Ex Parte Murray

Patent Trial and Appeal Board

Nov 21, 2017

12199261 (P.T.A.B. Nov. 21, 2017)

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.
12/199,261 08/27/2008 R. Charles Murray PPI-21302/08 5641
25006 7590 11/24/2017
DTNSMORF fr SHOHT T T P
EXAMINER
900 Wilshire Drive HELVEY, PETER N.
Suite 300
TROY, MI 48084 ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
11/24/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
MichiganPatTM @ dinsmore. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte R. CHARLES MURRAY
Appeal 2016-001591
Application 12/199,261
Technology Center 3700
Before STEVEN D.A. McCARTHY, JAMES P. CALVE and
PATRICK R. SCANLON, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 The Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
2 decision rejecting claims 1—8, 15 and 16. The Examiner rejects under pre-
3 AIA 35 U.S.C. § 103(a) claims 1—7 as being unpatentable over Kuge (US
4 7,005,150 B2, issued Feb. 28, 2006), Chang (US 2007/0206888 Al, publ.
5 Sept. 6, 2007) and Kayser (US 6,053,321, issued Apr. 25, 2000); claim 8 as
6 being unpatentable over Kuge, Chang, Kayser and Schulz (US
7 2003/0077010 Al, publ. Apr. 24, 2003); and claims 15 and 16 as being
8 unpatentable over Kuge, Chang, Kayser, Schulz and Bost (US 5,908,245,
1 The Appellant identifies the real party in interest as Pouch Pac
Innovations, LLC, of Sarasota, Florida.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Appeal 2016-001591
Application 12/199,261
issued June 1, 1999). Oral argument was held on November 8, 2017. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The Appellants’ claims are directed to flexible pouches having
elongated spout portions for packaging products. (Spec., para. 2). Taking
into account the arguments presented by the Appellant (see Appeal Brief,
April 13, 2015 (“App. Br.”), at 3), sole independent claim 1 is representative
of the grouping of claims rejected over the teachings of Kuge, Chang and
Kayser:
1. A flexible container for packaging a product, said
container comprising:
a flexible pouch having a front panel, a back panel and an
upper edge;
an elongated spout portion extending from said upper edge
of said flexible pouch, said elongated spout portion made from
said front panel and said back panel, said front panel and said
back panel each having a spout portion top edge; and
a horizontal rib extending across said front panel of said
elongated spout portion and another horizontal rib extending
across said back panel of said elongated spout portion;
said horizontal rib and said another horizontal rib spaced
apart from said spout portion top edge of said front panel and
said back panel, respectively;
said horizontal rib and said another horizontal rib limiting
an amount of curling of said spout portion top edges when heated
and ensuring said top edges return to an upright position when
cooled after being heated.
The primary issue in this appeal relates to the proper interpretation of
the last indented limitation of claim 1. In order to set up this issue, it is
necessary to briefly review the teachings of Kuge, Chang and Kayser.
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Appeal 2016-001591
Application 12/199,261
We find that Kuge describes a beverage container 1 in the form of a
flexible pouch having a front panel 5, a back panel 6 and an elongated spout
portion 9 extending downwardly from an upper edge of the container. (See
Kuge, col. 8,11. 54—58; col. 9,11. 9—15; & Fig. 1). The elongated spout
portion 9 is made from the front and back panels 5, 6. (See generally Kuge,
col. 11,11. 10-35 & Figs. 1 & 5—7(b)). As indicated in Figures 1 and 5, the
front and back panels 5, 6 each have a spout portion top edge. Kuge teaches
adding V-shaped notches 12 to the elongated spout portion 9 to facilitate
tearing of the spout portion to open the beverage container 1. (See Kuge,
col. 10,11. 28—37). The Examiner finds that Kuge “does not expressly
disclose a horizontal rib extending across each of the front and back panel of
the spout portion or the heating/curling functionality as claimed.” (Final
Office Action, mailed November 17, 2014 (“Final Act.”), at 2).
We find that Chang describes a “tear open” bag device 10. (See
Chang, para. 24). The bag device 10 is constructed from first and second
main panels 16,18 interconnected along opposite side and bottom edges 20,
22, 24. (See Chang, para. 25 & Fig. 2). Chang teaches forming grip lines
46, 48 extending in parallel along the first and second main panels 16,18.
The grip lines 46, 48 define outwardly projecting “points” or ribs 54, 56, as
well as inwardly projecting barbs 50, 52. The grip lines 46, 48 provide
roughened gripping locations 54, 56 to facilitate gripping while tearing open
the bag device 10. In addition, tear bands defined between adjacent grip
lines 46, 48 guide tears along the grip lines to produce uniform, non-jagged
tears. (See Change, paras. 34—36 & Figs. 1—5). The Examiner correctly
finds that one familiar with the teachings of Kuge and Chang would have
had reason “to add reinforcing ribs as taught by Chang to the tear area [that
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Appeal 2016-001591
Application 12/199,261
is, to the elongated spout portion] of Kuge, in order to guide the tearing
action[;] and create an even and smooth edge[d] tear as taught by Chang.”
(Final Act. 2 & 3).
Neither Kuge nor Chang teaches “said horizontal rib and said another
horizontal rib limiting an amount of curling of said spout portion top edges
when heated and ensuring said top edges return to an upright position when
cooled after being heated.” (See Final Act. 2 & 3). We find that Kayser
teaches a blister pack 10 including a display card 14 supporting a
thermoplastic, reusable container 12. At the point of sale, the reusable
container 72 is secured to the display card 14 by frangible flanges 16,17.
(iSee Kayser, col. 3,11. 12—17 & 65—67; & Fig. 1). The reusable container 12
includes a tray 20 and a lid 22 connected at one end by a living hinge 18.
(See Kayser, col. 4,11. 11—14, 20 & 21; & Fig. 2). The lid 22 has an
enlarged lid pull tab 24 for engagement by a customer’s finger or a tool such
as a knife to assist the customer in removing the container 12 from the
display card 14. (See Kayser, col. 5,11. 10-23 & Figs. 1—3).
We additionally find that Kayser teaches providing a hollow,
substantial ridge or rib 26 on the lid pull tab 24. (See Kayser, col. 5,11. 29—
38 & Fig. 2). Kayser teaches that the ridge 26 “facilitates the effective
sealing of the frangible flanges [16,17] to the display card 14. During the
manufacturing process, the substantial ridge 26 prevents the display card 14
from curling forward after heat sealing and causing the reusable container 10
to not be flush mounted.” (Kayser, col. 5,11. 39-44 (italics added for
emphasis)). The Examiner finds that one familiar with the teachings of
Kuge, Chang and Kayser would have had reason “to structure the
reinforcing ribs near the opening taught by [Kuge and Chang] such that [the
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Appeal 2016-001591
Application 12/199,261
reinforcing ribs] limit curling as taught by Kayser, in order to limit curling
during heating as taught by Kayser and as claimed (col. 5,11. 40-45).”
(Final Act. 3).
The Appellant argues that Kayser does not teach the limitation, “said
horizontal rib and said another horizontal rib limiting an amount of curling
of said spout portion top edges when heated and ensuring said top edges
return to an upright position when cooled after being heated.” According to
the Appellant, a rib that “prevents” curling would not merely “limit” curling,
as recited in claim 1. (See App. Br. 6 & 7). The Appellant also argues that a
rib such as that taught by Kayser could not “ensur[e said] top edges return to
an upright position when cooled after being heated,” because top edges
“prevented” from curling by such a rib could not “return” from a curled
position to an upright position. (See App. Br. 6). The Appellant additionally
argues that Kayser teaches away from the subject matter of claim 1 (see
App. Br. 7 & 8); and that the Examiner’s proposed modification of the
container described by Kuge would have rendered Kayser’s blister pack
unsatisfactory for Kayser’s intended purpose (see App. Br. 8). These
arguments hinge on adoption of the Appellant’s construction of the quoted
limitation, however.
During prosecution, claims are given their broadest reasonable
interpretation consistent with the specification. Nevertheless, “[a]bsent an
express definition in their specification, the fact that appellants can point to
definitions or usages that conform to their interpretation does not make the
PTO’s definition unreasonable when the PTO can point to other sources that
support its interpretation.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir.
1997).
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Appeal 2016-001591
Application 12/199,261
The Appellant does not suggest that the verb “limiting” has a
specialized meaning in the pertinent art. The ordinary usage of the verb
“limiting” is sufficiently broad to encompass prevention. The Specification
is consistent: In describing the ribs 124 of the embodiment depicted in
Figure 1, the Specification says that the “rib 124 can prevent and/or reduce
curling of the sheet material and thereby improve filling and sealing of the
pouch.” (Spec., para. 30). This passage supports the Examiner’s
understanding that “limiting” broadly encompasses prevention. (See Ans.
6). Kayser, at the very least, teaches modifying a rib added to Kuge’s
container to prevent, and thereby limit, “an amount of curling of said spout
portion top edges when heated,” as claimed.
The further recitation, “ensuring said top edges return to an upright
position when cooled after being heated,” does not imply that the recited rib
must allow some amount of curling. Claim 1 is to an apparatus. The
recitation, “ensuring said top edges return to an upright position when
cooled after being heated,” limits the recited rib to one having a particular
property or characteristic, namely, being designed for, or merely capable of,
performing the recited function. A rib may possess this property without
ever being called on to return top edges to an upright position when cooled
after being heated.
The Specification teaches a technique for filling a pouch embodying
the subject matter of claim 1 in which heated air is directed onto the top
edges to cause the top edges to curl so as to be easily opened (see Spec.,
para. 70); the container is filled through the spout portion (see Spec., para.
72); and cool air is directed onto the top edges to cause the top edges to
return to an upright position, thereby sealing the container (see Spec., para.
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Appeal 2016-001591
Application 12/199,261
75). Neither the language of claim 1, nor the teachings of the Specification,
limits the subject matter of claim 1 to a container that can be filled in this
manner.
As discussed earlier, the statement in paragraph 30 of the
Specification, that the “rib 124 can prevent and/or reduce curling of the sheet
material and thereby improve filling and sealing of the pouch,” implies a
broader interpretation. Paragraphs 70-79 of the Specification teach heating
and cooling the spout portion merely as part of one of several methods for
filling and sealing a flexible container. (See also Spec., paras. 91—102).
Because the Specification does not clearly disclaim other such methods, it
does not disclaim containers in which a rib prevents curling of the top edges
for easier opening. Although one might read the last indented language of
claim 1 as limited to containers susceptible of filling and sealing by heating
and later cooling the top edges of the spout portion, the language is not so
clearly limited that the Examiner’s broader reading would be unreasonable.
Therefore, Kayser teaches the limitation, “said horizontal rib and said
another horizontal rib limiting an amount of curling of said spout portion top
edges when heated and ensuring said top edges return to an upright position
when cooled after being heated,” as broadly but reasonably understood. We
sustain the rejection of claim 1 under § 103(a) as being unpatentable over
Kuge, Chang and Kayser. Claims 2—7 fall with claim 1. Because the
Appellant does not present any argument that dependent claims 8, 15 and 16
might be patentable if claim 1 is not, we also sustain the rejection of claim 8
under § 103(a) as being unpatentable over Kuge, Chang, Kayser and Schulz;
and the rejection of claims 15 and 16 under § 103(a) as being unpatentable
over Kuge, Chang, Kayser and Bost.
7
Appeal 2016-001591
Application 12/199,261
1
2 DECISION
3 We AFFIRM the Examiner’s decision rejecting claims 1—8, 15 and
4 16.
5 No time period for taking any subsequent action in connection with
6 this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
7 § 1.136(a).
8
9 AFFIRMED
8