Ex Parte Reddick et alDownload PDFPatent Trial and Appeal BoardJan 22, 201813792926 (P.T.A.B. Jan. 22, 2018) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/792,926 03/11/2013 Edwin Matthew Reddick N64138 1060US.1 (0015.1) 4000 26158 7590 01/24/2018 WOMBLE BOND DICKINSON (US) LLP ATTN: IP DOCKETING P.O. BOX 7037 ATLANTA, GA 30357-0037 EXAMINER BRANSON, DANIEL L ART UNIT PAPER NUMBER 1616 NOTIFICATION DATE DELIVERY MODE 01/24/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): IPDocketing @ wbd-u s. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte EDWIN MATTHEW REDDICK and STEPHEN TAYLOR ARMSTRONG Appeal 2017-005029 Application 13/792,9261 Technology Center 1600 Before ERIC B. GRIMES, DEBORAH KATZ, and ELIZABETH A. LaVIER, Administrative Patent Judges. LaVIER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellants seek review of the Examiner’s rejection of claims 1, 2, 6, and 37—39. We have jurisdiction under 35 U.S.C. § 6(b). For the reasons set forth below, we AFFIRM. BACKGROUND The Specification describes oral nicotine-containing pouch products. Spec. 1: 4—5. Claim 1 is illustrative: 1 Appellants state the real party in interest is Niconovum USA, Inc. Appeal Br. 1. Appeal 2017-005029 Application 13/792,926 1. A nicotine-containing pharmaceutical product configured for insertion into the mouth of a user of that product, comprising: an outer water-permeable pouch containing a nicotine- containing pharmaceutical composition; and product identifying information relating to the nicotine- containing pharmaceutical composition presented such that said product identifying information is discernible to a user of the product upon visual inspection of the product and which enables the user to differentiate multiple nicotine-containing pharmaceutical products, the product identifying information comprising one or more of alphanumeric characters and designs associated with the nicotine-containing pharmaceutical product, wherein the product identifying information is imprinted on a seam of the outer water-permeable pouch, and wherein the imprinted product identifying information contributes to the sealing of the seam of the outer water- permeable pouch. Appeal Br. 15 (Claims Appendix (emphasis added)). APPEALED REJECTION Claims 1, 2, 6, and 37—39 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Arzonico,2 Winterson,3 and Kristal.4 Final Action 3. DISCUSSION Arzonico teaches a smokeless tobacco product, in the form of a nonwoven fleece pouch that contains the tobacco, which may be in granular form. Final Action 4 (citing Arzonico Abstract, || 6, 15). Arzonico states that the granules may include colorant, and may be mixed with a strip 2 Arzonico et al., WO 2010/014506 A2, published Feb. 4, 2010. 3 Winterson et al., US 2007/0012328 Al, published Jan. 18, 2007. 4 Kristal, WO 2013/005205 A2, published Jan. 10, 2013. 2 Appeal 2017-005029 Application 13/792,926 containing flavoring agents. Id. (citing Arzonico 198). Although Arzonico teaches using a dye or dissolvable ink to mark the pouch with a type, brand, or flavor indication {id. (citing Arzonico 195)), the Examiner observes that Arzonico does not teach the seam-imprinting-related limitations of claim 1 (see id.), which are italicized above. Winterson describes pouched tobacco products, with thermally-sealed seams, and containing polypropylene fibers or a sheet of plastic film to facilitate heat-sealing. Final Action 4 (citing Winterson Abstract, | 74). Winterson teaches passing the sheet and a flavor strip through embossing rollers to join them, and to create an embossed pattern. Id. at 4—5 (citing Winterson | 86). The nature of this embossed pattern is not defined, but Figure 9 of Winterson shows dotted and cross-hatched patterns (insert 96 in Figure 9). Optionally, Winterson provides for a laser to bum a word, letter, or other image into the flavor strip, such that the image is visible in the finished product. Final Action 5 (citing Winterson 1 86). Because the Examiner finds that Winterson “does not specifically teach embossing only the seam including embossing so that numbers or letters/words are visible on the seam” {id.), the Examiner turns to Kristal, as disclosing “configurationally heat sealing and imprinting/embossing a seam with letters, numbers or other designs” {id. (citing Kristal 5—6)). The Examiner also notes that the sheets sealed together in Kristal may comprise polyethylene fibers {id. (citing Kristal 7)) and that the embossed content on the seam “may change over time and may include date of manufacture or serial number of each package” {id. (citing Kristal 17)). The Examiner finds that it would have been obvious to combine Arzonico and Winterson, which are both directed to flavored tobacco pouch 3 Appeal 2017-005029 Application 13/792,926 products, because the ordinarily skilled artisan would have “recognized that the seams of Arzonico et al. could have been heat sealed by the method of Winterson et al., by placing a sheet of polypropylene in between the two layers of the pouch to be sealed and then applying heat.” Final Action 5. It would have been obvious to emboss product identifying information onto the seam per the heat-sealing process of Kristal “in order to provide this information in an easily seen and felt manner.” Id. 6. Appellants do not dispute the Examiner’s findings regarding Arzonico per se (see Appeal Br. 6), but rather assert that neither Winterson nor Kristal “discloses imprinting product identifying information on the seam of an outer water-permeable pouch material and thereby contribute to the sealing of the pouch” (id. at 7). Specifically, Appellants assert that Winterson does not disclose embossing to provide product information, or embossing the seam to contribute to the sealing. See id. at 7—8. This is not persuasive because the Examiner relies on Kristal, not Winterson, for teaching embossing and sealing the seam with product information. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“But one cannot show non-obviousness by attacking references individually where, as here, the rejections are based on combinations of references.”); see also Ans. 2. Similarly, as to Kristal, Appellants argue that Kristal does not disclose “a water-permeable pouch that is sealed, let alone an imprinting process that seals such a pouch.” Reply Br. 6. But the Examiner relies on Arzonico and Winterson for the nature of the pouch, not Kristal. As discussed above, Kristal is cited for the method of embossing and sealing along a seam. Accordingly, this argument is also not persuasive. 4 Appeal 2017-005029 Application 13/792,926 Appellants also assert that the Examiner erred in relying on Kristal because Kristal is not analogous art. See Appeal Br. 8—10. As Appellants note, a reference may qualify as analogous art where it is reasonably pertinent to the problem the inventors were trying to solve. Appeal Br. 8 (citing In re Deminski, 796 F.2d 436 (Fed. Cir. 1986)). According to Appellants, Kristal does not meet this standard: Kristal is not reasonably pertinent to the particular problem with which the present invention is concerned. As recited in the pending claims, product identifying information can be imprinted on a seam of the outer water-permeable pouch of the nicotine-containing pharmaceutical oral pouch product. Furthermore, imprinting the product identifying information on the seam can contribute to sealing the pouched product. Appeal Br. 9. ft is not persuasive to argue that the problem with which the inventors were concerned during the inventive process is limited to exactly that which was ultimately claimed. Moreover, “a person with ordinary skill in the art” is “a person of ordinary creativity, not an automaton,” and “in many cases . . . will be able to fit the teachings of multiple patents together like pieces of apuzzle.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 414, 421, 420 (2007). Instead, we are persuaded by the Examiner’s thorough analysis on this point: Kristal is still reasonably pertinent to the sealing and embossing/imprinting a seam of a water permeable pouch. . . . [B]oth Kristal and Winterson disclose the use of a thermoset polymer, such as polypropylene, in heat sealing the seam of a pouch. Furthermore, Winterson teach[es] the use of such thermoset polymers either as a film in the area of the seam or as fibers within the pouch material to impart the desired sealing properties when exposed to heat along the seam in a water permeable pouch. An ordinary skilled artisan, when reviewing Kristal in light of Winterson, would have immediately seen the relevance of the teachings of Kristal to the 5 Appeal 2017-005029 Application 13/792,926 problem of heat sealing and imprinting product identifying information on the seam of such a pouch. Put another way, one of ordinary skill in the art with the teachings of Winterson in hand, would have found the teachings of Kristal particularly pertinent to the problem of how to seal as well as imprint product identifying information on the seam of the water permeable pouch of Winterson. Thus, Kristal is analogous art. Ans. 4; see also Final Action 6—7. Further, Appellants argue that the Examiner’s rationale for combining the references is lacking, because one of ordinary skill in the art would not have had a reasonable expectation of success that the resulting product would have functioned properly. See Appeal Br. 11—12; see also Reply Br. 3—6. According to Appellants, “[t]here is no basis for concluding that impermeable layered sheets of plastic of Kristal would function equivalently to the water-permeable pouch materials disclosed in Arzonico and Winterson.” Appeal Br. 11; see also Reply Br. 3. This is not persuasive. As the Examiner notes, Winterson teaches pouches including polypropylene fibers or pouches in which the seam is covered by a polypropylene film to facilitate heat-sealing. See Ans. 3 (citing Winterson Abstract, || 24, 74). Further, “Kristal specifically envisions using the same polypropylene material to facilitate the heat sealing and imprinting/embossing of the seam as used in Winterson.” Id. (citing Kristal 6). This commonality would have provided the ordinary skilled artisan with a reasonable expectation of success. As the Examiner explains: Based upon the teachings of Winterson, one of ordinary skill in the art would have found it obvious to heat seal the water permeable bag containing tobacco product of Arzonico by either including polypropylene fibers in the bag material or by coating the bag material with a polypropylene film at least at the seam of the pouch and then applying heat as taught by 6 Appeal 2017-005029 Application 13/792,926 Winterson. One of ordinary skill in the art would have had a reasonable expectation of success in doing so as both bags are made from the same type of water permeable tea-bag material. Furthermore, in light of the teachings of Kristal which teach imprinting a seam with product identifying information which contributes to the sealing of the pouch, and in view of the importance both Arzonico and Winterson give to placing product identifying information on the water permeable pouches taught therein, it would have been obvious to one of ordinary skill in the art to utilize the method of Kristal to imprint product identifying information and heat seal the seams of the water permeable bag of Arzonico. One of ordinary skill in the art would have had a reasonable expectation of successfully doing so because both Kristal and Winterson teach utilizing the same thermoset material, polypropylene, to heat seal the seams of their pouches and both Arzonico and Winterson teach utilizing pouches comprising the same water permeable tea bag material. Ans. 3. Accordingly, Appellants have not convinced us of any reversible error by the Examiner in rejecting claim 1. Appellants do not separately argue claims 2, 6, and 37—39; these claims fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). CONCLUSION The rejection of claims 1, 2, 6, and 37—39 under 35 U.S.C. § 103(a) is 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 7 Copy with citationCopy as parenthetical citation