Ex Parte Howell

Patent Trial and Appeal Board

Mar 19, 2014

11985469 (P.T.A.B. Mar. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CLIFTON R. HOWELL
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Appeal 2012-003349
Application 11/985,469
Technology Center 3700
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Before MICHAEL W. KIM, GAY ANN SPAHN, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
rejection of claims 1-3, 5-7, 10-13, 15, 16, 19, and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Owen (US 2006/0177156 A1, published Aug.
10, 2006), Kocher (US 2003/0219176 A1, published Nov. 27, 2003), and
Yano (JP 2001-180693 A, published Jul. 3, 2001). We have jurisdiction
under 35 U.S.C. § 6(b).
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Application 11/985,469

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We AFFIRM.

CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the appealed subject
matter.

1. A reclosable package or bag, comprising:
a bottom wall, a first side wall and a second side wall;
a first side seal formed by sealing first side edges of the
bottom wall, the first side wall and the second side wall to each
other, and a second side seal formed by sealing second side
edges of the bottom wall, the first side wall and the second side
wall to each other;
a zipper, sealed to the first side wall and the second side
wall, including a first profile and a second profile, the first
profile including a first interlocking element and a first flange,
the second profile including a second interlocking element and
a second flange;
wherein the upper edge of the first side wall and the
upper edge of the second side wall are sealed together in a fin
seal thereby forming a header encompassing the zipper, and
wherein the header includes at least one line of weakness for
removing the header;
wherein the bottom wall and first and second side walls
are formed from a single sheet of web and wherein a first fold is
formed between the first side wall and the bottom wall, a
second fold is formed between the second side wall and the
bottom wall, and a third fold is formed on the first side wall
whereby the first wall is folded so that the fin seal is adjacent to
the first fold;
wherein first and second ends of the zipper include
respective first and second notches 'wherein respective first and
second portions of the interlocking elements are removed,
wherein first and second portions of the flanges remain below
the respective first and second notches; and
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Application 11/985,469

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wherein the first portion of the flanges, is sealed in the
first side seal and the second portion of the flanges is sealed in
the second side seal.

OPINION
Appellant argues independent claims 1 and 12 as a group and does not
separately argue claims 2, 3, 5-7, 10, 11, 13, 15, 16, 19, and 20. See Br. 6-7.
We select independent claim 1 as the representative claim and claims 2, 3, 5-
7, 10-13, 15, 16, 19, and 20 fall with claim 1. See 37 C.F.R. 41.37(c)(1)(vii)
(2011).
The Examiner finds that Owen substantially discloses the subject
matter of independent claim 1, but fails to explicitly disclose that “the first
side wall [is] folded so that the header is adjacent to the fold formed between
the first side wall and the bottom wall.” Ans. 4-5. To remedy this
deficiency with regard to the rejection of claim 1, the Examiner turns to
Yano’s disclosure and finds “that it is known in the art to provide the fold
between the first side wall and header of an analogous bag such that the first
side wall may be folded to locate the header adjacent to the fold formed
between the first side all and the bottom wall.” Ans. 5 (citing Yano, Fig. 3).
The Examiner concludes that it would have been obvious to one of ordinary
skill in the art
to provide the fold between the first side wall and header of the
Owen . . . bag such that the first side wall may be folded to
locate the header adjacent to the fold formed between the first
side wall and the bottom wall, as suggested by Yano . . . , in
order to position the header in a nonuse location. Moreover,
modifying the Owen . . . bag in view of Yano as discussed
above, inherently positions the fin seal of Owen . . . adjacent to
the fold between the first side wall and the bottom wall.
Ans. 5-6.
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Appellant first argues that “the Yano reference is quite different from
the cited art [of Owen and Kocher] and therefore[, is] nonanalogous thereto,
so that the Yano reference is not relevant to the presently pending claims.”
Br. 6.
The Examiner responds that Yano “is clearly within the field of
[A]ppellant’s endeavor,” as Yano “shows a reclosable package comprising a
bottom wall (1b) and first and second side walls (1a), a fin seal (3a), a
header (3)[,] and a zipper (4) sealed in the first and second side walls.”
Ans. 6.
We note that “[t]he analogous-art test requires that the Board show
that a reference is either in the field of the applicant’s endeavor or is
reasonably pertinent to the problem with which the inventor was concerned
in order to rely on that reference as a basis for rejection.” In re Kahn, 441
F.3d 977, 986-87 (Fed. Cir. 2006) (citing In re Oetiker, 977 F.2d 1443, 1447
(Fed. Cir. 1992)). Appellant’s field of endeavor is understood in-part
through the Appellant’s Specification, which sets forth the “Field of the
Invention” as “relat[ing] to a reclosable package or bag, and a method of
manufacture thereof, wherein the zipper and slider are in the fin seal.” Spec.
1, ll. 3-5. As pointed out by the Examiner, Yano discloses a reclosable bag 1
including a zipper 4 and discusses manufacturing considerations with respect
thereto. Therefore, we are not persuaded by Appellant’s nonanalogous art
argument as we agree with the Examiner that Yano is in the field of
Appellant’s endeavor.
Next, Appellant argues that in Figure 3 of Yano relied upon by the
Examiner, “it appears that the header type structure is positioned adjacent to
an edge of the package, rather than by way of a ‘third fold’ as claimed
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Application 11/985,469

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in[c]laim[] 1 . . . .” Br. 6. We are not persuaded by Appellant’s argument
because it is arguing the Yano reference individually rather than addressing
the combination of the Owen and Yano references and one cannot show
nonobviousness by attacking references individually where the rejections are
based on a combination of references. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 426 (CCPA 1981).
The Examiner’s rejection relies upon Owen to disclose the header (shroud,
para. [0022]), but modifies the header “to provide the fold between the first
side wall and header of the Owen . . . bag such that the first side wall may be
folded to locate the header adjacent to the fold formed between the first side
wall and the bottom wall, as suggested by Yano.” Ans. 5-6. Regardless, we
note that Yano does indeed disclose a fold, because it indicates that “the
opening 3a in each working example is located in the portion used as the
double-leaved form by bending of a bag body film.” Yano, para. [0022].1
Emphasis added. Thus, we are not apprised of error in the Examiner’s
rejection by Appellant’s argument.
Appellant notes that “the container of the Yano reference is loaded
through ‘filling port 2,’” and Appellant argues that “[t]he presence of both a
‘filling port’ and an opening associated with the zipper is inconsistent with
the claim language ‘the bottom wall and the first and second side walls are
formed from a single sheet of web’ as recited in [c]laim 1.” Br. 6. This
argument again is attacking the references individually. See Merck, 800
F.2d at 1097 and Keller, 642 F.2d at 426. The Examiner’s rejection relies

1 Our references to Yano are to the English language machine translation in
the electronic file wrapper of the application underlying this appeal, which
translation was provided by the Examiner and mailed with the Answer on
Sep. 27, 2011.
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upon Owen to disclose that all of the bottom wall, the first side wall, and the
second side wall are formed from a single sheet, and only relies upon Yano
for its teaching “that it is known in the art to provide the fold between the
first side wall and header of an analogous bag such that the first side wall
may be folded to locate the header adjacent to the fold formed between the
first side all and the bottom wall.” Ans. 5 (citing Yano, Fig. 3). Thus, we
are not apprised of error in the Examiner’s rejection by Appellant’s
argument.
Appellant also argues that “the ‘filling port’ of the Yano reference is
inconsistent with the claimed first, second and third folds,” because
according to Yano’s Abstract2, “the formation of the Yano reference is
directed to the ‘take out port’ or ‘opening’ 3 being directly opposite to the
filling port 2.” Br. 6. Yano’s Abstract indicates that “[a]n opening 3a
serving as a take-out port for the contents is defined at a forward end of the
joined portion 3, and the joined portion 3 is bent toward a face of the body
film 1a so that the opening is directionally opposite to the filling port 2.”
Appellant has failed to explain, and it is not readily apparent, why the
disclosure in Yano’s Abstract is “inconsistent” with the first, second and
third folds as claimed. Therefore, Appellant’s argument does not apprise us
of error in the Examiner’s rejection.
Appellant additionally argues that “the zipper of the Yano reference
does not include flanges and no fin seal is found between any construction of
first and second sidewalls and is therefore[,] further inconsistent with [c]laim

2 All references to “Yano’s Abstract” are to an English language abstract in
the electronic file wrapper of the application underlying this appeal, which
abstract is attached to the Yano foreign reference document mailed on Aug.
18, 2010 as an attachment to the Examiner’s first Office Action.
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1.” Br. 7. Appellant’s argument is not persuasive because the Examiner
relied upon Owen to teach a zipper including flanges and a fin seal 54
between the first and second side walls. Thus, the argument is not
addressing the Examiner’s proposed combination of the Owen and Yano
references.
Finally, Appellant argues that “Owen and Kocher . . . do not resolve
the[] difference[s discussed supra with respect to the Yano reference] and
are, in fact, so different from the Yano reference, in that the[] references do
not include any structure similar to that described above, that one skilled in
the art would not combine the Yano reference with the Owen and Kocher
references.” Br. 7. We are not persuaded by Appellant’s arguments. For
the reasons similar to those discussed supra with respect to Yano alone, we
consider all of Owen, Kocher, and Yano to be analogous art as being in the
field of the Appellant’s endeavor. Owen substantially discloses the subject
matter of independent claim 1, but fails to disclose that the first and second
end of the zipper include first and second notches, respectively, which is
taught by Kocher, and fails to disclose “the first side wall folded so that the
header is adjacent to the fold formed between the first side wall and the
bottom wall,” which is taught by Yano.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and claims 2, 3, 5-7, 10-13, 15, 16, 19, and 20 which fall therewith,
under 35 U.S.C. § 103(a) as unpatentable over Owen, Kocher, and Yano.

DECISION
We affirm the Examiner’s decision to reject claims 1-3, 5-7, 10-13,
15, 16, 19, and 20.
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Application 11/985,469

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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).

AFFIRMED

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