Ex Parte Finley et alDownload PDFPatent Trial and Appeal BoardAug 9, 201813847072 (P.T.A.B. Aug. 9, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/847,072 03/19/2013 28236 7590 08/13/2018 Sealed Air Corporation Patent Department 2415 Cascade Pointe Boulevard Charlotte, NC 28208 FIRST NAMED INVENTOR David M. Finley 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 ATTORNEY DOCKET NO. CONFIRMATION NO. D-44574-01 7275 EXAMINER PATTERSON, MARC A ART UNIT PAPER NUMBER 1782 NOTIFICATION DATE DELIVERY MODE 08/13/2018 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): patents@sealedair.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID M. FINLEY AND MICHAEL J. ROSINSKI Appeal2017---005312 Application 13/847,072 Technology Center 1700 Before BRADLEY R. GARRIS, JEFFREY B. ROBERTSON, and N. WHITNEY WILSON, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-3, 7-9, 11-13, and 15-21. (Appeal Br. 3.) We have jurisdiction pursuant to 35 U.S.C. § 6(b ). We AFFIRM. 1 The real party in interest is Cryovac, Inc. (Appeal Br. 3.) Appeal2017---005312 Application 13/847,072 The instant application is related to Application No. 12/152,686. (Appeal Br. 3.) This application is also related to Application No. 13/331,375 (Appeal Br. 3), in which the Examiner's rejections of the claims were appealed to the Board, and a Decision on Appeal (Appeal No. 2017-002254) was mailed on September 18, 2017, affirming the Examiner's rejections. THE INVENTION The Specification describes a heat-shrinkable patch bag having a bag tear initiator and a patch tear initiator, where the bag tear initiator is separated from the patch. (i16.) Claim 1, the only independent claim on appeal, as reproduced from the Claims Appendix, recites (with paragraphing and bracketing added for clarity): 1. A patch bag comprising a heat-shrinkable patch adhered to a heat-shrinkable bag having an open top and a top edge, a closed bottom and a bottom edge, a first side edge, a second side edge, a first lay-flat side, a second lay-flat side, a heat seal of a region of the first lay-flat side to a region of the second lay-flat side, a first tear initiator in the first lay-flat side in a bag skirt outward of the heat seal or in a bag header between the patch and the top edge of the bag, a second tear initiator in the second lay-flat side in the bag skirt outward of the heat seal or in the bag header between the patch and the top edge of the bag, with at least a portion of the heat-shrinkable patch being adhered to an outside surface of the first lay-flat side of the bag, 2 Appeal2017---005312 Application 13/847,072 with the patch having a patch tear initiator located on an edge of the patch in a location separated from the first tear initiator, the patch tear initiator being aligned with an MD [ machine direction] or TD [ transverse direction] tear line extending from the first bag tear initiator, with the heat shrinkable bag comprising a multilayer film having at least one layer comprising an incompatible polymer blend, and wherein the patch is positioned inward of the heat seal and does not extend to the heat seal. (Appeal Br. Claim Appendix 12.) The Examiner rejected claims 1-21 as follows: I. Claims 1-3, 7, 8, 11, 15-19, and 21 under 35 U.S.C. § I03(a) as obvious over Dayrit (US 2008/0292821 Al, published on November 27, 2008); II. Claim 9 under 35 U.S.C. § I03(a) as obvious over Dayrit and Broadus (US 2008/0179780 Al, published on July 31, 2008); III. Claims 12 and 13 under 35 U.S.C. § I03(a) as obvious over Dayrit and Kupcikevicius (US 5,120,553, issued on June 9, 1992); and IV. Claim 20 under 35 U.S.C. § I03(a) as obvious over Dayrit and Brady (US 5,545,419, issued on Augusl 13, 1996). (Final Rejection mailed October 21, 2015, hereinafter "Final Act.".) Rejection I Appellants do not present separate arguments for the claims on appeal. (See Appeal Br. 7, 10, 11.) Accordingly, we select claim 1 as representative, and decide the appeal as to this rejection on claim 1 alone. (37 C.F.R. §4I.37(c)(l)(iv).) 3 Appeal2017---005312 Application 13/847,072 The Examiner found that Dayrit discloses a patch bag as recited in claim 1, and in particular, that Dayrit discloses a patch film adhered to a bag, a patch tear initiator located on the patch, and which is on the edge of the patch and separated from the first tear initiator. (Examiner's Answer entered December 2, 2016, hereinafter "Ans." 2-3, citing Dayrit ,r,r 137, 144, 103.) The Examiner found that Dayrit does not disclose a patch tear initiator on an edge of the patch, but because Dayrit discloses that the patch is tom, "it would have been obvious for one of ordinary skill in the art to provide for a patch tear initiator on an edge of the patch, in order to minimize the time that the patch is tom after the bag is tom." (Ans. 3, citing Dayrit ,r 103.) Appellants contend that the recitation in claim 1 that the "patch is positioned inward of the heat seal and does not extend to the heat seal" distinguishes over the prior art, because the heat seal is necessarily between the first tear initiator and the patch tear initiator. (Appeal Br. 8-9.) Appellants argue that in Dayrit, the bag tear initiator and the patch tear initiator are not separated by the heat seal. (Appeal Br. 9-10.) The dispositive issue in this appeal is: Did the Examiner err in determining that the arrangement of the first tear initiator and the patch tear initiator recited in claim 1 would have been obvious in view of Dayrit? DISCUSSION We are not persuaded by Appellants' arguments that Dayrit does not disclose or render obvious the arrangement of the first tear initiator and patch tear initiator as recited in claim 1. 4 Appeal2017---005312 Application 13/847,072 Dayrit discloses a multilayer heat-shrinkable film that is sealed to itself to form a packaging article, which article may optionally contain a heat-shrinkable patch film. (i1 103.) Regarding the patch, Dayrit discloses: (Id.) The patch may or may not cover the heat seal. If the patch covers a heat seal, optionally the heat seal may be made through the patch. If the tear is to be made though [ sic, through] the bag and through the patch, the patch should cover a heat seal, and the tear initiator should be through both the bag film and the patch film. In the Answer, the Examiner further states that this passage in Dayrit indicates that the patch need not necessarily cover the heat seal, and as a result, Dayrit discloses that the bag tear initiator may be separated by the heat seal. (Ans. 8.) The Examiner's position is sufficiently supported by Dayrit. That is, as quoted above, Dayrit discloses that the patch is not required to cover the heat seal, which includes locations inward of the heat seal and not covering or extending to the heat seal. In addition, we disagree with Appellants that Dayrit requires the patch to be located over the heat seal if a tear is to be made through the patch, such that Dayrit teaches away from the patch tear initiator as recited in the claims. (Reply Brief filed February 2, 2017, "Reply Br." 2.) Rather, we agree with the Examiner, that by using the term "should cover" with respect to the location of the patch relative to the heat seal, Dayrit only expresses a preference for the patch to be located over the heat seal and the tear initiator to be through both the bag film and patch film. (Ans. 8.) Accordingly, Appellants have not demonstrated reversible error in the Examiner's determination that because Dayrit discloses tearing of the patch, it would have been obvious to provide for a tear initiator on the edge of the patch in 5 Appeal2017---005312 Application 13/847,072 the position recited in claim I-aligned with a MD (machine direction) tear line extending from the first bag tear initiator thus minimizing the time for tearing the patch when the bag is tom. (Ans. 3.) Regarding Appellants' argument raised in the Reply Brief that Dayrit does not disclose a patch tear initiator aligned with an MD or TD (transverse direction) tear line extending from the first tear initiator (Reply Br. 4), this argument was not raised in the Appeal Brief and is not responsive to an argument raised in the Examiner's Answer, the Examiner not having changed the rationale supporting the rejection of this limitation between the Final Action and the Examiner's Answer ( compare Final Action mailed October 21, 2015, 3, with Ans. 3). 2 Moreover, Appellants do not show good cause for belatedly presenting this new argument in their Reply Brief. Under these circumstances, we will not consider this new argument for purposes of the present appeal. See 37 C.F.R. § 41.4I(b)(2). We will also not consider Appellants' arguments with respect to claim 21 in the Reply Brief for similar reasons. (Reply Br. 4---6.) As a result, we affirm the Examiner's rejection of claim 1 as obvious over Dayrit, as well as the Examiner's rejection of claims 2, 3, 7, 8, 11, 15- 19, and 21, which depend from claim 1. 2 We observe that in the course of making this argument, Appellants appear to concede that Dayrit discloses a patch inward of the heat seal and not extending to the heat seal. (Reply Br. 3.) 6 Appeal2017---005312 Application 13/847,072 Rejections II- IV The claims subject to these rejections depend directly or indirectly from claim 1. We affirm the Examiner's rejections of claims 9, 12, 13, and 20 for similar reasons as discussed above with respect to Rejection I. CONCLUSION The Examiner did not err in determining that the arrangement of the first tear initiator and the patch tear initiator recited in claim 1 would have been obvious in view of Dayrit. ORDER We affirm the Examiner's decision rejecting claims 1-3, 7-9, 11-13, and 15-21. AFFIRMED 7 Copy with citationCopy as parenthetical citation