Ex Parte Caudle

Board of Patent Appeals and Interferences

Jun 23, 2003

09846714 (B.P.A.I. Jun. 23, 2003)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 12
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte TIMOTHY G. CAUDLE
____________
Appeal No. 2003-0452
Application No. 09/846,714
____________
ON BRIEF
____________
Before COHEN, STAAB, and NASE, Administrative Patent Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 50 to
53, which are all of the claims pending in this application.
We REVERSE.
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Application No. 09/846,714
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BACKGROUND
The appellant's invention relates to sealed pouches having contoured edges with
a pour spout (specification, p. 1). A copy of the claims under appeal is set forth in the
appendix to the appellant's brief.
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Schwarzkopf 3,448,915 June 10, 1969
Bell 5,971,613 Oct. 26, 1999
Claims 50 to 53 stand rejected under 35 U.S.C. § 102(b) as being anticipated by
Schwarzkopf.
Claims 50 to 53 stand rejected under 35 U.S.C. § 102(b) as being anticipated by
Bell.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the final
rejection (Paper No. 6, mailed May 9, 2002) and the answer (Paper No. 10, mailed
October 16, 2002) for the examiner's complete reasoning in support of the rejections,
Appeal No. 2003-0452
Application No. 09/846,714
Page 3
and to the brief (Paper No. 9, filed September 26, 2002) for the appellant's arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
Claims 50 and 52, the only independent claims on appeal, read as follows:
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 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.
52. A single pouch comprising a first lateral edge and a second lateral edge,
the first lateral edge comprising a concave surface and the second lateral edge
comprising a convex surface, wherein the concave surface of the first lateral
edge is substantially opposite the convex surface of the second lateral edge.
Schwarzkopf's invention relates to tapered bags or sleeves which are made from
plastics material sheeting and are joined by tearable perforation lines. Schwarzkopf
teaches that "tapered bags are used, e.g., for flowers, umbrellas, neckties etc." while
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Application No. 09/846,714
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"tapered sleeves, which are open at both ends, may be used for flowers in pots and for
protecting yarns for weaving from dust." Figures 1, 2 and 2a each show a pair of
tapered sleeves which are made from two flat sheeting webs and open at both
ends. Figures 3 and 4 each show a pair of tapered bags made from two flat
sheeting webs. The pair of bags shown in Figure 3 are similar to the pair of sleeves
shown in Figure 1 with the difference that each of the narrow openings 14 is closed by a
heat-sealed seam 25, 26. Figures 5 and 6 each show a pair of tapered bags made
from a tubing. Figures 7 and 8 each show a pair of tapered sleeves having curved side
edges and made from two flat sheeting webs. The pairs of sleeves shown in Figures 7
and 8 having two open ends are similar to the embodiment of Figure 2, where two
relatively offset flat sheeting webs having the same width are employed, but the
perforated heat-sealed seam 33 and the lateral seams 34 and 35 formed by severing
and heat-sealing are curved for a more pleasing appearance. As shown in Figures 7
and 8, the curved lateral seams 34 and 35 each have a concave surface and a convex
surface, wherein the concave surface of the lateral seam 34 is substantially opposite
the convex surface of the lateral seam 35 and the convex surface of the lateral seam 34
is substantially opposite the concave surface of the lateral seam 35.
Bell's invention relates to bag or pouch construction having a side seal with a
nonlinear edge. One example of a bag arrangement according to Bell's invention is
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illustrated in Figure 4 at 150. Bag arrangement 150 includes first and second opposed
panel sections 152 and 154. Each of the first and second panel sections 152, 154
include a first end edge 156 at a first end 158 of the bag arrangement 150 and a
second end edge 160 at a second end 162 of the bag arrangement 150. Extending
between the first and second end edges 156, 160 are opposite side edges 164, 166.
First and second panel sections 152, 154 are secured to one another along portions of
side edges 164, 166 preferably by means of seals 192, 194. Seals 192, 194 extend
along side edges 164, 166, respectively, between first end 158 and points 196, 198,
where a gusset 168 intersects with the first and second panel sections 152, 154. Each
of first and second seals 192, 194 have an inner edge portion 200, 202 preferably
including a nonlinear configuration 204 along the inner edge portions 200, 202. Inner
edge portions 200, 202 may include a plurality of spaced inwardly directed projections
206 or a plurality of spaced outwardly directed recesses 208, such as those illustrated
in Figures 5-7. As shown in Figure 4, the inwardly directed projections 206 on first seal
192 are positioned opposite the inwardly directed projections 206 on second seal 194
and the outwardly directed recesses 208 on first seal 192 are positioned opposite the
outwardly directed recesses 208 on second seal 194. When bag arrangement 150 is
filled or partially filled with material, the non-linear edges in bag arrangement 150
reduces the tendency of the side edges 164, 166 from buckling or doubling over, often
resulting in about a straight line along side edges 164, 166.
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To support a rejection of a claim under 35 U.S.C. § 102(b), it must be shown that
each element of the claim is found, either expressly described or under principles of
inherency, in a single prior art reference. See Kalman v. Kimberly-Clark Corp., 713
F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied, 465 U.S. 1026
(1984).
Anticipation rejection based on Schwarzkopf
In the rejection of claims 50 to 53 as being anticipated by Schwarzkopf, the
examiner determined (final rejection, p. 2) that the claimed subject matter was readable
on the pair of tapered sleeves shown in either Figure 7 or 8 of Schwarzkopf. The
appellant argues (brief, pp. 11-12) that claims 50 to 53 are not anticipated by either
Figure 7 or 8 of Schwarzkopf since Schwarzkopf teaches a pair of tapered sleeves not
a "single pouch" as claimed.
After considering the positions of the examiner and the appellant, we reach the
conclusion that claims 50 to 53 are not anticipated by Schwarzkopf. In that regard, it is
our opinion that one skilled in the art would not have viewed the pair of tapered sleeves
shown in either Figure 7 or 8 of Schwarzkopf as constituting a "single pouch" when in
fact it constitutes two tapered sleeves joined together. Moreover, each sleeve of
Schwarzkopf is open at both ends and therefore is not a bag or a pouch.
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Application No. 09/846,714
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Since the claimed subject matter is not met by Schwarzkopf for the reasons set
forth above, the decision of the examiner to reject claims 50 to 53 under 35 U.S.C.
§ 102(b) as being anticipated by Schwarzkopf is reversed.
Anticipation rejection based on Bell
In the rejection of claims 50 to 53 as being anticipated by Bell, the examiner
determined (final rejection, p. 3) that the claimed subject matter was readable on the
pouch shown in Figure 4 of Bell. The appellant argues (brief, pp. 13-14) that claims 50
to 53 are not anticipated by Figure 4 of Bell since Bell does not teach the concave
surface of the first lateral edge is substantially opposite the convex surface of the
second lateral edge.
After considering the positions of the examiner and the appellant, we find
ourselves in agreement with the appellant's position and therefore reach the conclusion
that claims 50 to 53 are not anticipated by Bell. In that regard, it is our opinion that one
skilled in the art would not have viewed the inwardly directed projections 206 on first
seal 192 which are positioned opposite the inwardly directed projections 206 on second
seal 194 to be substantially opposite the outwardly directed recesses 208 on second
seal 194. Likewise, one skilled in the art would not have viewed the outwardly directed
recesses 208 on first seal 192 which are positioned opposite the outwardly directed
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recesses 208 on second seal 194 to be substantially opposite the inwardly directed
projections 206 on second seal 194.
Since the claimed subject matter is not met by Bell for the reasons set forth
above, the decision of the examiner to reject claims 50 to 53 under 35 U.S.C. § 102(b)
as being anticipated by Bell is reversed.
CONCLUSION
To summarize, the decision of the examiner to reject claims 50 to 53 under
35 U.S.C. § 102(b) is reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 2003-0452
Application No. 09/846,714
Page 9
CRYOVAC, INC.
SEALED AIR CORP
P.O. BOX 464
DUNCAN, SC 29334
JVN/jg