbell does not teach
substantially S-shaped edges to the degree claimed is not
convincing. Inspection of Figure 2 of Campbell reveals a
pouch (1) comprising first and second lateral edges (2)
each comprising a concave surface and a convex surface such
that each edge is substantially S-shaped.

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Application No. 09/846,714

Campbell Figure 2 is reproduced below:

Campbell’s Figure 2 is said to depict a hot water
bottle, the peripheral edge thereof conforming to the
silhouette of an animal.

Specifically, considering the left lateral edge of the
pouch in Figure 2, the curved portion just above the
section indicated by lead line 2 constitutes the “concave
surface of the first lateral edge” while the curved portion
just below the section indicated by lead line 2 constitutes
the “convex surface of the first lateral edge”.
Considering the right lateral edge of the pouch in Figure
2, the curved portion just above the section separated by
lead lines from numeral 3 constitutes the “convex surface
of the second lateral edge” while the curved portion just
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Application No. 09/846,714

below the section separated by lead lines from numeral 3
constitutes the “concave surface of the second lateral
edge”.
As required by claim 50, Figure 2 of Campbell
illustrates the pouch wherein the concave surface of the
first lateral edge is substantially opposite the convex
surface of the second lateral edge and wherein the convex
surface of the first lateral edge is substantially
opposite the concave surface of the second lateral edge.
Furthermore, the left lateral edge comprising: the curved
portion just above the section indicated by lead line 2;
the section indicated by lead line 2; and the curved
portion just below the section indicated by lead line 2,
is substantially S-shaped. Likewise, the right lateral
edge comprising: the curved portion just above the section
separated by lead lines from numeral 3; the section
separated by lead lines from numeral 3; and the curved
portion just below the section separated by lead lines from
numeral 3, is substantially S-shaped.
For the above reasons we conclude that a prima facie
case of obviousness of the appellant’s claimed invention
has been established and has not been effectively rebutted
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by the appellant. Accordingly, we affirm the examiner’s
rejection under 35 U.S.C. §103.
DECISION
The rejection of claim 50 under 35 U.S.C. §103 over
Campbell in view of Hubbard is affirmed.
AFFIRMED

)
Terry J. Owens )
Administrative Patent Judge )
)
)
)
Robert E. Nappi )
Administrative Patent Judge ) BOARD OF PATENT
) APPEALS AND
) INTERFERENCES
)
)
Anton W. Fetting )
Administrative Patent Judge )

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Appeal No. 2006-1481
Application No. 09/846,714

CRYOVAC, INC.
SEALED AIR CORP
P.O. BOX 464
DUNCAN, SC 29334
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