Ex Parte Harges et al

Board of Patent Appeals and Interferences

Mar 15, 2007

10256982 (B.P.A.I. Mar. 15, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEVEN DANIEL HARGES and RODNEY DALE PATCH
____________

Appeal 2006-3345
Application 10/256,982
Technology Center 3700
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Decided: March 15, 2007
____________

Before STUART S. LEVY, ROBERT E. NAPPI, and LINDA E. HORNER,
Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Steven Daniel Harges et al. (“Appellants”) seek our review under 35 U.S.C.
§ 134 of the Examiner’s final rejection of claims 1-18. We have jurisdiction under
35 U.S.C. § 6(b).
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SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
Appellants invented a system for sealing an opening of a package within a
vacuum chamber (Specification 1: [0001]). Claims 1, 9, and 14, reproduced
below, are representative of the subject matter on appeal.
1. A vacuum packaging machine comprising:
a chamber;
a vacuum generator operable to generate which
generates a vacuum within said chamber;
a sealing mechanism disposed within said chamber
and including opposing sealing bars arranged to receive
the open end of a package disposed within said chamber
and operable to close the sealing bars about the open end
of the package; and
means for continuously heating at least one sealing
bar when said vacuum generator is operated to generate
said vacuum and said sealing mechanism is operated to
close said sealing bars about the open end of the package.

9. A method for vacuum sealing a package
comprising the steps of:
supporting a package within a vacuum chamber
with the open end of the
package between sealing bars of a sealing
mechanism disposed within the chamber;
generating a vacuum in the chamber;
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closing the sealing bars about the open end of the
package after generating the vacuum; and
continuously heating at least one sealing bar
during each of the supporting, generating, and closing
steps.

14. A vacuum packaging machine comprising:
a chamber;
a vacuum generator which generates a vacuum
within said chamber;
a sealing mechanism disposed within said chamber
and including opposing sealing bars arranged to receive
the open end of a package disposed within said chamber
and operable to close the sealing bars about the open end
of the package; and
a heater which is continuously connected to a
source of current to generate heat with at least one of said
opposing sealing bars when (i) said vacuum generator is
operated to generate said vacuum, and (ii) said sealing
mechanism is operated to close said opposing sealing
bars about the open end of the package.

THE REJECTIONS
The Examiner relies upon the following as evidence of unpatentability:
Kujubu US 3,958,391 May 25, 1976
Kristen US 4,941,310 Jul. 17, 1990
The following rejections are before us for review.
1. Claims 1, 2, 4-9, 11-14, and 16-18 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Kujubu.
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2. Claims 3, 10, and 15 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Kujubu and Kristen.
3. Claims 1-8, 13, and 15 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and distinctly
claim the subject matter which Appellants regard as the invention.1

PRIOR ART REJECTIONS
ISSUE
Appellants contend that the Examiner erred in rejecting claims 1, 2, 4-9, and
11-13 as anticipated by Kujubu and claims 3 and 10 as obvious in view of Kujubu
and Kristen, because Kujubu does not disclose a sealing bar that is continuously
heated during each of the supporting, generating, and closing steps, as required by
claim 9 (Br. 6-9). Appellants further contend that the Examiner erred in rejecting
claims 14 and 16-18 as anticipated by Kujubu and claim 15 as obvious in view of
Kujubu and Kristen, because Kujubu does not disclose a heater for a sealing bar
continuously connected to a source of current to generate heat with at least one

1 The Examiner withdrew the rejection under 35 U.S.C. § 112, second paragraph,
of independent claim 14 and its dependent claims 16-18 (Answer 6). The
Examiner also partially withdrew the rejection under 35 U.S.C. § 112, second
paragraph, of claim 1 based on the use of the word “operable”; however, claim 1
and its dependent claims 2-8 remain rejected under 35 U.S.C. § 112, second
paragraph, on other grounds (Answer 6). Although the Examiner stated in the
Final Office Action that claims 9-12 were rejected under 35 U.S.C. § 112, second
paragraph, the Examiner did not provide any explanation of the basis for the
rejection of these claims. As such, to the extent that the Examiner intended to
reject these claims, we decline to sustain the rejection.
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opposing sealing bar when the sealing mechanism is operated to close the opposing
sealing bars about the open end of a package, as required by claim 14. The
Examiner found that Kujubu discloses that its sealing bar is continuously heated
during the closing step from the time the bag is clamped to the time the bag is
sealed and cut while the bag is still supported, the vacuum is still being generated,
and the bag is still clamped by the sealing bars (Answer 5). The Examiner also
found that Kujubu’s sealing machine must necessarily be continuously connected
to a source of current in order to work and thus the heater must also inherently be
continuously connected to the same source of current to generate heat with one of
the sealing bars, as required by claim 14 (Answer 4). The issue before us is
whether Appellants have shown that the Examiner erred in finding that Kujubu
discloses continuously heating the sealing bar as the package is supported within a
vacuum chamber, the vacuum is generated, and the sealing bars are being closed.

FINDINGS OF FACT
A preponderance of the evidence establishes the following facts:
Kujubu discloses a vacuum packaging machine having a heater head 51 with
a heater strip 72 and a heater wire 74 (Kujubu, col. 6, ll. 30-38 and 41-47).
Kujubu discloses that heater strip 72 and heater wire 74 are connected
through lead wires 77a, 77b, 79a, and 79b to terminals 80 installed in an air-tight
manner through the wall of the vacuum box 22 and connected at their outside ends
to slide rings 27 and 28 (Kujubu, col. 6, ll. 52-56).
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Kujubu discloses that the slide rings 27 and 28 are connected to a power
source by way of carbon terminals suspended from a support member 29 fixed to
the hollow shaft 19, limit switches, and other parts (Kujubu, col. 6, ll. 57-61).
Kujubu discloses that the slide ring 27 is divided into equal divisions of the
same number as the number of vacuum boxes 22 and is adapted to distribute power
to only parts necessary for an impulse seal power source (Kujubu, col. 6, ll. 61-64).
Kujubu discloses that the machine, in operation, forms a vacuum box 22 and
evacuates the interior of the vacuum box 22 (Kujubu, col. 8, ll. 35-40).
Kujubu discloses that “when the desired degree of vacuum within the bag 1
has been obtained,” “the heater head 51 descends and clamps the bag 1 between
itself and the elastic seat 47.” (Kujubu, col. 9, ll. 11-20).
Kujubu discloses that after the bag has been clamped by the heater head 51,
the limit switch, which controls the connection of the lead wires of the heater
components to the power source, is turned “ON” so that electric current is passed
through the heater strip 72 and the heater wire 74, whereupon the bag 1 is heat
sealed (Kujubu, col. 9, ll. 21-24).
Thus, Kujubu discloses that the heater head 51, heater strip 72, and heater
wire 74 are connected to a source of current to generate heat only when the limit
switch is turned “ON.”
Kujubu discloses that the limit switch is turned on after the vacuum box 22
has been evacuated and after the heater head 51 has closed and clamped the bag for
sealing.

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PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in the
claim is found, either expressly or inherently described, in a single prior art
reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631, 2
USPQ2d 1051, 1053 (Fed. Cir. 1987), cert. denied, 484 U.S. 827 (1987).
“To establish inherency, the extrinsic evidence must make clear that the
missing descriptive matter is necessarily present in the thing described in the
reference, and that it would be so recognized by persons of ordinary skill.
Inherency, however, may not be established by probabilities or possibilities. The
mere fact that a certain thing may result from a given set of circumstances is not
sufficient.” In re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950-51 (Fed.
Cir. 1999) (citations omitted) (internal quotation marks omitted).

ANALYSIS
Appellants argue claims 1-13 as a first group and claims 14-18 as a second
group. We select claim 9 as a representative claim from the first group and claim
14 as a representative claim from the second group.
Claim 9, directed to a method for vacuum sealing a package, requires
“continuously heating at least one sealing bar during each of the supporting,
generating, and closing steps.” The generating step recites “generating a vacuum
in the chamber.” Thus, we interpret the heating step to require continuous heating
of the sealing bar while the vacuum is being generated.
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As stated supra, Kujubu’s heater head 51, heater strip 72, and heater wire 74
are heated only after the vacuum box 22 has been evacuated. As such, Kujubu
does not disclose continuously heating the sealing bar while the vacuum is being
generated. The Examiner found that Kujubu discloses that its sealing bar is
continuously heated during the closing step from the time the bag is clamped to the
time the bag is sealed and cut while the bag is still supported, the vacuum is still
being generated, and the bag is still clamped by the sealing bars (Answer 5). The
claim, however, requires that the sealing bar is continuously heated during the
generating step. As stated supra, Kujubu does not turn on the limit switch to heat
its heater head 51 until after “the desired degree of vacuum within the bag 1 has
been obtained” (i.e., the vacuum has been generated). As such, Kujubu does not
disclose continuously heating at least one sealing bar “during” this generating step.
Claim 14, directed to a vacuum packaging machine, recites “a heater which
is continuously connected to a source of current to generate heat with at least one
of said opposing sealing bars when (i) said vacuum generator is operated to
generate said vacuum, and (ii) said sealing mechanism is operated to close said
opposing sealing bars about the open end of the package.” As stated supra,
Kujubu discloses that after the desired degree of vacuum within the bag 1 has been
obtained and after the bag has been clamped by the heater head 51, the limit
switch, which controls the connection of the lead wires of the heater components to
the power source, is turned “ON” so that electric current is passed through the
heater strip 72 and the heater wire 74, whereupon the bag 1 is heat sealed. Thus,
Kujubu discloses that the heater head 51, heater strip 72, and heater wire 74 are
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connected to a source of current to generate heat only after the vacuum box 22 has
been evacuated.
The Examiner found that Kujubu’s heater must inherently be continuously
connected to a source of current in order to generate heat with one of the sealing
bars. We disagree. Kujubu clearly discloses that the connection between the
heater head 51 and the power source occurs only when the limit switch is “on.” As
such, when the limit switch is “off,” i.e., during the generation of the vacuum, the
heater head 51 is not connected to a source of current to generate heat.
We also do not find any suggestion or motivation in Kujubu or Kristen,
which was relied upon by the Examiner to show use of a temperature sensor to
monitor the temperature of the sealing bar, to modify the machine of Kujubu to
continuously heat the heater head 51.
Accordingly, we find that Kujubu does not anticipate representative claims 9
and 14 and that Kujubu and Kristen do not render obvious dependent claims 3, 10,
and 15.

CONCLUSIONS OF LAW
We conclude that the Examiner erred in rejecting claims 1, 2, 4-9, 11-14,
and 16-18 as anticipated by Kujubu and erred in rejecting claims 3, 10, and 15 as
obvious in view of Kujubu and Kristen.

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INDEFINITENESS REJECTION
Claims 1-8, 13, and 15 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and distinctly claim the
subject matter which Appellants regard as the invention. Appellants do not contest
the Examiner’s rejection of claims 1, along with dependent claims 2-8, and claim
15 on the basis of typographical errors (Br. 12). As such, we sustain the rejection
of claims 1-8 and 15 for indefiniteness. Pursuant to our authority under 37 C.F.R.
§ 41.50(c), we find that Appellants would overcome this rejection if they amended
claim 1 to delete the language “operable to generate” and amended claim 15 to
replace “said element” (first occurrence) with “an element” and to replace “the
element temperature” with “an element temperature.”
Appellants contend that the metes and bounds of the present invention are
clearly ascertainable from claim 13 as presently written (Br. 12). The Examiner
found that “releasing the sealing bars from the open end of the package after a pre-
determined dwell time” is indefinite because it is unclear whether or not the
package has been sealed after the predetermined dwell time (Answer 6).
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the claim
is read in light of the specification.” Orthokinetics, Inc. v. Safety Travel Chairs,
Inc., 806 F.2d 1565, 1576, 1 USPQ2d 1081, 1088 (Fed. Cir. 1986) (citations
omitted).
Claim 13 further limits claim 9 and adds a step of releasing the sealing bars
after a predetermined amount of time. We find that the scope of the claim would
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be clear on its face to one skilled in the art and requires only that the sealing bars
remain closed a predetermined amount of time as opposed to an indeterminate time
period. Whether or not the bag has been sealed after the predetermined time period
is irrelevant to the understanding of the claim. As such, we do not sustain the
Examiner’s rejection of claim 13 under 35 U.S.C. § 112, second paragraph.

DECISION
The Examiner’s rejection of claims 1, 2, 4-9, 11-14, and 16-18 under 35
U.S.C. § 102(b), claims 3, 10, and 15 under 35 U.S.C. § 103(a), and claims 9-14
and 16-18 under 35 U.S.C. § 112, second paragraph are not sustained. The
Examiner’s rejection of claims 1-8 and 15 under 35 U.S.C. § 112, second
paragraph, is sustained; however, Appellants can overcome this rejection by
amending claims 1-8 and 15 as explained supra.
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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)(1)(iv) (2006).
AFFIRMED-IN-PART

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