Ex Parte Recchia

Board of Patent Appeals and Interferences

Sep 25, 2008

10865203 (B.P.A.I. Sep. 25, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte MICHAEL J. RECCHIA JR.
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Appeal 2008-4409
Application 10/865,203
Technology Center 1700
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Decided: September 25, 2008
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Before ADRIENE LEPIANE HANLON, THOMAS A. WALTZ, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s final
rejection of claims 1-6, all of the claims pending in the application. We
have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.

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The Examiner finally rejected claims 1-6 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Recchia1 and Sherrill.2 Final 2-3.3
B. ISSUE
Whether the Appellant has shown that the Examiner reversibly erred
in finding that Sherrill suggests “separate backing plates” connected to a
single support plate by adjustable threaded members.
C. FINDINGS OF FACT
The following findings of fact are supported by a preponderance of
the evidence. Additional findings of fact as necessary appear in the Analysis
portion of the opinion.
1. Appellant’s Specification
The Appellant discloses a heat seal die assembly for heat sealing
plastic sheets. Spec. 2:2-3.
The Appellant’s Figure 4 illustrates a portion of the heat seal die
assembly. Spec. 4:2-4, 8. Figure 4 is reproduced below:

1 US 6,506,429 B1 issued to Recchia, Jr. on January 14, 2003 (“Recchia”).
2 US 6,298,896 B1 issued to Sherrill et al. on October 9, 2001 (“Sherrill”).
3 Final Office Action mailed February 13, 2007.
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Appellant’s Figure 4 depicts a portion of a heat
seal die assembly.

The heat seal die assembly 10 comprises a sealing die member 12
which carries first and second heat seal bars 14 and 16 with a cutter member
18 positioned between them. Spec. 4:11-13.
A backing member 21 comprises separate backing plates 22, 24, and
26. Backing plates 22 and 24 are positioned to respectively engage first and
second heat seal bars 14 and 16. Third backing plate 26 is positioned to
engage heated cutter 18. Spec. 4:22-5:2.
Backing plates 22, 24, and 26 are mounted on a single support plate
34. Spec. 5:9-10.
In operation, plastic sheeting passes in a space 30 between the
respective elements 14, 16, and 18 and elements 22, 24, and 26. Spec. 5:4-6.
2. Claimed subject matter
Claims 1 and 5 are the only independent claims on appeal.
Claim 5 reads as follows:
5. A die assembly for cutting plastic sheets, which
comprises:
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a heated cutter which faces one of a plurality of separate
backing plates, said separate backing plates being respectively
carried by a single support plate, said backing plates being
connected to the support plate by threaded members which
permit adjustable spacing of each backing plate from the
support plate, to correspondingly adjust the spacing of each
backing plate and said cutter during cutting operations.

App. Br. 12-13,4 Claims Appendix.
Similarly, claim 1 recites a heat seal die assembly for heat sealing
plastic sheets comprising:
. . . each heat seal bar facing a separate backing plate, against
which the plastic sheet heat sealing is effected by said heat seal
bars, said separate backing plates being respectively carried by
a single support plate, said backing plates being connected to
said support plate by threaded members which permit
adjustable spacing of each backing plate from the support
plate . . . .

App. Br. 12, Claims Appendix.

3. Recchia
Recchia discloses a heat seal die comprising first and second heat seal
bars and a heated cutter edge positioned between the heat seal bars. Recchia
1:66-2:7.
Recchia Figure 6 illustrates a sealer/cutter die. Recchia 2:62-63.
Figure 6 is reproduced below:

4 Appeal Brief dated October 16, 2007.
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Recchia Figure 6 depicts a sealer/cutter die.
Heat seal die 70 has an integral heated cutter 72. Recchia 4:11-17.
Cutter body 72 has a cutter edge 74 that cuts webs 12 and 14 and
presses against anvil block 86. Recchia 4:18-22.
4. Sherrill
Sherrill discloses an apparatus for constructing a composite structure.
Sherrill 1:5-7.
Sherrill Figure 2 illustrates an embodiment of the apparatus. Sherrill
2:53-56. Figure 2 is reproduced below:

Sherrill Figure 2 depicts an apparatus for constructing
a composite structure.

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The apparatus comprises a flexible layer 104 coupled to a base 102.
Flexible layer 104 has a working surface 106 and an underside surface 108.
Sherrill 3:5-7.
The apparatus also comprises support elements 302 coupled to the
underside surface 108 of flexible layer 104, and adjustable elements 304 that
are coupled to support elements 302. Sherrill 3:7-10.
Support elements 302 are coupled to the underside surface 108 of
flexible layer 104, preferably by adhesive bonding. However, support
elements 302 may also be coupled using other methods, such as mechanical
methods. Sherrill 3:66-4:3.
D. ANALYSIS
The Examiner found that Recchia discloses a heat-sealing assembly
for manufacturing thermoplastic bags. Referring to Figures 5 and 6 of
Recchia, the Examiner found that the assembly comprises heat seal die 70
and anvil block 86. The Examiner found that Recchia does not disclose
separate backing plates connected to a support plate by threaded members as
claimed by the Appellant. Ans. 3.5
The Examiner found that Sherrill discloses an apparatus for making a
composite structure comprising a plurality of support elements 302 that are
coupled to adjustable elements 304 that are, in turn, coupled to base 102.
Ans. 3. The Examiner found that support elements 302 function as
Appellant’s claimed “separate backing plates.” Ans. 4-5.
The Appellant, on the other hand, argues that Sherrill discloses a
single flexible layer 104 and Recchia discloses a single backing plate, i.e.,
anvil block 86. The Appellant argues that neither of the cited references

5 Examiner’s Answer mailed December 11, 2007.
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shows separate backing plates, or any equivalent structure, that are
adjustable relative to each other for being pressed against heat seal bars.
App. Br. 7.
According to the claims on appeal, “each heat seal bar fac[es] a
separate backing plate” (claim 1) and “a heated cutter . . . faces one of a
plurality of separate backing plates” (claim 5). We conclude that the
“separate backing plates” recited in claims 1 and 5 define separate working
surfaces for cutting or heat sealing plastic sheets. See In re Sneed, 710 F.2d
1544, 1548 (Fed. Cir. 1983) (“in proceedings before the PTO, claims in an
application are to be given their broadest reasonable interpretation consistent
with the specification”).
Sherrill discloses an apparatus for constructing a composite structure
comprising a flexible layer 104 that has a working surface 106 and an
underside surface 108. Sherrill 3:3-7. Sherrill discloses that support
elements 302 are coupled to the underside surface 108 of flexible layer 104
by adhesive bonding or other methods, such as mechanical methods.
Sherrill 3:66-4:3. In operation, a composite structure 112 is layed-up on
flexible layer 104. Sherrill 4:53-55.
We find that Sherrill discloses a single working surface, i.e., surface
106 of flexible layer 104. Thus, we find that Sherrill discloses a single
backing plate, i.e., flexible layer 104. The Examiner has failed to explain
why the single backing plate or flexible layer 104 in Sherrill would have
suggested Appellant’s claimed “separate backing plates” to one of ordinary
skill in the art. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (legal
conclusion of obviousness must be supported by reasoning with some
rational underpinning).
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The Appellant has shown that the Examiner reversibly erred in finding
that Sherrill suggests “separate backing plates” connected to a single support
plate by adjustable threaded members. See App. Br. 10 (at best, a
combination of Recchia and Sherrill suggest a single support plate and a
single backing plate threadably supported thereon).
E. DECISION
The rejection of claims 1-6 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Recchia and Sherrill is reversed.

REVERSED

cc:
Garrettson Ellis
Seyfarth Shaw LLP
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