Ex Parte FUSS et al

Board of Patent Appeals and Interferences

Jan 30, 2003

09288775 (B.P.A.I. Jan. 30, 2003)

1
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not written for publication and is not binding precedent of the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. 23
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte GUNTER G. FUSS
and VLADIMIR YAMPOLSKY
__________
Appeal No. 2002-1803
Application 09/288,775
___________
ON BRIEF
___________
Before STAAB, MCQUADE, and NASE, Administrative Patent Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Gunter G. Fuss et al. appeal from the final rejection of
claims 1 through 25. Claims 26 through 28, the only other claims
pending in the application, stand withdrawn from consideration
pursuant to 37 CFR § 1.142(b).
THE INVENTION
The subject matter on appeal relates to “the packaging of
loose fill packing materials in bags for use as cushions in
Appeal No. 2002-1803
Application 09/288,775
2
shipping cartons and the like” (specification, page 1).
Representative claims 1 and 8 read as follows:
1. In a machine for manufacturing packing cushions for use
in shipping cartons and the like: a chute, means for supporting
an elongated length of flexible plastic tubing coaxially about
the chute, means for drawing successive sections of the tubing
from the chute, means for introducing loose fill packing material
through the chute into a section of the tubing which has been
drawn from the chute, means for sealing the walls of the tubing
together along a transversely extending seal line above the loose
fill packing material to close the section and form a cushion,
and means for perforating the tubing along a transversely
extending tear line between the section in which the cushion is
formed and the next successive section.
8. In a method of manufacturing packing cushions for use in
shipping cartons and the like, the steps of: positioning an
elongated length of flexible plastic tubing about a chute,
drawing a section of the tubing from the chute, introducing loose
fill packing material through the chute into the section of the
tubing which has been drawn from the chute, sealing the walls of
the tubing together along a transversely extending seal line
above the loose fill packing material to close the section and
form a cushion, perforating the tubing along a transversely
extending tear line above the cushion, and repeating the process
to form a string of cushions separated by tear lines.
THE PRIOR ART
The references relied on by the examiner as evidence of
obviousness are:
Sperry 4,938,007 Jul. 3, 1990
Hoover et al. (Hoover) 5,693,163 Dec. 2, 1997
Appeal No. 2002-1803
Application 09/288,775
1 In the final rejection (Paper No. 11), claims 1 through 25
also stood rejected on a number of additional grounds which have
since been withdrawn by the examiner.
3
THE REJECTION
Claims 1 through 25 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Sperry in view of Hoover.
Attention is directed to the appellants’ main and reply
briefs (Paper Nos. 18 and 20) and to the examiner’s answer (Paper
No. 19) for the respective positions of the appellants and the
examiner with regard to the merits of this rejection.1
DISCUSSION
Sperry, the examiner’s primary reference, discloses a method
and apparatus for forming foam bags/cushions for use in shipping
containers. The apparatus 10 comprises, inter alia, a pair of
plastic web supply rolls 13, drive roll means 15 for convergingly
advancing the webs into opposing face-to-face contact at a nip
defined by the drive roll means, first heat sealing means 28, 28'
immediately adjacent the nip for sealing together the opposing
longitudinal edges of the webs, second heat sealing means 35 for
sealing the top edge of a formed bag 38 and the bottom edge of
the next bag while severing the formed bag from the next bag, a
nozzle 44 for introducing a foamable composition between the webs
Appeal No. 2002-1803
Application 09/288,775
4
upstream of the nip, and a program controller 20 for regulating
the operation of the apparatus. The program controller operates
to cause (1) the drive roll means to periodically advance the
webs from the supply rolls through the nip while the first heat
sealing means seals together the longitudinal edges of the webs,
(2) the nozzle to periodically introduce a foamable composition
between the webs upstream of the nip, and (3) the second heat
sealing means to periodically seal the top edge of a formed bag
and the bottom edge of the next bag while severing the formed bag
from the next bag.
Sperry’s bag forming apparatus and method are specifically
designed for use in a packaging production line (see column 2,
lines 14 through 18; and column 6, line 8 et seq.). In general,
a severed cushion is dropped from the apparatus into a shipping
container, the articles being packaged are disposed on top of the
cushion, and an additional severed cushion is dropped onto the
articles. Both cushions are severed and dropped into the
container before the composition therein has completely foamed.
This allows the cushions to deform into a surrounding and
conforming relationship with the articles when the container is
closed and sealed, and to further expand about the articles and
Appeal No. 2002-1803
Application 09/288,775
5
harden into a relatively rigid protective array (see Sperry at
column 6, line 27 et seq.).
As conceded by the examiner (see page 3 in the answer),
Sperry does not respond to the limitations in independent claims
1 and 8, and the corresponding limitations in independent claims
16 and 21, pertaining to the perforation of the tubing along a
transversely extending tear line between the formed cushion
section and the next successive section. The examiner’s reliance
on Hoover to overcome this deficiency is not well founded.
Hoover discloses a method and apparatus for producing
dunnage in the form of inflated plastic pillows. The embodiment
shown in Figure 4 involves a roll 70 of plastic stock material 52
sealed along its longitudinal edges 52 and 56, feed rolls 72 and
74 for drawing the stock material from the roll 70, a retractable
inflation needle 80 for inflating the material, a seal head 76
and backup 78 for laterally sealing the inflated material to form
pillows, a perforation head 90 for forming perforations between
the pillows, and a cutting station 92 for cutting across the
lateral seals to form pillow units which can be placed in
cartons.
In proposing to combine Sperry and Hoover to reject the
appealed claims, the examiner submits that “[i]t would have been
Appeal No. 2002-1803
Application 09/288,775
6
obvious to one skilled in the art to substitute a sealing and
perforating means such as shown by Hoover for the cutting means
of Sperry to form a strip of [a] plurality of connected and
separable cushions” (answer, page 3). There is nothing in the
combined teachings of Sperry and Hoover, however, which would
have suggested this proposed combination. The heat sealing and
severing device 35 disclosed by Sperry functions in accordance
with the intended use of the overall apparatus in a packaging
production line. The proposed modification in view of Hoover to
allow the formation of strips of connected and separable cushions
seemingly would render the Sperry apparatus unsuitable for this
intended use. In this light, it is evident that the only
suggestion to combine Sperry and Hoover in the manner proposed by
the examiner stems from hindsight knowledge impermissibly derived
from the appellants’ disclosure.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of independent claims 1, 8, 16 and 21, and
dependent claims 2 through 7, 9 through 15, 17 through 20 and 22
through 25, as being unpatentable over Sperry in view of Hoover.

Appeal No. 2002-1803
Application 09/288,775
7
SUMMARY
The decision of the examiner to reject claims 1 through 25
is reversed.
REVERSED
LAWRENCE J. STAAB )
Administrative Patent Judge )
)
) BOARD OF PATENT
)
) APPEALS AND
JOHN P. MCQUADE )
Administrative Patent Judge ) INTERFERENCES
)
)
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
JPM/kis
Appeal No. 2002-1803
Application 09/288,775
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