Ex Parte Plourde

Patent Trial and Appeal Board

Jun 20, 2016

12957729 (P.T.A.B. Jun. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/957,729 12/01/2010
51468 7590 06/20/2016
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
245 Park A venue
NEW YORK, NY 10167
FIRST NAMED INVENTOR
Eric P. Plourde
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.
121981-00314 1670
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3782
MAILDATE DELIVERY MODE
06/20/2016 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
Exparte ERIC P. PLOURDE
Appeal2014-004377
Application 12/957,729
Technology Center 3700
Before MICHAEL L. HOELTER, MARK A. GEIER, and
PAUL J. KORNICZKY, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1-10 and 14--18. Br. 2. Claims 11-13, 19, and 20 have
been canceled. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "is directed to a reclosable zipper with
zipper profiles that comprise compressible foamed sealant layers for
enhancing the connection with packaging films, and wherein the zipper has
interlocking elements which are unfoamed." Spec. i-f 3. Claim 1 is the sole
Appeal2014-004377
Application 12/957,729
independent claim. Claim 1 is reproduced below and is illustrative of the
claims on appeal:
1. A reclosable zipper comprising:
a first profile which comprises a first product side flange,
a first consumer side flange, a first connecting flange, a first
layer of compressible foamed sealant on the first product side
flange and first consumer side flange, and a first interlocking
element, which is unfoamed, extending from the first
connecting flange; and
a second profile which comprises a second product side
flange, a first consumer side flange, a second connecting flange,
a second layer of compressible foamed sealant on the second
product side flange and the second consumer side flange, and a
second interlocking element, which is unfoamed, extending
from the second connecting flange.
REFERENCES RELIED ON BY THE EXAMINER
Tilman US 6,361,211 Bl Mar. 26, 2002
Shibata US 2004/0091185 Al May 13, 2004
Borchardt US 2005/0235468 Al Oct. 27, 2005
Bois us 2006/0229183 1A..l Oct. 12, 2006
THE REJECTIONS ON APPEAL 1
Claims 1-10 and 17 are rejected under 35 U.S.C. § 102(b) as
anticipated by Tilman.
Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tilman and Bois.
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Tilman, Bois, and Borchardt.
1 Claims 11-13 were also rejected by the Examiner over Tilman and
Matthews. Final Act 5--6. However, these claims were canceled by
Appellant. See Br. 2. Accordingly, we do not address this rejection.
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Application 12/957,729
Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Tilman and Shibata.
ANALYSIS
The rejection of claims 1-10 and 17 as anticipated by Tilman
Appellant argues claims 1-10 and 17 together. Br. 5---6. We select
independent claim 1 for review with claims 2-10 and 1 7 standing or falling
with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 12 recites a zipper comprising an "interlocking element" having
a "product side flange" and a "consumer side flange." Claim 1 also recites a
"foamed sealant" on both the "product side flange" and the "consumer side
flange."
The Examiner relies on the teachings of Tilman for all the limitations
of claim 1, and particularly "foamed sealant layer (36)" depicted on
Tilman's corresponding product and consumer side flanges. Final Act. 2-3
(referencing Tilman Fig. 4). Tilman discloses a zipper profile 32 having an
attachment layer 36 applied thereto to "ensure an adequate bond between the
package film[] and the profile layer 32." Tilman 4:64---67. Tilman also
teaches the use of a "heat insulating filler [that] is mixed through-out the
attachment layers 34, 36." Tilman 5:14--15. Tilman states, "[t]he heat
2 The last limitation of claim 1 recites "the second consumer side flange."
However, there is no antecedent basis for this "second consumer side
flange" in claim 1. Further, the Examiner has not rejected claim 1 based on
this lack of antecedent basis. We also note that claim 1 lists two limitations,
one directed to a "first profile" and the other to a "second profile." To make
sense of this claim, we will understand that in the "second profile"
limitation, the reference therein to a "first" consumer side flange is in error
and should instead be a recitation to a "second" consumer side flange. This
premise underlies our analysis.
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Appeal2014-004377
Application 12/957,729
insulating filler can be selected from a variety of materials such as talc, foam
polyethylene, foam polypropylene, or a cellulose material." Tilman 5:32-35
(emphasis added). Hence, Tilman teaches that layer 36 can be a
combination of a bonding material and a foam insulator.
Appellant contends that the "heat insulating filler" is used to absorb
heat "and therefore cannot be considered to be a sealant." Br. 5. Appellant
also contends, "this heat insulating filler does not function as a sealant." Br.
5. Appellant is correct, Tilman teaches, "[m]ixing the heat insulating filler
into the attachment layer 34 causes it to absorb the heat preferentially."3
Tilman 5 :31-32; see also 5: 15-19. However, Appellant does not indicate
how this ability of the foam filler to absorb heat detracts from the bonding or
sealing characteristics of attachment layer 36.
Appellant further contends, "the sealant and the filler are two different
elements, even if blended together." Br. 5. The Examiner acknowledges
that the two elements are "mixed together" stating, "[ t ]he combination of
materials mixed together is concluded to form a sealant layer as the addition
of the foamed filler does not render the attachments layers 34, 36 un-
sealable."4 Ans. 3. As above, there is no indication in Tilman that the
inclusion of a foam filler renders layer 36 unable to bond or seal zipper
profile 32 to the package. Further, Appellant provides no evidence that the
mixture of these different elements causes a cessation of the properties for
3 There is no indication that when this heat insulating filler is likewise mixed
with attachment layer 36, it would perform any differently.
4 The Examiner further states, "the attachment layers, comprising both a
polymeric resin and foam filler, as disclosed by Tilman are concluded to
form an equivalent foamed sealant layer and the added foamed filler does
not alter the sealing function of the attachment layer." Ans. 3--4.
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Appeal2014-004377
Application 12/957,729
which they were selected (i.e., bonding and insulation), and such is not
otherwise self-evident from the record.
Appellant also contends that the Tilman reference "is used to decrease
heat absorption" whereas the pending claims are "used to increase heat
absorption." Br. 5. However, claim 1 is silent as to whether heat absorption
is to be increased or decreased, or that heat absorption is to occur at all.
Instead, claim 1 simply recites a "foamed sealant," and Appellant is not
persuasive that Tilman fails to disclose this limitation.
Appellant additionally contends, "the presently pending claims recite
that it is the sealant that is foamed." Br. 6. On this point, Appellant's
Specification states,
Specifically, for example, the foamed sealant layers 14, 20
comprise a foamed polyo[le ]fin sealant resin. Most polyolefin
sealant resins can be foamed using commercially available
foaming agents that react when heated in a barrel of an
extruder.
Spec. i11s.
In reply, the Examiner states, "the foamed sealant layer is neither
expressly disclosed nor claimed to comprise a foamed material which forms
the sealing component of the sealing layer." Ans. 3. Even if claim 1 did
recite that it is the sealant itself that is foamed, Tilman states, "[i]n a
particular example embodiment, the attachment layers 34, 36 are extruded
from polyethylene or polypropylene." Tilman 5:29-30. Appellant does not
address or explain how Tilman's teaching of an extruded product differs
from Appellant's similar teachings.
Accordingly, and based on the record presented, we sustain the
Examiner's rejection of claims 1-10 and 17 as anticipated by Tilman.
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Appeal2014-004377
Application 12/957,729
The rejection of (a) claims 14 and 15 as unpatentable over Tilman and Bois;
(b) claim 16 as unpatentable over Tilman, Bois, and Borchardt; and, (c)
claim 18 as unpatentable over Tilman and Shibata
Appellant does not indicate how the Examiner's additional reliance on
Bois, Borchardt, and/or Shibata is in error. Instead, Appellant contends (for
each of these rejections), "the Tilman reference discloses a foamed heat
insulating filler, rather than layers of compressible foamed sealant." Br. 6-
7. Appellant's contention is not persuasive for the reasons previously stated.
We sustain the Examiner's rejection of claims 14--16 and 18.
DECISION
The Examiner's rejections of claims 1-10 and 14--18 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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