Ex Parte Howell et al

Patent Trial and Appeal Board

Apr 11, 2018

12922541 (P.T.A.B. Apr. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/922,541 08/10/2011
51468 7590 04/11/2018
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
825 Eighth A venue
31st Floor
NEW YORK, NY 10019
FIRST NAMED INVENTOR
Clifton Howell
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
121981-00305 1304
EXAMINER
HARMON, CHRISTOPHER R
ART UNIT PAPER NUMBER
3649
MAILDATE DELIVERY MODE
04/11/2018 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 PATENT TRIAL AND APPEAL BOARD
Ex parte CLIFTON HOWELL, DAVID WALLACE,
KENNY MCCRACKEN, KEVIN OWEN,
RUSTY KOENIGKRAMER, ROBERT HOGAN,
ERIC PLOURDE, DAVID ANZINI, and STEVEN AUSNIT
Appeal2017-003368 1
Application 12/922,541
Technology Center 3600
Before: LINDA E. HORNER, MICHELLE R. OSINSKI, and
BRENT M. DOUGAL, Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 28, 30, 34, 35, 44, 45, 47-52, 55---63, 66-71, 79, 80, 84--86, and 88-
98. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify Illinois Tool Works Inc., as the real party in interest.
Appeal2017-003368
Application 12/922,541
CLAIMED SUBJECT MATTER
The claims are directed to a method of forming a series of packages
with a rigid or semi-rigid container forming the bottom and a web material
with reclosure material forming a header at the top. For example, the
package could be an open top cardboard box with a resealable plastic bag
having an open bottom secured to the open top of the cardboard box to
thereby provide access to the insides of the carton. Claim 28, reproduced
below, is the sole independent claim:
28. A method for forming a series of packages including a rigid
or semi-rigid container portion and a polymeric header,
including:
providing a source of a series of flat, folded rigid or semi-
rigid container portions;
providing a source of continuous web material as a single
sheet of web material;
providing a source of continuous reclosure material as a
length of zipper material with first and second interlockable
profiles interlocked with each other;
folding the single sheet of web material thereby forming a
web material fold;
attaching the length of zipper material to the single sheet
of web material;
attaching the continuous web material, including the
continuous reclosure material attached thereto within the web
material fold, to the top of the series of rigid or semi-rigid
container portions thereby forming a header, the sequential rigid
or semi-rigid container portions being separated by an interval;
and
creating cross-seals in the web material between
successive packages.
2
Appeal2017-003368
Application 12/922,541
EVIDENCE
The evidence relied upon by the Examiner is:
Custer
McMahon
Bois
Hamer
Norcom
Belko
us 5,215,380
us 6,138,439
US 6,740,019 B2
US 6,928,794 B2
US 8,220,651 B2
US 2011/0017814 Al
REJECTIONS
June 1, 1993
Oct. 31, 2000
May 25, 2004
Aug. 16, 2005
July 17, 2012
Jan. 27, 2011
I. Claims 28, 30, 34, 35, 44, 51, 55-59, 62, 63, and 69-71 are
rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Belko
and Applicant's Admitted Prior Art (AAPA).
II. Claims 28, 30, 34, 35, 44, 51, 55-63, 66, 69-71, and 84--86 are
rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Belko
and Custer.
III. Claims 45, 51, 67, and 68 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Belko, Custer, and Bois.
IV. Claims 47, 50, 52, 84, and 85 are rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Belko, Custer, and Hamer.
V. Claims 47, 49, 51, 69, 71, 79, 80, 84--86, and 88-98 are rejected
under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Belko, Custer,
and McMahon.
VI. Claims 48, 60, 61, 66 and 86 are rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Belko, Custer, McMahon, and
Norcom.
3
Appeal2017-003368
Application 12/922,541
Rejection I
OPINION
Claim 28 requires, among other features, with emphasis added:
attaching the length of zipper material to the . . . web
material;
attaching the continuous web material, including the
continuous reclosure material attached thereto ... , to the top of
the series of rigid or semi-rigid container portions thereby
forming a header, the sequential rigid or semi-rigid container
portions being separated by an interval; and
creating cross-seals in the web material between
successive packages.
The Examiner relies on Belko for teaching these features of claim 28. Final
Act. 2 (citing Belko i-f 27+, Figs. 6-7).
Belko paragraphs 27-29 describe steps of manufacturing and filling of
the container, which steps are also shown in Figures 6-7. In particular,
Belko teaches that "a pair of opposed heat sealing dies 54 and 56 ... heat
seal the zipper components 48 and 50 to the plastic film 44 and 46" while
"[ s ]imultaneously, ... heat seal[ing] the lower portion of the bag forming
plastic film 44 and 46 to the thermoplastic coating on the strips 32 and 34 of
the box blank 52." Belko i-f 28.
Thus, Belko does not teach "attaching the continuous web material,
including the continuous reclosure material attached thereto ... , to the top
of the series of rigid or semi-rigid container portions thereby forming a
header" as the reclosure material is not already attached to the continuous
web material as required by the claim. As the Examiner has not shown how
the prior art teaches or suggests all of the features of the claim, we do not
sustain the Examiner's rejection of claims 28, 30, 34, 35, 44, 51, 55-59, 62,
63, and 69-71 over Belko and Applicant's Admitted Prior Art (AAPA).
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Appeal2017-003368
Application 12/922,541
Rejections II-VI
The Examiner finds that Belko teaches the majority of features of
claim 28, including those highlighted above with respect to Rejection I.
Final Act. 3. Thus, Rejection II relies on the same unsupported findings
concerning Belko as Rejection I. The Examiner does not provide any
findings concerning Custer which would overcome the deficiencies in
Belko. We further note that Custer Figure 1 shows forming the basic
container (i.e. heat sealed tubular form) prior to attaching the zipper material
30/31. Custer col. 6, 11. 4--8, 52---61, Figure 1. For these reasons we do not
sustain the Examiner's rejection of claims 28, 30, 34, 35, 44, 51, 55-63, 66,
69-71, and 84--86 over Belko and Custer.
We also do not sustain the Examiner's rejections of claims 45, 47-52,
60, 61, 66---69, 71, 79, 80, 84--86, and 88-98 over Belko and Custer in view
of Bois, Hamer, McMahon, or Norcom as these also rely on the unsupported
findings discussed above.
Claim 36
The "Disposition of Claims" in the "Office Action Summary" lists
pending claim 36 as being rejected, however none of the substantive
rejections include claim 36. See generally Final Act. As claim 36 is not
included in any substantive rejection we determine that claim 36 is not
currently under rejection. See 37 C.F.R. § 1.104(c)(2).
5
Appeal2017-003368
Application 12/922,541
DECISION
The Examiner's rejections of claims 28, 30, 34, 35, 44, 45, 47-52, 55-
63, 66-71, 79, 80, 84--86, and 88-98 are reversed.
REVERSED
6