Ex parte Kaufman et al.

Board of Patent Appeals and Interferences

Apr 19, 2001

08844282 (B.P.A.I. Apr. 19, 2001)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 24
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte RICHARD H. KAUFMAN and IVICA M. LABUDA
____________
Appeal No. 2000-2035
Application No. 08/844,282
____________
ON BRIEF
____________
Before COHEN, ABRAMS, and NASE, Administrative Patent Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 2, 6-8, 10, 11, 17 and 19, which are all
of the claims pending in this application.
We REVERSE.
BACKGROUND
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Application No. 08/844,282
In determining the teachings of Papro, we will rely on1
the translation of record provided by the USPTO.
In determining the teachings of Stanek, we will rely on2
the translation of record provided by the USPTO.
The appellants' invention relates to an easy-open
beverage container in the form of a flexible pouch in which a
beverage therein is consumed through a straw. A copy of the
claims under appeal is set forth in the appendix to the
appellants' brief.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Lehmacher et al. 3,337,117 Aug. 22,
1967
(Lehmacher)
Papro A.G. 215,885 July 12, 19581
(Papro) (Austria)
Stanek 2,647,399 May 5, 19772
(Germany)
Claims 2, 6-8, 10, 11, 17 and 19 stand rejected under
35 U.S.C. § 103 as being unpatentable over Papro in view of
Stanek.
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Application No. 08/844,282
Claims 2, 6-8, 10, 11, 17 and 19 stand rejected under
35 U.S.C. § 103 as being unpatentable over Stanek in view of
Lehmacher.
Rather than reiterate the conflicting viewpoints advanced
by the examiner and the appellants regarding the above-noted
rejections, we make reference to the final rejection (Paper
No. 18, mailed November 23, 1999) and the answer (Paper No.
21, mailed April 28, 2000) for the examiner's complete
reasoning in support of the rejections, and to the brief
(Paper No. 20, filed April 13, 2000) and reply brief (Paper
No. 22, filed May 16, 2000) for the appellants' arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellants' specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the
examiner. Upon evaluation of all the evidence before us, it
is our conclusion that the evidence adduced by the examiner is
Appeal No. 2000-2035 Page 4
Application No. 08/844,282
insufficient to establish a prima facie case of obviousness
with respect to the claims under appeal. Accordingly, we will
not sustain the examiner's rejection of claims 2, 6-8, 10, 11,
17 and 19 under 35 U.S.C. § 103. Our reasoning for this
determination follows.
In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a prima facie case of
obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of
obviousness is established by presenting evidence that would
have led one of ordinary skill in the art to combine the
relevant teachings of the references to arrive at the claimed
invention. See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d
1596, 1598 (Fed. Cir. 1988) and In re Lintner, 458 F.2d 1013,
1016, 173 USPQ 560, 562 (CCPA 1972).
Claim 17, the sole independent claim on appeal, reads as
follows:
An easy-open beverage container in the form of a
flexible pouch in which a beverage therein is consumed
through a straw comprising:
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Application No. 08/844,282
a front barrier wall and a back barrier wall, each
said barrier wall including top edges and upper portions
of opposite side edges which matingly face one another
and which form an open top therebetween;
a downwardly-extending bifold membrane located in
the open top and having a longitudinal fold and
peripheral edges disposed adjacent the top edges and
upper portions of the opposite side edges of said front
and back barrier walls;
a membrane attaching means for securely attaching
the peripheral edges of said bifold membrane to adjacent
top edges and upper portions of the opposite side edges
of said barrier walls such that said bifold membrane
completely closes the open top and the facing top edges
of said barrier walls are movable away from one another
about the longitudinal fold of said bifold membrane to
expose the longitudinal fold for piercing by the straw;
side attaching means for securely attaching facing
portions of the peripheral edges of said bifold membrane
adjacent the upper portions of the opposite side edges of
said barrier walls to one another whereby the facing
upper portions of the opposite side edges are not movable
away from one another; and
a barrier peel seal provided between facing portions
of the peripheral edges of said bifold membrane adjacent
the top edges of said barrier walls whereby said peel
seal provides a tamper-evident and sanitary seal for said
bifold membrane which is easily broken in order to move
the facing top edges away from one another to expose said
longitudinal fold of said bifold membrane, wherein said
peel seal is a weak heat seal.
The rejection over Papro in view of Stanek
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Application No. 08/844,282
We will not sustain the rejection of claims 2, 6-8, 10,
11, 17 and 19 under 35 U.S.C. § 103 as being unpatentable over
Papro in view of Stanek.
In this rejection, the examiner determined (final
rejection, p. 2) that Papro disclosed the subject matter of
claim 17 except for the "peel seal" and that it would have
been obvious to one having ordinary skill in the art at the
time the invention was made to provide the self-closing,
bifold membrane of Papro with the peel seal and pull tabs of
Stanek, in order to prevent premature access to the self-
closing membrane.
The appellants argue (brief, pp. 4-5) that the applied
prior art does not suggest the claimed subject matter. We
agree.
All the claims under appeal require both a barrier peel
seal provided between facing portions of the peripheral edges
of the bifold membrane adjacent the top edges of the barrier
walls and the barrier walls being movable away from one
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Application No. 08/844,282
another about the longitudinal fold of the bifold membrane to
expose the longitudinal fold for piercing by the straw.
However, these limitations are not suggested by the applied
prior art. In that regard, while Papro does teach barrier
walls being movable away from one another about a longitudinal
fold of a bifold membrane to expose the longitudinal fold for
piercing by a straw, Papro does not teach or suggest using a
barrier peel seal provided between facing portions of the
peripheral edges of the bifold membrane adjacent the top edges
of the barrier walls. Likewise, while Stanek does teach a
barrier peel seal in Figures 5 and 6, Stanek does not teach or
suggest using his barrier peel seal in combination with
barrier walls movable away from one another about a
longitudinal fold of the bifold membrane to expose the
longitudinal fold for piercing by a straw.
In our view, the only suggestion for modifying Papro in
the manner proposed by the examiner to meet the above-noted
limitations stems from hindsight knowledge derived from the
appellants' own disclosure. The use of such hindsight
knowledge to support an obviousness rejection under 35 U.S.C.
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Application No. 08/844,282
§ 103 is, of course, impermissible. See, for example, W. L.
Gore and Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553,
220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S.
851 (1984). It follows that we cannot sustain the examiner's
rejections of claims 2, 6-8, 10, 11, 17 and 19 under 35 U.S.C.
§ 103 as being unpatentable over Papro in view of Stanek.
The rejection over Stanek in view of Lehmacher
We will not sustain the rejection of claims 2, 6-8, 10,
11, 17 and 19 under 35 U.S.C. § 103 as being unpatentable over
Stanek in view of Lehmacher.
In this rejection, the examiner determined (final
rejection, p. 3) that Figures 5 and 6 of Stanek disclosed the
subject matter of claim 17 except for the bottom of the self-
closing membrane 2 having a pierceable, longitudinal fold
instead of being open-ended and that in view of the teachings
of Lehmacher it would have been obvious to one having ordinary
skill in the art at the time the invention was made to
substitute a pierceable, longitudinal fold for the open end of
the Stanek membrane.
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Application No. 08/844,282
The appellants argue (brief, pp. 5-6) that the applied
prior art does not suggest the claimed subject matter. We
agree.
As pointed out above, all the claims under appeal require
both a barrier peel seal provided between facing portions of
the peripheral edges of the bifold membrane adjacent the top
edges of the barrier walls and the barrier walls being movable
away from one another about the longitudinal fold of the
bifold membrane to expose the longitudinal fold for piercing
by the straw. However, these limitations are not suggested by
the applied prior art. In that regard, while Stanek does
teach a barrier peel seal in Figures 5 and 6, Stanek does not
teach or suggest using his barrier peel seal in combination
with barrier walls movable away from one another about a
longitudinal fold of the bifold membrane to expose the
longitudinal fold for piercing by a straw. Likewise, while
Lehmacher does teach barrier walls being movable away from one
another about a longitudinal fold of a bifold membrane to
expose the longitudinal fold for piercing by a straw,
Lehmacher does not teach or suggest using a barrier peel seal
Appeal No. 2000-2035 Page 10
Application No. 08/844,282
provided between facing portions of the peripheral edges of
the bifold membrane adjacent the top edges of the barrier
walls.
Once again, it is our view that the only suggestion for
modifying Stanek in the manner proposed by the examiner to
meet the above-noted limitations stems from hindsight
knowledge derived from the appellants' own disclosure. It
follows that we cannot sustain the examiner's rejections of
claims 2, 6-8, 10, 11, 17 and 19 under 35 U.S.C. § 103 as
being unpatentable over Stanek in view of Lehmacher.
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Application No. 08/844,282
CONCLUSION
To summarize, the decision of the examiner to reject
claims 2, 6-8, 10, 11, 17 and 19 under 35 U.S.C. § 103 is
reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
NEAL E. ABRAMS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
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Application No. 08/844,282
KRAFT FOODS INC
555 SOUTH BROADWAY
TARRYTOWN, NY 10591
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Application No. 08/844,282
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