Ex Parte Cornelisse

Board of Patent Appeals and Interferences

Apr 26, 2012

11068705 (B.P.A.I. Apr. 26, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/068,705 03/01/2005 Jan Willem Cornelisse 769-361 8954
51468 7590 04/27/2012
DAY PITNEY LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
7 TIMES SQUARE
NEW YORK, NY 10036-7311
EXAMINER
WATKINS III, WILLIAM P
ART UNIT PAPER NUMBER
1783
MAIL DATE DELIVERY MODE
04/27/2012 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 JAN WILLEM CORNELISSE
__________

Appeal 2010-011707
Application 11/068,705
Technology Center 1700
____________

Before CATHERINE Q. TIMM, MARK NAGUMO, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/068,705

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Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
12 and 15-17. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellant’s invention is directed to a supply of web material for
forming flexible pouches with a diagonal zipper opening in the front panel
(Spec. 1; Claims App.).
Claim 12 is illustrative:
12. A supply of web, including:
a first roll of web material;
linear diagonal openings being formed periodically on
the first roll of web material, configured and arranged for
receiving zippers;
a second roll of web material free of diagonal openings;
wherein the first roll of web material is provided for a
first wall of reclosable packages and the second roll of web
material is provided for a second wall of reclosable packages,
wherein the diagonal openings are formed at package-width
intervals thereby forming a single opening on each package.
Appellant appeals the following rejection1:
Claims 12, and 15-17 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Palumbo (US 6,309,105 B1 issued Oct. 30, 2001) in view
of Yeager ‘257 (US 6,270,257 B1 issued Aug. 7, 2001), Yeager ‘453 (US
5,951,453 issued Sept. 14, 1999), Spence (US 4,838,724 issued June 13,

1 The Examiner relies on Spence and Brown only for the purpose of
establishing the effective date of the Johnson & Johnson reference (Ans. 5 -
6). Accordingly, we do not discuss these references in our analysis of the
merits of the Examiner’s rejection.
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1989), Brown (US 3,618,606 issued Nov. 9, 1971) and Johnson & Johnson
(JOHNSON & JOHNSON, VINYL FIRST-AID CONTAINER (undated
advertisement)).
Appellant’s arguments focus on claims 12 and 17 only (App. Br. 5-6).
Because Appellant argues features common to both claims 12 and 17, we
select claim 12 as representative.

ISSUE
Did the Examiner reversibly err in concluding that the combined
teachings of Palumbo, Yeager ‘257, Yeager ‘453 and Johnson & Johnson
would have suggested the subject matter of claim 12? We decide this issue
in the negative.

FINDINGS OF FACT AND ANALYSIS
We begin our analysis by construing claim 12. Claim 12 recites a
supply of web that includes a first roll of web material that is provided as the
first wall of a reclosable package having linear diagonal openings formed
periodically (at package width intervals) on the first roll of web material
where the openings are configured and arranged for receiving zippers and a
second roll of web material free of diagonal openings that is provided as the
second wall of the reclosable package (Claims App.). Claim 12 does not
claim the reclosable package (i.e., the end product). The Examiner construes
“linear diagonal openings . . . configured and arranged for receiving zippers”
as requiring “only a linear diagonal opening . . . where the width of the slit is
such that a zipper can be attached to the two sides of the slit and function to
seal the opening” (Ans. 6). Appellant’s Specification, as found by the
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Examiner (id.), does not provide any further structure to the webs or linear
diagonal slit in order to be “configured and arranged for receiving zippers.”
Appellant does not dispute the Examiner’s claim construction.
Accordingly, we construe claim 12 as a kit for forming a reclosable
package. The kit includes a first web that ultimately forms the first wall of
the reclosable package having linear diagonal openings, which have a width
such that a zipper can be attached to the two sides of the slit, formed at
package width intervals on the web and a second web that ultimately forms
the second wall of the reclosable package having no diagonal slits. In other
words, the kit only requires two rolls of webs with one of the webs having
linear diagonal openings, with the slits having a width so that a zipper can be
attached.
Appellant argues that Palumbo’s V-shaped opening would not have
been amenable to the incorporation of a zipper (App. Br. 5). Appellant
further argues that there would have been no reason to take the diagonal
structure of the Johnson & Johnson reference and use that reference to
change the structure of the openings of the Palumbo reference (id. at 6).
However, these arguments do not specifically address or show
harmful error in the Examiner’s rejection, which is based on modifying
Palumbo to include the linear diagonal slit as taught by Johnson & Johnson,
which the Examiner finds is structured to receive a zipper closure (Ans. 5-6).
The Examiner provides a reason for modifying Palumbo to include the
zipper closure structure of Johnson & Johnson. Specifically, the Examiner
determines that it would have been within the skill of one of ordinary skill as
“a matter of the substitution of elements that function in a similar matter
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with a predictable outcome” (id. at 6). Appellant does not respond to the
reasoning or findings of the Examiner.
Moreover, Appellant’s arguments are unpersuasive because the
properly construed claim does not exclude more than one linear diagonal slit
such as the two linear diagonal openings included in Palumbo’s V-shaped
slit. The claim merely recites that the first web includes linear diagonal
openings configured for receiving zippers that are formed at package width
intervals. More than one linear diagonal slit may be formed at package
width intervals and still meet the claim limitations.
Palumbo’s V-shaped slits appear to be configured to receive zippers
based upon the Examiner’s uncontested claim construction of “configured
. . . for receiving zippers” as requiring that the width of the slit is such that
the zipper can be attached to two sides of the slit and function to seal the
opening. Palumbo plainly discloses that the width of the slit may be zero or
very small, which would certainly be small enough to be configured for
zipper attachment as that term is construed within the meaning of the claims
(col. 1, ll. 41-50).
On this record, we affirm the Examiner’s § 103 rejection over
Palumbo in view of Yeager ‘257, Yeager ‘453, Spence, Brown, and Johnson
& Johnson.

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.

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ORDER
AFFIRMED

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