Ex Parte GUMDownload PDFPatent Trial and Appeal BoardNov 29, 201713571396 (P.T.A.B. Nov. 29, 2017) Copy Citation United States Patent and Trademark Office 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. 13/571,396 08/10/2012 MARK W. GUM 30391 3340 535 7590 KF ROSS PC 311 E York St Savannah, GA 31401-3814 EXAMINER BATTISTI, DEREK J ART UNIT PAPER NUMBER 3782 NOTIFICATION DATE DELIVERY MODE 12/01/2017 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): savannah@kfrpc.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARK W. GUM Appeal 2016-003840 Application 13/571,396 Technology Center 3700 Before STEVEN D.A. McCARTHY, THOMAS F. SMEGAL, and PAUL J. KORNICZKY, Administrative Patent Judges. SMEGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Mark W. Gum (Appellant)1 seeks our review under 35 U.S.C. § 134 of the Examiner’s rejections2 under 35 U.S.C. § 103(a): of claims 1—4 and 6-9 as unpatentable over Dickey (US 3,367,380, iss. Feb. 6, 1968), Schulz (US 2003/0077010 Al, pub. Apr. 24, 2003), and Koesters (US 2011/0229060 Al, pub. Sep. 22, 2011); of claims 10 and 13 as unpatentable over Dickey, Schulz, Koesters, and Wilson (US 4,785,940, iss. Nov. 22, 1988); and of claims 11 and 12 as unpatentable over Dickey, Schulz, 1 According to Appellant, the real party in interest is Nordenia USA Inc. Br. 1. 2 Appeal is taken from the adverse decision of the Examiner as set forth in the Final Office Action, dated December 15, 2014 (“Final Act.”). Appeal 2016-003840 Application 13/571,396 Koesters, and Edwards (US 2005/0025398 Al, pub. Feb. 3, 2005).3 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CFAIMED SUBJECT MATTER Claim 1, the sole independent claim, reproduced below, illustrates the claimed subject matter. (Emphasis added) 1. A film bag capable of moving between a flattened generally planar condition to an open generally parallelepipedal shape, the film bag comprising in the flattened condition: closely juxtaposed flat rectangular front and back face panels each having a horizontal top edge, a horizontal bottom edge therebelow, and a pair of horizontally spaced vertical side edges bridging ends of the top and bottom edges; a rectangular top panel having front and back edges joined to the top edges of the respective front and back face panels and side edges bridging ends of the respective front and back edges, the top panel having a crease between the respective front and back edges and being folded inward therefrom to lie between the face panels; a rectangular floor panel having front and back edges respectively joined to the bottom edges of the front and back panels and side edges bridging ends of the respective front and back edges, the floor panel having a crease between the respective front and back edges and being folded inward therefrom to lie between the face panels; a pair of rectangular side gusset panels each having vertical front and back edges respectively joined to the side edges of the front and back panels and upper and lower edges joined to the side edges of the top and bottom panels, each side panel being 3 Claim 5 was canceled. See Amendment dated August 26, 2014. The rejection under 35 U.S.C. § 112, second paragraph, of claim 13 as being indefinite was withdrawn when the Examiner entered the Amendment after Final dated April 30, 2015. Br. 2. 2 Appeal 2016-003840 Application 13/571,396 subdivided by a central vertical crease into a pair of subpanels each formed at a respective comer of the side panel with a respective comer crease extending diagonally inward from the respective comer to the center crease and each defining at the respective comer a triangular gore, the side panel being folded inward at the respective center creases between the face panels and the gores being folded inward at the diagonal creases between the subpanels, the top, bottom, and side panels being wholly between the face panels in the flattened condition and extending generally perpendicular to the face panels in a filled condition of the film bag, one of the panels formed with a dispensing opening; a reclosable closure capable of sealing the dispensing opening, the top panel and one of the top edges forming a filler opening; a longitudinal weld closing the filler opening, whereby prior to formation of the longitudinal weld the film bag can be filled through the filler opening; and welds extending along the side edges and attaching the face panels to the side panels while imparting stiffness to the side edges. ANALYSIS First Rejection: Obviousness of 1—4 and 6—9 over Dickey, Schulz, and Koesters Appellant argues claims 1—4 and 6-9 together in contesting the rejection of these claims as obvious over Dickey, Schulz, and Koesters. See Br. 8-11. We select claim 1 as the representative claim for this group, and the remaining claims stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). In rejecting claim 1, the Examiner relies on Dickey for disclosing a film bag “capable of moving between a flattened generally planar condition to an open generally parallelepipedal shape,” having substantially all the limitations of the claim, including a dispensing opening, but states that 3 Appeal 2016-003840 Application 13/571,396 “Dickey does not disclose a filler opening as claimed.”4 Final Act. 2^1 (citing Dickey, Figs. 1, 12, and 19; and col, 5,11. 63-75). The Examiner also finds that “Schulz, which is drawn to a bag, discloses a top panel and a top edge forming a filler opening (30); a longitudinal weld closing the filler opening, whereby prior to formation of the longitudinal weld the film bag can be filled through the filler opening.” Id. at 4 (citing Schulz, Fig. 1; and ^ 30). From the foregoing, the Examiner reasons that it would have been obvious “to use a filler opening on the bag of Dickey, as disclosed by Schulz, in order to facilitate filling the bag with a certain substance.” Id. Furthermore, the Examiner finds that “Koesters, which is also drawn to a bag, discloses welds extending along side edges and attaching face panels to side panels while imparting stiffness to the side edges.” Id. (citing Koesters, Fig. 1; and T|32). From the foregoing, the Examiner reasons that it would have been obvious “to use stiffening welds, as disclosed by Koesters, on the bag of Dickey in order to provide support to the bag.” Id. In taking issue with the Examiner’s findings and conclusions, Applicant first contends that “Dickey discusses many materials, including plastic, but. . . , not aplastic film.” Br. 8. However, Appellant’s contention is unavailing as it is not commensurate with the scope of claim 1, which is not limited to a plastic film. See Br. 19-20, Claims App. Furthermore, the Examiner not only provides a definition of “film,” but explains that “Dickey clearly discloses that his article is ‘made of flexible plastic material.’” Ans. 2 (citing Dickey, col. 1,11. 10-11 and col. 5,11. 1. The Examiner also points 4 We note that Dickey discloses a filler opening between the top panel and the upper edge of a side panel in Figure 23. See Dickey, col. 10,11. 16-22. 4 Appeal 2016-003840 Application 13/571,396 out that “Dickey further goes on to disclose the use of a ‘plastic film.’” Id. (citing Dickey, col. 8,1. 58). With respect “to Appellant’s own usage of the term,” the Examiner also explains that “the original specification fails to give any particular meaning or guidance to the term ‘film’ other than being a weldable plastic that may be ‘flat-lying.’” Id. (citing the Specification at p. 1,11. 9-19; and p. 5,1. 24-p. 6,1. 4). Furthermore, the Examiner points out that “Dickey discloses a weldable plastic that may be ‘flat-lying.’” Id. (citing Dickey, col. 4,11. 14-19; and Figs. 4, 7, 8, 29). Appellant also argues that “[sjheets as used in Dickey are significantly thicker and have enough rigidity and strength that they are self supporting and can be used to form moderately rigid bodies.” Br. 9. However, the Examiner points out that Dickey “specifically discloses that a number of materials can be used dependent upon the size and strength.” Ans. 2-3. We agree with the Examiner that “Dickey discloses and renders obvious the use of a ‘film’ within the meaning of appellant’s usage of the term.” Id. at 3. Appellant next contends that “the dispensing and filling opening are the same in Dickey.” Br. 9 (citing Dickey, col. 9,1. 73-col. 10,1. 27). However, Appellant misreads Dickey. Among the several teachings of separate dispensing openings is that illustrated in Figure 12 of Dickey. See also Dickey, col. 5,11. 41-75. Appellant also contends that “making a bag from a flexible film and reinforcing only the side-edge seams is nowhere suggested or obvious from Dickey.” Br. 10. However, Appellant is simply attacking Dickey in isolation for lacking support for a teaching for which it was not cited. Nonobviousness cannot be established by attacking references individually 5 Appeal 2016-003840 Application 13/571,396 when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). As pointed out previously, the Examiner found Koesters, not Dickey, discloses “welds extending along side edges and attaching faces of panels to side panels to imparting stiffness to the side edges.” Final Act. 4. Appellant concludes by contending that “[t]he combined teachings of Dickey, Schulz, and Koesters therefore do not anticipate the invention as defined in claim \^\ and 6-9.” Br. 11. This argument is not persuasive as Appellant misreads the Examiner’s rejection which is based on obviousness, not anticipation. In an appeal under 35 U.S.C. § 134(a), it is the Examiner’s final rejection that we review. See In re Webb, 916 F.2d 1553, 1556 (Fed. Cir. 1990). Based on the foregoing, we sustain the Examiner’s rejection of claims 1—4 and 6-9 over Dickey, Schulz, and Koesters. Second Rejection: Obviousness of 10 and 13 over Dickey, Schulz, Koesters, and Wilson Appellant first repeats verbatim, the arguments that we did not find persuasive regarding the rejection of claims 1-4 and 6-9 over Dickey, Schulz, and Koesters. Br. 11-14. Appellant continues by contending “[t]he structure of Wilson is different from that of claims 10 and 13 and works differently, so the four-part rejection is incorrect.” Br. 14. However, Appellant has provided no evidence to support this contention. We are instructed that “[ajttomey’s arguments in a brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (citation omitted); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) 6 Appeal 2016-003840 Application 13/571,396 (holding that lawyer arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value). Furthermore, the Examiner explains that “[t]he closure (42) of Wilson, however, clearly renders obvious the claim language of having a removable seam (40), whereby when the removal seam is removed the closure can close the opening.” Ans. 3 (citing Wilson, Figs. 3-4C). Appellant has not apprised us of any error in the Examiner’s findings and conclusions, and we find none. Based on the foregoing, we sustain the Examiner’s rejection of claims 10 and 13 over Dickey, Schulz, Koesters, and Wilson. Third Rejection: Obviousness of 11 and 12 over Dickey, Schulz, Koesters, and Edwards Appellant again repeats verbatim, the arguments that we did not find persuasive regarding the rejection of claims 1-4 and 6-9 over Dickey, Schulz, and Koesters. Br. 14-17. Appellant continues by contending that “the reinforcement using a rigid C-section bar 684 [disclosed by Edwards] in no way resembles the reinforcement of this invention.” Br. 17. However, we agree with the Examiner that “[rjegardless of what Edwards resembles, . . . Edwards discloses a ‘reinforced handle on a back panel’ and renders obvious the limitation as claimed.” Ans. 4 (citing Edwards, Fig. 77 A and ^ 206). Appellant has not apprised us of any error in the Examiner’s findings and conclusions, and we find none. Based on the foregoing, we sustain the Examiner’s rejection of claims 11 and 12 over Dickey, Schulz, Koesters, and Edwards. 7 Appeal 2016-003840 Application 13/571,396 DECISION We AFFIRM the Examiner’s rejections. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation