Ex Parte Lyzenga et al

Patent Trial and Appeal Board

Jun 7, 2018

13721548 (P.T.A.B. Jun. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131721,548 12/20/2012
109813 7590 06/07/2018
Fitch, Even, Tabin & Flannery, LLP
120 South LaSalle Street
Suite 2100
Chicago, IL 60603-3406
FIRST NAMED INVENTOR
Deborah Lyzenga
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.
9610-130308-US 7992
EXAMINER
HELVEY, PETER N.
ART UNIT PAPER NUMBER
3782
MAILDATE DELIVERY MODE
06/07/2018 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 DEBORAH L YZENGA,
JEFFREY THOMAS WEBER, SCOTT WILLIAM HUFFER,
and BENJAMIN MICHAEL DA VIS
Appeal2017-003142
Application 13/721,548
Technology Center 3700
Before: LINDA E. HORNER, MICHELLE R. OSINSKI, and
BRENT M. DOUGAL, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Deborah Lyzenga et al. ("Appellants") 1 appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 60-62, 64--74, 76-
79, 83-86, 88-90, and 119-121,2 under 35 U.S.C. § 103(a) as unpatentable
over Cole et al. (US 2008/0240627 Al, pub. Oct. 2, 2008) (hereinafter
1 Appellants identify the real party in interest as Intercontinental Great
Brands, LLC. Appeal Br. 3.
2 Claims 1-59, 63, 75, and 91 are cancelled, and claims 80-82, 87, and 92-
118 are withdrawn. Amendment after Non-Final Office Action (filed Aug.
14, 2015), 2-13.
Appeal2017-003142
Application 13/721,548
"Cole") and Sengewald (DE 3700988 Al, pub. July 28, 1988). We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
THE CLAIMED SUBJECT MATTER
Claims 60, 72, and 88 are independent. Claim 60, reproduced below,
is illustrative of the claimed subject matter on appeal.
60. /\package integrity feature comprising:
a closure covering an opening into a container: and
at least one stn1cture associated with the closure,
connecting the closure to a remaining portion of a top of the
container, the at least one structure comprising an elongated strip
of flexible film extending away from a portion of an edge of the
closure into a remaining portion of a top of the container;
wherein, upon opening the closure for a first time) the
structure stretches, increasing a length of the structure until the
structure eventually breaks) leaving the broken stn1cture
extending at least partially upward frorn the remaining portion of
the top of the container upon reclosure of the closure to cover the
openmg.
OPINION
The Examiner finds that Cole teaches a package integrity feature
including "at least one structure (50, 52, 54) associated with a sealing panel
of a resealable closure of a container." Final Act. 3. The Examiner
acknowledges that Cole's structure, although connected to the sealing panel
of the closure on one end, is connected to a remaining portion of "the bottom
layer of the container laminate rather than the top." Ans. 6 (emphasis
added); see also Final Act. 3. The Examiner finds the at least one structure
of Cole is an "elongated flexible strip" (Ans. 6) and "is constructed to break
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Application 13/721,548
its connection between the sealing panel and the remainder of the container,
when the sealing panel is pulled back from the remainder of the container for
a first time." Final Act. 3.
The Examiner acknowledges that because the structure is connected to
the bottom layer of the container laminate rather than the top layer, Cole
does not "result[] in the claimed upward position of the breaking structure
upon reclosure," but "rather disclos[es] all the breaking structure being on
the interior/inner layer of the packaging." Final Act. 3. The Examiner turns
to Sengewald for teaching "a sealing panel (see Fig. 9) with at least one
structure (21) comprising an elongated strip of flexible film extending away
... from a portion of an edge of the closure into a remaining portion of a top
of the container (see Fig. 9) as claimed." Id. at 4; see also Ans. 6
("Sengewald is relied upon in the rejection for its teaching of an elongated
flexible strip connected to a similar closure and extending into a remaining
portion of the top laminate layer of the container, albeit not being anchored
in the remainder of the top of the container.").
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art to
provide the connecting structures taught by Cole [] in the outer
layer of the packaging rather than the inner layer in the manner
taught by Sengewald ... in order to reduce manufacturing costs
by eliminating the need for the more complicated "sealed"
indicator while maintaining the same functionality of indicating
prior opening upon visual inspection of the exterior of the
package.
Final Act. 4--5. The Examiner takes the position that "providing the
stretching/breaking structures of Cole [] on the outer/top layer of the
package as taught by Sengewald would result in a device meeting the scope
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Application 13/721,548
of the variously claimed positions of the breaking structure upon reclosure of
the package after initial opening [i.e., the breaking structure (i) connecting
the closure to a remaining portion of a top of the container; (ii) extending
away from a portion of an edge of the closure into a remaining portion of the
top of the container; and (iii) leaving the broken structure extending at least
partially upward from the remaining portion of the top of the container upon
reclosure]." Id. at 5; see also Ans. 6 ("[B]etween the two references, all
elements of the claims are taught.").
Appellants argue that Sengewald "does not disclose or suggest 'an
elongated flexible strip,"' but merely "a cut-out tab on the end of a door
(16)." Reply Br. 3. Appellants "submit[] that a person of skill in the art will
not arrive at the claimed subject matter when presented with Cole and
Sengewald." Id. at 4. Appellants further argue "[t]here is simply no
disclosure in Sengewald that would suggest, as alleged in the Office Action
and Examiner's Answer, to one of ordinary skill in the art to move the strips
50, 52, 54 of Cole to a top layer thereof and flip the strips to extend away
from an edge of the closure to connect to a remaining portion of a top of the
container." Id.
We agree with Appellants in that the Examiner's articulated reasoning
for locating Cole's structure 50, 54 so that it extends from and into the outer
(top) layer of the container, rather than the inner (bottom) layer, relies on a
purported similarity between Cole's structure 50, 54 and Sengewald's cut-
out tab 21 that does not withstand closer scrutiny. See Final Act. 4; see also
Ans. 6. First, we do not agree with the Examiner that Sengewald's cut-out
tab 21 is "an elongated flexible strip." Ans. 6; see also Final Act. 4
(referring to Sengewald as including "an elongated strip of flexible film").
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Appeal2017-003142
Application 13/721,548
Second, we do not agree with the Examiner that one of ordinary skill in the
art would be led by the teachings of Sengewald to move, in particular,
Cole's structure 50, 54 to the outer layer (top) of Cole's container (see Final
Act. 4) in that Sengewald's tab 21 is concerned with being reclosed through
engagement with an adhesive applicator 37 included on a cover 33 that is
adhered to a portion of the bottom surface of container packaging (see
Sengewald Fig. 9; Appeal Br. 8), whereas Cole's structure 50, 54 is not
concerned with being reclosed or ensuring resealing of the container.
Instead, Cole includes releasable adhesive 28 on its sealing panel 26 so that
sealing panel 26 may be resealably secured to the remainder of the container.
Cole ,-r 33, Figs. 2a-b.
In sum, we are persuaded that the Examiner has not articulated
adequate reasoning having a rational underpinning to explain why one of
ordinary skill in the art would have been led to move, in particular, Cole's
structure 50, 54 from the inner film layer (bottom) of the container
packaging to the outer film layer (top) of the container packaging based on
the teachings of Sengewald, which simply relates to a door tab that engages
with an adhesive applicator to enable opening and closing of the door using
the door tab. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with
approval in KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)
("[R]ejections on obviousness grounds [require] some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness."). The Examiner's rejection of each of independent claims 60,
72, and 88 relies on the deficient reasoning. Final Act. 3-5.
For the foregoing reasons, we find that the Examiner erred in
concluding that Cole and Sengewald render obvious the subject matter of the
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independent claims, as well as those claims that depend therefrom.
Accordingly, we do not sustain the Examiner's rejection of claims 60-62,
64--74, 76-79, 83-86, 88-90, and 119-121under35 U.S.C. § 103(a) as
unpatentable over Cole and Sengewald.
DECISION
The Examiner's decision to reject claims 60-62, 64--74, 76-79, 83-
86, 88-90, and 119-121 under 35 U.S.C. § 103(a) as unpatentable over Cole
and Sengewald is reversed.
REVERSED
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