Ex Parte Price

Board of Patent Appeals and Interferences

Mar 1, 2007

10144345 (B.P.A.I. Mar. 1, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WILLIAM D. PRICE
____________

Appeal 2006-1290
Application 10/144,345
Technology Center 3700
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Decided: March 1, 2007
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Before MURRIEL E. CRAWFORD, JENNIFER D. BAHR, and
STUART S. LEVY, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. §134 from the
Examiner's final rejection of claims 11 to 30. We have jurisdiction under 35
U.S.C. § 6(b) (2002).
Appellant invented a recloseable bag which includes a pleat proximate
the closure member. A complete understanding of the subject matter on
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appeal can be gleaned from a reading of claim 11, which is reproduced
below:
11. A recloseable bag, comprising:
a first side wall having first and second side edges, and a top edge;
a second side wall having first and second side edges attached to
the first side wall along respective first and second side edges, the attached
first and second sides having an upper portion and a lower portion, the
second side wall having a top edge, the top edge of the second side wall
being disposed below the top edge of the first side wall;
a closure member adapted to recloseably join the first and second
side walls, the closure member having first and second portions; and
a pleat proximate the closure member and adapted to occupy
extended and retracted positions, the closure member being bowed when the
pleat is in the extended position, the first portion of the closure member
being integral with the top edge of the first side wall, the second portion of
the closure member being integral with the pleat, the first and second
portions of the closure member being disposed above the top edge of the
second side wall.
The Examiner rejected claims 11, 12, 14, 16, 17, 19, and 26 to 29 under
35 U.S.C. § 102(b) as being anticipated by Watanabe.
The Examiner rejected claims 11, 12, 14, 16, 17, 19 and 26 to 29 under
35 U.S.C. § 103 as being unpatentable over Yano.
The Examiner rejected claims 13, 18, and 30 under 35 U.S.C. § 103 as
being unpatentable over Yano or Watanabe.
The Examiner rejected claims 15 and 20 to 25 under 35 U.S.C. § 103 as
being unpatentable over Yano.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
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Yano (as translated) JP 3-240651 Oct. 28, 1991
Watanabe (as translated) JP 5-147661 Jun. 15, 1993

Appellant contends that Watanabe does not anticipate claims 11, 12, 14,
16, 17, 19, and 26 to 29 because Watanabe does not disclose a pleat
proximate the closure member adapted to occupy extended and retracted
positions (Br. 6). In addition, Appellant contends that Watanabe does not
disclose a pleat that in its extended position causes the closure member to
bow.
The Examiner contends that the gusset folding part 3 is a pleat as
claimed.
Appellant also contends that claims 11, 12, 14, 16, 17, 19, and 26 to 29
are not unpatentable over Yano because Yano does not disclose the claimed
placement of the closure member so that the first and second portions of the
closure member are disposed above the top edge of the second side wall.
The Examiner contends that the placement of the closure member is a
mere matter of design choice and that Yano discloses Appellant’s closure
member placement if Yano’s Figure 3 were rotated 90° counter clockwise.
ISSUES
The first issue is whether the Appellant has shown that the Examiner
erred in finding that Watanabe discloses a pleat proximate the closure
member which in the pleat’s extended position causes the closure member to
bow.
The second issue is whether it would have been obvious to modify
Yano such that the first and second portions of the closure member are
disposed above the top edge of the second side wall.
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FINDINGS OF FACT
Appellant invented a recloseable bag which includes, as depicted in
Figures 2 and 3, opposing side walls 11 and 12. The top edge of the side
wall 11 is below the top edge side wall 12. A closure member 14 is adapted
to close the opposing side walls. A pleat 13 is included proximate the
closure member 14. The specification defines a pleat as an inward fold
extending laterally across the width of a side wall 11. The pleat forms a
pocket inside the sidewall (Spec. 5). The pleat has an extended and retracted
position. In the extended position the pleat enables the sidewall to expand
outwardly farther than the sidewall could expand without the fold (Spec. 5).
The closure member, as recited in claims 11, 16, and 26 is bowed when the
pleat is in the extended position. The closure member, as recited in claims
11, 16, and 26 has first and second portions which are disposed above the
top edge of the side wall 11 (Fig. 3).
Watanabe discloses a packaging bag that includes a gusset 3 on the
outside of the bag (Fig. 1). A small bag 10 is created by adhering one side
of gusset 3 to the main body of the bag (0009). Milk or a small object such
as a spoon may be inserted into the bag 10 (0009). The gusset 3 is not an
inward fold extending laterally across the side of the sidewall of the bag and
does not permit the sidewalls of the bag to expand outwardly farther than the
sidewall could expand without the fold. In addition, the gusset 3 does not
affect the closure 5 when it is in an extended position.
Yano discloses a bag having opposing side walls with lateral pleats
3a. The pleats allow the bag to expand when filled (Yano 4, Fig. 2). The
closure member 6, when the bag is upright, is not integral with the top edge
of one of the side walls. Rather, the closure member 6 is disposed parallel to
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the side edge of the side wall. Yano discloses that placement of the closure
member 6 parallel to the side edge of the side wall has certain advantages
over placement of the closure member 6 at the top edge of the side wall.
Specifically, Yano discloses that placing the closure member parallel to the
side edge of the side wall creates an opening that is larger and results in
easier withdrawal of the goods especially goods in the bottom of the bag
(Yano 6).
Were the bag of Yano rotated 90° as suggested by the Examiner, the
closure 6 would be integral with the top edge of the first side wall.
However, the closure member would not have a first member integral with
the top edge of the first side wall and first and second portions disposed
above the top edge of the second side wall. Rather, one portion of the
closure member would be integral with a top edge of the first side wall but
the closure member would be positioned below the top edge of the second
side wall.
ANALYSIS
As gusset 3 of Watanabe is not an inward fold and does not enable the
sidewalls of the bag to expand outwardly farther than the sidewalls could
expand without the fold and does not affect the bowing of the closure
member when it is extended, the gusset 3 of Watanabe is not a pleat or
means for attaching as recited in claims 11, 16 and 26. Therefore, Watanabe
does not anticipate claims 11, 16, 26, and claims 12, 14, 17, 19, and 17 to 29
dependent thereon.
In addition, there is no suggestion in Watanabe to modify the
Watanabe bag so as to include the claimed pleat. Therefore, the subject
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matter of claims 13, 18, and 30, which are dependent on claims 11, 16, and
26 respectively, is not suggested by Watanabe.
Yano does not suggest modifying the position of the closure so as to
be integral with the top edge of the sidewall and disposed above the top edge
of the second side wall. Such a change would not be a mere matter of design
because Yano discloses that the placement of the closure parallel to the side
edge of the side wall is advantageous. In addition, rotation of the Yano bag
as suggested by the examiner does not result in the claimed position of the
closure. As Yano does not disclose or suggest the placement of the closure
member as claimed, Yano does not suggest the subject matter of claims 11,
16, and 26 or claims 12, 13, 14, 17, 18, 19, 20, and 27 to 30 dependent
thereon. Independent claim 21 also recites the first portion of the closure
member being integral with the top edge of the side wall and the first and
second portions of the closure member being disposed above the top edge of
the second side wall. Accordingly, Yano also does not teach or suggest the
subject matter of claim 21 or claims 22-25 depending therefrom.
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CONCLUSION AND ORDER
On the record before us, appellant has shown that the Examiner erred
in rejecting the claims under 35 U.S.C. §§ 102(b) and 103.
The decision of the examiner is reversed.
REVERSED

hh

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