Ex Parte O et al

Patent Trial and Appeal Board

Oct 8, 2014

11784813 (P.T.A.B. Oct. 8, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KILIAN JOHN O’NEILL, MARK FRANCIS OLIVIER,
PHILIP ANDREW SAWIN, and MICHAEL PATRICK HAYDEN
____________________

Appeal 2012-008555
Application 11/784,813
Technology Center 3700
____________________

Before: THOMAS F. SMEGAL, BRANDON J. WARNER, and
MICHAEL L. WOODS, Administrative Patent Judges.

WOODS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Kilian John O’Neill et al. (“Appellants”) seek our review under 35
U.S.C. § 134 of the final rejection of claims 1–3 and 5–11. Appeal Br. 1.
Claims 4 and 12 have been canceled. Id. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2012-008555
Application 11/784,813

2
CLAIMED SUBJECT MATTER
The Appellants’ invention is directed to a container with a dispensing
aperture. See, e.g., Spec. 1, ll. 4 and 5. Claim 1 is the sole independent
claim, is representative of the subject matter on appeal, and is reproduced
below, with emphasis on the key disputed claim limitation.
1. A flexible container comprising:
a flexible pouch formed of a flexible sheet material and
having walls defining and enclosing an interior space, the
flexible pouch comprising a dispensing aperture formed in at
least one of the walls, through which the interior space is
accessible from outside the flexible pouch;
a flexible sealing member releasably attached to the
flexible pouch and overlying and extending beyond the
dispensing aperture so as to cover the entirety of the dispensing
aperture, the flexible sealing member comprising at least two
lifting tabs adapted to be used for lifting the flexible sealing
member to thereby expose the dispensing aperture, the lifting
tabs being either unattached to the flexible pouch or attached to
the flexible pouch relatively more weakly than the remainder of
the flexible sealing member, one of the lifting tabs being
located relatively nearer an end wall of the flexible pouch and
another of the lifting tabs being located relatively nearer a
front side wall of the flexible pouch; and
a rigid closure element comprising a base attached to the
flexible pouch and disposed so as to surround the dispensing
aperture at a distance from it, and a lid connected to the base by
a hinge such that the lid may be swung from an open condition,
in which the flexible sealing member and the dispensing
aperture are accessible from outside the flexible pouch, to a
closed condition, in which the lid is engaged with the base and
obstructs access to the flexible sealing member and the
dispensing aperture from outside the flexible pouch,
wherein at least one of the lifting tabs is not obstructed
by the rigid closure element when the lid is in the open
condition, thereby remaining usable for lifting the flexible
sealing member to expose the dispensing aperture; further
Appeal 2012-008555
Application 11/784,813

3
wherein at least one of the lifting tabs is attached to the flexible
pouch by a lighter coverage of adhesive than the remainder of
the flexible sealing member.

THE REJECTION
The Examiner rejected claims 1–3 and 5–11 under 35 U.S.C. § 103(a)
as being unpatentable over Julius (US 2005/0150785 A1, published July 14,
2005) in view of Deflander (US 5,531,325, issued July 2, 1996) and Gartner
(US 5,284,363, issued Feb. 8, 1994).1 Answer 4.

ANALYSIS
The Appellants have not presented arguments for the patentability of
claims 2, 3, or 5–11 apart from their reliance on claim 1. See Appeal Br. 3–
5. Therefore, we select claim 1 as the representative claim to decide the
appeal of the rejection, with claims 2, 3, and 5–11 standing or falling with
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
With regard to the above-italicized claim limitation, the Examiner
determined that “absent additional relational or structural details being
claimed further describing ‘an end wall’ or ‘a front side wall’ . . . the terms
act essentially as nominal labels of package walls and offer no real
structural differentiation.” Answer 8 (emphasis added). In making this
determination, the Examiner construed Deflander’s two “lifting tabs” 8 as
meeting the claim limitation, “one of the lifting tabs being located relatively
nearer an end wall . . . and another of the lifting tabs being located

1 We note that the Examiner incorrectly indicated that claims 1–3 and 5–12
are rejected, when only claims 1–3 and 5–11 are under appeal and claims 4
and 12 have been canceled. See Answer 4; see also Appeal Br. 1 and Claims
App.
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Appeal 2012-008555
Application 11/784,813

5
Although the Specification provides that “in the embodiment of
Figure 2 . . . one lifting tab 14 is located relatively nearer the end wall 6 . . .
and the other lifting tab 15 is located relatively nearer the front side wall 8,”
we are not persuaded that the claim terms “end wall” or “front side wall” are
defined so narrowly as to preclude the Examiner’s construction. See Spec.
5, ll. 7–11; see also Spec. Fig. 2. Stated differently, we do not find any
special definitions in the Specification for the claimed terms that would
preclude the Examiner’s reasonably broad construction of claim 1. See, e.g.,
Spec. 4, l. 4; 7, ll. 28–32. We note that even though the claims are
interpreted in light of the specification, limitations from the specification are
not read into the claims. See In re Van Geuns, 988 F.2d 1181 (Fed. Cir.
1993).
We also note that dependent claim 6 recites, “wherein the lifting tabs
are disposed at opposing portions of the flexible sealing member.” Appeal
Br., Claims App. If we were to adopt the Appellants’ proposed narrow
claim construction, which excludes protrusions 8 from being located at “both
ends” of tab 7, dependent claim 6 could not be construed, as it would
directly conflict with claim 1. See Appeal Br. 4.
For the forgoing reasons, we agree with the Examiner that the claim
terms, “a front side wall” and “an end wall,” offer no real structural
differentiation, and that Deflander’s “lifting tabs” 8 can reasonably be
construed as meeting the claim limitation, “one of the lifting tabs being
located relatively nearer an end wall . . . and another of the lifting tabs
being located relatively nearer a front side wall.” See Answer 8.
The Appellants also contend that “the Examiner has not provided a
reason for combining the elements as arranged in claim 1.” Appeal Br. 5.
Appeal 2012-008555
Application 11/784,813

6
We are not persuaded by the Appellants’ argument and note that the
Examiner determined that “it would have been obvious . . . to add a second
lifting tab and make both unattached as taught by Deflander to the flexible
sealing member taught by Julius, in order to allow left or right handed users
to easily open the package.” Appeal Br. 6 (citing Deflander col. 8, ll.
12–15). We further note that the reason for adding the second lifting tab was
explicitly taught by Deflander. See id. Thus, the Examiner’s articulated
reasoning is based on rational underpinnings as required to support the legal
conclusion of obviousness. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007).
Furthermore, as the Appellants do not contest Gartner’s teaching of
“leaving a pull tab free of adhesive and providing a reduced adhesive on a
pull tab,” we are not apprised of error in connection with the Examiner’s
reliance on this reference. See Answer 6; see also Appeal Br. 2–5; see also
Reply Br. 1–3.
Accordingly, we sustain the rejection of claim 1, including claims 2,
3, and 5–11, which stand or fall with claim 1, as being unpatentable under 35
U.S.C. § 103(a) over Julius, Deflander, and Gartner.
DECISION
The Examiner’s rejection of claims 1–3 and 5–11 as being
unpatentable under 35 U.S.C. § 103(a) over Julius, Deflander, and Gartner is
affirmed.

Appeal 2012-008555
Application 11/784,813

7
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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