Ex parte Olsson et al.

Board of Patent Appeals and Interferences

Apr 28, 2000

08416526 (B.P.A.I. Apr. 28, 2000)

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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 30
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte HAKAN OLSSON and MAGNUS RABE
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Appeal No. 1997-3029
Application 08/416,526
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HEARD: APRIL 7, 2000
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Before HAIRSTON, LALL and GROSS, Administrative Patent Judges.
LALL, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of all the
pending claims, 1 through 11 and 13 through 18. Claim 12 has
been canceled.
The disclosed invention relates to an ultrasonic sealing
device for producing a sealing joint between two plastic
Appeal No. 1997-3029
Application 08/416,526
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layers
in a package-filling machine. The sealing device must be
capable of being mechanically fixed in place within a housing,
machine or the like and therefore provided with a fixation
region which is typically located at the nodal plane of the
sealing device. In the case of rotationally symmetric sealing
devices that produce a small spot weld, since all points on
the periphery of the sealing device on any given plane behave
in substantially the same way, it is rather easy to provide a
mechanical fixation region at the nodal plane of the sealing
device while at the same time making the sealing device one-
half wavelength in length. The situation is different with
sealing devices that are adapted to produce a long and narrow
sealing joint. It was thought, prior to this invention, that
a sealing device for a long and narrow sealing joint must be
at least one full wavelength in length. The invention
comprises making a sealing device for a long and narrow
sealing joint of one-half wavelength in total length. The
reaction bodies and the fixation region are arranged
Appeal No. 1997-3029
Application 08/416,526
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accordingly. Claim 1 is reproduced below as illustrative
of the invention.
1. A device for being fixedly secured in a machine to
ultrasonically seal together two plastic layers along a long
and narrow sealing joint, comprising a cylindrically shaped
drive unit for being connected to an A.C. current source to
generate an oscillation, a horn which oscillates during
operation of the drive unit and which has one end at which is
mounted the drive unit and an opposite end, the opposite end
of the horn having a long and narrow end surface which defines
a sealing surface for producing a long and narrow sealing
joint during operation of the drive unit, and at least one
reaction body mounted at the one end of the horn for
assimilating counter forces created during oscillation of the
horn to produce a nodal plane located below the drive unit,
the at least one reaction body and the horn together defining
a length of the device which is half a wave length.
The references relied on by the Examiner are:
McMaster et al. (McMaster) 3,368,085 Feb. 6, 1968
Shoh 3,524,085 Aug. 11, 1970
Mishiro 4,483,571 Nov. 20, 1984
Elbert et al. (Elbert) 4,607,185 Aug. 19, 1986
Wuchinich 5,057,182 Oct. 15, 1991

Claims 1 to 11 and 13 to 18 stand rejected under 35
U.S.C.
§ 103 over Wuchinich or Elbert or Mishiro in view of either
Shoh or McMaster.
Appeal No. 1997-3029
Application 08/416,526
A reply brief was filed as paper no. 25 and its entry1
approved without any response from the Examiner [paper no.
27].
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Reference is made to Appellants’ briefs and the1
Examiner's answer for their respective positions.
OPINION
We have considered the record before us, and we will
reverse the rejection of claims 1 to 11 and 13 to 18.
With respect to claims 1 to 11 and 13 to 18, the Examiner
has failed to set forth a prima facie case of obviousness. It
is the burden of the Examiner to establish why one having
ordinary skill in the art would have been led to the claimed
invention by the express teachings or suggestions found in the
art, or by implications contained in such teachings or
suggestions. In re Sernaker, 702 F.2d 989, 995, 217 USPQ 1, 6
(Fed. Cir. 1983). “Additionally, when determining
obviousness, the claimed invention should be considered as a
whole; there is no legally recognizable ‘heart’ of the
invention.” Para-Ordnance Mfg. v. SGS Importer Int’l, Inc.,
73 F.3d 1085, 1087, 37 USPQ2d 1237, 1239 (Fed. Cir. 1995),
cert. denied, 117 S.Ct. 80 (1996) citing W. L. Gore & Assocs.,
Appeal No. 1997-3029
Application 08/416,526
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Inc. v. Garlock, Inc., 721 F.2d 1540, 1548, 220 USPQ 303, 309
(Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984).
There are only two independent claims, 1 and 16. Claim 1
is broader in scope than claim 16. Therefore we take claim 1
for our analysis.
The crux of the issues is whether the device shown in
Wuchinich or Mishiro or Elbert, each of which is designed for
a long narrow sealing edge and each of which is at least one
full wavelength in length, can be obviously modified to be
one-half wavelength in length in view of Shoh or McMaster,
each of which is one-half wavelength in length but is capable
of yielding only spot welding or sealing rather than long
narrow welding or sealing.
We have carefully reviewed the positions of Appellants
[brief, pages 14 and 17 and reply brief, pages 2 to 7] and the
examiner [answer, pages 2 to 5]. We also considered the two
declarations provided by Appellants [paper nos. 16 and 19].
We are persuaded by Appellants’ arguments and the two
declarations that, to achieve the claimed device, it is not a
matter of merely “optimizing a known device ... to specific
dictated job requirements ...” as the Examiner asserts
Appeal No. 1997-3029
Application 08/416,526
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[answer, page 2]. As the declaration [paper no. 16] shows,
via a result of the finite element analysis of the stresses
and strains in the modified Elbert's device (most similar to
the claimed device), the stresses caused by simply changing
the length of Elbert's device to one-half wavelength cause
unequal forces within the device and yield a non-uniform
sealing surface. Such an uneven surface will be unsuitable as
a sealing surface, see figures 5 and 6 of the declaration. It
appears to us that an appropriate reaction body has to be
provided for assimilating counter forces from the drive unit
to produce an appropriate nodal plane. Moreover, the nodal
plane is claimed to be located below the drive unit to achieve
a uniform and even sealing surface. The Examiner has not
produced any evidence, or a line of reasoning, to show us how
an artisan would have been able to take Elbert’s device and
reduce it to the claimed one-half wavelength total length in
view of the teachings of McMaster or Shoh. Neither McMaster
or Shoh encounters the problem of unequal forces in his
device, as it is designed for only spot welding or sealing,
and not for long and narrow welding or sealing. Thus, they do
not disclose the need for the claimed reaction body and,
Appeal No. 1997-3029
Application 08/416,526
Dependency of claim 4 seems misplaced and needs further2
inspection.
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furthermore, the location of the reaction body relative to the
drive unit. Our analysis applies equally to the suggested
modification of the device shown by Wuchinich or Mishiro.
Therefore, we do not sustain the obviousness rejection of
claim 1 and dependent claims 2 to 11 and 13 to 15 over2
Wuchinich or Elbert or Mishiro in view of either Shoh or
McMaster.
As for the other independent claim 16, it is narrower in
scope than the independent claim 1 discussed above.
Therefore, we also do not sustain, for the same rationale as
claim 1, the obviousness rejection of claim 16 and its
dependent claims 17 and 18 over Wuchinich or Elbert or Mishiro
in view of either Shoh or McMaster.
DECISION
The decision of the Examiner rejecting claims 1 to 11 and
13 to 18 under 35 U.S.C. § 103 is reversed.
REVERSED
Appeal No. 1997-3029
Application 08/416,526
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KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
PARSHOTAM S. LALL ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
ANITA PELLMAN GROSS )
Administrative Patent Judge )
psl/ki
Appeal No. 1997-3029
Application 08/416,526
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Robert S. Swecker
Burns, Doane, Swecker & Mathis
P. O. Box 1404
Alexandria, VA 22313-1404