Ex Parte Helms

Board of Patent Appeals and Interferences

Aug 12, 2011

10152952 (B.P.A.I. Aug. 12, 2011)

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.
10/152,952 05/21/2002 Tom Helms 32403-11 7517
86120 7590 08/12/2011
Gordon D. Kinder
2231 Delamere Dr.
Cleveland, OH 44106
EXAMINER
PIZIALI, ANDREW T
ART UNIT PAPER NUMBER
1798
MAIL DATE DELIVERY MODE
08/12/2011 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 TOM HELMS
____________

Appeal 2011-001430
Application 10/152,952
Technology Center 1700
____________

Before CATHERINE Q. TIMM, MARK NAGUMO, and JEFFREY B.
ROBERTSON, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-001430
Application 10/152,952

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 17-23 and 34-36.1 (App. Br. 4). This is the second time
the appealed claims have come before us. In the first appeal, we reversed
rejections based on Weder in view of certain secondary references. (See
Decision in Appeal No. 2009-0607, March 25, 2009.) We are now asked to
review rejections based on Weder in view of certain other secondary
references. We have jurisdiction pursuant to 35 U.S.C. § 6(b).
We REVERSE.
THE INVENTION
Appellant describes a sleeve of non-woven fabric for receiving a floral
grouping made by a two-step process including forming a pre-sealed band
and forming a sealed edge. Appellant states that sleeves made by the
described process have side seams that are as strong as the fabric itself and
thus permit the floral sleeve to be made entirely out of non-woven fabric.
(Spec. 2, ll. 2-23).
Claim 17, reproduced below, is representative of the subject matter on
appeal.
17. A sleeve made by a method of forming sleeves for a floral
grouping from a non-woven fabric comprising the steps of:

superimposing two layers of non-woven fabric;

1 Claims 1-16 and 24-33 have been withdrawn. Appeal Brief filed June 1,
2010, 2 (hereinafter “App. Br.”).
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Application 10/152,952

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forming an edge portion of a sleeve that includes forming
a pre-sealed band, moving the layers to a different location, and
thereafter forming a sealed edge adjacent to the pre-sealed
band, the step of forming a pre-sealed band comprising the step
of pressing the fabric layers between heater bars to set the
fabric in a flattened condition and the step of forming a sealed
edge comprising the step of locally melting the flattened fabric
layers without forming a fin seal between the two layers of non-
woven fabric, wherein the heater bars apply thermal energy to
compress the fabric.

THE REJECTIONS
The grounds of rejection on appeal are:
(1) claims 17-20, 23, 34-36 under 35 U.S.C. § 103(a) as unpatentable
over Weder2 in view of Schjeldahl;3
(2) claims 17, 18, 21, and 34-36 under 35 U.S.C. § 103(a) as
unpatentable over Witte4 in view of Schjeldahl;
(3) claim 21 under 35 U.S.C. § 103(a) as unpatentable over Weder in
view of Schjeldahl as applied to claims 17-20, 23, and 34-36, and further in
view of Witte; and
(4) claim 22 under 35 U.S.C. § 103(a) as unpatentable over Weder in
view of Schjeldahl as applied to claims 17-20, 23, and 34-36, and further in
view of either Florindez5 or Garberg.6

2 US 5,493,809, issued Feb. 27, 1996.
3 US 4,319,952, issued Mar. 16, 1982.
4 US 4,333,267, issued June 8, 1982.
5 US 4,192,122, issued Mar. 11, 1980.
6 US 5,931,581, issued Aug. 3, 1999.
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DISCUSSION
In rejecting the claims on appeal, the Examiner found that both Weder
and Witte disclose the recited sleeve, with the exception of forming a pre-
sealed band and a sealed edge without forming a “fin seal,” as recited in
independent claim 17. (Examiner’s Answer entered July 16, 2010,
hereinafter “Ans.,” 4 and 9). We understand from the Examiner’s and
Appellant’s definitions, which do not conflict, that the term “fin seal” is a
term of art that refers to a flat, completely fused or permanent seal across a
band of material. (See Ans. 4; App. Br. 8.) The Examiner found that
Schjeldahl discloses an edge portion, which is formed by pre-sealing a band
of material to a flattened condition, but which is not fused, and forming a
sealed edge by locally melting the flattened material of the pre-sealed band
with a hot wire. (Ans. 5-6, 9.) The Examiner determined that it would have
been obvious to make the sealed edge of Weder or Witte by any suitable
method, such as Schjeldahl’s method. (Ans. 7, 10.) The Examiner’s
position appears to be that when the method of Schjeldahl is applied to form
the sealed edges in the sleeves formed from the non-woven materials
disclosed in Weder and Witte, the resulting sleeves would inherently not
contain a “fin seal” between the two layers of non-woven fabric as recited in
the claims. (Ans. 14-15.)
Although Appellant concedes that Schjeldahl discloses tacking two
sheets together before cutting and sealing them, Appellant contends that
when the sheets are sealed, Schjeldahl discloses a flat or permanent seal
across a band of material, or a “fin seal,” which is excluded from the claims.
(App. Br. 7-8.)
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Therefore, the dispositive issue in this appeal is: whether the
Examiner erred in determining that when the process disclosed in Schjeldahl
is applied to the sleeve disclosed in either Weder or Witte, the step of
“locally melting the flattened fabric layers without forming a fin seal
between the two layers of non-woven fabric” as recited in the instant claims
would be inherently met?
Upon reviewing the evidence of record, we cannot agree with the
Examiner’s position that the combination of Weder or Witte taken with
Schjeldahl would necessarily result in the sleeve recited in the claims.
Schjeldahl discloses forming plastic bags from superposed layers of
thermoplastic film by a process in which a “bond zone” is created by tacking
or bonding the layers at a temperature that is insufficient to melt and fuse the
layers together. (Col. 2, ll. 27-36; col. 4, ll. 26-42; Fig. 2.) Schjeldahl
further discloses a cutting station in which a hot wire passes through the
bonding zone “at a temperature which is sufficient to melt and fuse the
plastic material in the zone of the cut as indicated in the cross-sectional view
of Fig. 3.” (Col. 4, ll. 43-64; Fig. 3.) This fused zone is a “fin seal.”
The Examiner has not provided an adequate rational underpinning to
support the position that when the method for sealing plastic films disclosed
in Schjeldahl, is applied to non-woven materials disclosed in Weder and
Witte, the sleeve recited in the claims would necessarily be obtained. As
Appellant points out, Schjeldahl discloses that when the superposed
thermoplastic films are cut, the hot wire is at a temperature that is sufficient
to melt and fuse the plastic material in the “zone” of the cut, the “bonding
zone” where the superposed layers of thermoplastic film have been joined.
(App. Br. 7-9, 15-16.) Thus, we agree with Appellant that Schjeldahl
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produces a “fin seal” between the two layers of thermoplastic film in
forming the sealed edge. (App. Br. 14.)
Although non-woven materials and plastic films may have different
properties, the Examiner has not provided adequate support for why one of
ordinary skill in the art, in applying the method of Schjeldahl to Weder or
Witte, would ignore Schjeldahl’s requirement of a fin seal in joining non-
woven materials. KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007),
quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.”).
Thus, the Examiner has not provided sufficient evidence or rationale
that all of the components of the recited sleeve are met by the combination
of Weder or Witte in view of Schjeldahl. In re Royka, 490 F.2d 981, 985
(CCPA 1974) (explaining that it is well settled that all the claim limitations
must be taught or suggested by the prior art to establish a prima facie case of
obviousness). The Examiner does not rely on Florindez or Garberg to
remedy these deficiencies.
Accordingly, because the Examiner erred in determining that when
the process disclosed in Schjeldahl is applied to the sleeve disclosed in either
Weder or Witte, the step of “locally melting the flattened fabric layers
without forming a fin seal between the two layers of non-woven fabric” as
recited in the instant claims would be inherently met, we reverse all the
rejections of record.

Appeal 2011-001430
Application 10/152,952

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ORDER
We reverse the Examiner’s decision rejecting claims 17-23 and 34-36
under 35 U.S.C. § 103(a).

REVERSED

ack

Gordon D. Kinder
2231 Delamere Dr.
Cleveland, OH 44106