Ex Parte Sale et al

Patent Trial and Appeal Board

Nov 30, 2018

13601924 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/601,924 08/31/2012
54788 7590
SEAN D. BURDICK, P.E.
PATENT ATTORNEY
2537 State Street, Suite 220
Boise, ID 83702
12/04/2018
FIRST NAMED INVENTOR
MarkD. Sale
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.
B3PL108 6528
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
12/04/2018 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):
sean@burdickpatents.com
robin@burdickpatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK D. SALE, TARA J. SA VILLE, and
JAY B. PAULSON
Appeal2017-010387
Application 13/601,924
Technology Center 3700
Before DANIELS. SONG, JILL D. HILL, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Mark D. Sale et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1-6, 8, 9, 12-15, and 18-25. 1
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 B3 Plastics, LLC is identified as the real party in interest. Appeal Br. 3.
Appeal2017-010387
Application 13/601,924
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. In a bag having a containment portion for receiving items
through an open top and a transverse bottom seal at an end of
the bag opposite the open top, the improvement comprising:
a handle seal defining an end of the containment portion
opposite the open top, the handle seal located between the bottom
seal and the open top and formed from a heat-weld made through
multiple layers of the bag, the multiple layers formed by one or
more longitudinal folds that divide full width of the bag into
substantially equivalent fractional widths;
a handle body formed between the handle seal and the
bottom seal; and
a handle hole formed in the handle body and cut-sealed
through the layers to seal the perimeter of the handle hole.
REJECTIONS
1) Claims 1-5, 9, 12, 22, and 25 are rejected under 35 U.S.C. § I03(a)
as unpatentable over Kessler (US 3,349,991, issued Oct. 31, 1967)
or Wilfong (US 5,941,393, issued Aug. 24, 1999), in view of
Christensen (US Des. 235,739, issued July 8, 1975) or Kohn (US
2006/0042007 Al, published Mar. 2, 2006), and Price (US
2005/0276521 Al, published Dec. 15, 2005).
2) Claims 6 and 8 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Kessler or Wilfong, Christensen or Kohn, Price,
and Dollheimer (US 3,249,285, issued May 3, 1966).
3) Claims 13 and 14 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Kessler or Wilfong, Christensen or Kohn, Price,
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Application 13/601,924
Broering (WO 2006/135562 A2, published Dec. 21, 2006), and
Kraimer (US 6,206,569 B 1, issued Mar. 27, 2001 ).
4) Claims 23 and 24 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Kessler or Wilfong, Christensen or Kohn, Price,
and Tankersley (US 6,957,915 B2, issued Oct. 25, 2005).
5) Claims 15, 18, and 19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Kessler, Christensen or Kohn, and Price.
6) Claims 20 and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Kessler, Christensen or Kohn, Price, and
Tankersley.
DISCUSSION
Rejection 1
Appellants argue claims 1-5, 9, 12, 22, and 25 as a group. Appeal Br.
4--28. We select claim 1 as representative and claims 2-5, 9, 12, 22, and 25
stand or fall with claim 1. 37 C.F.R. 41.37 (c)(l)(iv).
The Examiner finds that Kessler and, alternatively Wilfong, teach
some of the limitations of claim 1 but fail to disclose the recited handle seal,
handle body, and handle hole. Final Act. 2-3. The Examiner finds that
Christensen and Kohn disclose "a handle seal located between the transverse
bottom and the open top and defining an end of the containment portion
opposite the open top" and "a handle body comprising a handle hole formed
between the handle seal and the transverse bottom." Id. at 3. The Examiner
finds that Price "teaches that it is known and desirable in the prior art to
provide a bag having a containment portion with a bottom handle
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Application 13/601,924
arrangement" comprising a handle seal, a handle body, and a handle hole
substantially as recited in claim 1. Id. at 3--4.
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art to combine the teachings of Kessler or Wilfong,
Christensen or Kohn, and Price "to strengthen the material around the handle
hole, increase the tear resistance of the material and strengthen the handles
and in order to add the further benefit of containing any material that may
escape into the handle body due to a ruptured or defective handle seal thus
minimizing product spillage." Id. at 5.
Rejections Based on Kessler
Appellants contend that a person of ordinary skill in the art would not
be led to modify Kessler as proposed by the Examiner because one of
ordinary skill
would recognize that forming the bottom of Kessler's container
into a bottom handle arrangement having a handle seal and
handle body ... wherein multiple layers of the bag are heat-
welded together . . . would prevent the container from standing
erect, because the heat welded layers could not unfold.
Appeal Br. 9-10. The Examiner responds that Kessler "discloses a container
that can be readily erected into operative position" but "never discloses a
'standing position."' Ans. 7. The Examiner explains that Kessler's
container "comprises a bottom heat seal ( 50) which is maintained when the
container is erected from a flat condition as depicted in figure 4 to the
operative position as depicted in figure 5" but, "the layers of the container
within the bottom of heat seal (5) do not unfold ... when the container of
Kessler is readily erected into the operative position." Id. at 8.
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For the following reasons, we do not sustain the rejection of claim 1
based on Kessler in combination with Christensen or Kohn, and Price.
Kessler discloses that its container
may either be used alone or as a liner for a more rigid outer
container .... The erected container provides a plurality of
integral ribs or partitions formed on the lower inner portion
thereof, these ribs or partitions serving as reinforcing means for
the bottom of the container.
Kessler 1:20-25. The erected container is illustrated in Figure 5 of Kessler.
Id. at Fig. 5. Kessler's container comprises folded gussets formed from side
edges 26. Id. at 2:21-36, Fig. 2. Further, Figure 3 illustrates Kessler's
container "[i]n the folded position." Id. at 2:53.
With respect to the Examiner's assertion that Kessler does not
disclose a "standing position," Kessler describes the container as shown in
Figure 5 as "erected." Kessler 1:71-2: 1. An ordinary definition of
"erected" is "standing up or out from the body."2 In light of this ordinary
definition of erected, we do not agree with the Examiner's finding that
Kessler does not disclose a "standing position" for the container. Further,
Kessler describes that the container contains folded gussets in Figure 2,
describes the container as folded in Figure 3, and the gussets are no longer
folded in Figure 5. Therefore, the Examiner's finding that the bottom of
Kessler's heat seal does not unfold is not supported by the disclosure of
Kessler. The rejection lacks a rational underpinning because the Examiner
does not adequately explain how Kessler's container, if modified with a
handle seal and handle, would unfold from the configuration shown in
2 https://www.merriam-webster.com/dictionary/erected (last accessed on
Nov. 23, 2018).
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Application 13/601,924
Figure 4 to the erected position shown in Figure 5. We, thus, do not sustain
the rejection of claims 1-5, 9, 12, 22, and 25 based on Kessler in
combination with Christensen or Kohn and Price.
Rejection Based on Wilfong
Appellants' first contention is that "Wilfong's bag, which is designed
for shoppers to collect lightweight produce at a grocery store, has no need
for a bottom handle arrangement having a handle seal and a handle body,
which are safety features designed to allow consumers to safely lift moderate
loads using two handles." Appeal Br. 14. Appellants argue that adding a
bottom handle to Wilfong's bag would be contrary to Wilfong's objective of
"designing a bag for packaging produce from a grocery store for easy
opening and detachment from a rack by shoppers" and, thus, one of ordinary
skill in the art "would not be motivated to unnecessarily increase the
production cost of the bag by adding a superfluous bottom handle." Id. The
Examiner responds that "[ n ]owhere does Wilfong disclose or suggest that
the plastic bags are intended to package anything light weight or that the
plastic bags can only package light weight produce." Ans. 16. In the Reply
Brief, Appellants argue that the thickness of Wilfong's bags is disclosed as
ranging from 0.5 to 0.35 mil which one of ordinary skill in the art would
understand as being "limited to lightweight, produce and grocery store
applications." Reply Br. 10. Appellants' first contention is not persuasive
for the following reasons.
First, claim 1 is not limited to a bag for "moderate loads" as
Appellants assert. Appellants do not adequately explain how one of
ordinary skill in the art would differentiate between "lightweight items" and
"moderate loads." Further, while Wilfong discloses a bag thickness, claim 1
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Application 13/601,924
does not recite any thickness range for the claimed bag. In light of this,
Appellants do not adequately explain why Wilfong's bag is limited to
holding "lightweight" items or why produce items, such as potatoes or
turnips for example, are necessarily "lightweight items." Thus, Appellants'
first contention is not persuasive because it is not commensurate with the
scope of claim 1.
Appellants' second contention is that one of ordinary skill in the art
would "recognize that forming the bottom of Wilfong 's container into a
bottom handle arrangement having a handle seal and handle body ... would
be superfluous because Wilfong expressly teaches that handles, if desired are
to be formed as top handles according to the second embodiment." Appeal
Br. 15. Appellants argue that placing a handle on "the bottom of a
lightweight produce bag is non-intuitive and nonsensical" and Wilfong's
"intuitive and sensible placement of the handle (if any) at the top of the bag
provide[] zero motivation to suggest to the skilled artisan that the handle
should be placed on the bottom." Id. at 16. The Examiner responds that
"Wilfong's mere disclosure of an alternative embodiment comprising top
handles is not sufficient to teach away from providing a bottom handle or to
suggest that providing a bottom handle would be superfluous." Ans. 19. In
addition, the Examiner notes that both Christensen and Kohn disclose bags
with an open top for receiving items and with both top and bottom handles.
Id. at 19-20. Appellants' second contention is not persuasive for the
following reasons.
To the extent that Appellants contend that Wilfong's disclosure of an
embodiment with top handles teaches away from a bag with bottom handles,
that argument is not persuasive. We note that when a prior art reference
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discloses a different solution to a similar problem, it does not teach away
from the claimed subject matter unless the prior art reference also criticizes,
discredits, or otherwise discourages the solution claimed. See Croes, Inc. v.
U.S. International Trade Commission, 598 F.3d 1294, 1308 (Fed. Cir. 2010)
(Prior art taught away by specifically discouraging use of foam straps.); In re
Fulton, 391 F. 3d 1195, 1201 (Fed. Cir. 2004). Appellants do not direct us
to any disclosure in Wilfong that criticizes, discredits or otherwise
discourages adding bottom handles to Wilfong's bag. To the extent that
Appellants' contention is premised on the assertion that Wilfong's bag is
limited to holding lightweight items, the contention is not persuasive for the
reasons discussed above in connection with Appellants' first contention.
Appellants' argument that adding a bottom handle to Wilfong's bag is non-
intuitive is an attack on Wilfong individually when the rejection is based on
the combined teachings of Wilfong, Christensen, Kohn, and Price. See In re
Keller, 642 F.2d 413,425 (CCPA 1981).
Appellants' third contention is that placing a bottom handle on
Wilfong's bag "would likely cause consumers to mistake the bottom of the
bag for the top of the bag" and because allegedly one of Wilfong's
objectives is to prevent this type of confusion, Wilfong teaches away from
placing the handle on the bottom of the bag. Appeal Br. 16-17. The
Examiner responds that the proposed modification of Wilfong "merely
comprises alternatively configuring the bottom heat seal with a handle" and
that "does not alter or destroy the design and/or function of the detachable
tabs" on Wilfong's bag which "aid[] in easy opening of the bag." Ans. 21.
Appellants' third contention is not persuasive for the following reasons.
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Appellants contend that "Wilfong's stated objectives include ... (3)
designing a bag that will not cause the consumer to mistake the bottom of
the bag from the top of the bag." Appeal Br. 14 ( citing Wilfong 1 : 5 6-58;
Weiler Deel. 22) 3• The cited portion of Wilfong, which describes a problem
with the prior art, not Wilfong' s bag, provides "the shopper still mistakes the
bottom of the bag from the top of the bag leading to frustration in opening
the bag." Wilfong 1:56-58. We observe that Wilfong discloses
embodiments of its bag having handles adjacent its opening. Wilfong, Figs.
16-1 7. Appellants do not direct our attention to any disclosure in Wilfong
as to the features of Wilfong' s bag that cures the prior art customer
confusion over the top or bottom of the bag. Nor do Appellants adequately
explain why modifying Wilfong's bag by adding a handle to the bottom
would cause customer confusion to reappear during use of Wilfong's bag if,
in fact, Wilfong's bag cures the customer confusion issue with the prior art
bags. The Weiler Declaration, cited by Appellants, states that the proposed
modification of Wilfong would "be contrary to Wilfong's stated objective
(3)" but also fails to provide any explanation concerning the effect of adding
a bottom handle would have on the alleged customer confusion issue. See
Weiler Deel. ,r 24. In the absence of such an explanation, Appellants have
not established how Wilfong's objective of curing customer confusion
between the top and bottom of its bags discredits, discourages, or otherwise
criticizes modifying Wilfong to include bottom handles.
3 Citations to the 'Weiler Deel.' refer to the Declaration of Doug Weiler
submitted under 37 CFR §1.132 on June 17, 2016 in Applicant's response to
Non-Final Office Action (hereinafter "Weiler Deel.").
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Appellants' fourth contention is that because Wilfong does not
disclose "any structure or method for closing or sealing the top of the
container" a person of ordinary skill in the art would not "modify Wilfong
with a bottom handle arrangement ... because lifting an open-topped
container by its bottom handle would cause the contents of the container to
spill to the ground, thereby defeating the primary purpose of the bag."
Appeal Br. 17. The Examiner responds that "the claims recite an open top
limitation" and Appellants' Specification "discloses a flexible bag
comprising an open top." Ans. 22 (citing Spec. ,r,r 45--47, Figs. 16-18). For
the following reasons, Appellants' fourth contention is not persuasive.
The Examiner correctly notes that claim 1 recites a bag with an open
top. Further, claim 1 does not recite any structure for closing or sealing the
top of the bag. The Examiner also correctly notes that Appellants'
Specification discloses an open top without structure for sealing the top of
the bag. See Appeal Br. 4--5 (Summary of Claimed Subject Matter) (citing
Spec. ,r,r 45--49, Figs. 16-18). This contention is, thus, not persuasive
because it is not commensurate with the scope of claim 1.
Appellants' fifth contention is that "the claimed invention describes a
plastic bag that has dissimilar top and bottom handles" and argue that
Christensen, Kohn, and Price teach away from applying dissimilar handles
to the top and bottom of a bag" because "[t]he design basis for a Heavy Duty
Shipping Sack is to create a symmetrical sack that can distribute the weight
of its contents evenly along the length and width." Appeal Br. 19-20.
Related to this argument is the assertion that Wilfong discloses "a bag
having an open top and a 'star seal' bottom" and "the 'star seal' bottom
creates an asymmetrical bag." Id. at 19. Appellants also argue that
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Christensen, Kohn, and Price teach away from "an asymmetrical form." Id.
at 19-20. Appellants' fifth contention is not persuasive for the following
reasons.
First, claim 1 does not recite a bag with "dissimilar top and bottom
handles" as asserted by Appellants. Second, claim 1 does not contain a
limitation requiring symmetry or asymmetry of the claimed bag.
Consequently, Appellants argument is not commensurate with the scope of
claim 1. Further, neither Christensen, Kohn, nor Price teach away from the
claimed invention as asserted because the claimed invention does not recite
dissimilar top and bottom handles or an asymmetrical form.
Appellants' sixth contention is the rejections should be reversed
because the claimed invention is contrary to the accepted wisdom in the
field. Appeal Br. 21. In support of this rejection, Appellants rely on In re
Hedges, 783 F.2d 1038 (Fed. Cir. 1986).
In Hedges, the claims were directed to a chemical process that
"sulfonates liquid diphenyl sulfone at high temperature without the expected
charring or reduced yields" in contrast to the prior art which "suggests that
lower reaction temperatures are preferable. No reference suggests that
diphenyl sulfate may advantageously be reacted in the molten state with
sulfur trioxide. The data provided by Hedges show significant advantages of
the claimed invention." 783 F. 2d at 1041. Based on this, the Federal
Circuit held that the Applicant "proceeded contrary to the accepted wisdom.
This is 'strong evidence of unobviousness. "' Id. ( citations omitted). Thus,
the Federal Circuit's statement that the applicant proceeded contrary to the
accepted wisdom in the field appears to be shorthand for two items. First,
the applicant established that the prior art taught away from proceeding with
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the reaction at the claimed high temperature. Second, the applicant also
established unexpected results of lack of charring and higher than expected
yields from the higher temperature reaction. We review Appellants'
arguments and evidence based on this understanding of the holding in
Hedges.
Appellants provide four categories for which they contend that the
claimed invention proceeded contrary to accepted wisdom. First, Appellants
argue that "[ m ]aking an improvement to the bottom of the bag, such as the
handle body claimed in the present invention, has not been the focus of
innovation" in the "Consumer Waste and Can Liner field." Appeal Br. 22
( citing Weiler Deel. ,r 32). Second, "a design, such as the claimed invention,
that features dissimilar top and bottom handles is contrary to accepted
wisdom." Id. at 22-23 (citing Weiler Deel. ,r 27). Third, "[t]he claimed bag
design, with its bottom handle arrangement that adds complexity to the
product increases manufacturing costs in a manner contrary to accepted
wisdom in the industry." Id. at 23 (citing Weiler Deel. ,r,r 20, 33). Fourth,
Appellants argue that "[t]he motivation behind innovation in [the] field has
historically been to meet the demands of the procurement and purchasing
professionals in the distribution chain who buy in bulk and who value
quality, convenience and low cost" but not "to meet the needs or ideals of
health and safety professionals." Id. (citing Weiler Deel. ,r 33). The
Examiner responds that the evidence in the Weiler Declaration is not
commensurate with the scope of the claims and "is not persuasive or
sufficient to outweigh the evidence of obviousness." Ans. 26 ( citing MPEP
§ 716). Appellants' sixth contention is not persuasive for the following
reasons.
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As an initial matter, we determine that Appellants' teaching away
arguments in connection with Appellants' second, third, and fifth
contentions to be unpersuasive for the reasons discussed above. In addition,
with respect to the various categories and the Appellants' reliance on
Hedges, Appellants do not make any additional teaching away arguments
nor do Appellants provide any evidence of unexpected results.
With respect to Appellants' first category specifically, Appellants
claim that in the "Consumer Waste and Can Liner field" innovation to the
bottom of the bag has not been the focus of innovation. However,
Appellants cannot reasonably dispute the Examiner's findings concerning
the prior art disclosure of handles on the bottom of the bags nor can
Appellants reasonably argue that any of the cited prior art references were
not analogous art to the claimed invention. See Appeal Br. 6-20. With
respect to the second category, Appellants repackage the argument from the
fifth contention discussed above that a bag with "dissimilar top and bottom
handles" is also "contrary to accepted wisdom." Id. at 22-23 ( citing Weiler
Deel. ,r 10, 27). As discussed above, claim 1 does not recite a bag with
dissimilar top and bottom handles, and, thus, this argument is not
commensurate with the scope of claim 1. With respect to Appellants'
fourth category, Appellants first argue that the industry has focused on the
strength of the bag rather than consumer health and safety. Id. at 23-24, 27
(citing Weiler Deel. ,r,r 33-35). However, as discussed above, claim 1 does
not contain any limitations relating to bag thickness or strength so the
argument is not commensurate with the scope of claim 1. Based on the
foregoing, we determine that Appellants have not established that the
claimed invention is contrary to accepted wisdom in the field, pursuant to In
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re Hedges, because Appellants have not provided persuasive evidence that
the prior art teaches away from the claimed invention nor have Appellants
provided evidence establishing that the claimed invention provided
unexpected results.
We have considered all of the Appellants' contentions and evidence
and determine that the Examiner has the better position. Therefore, we
sustain the rejection of claim 1 as unpatentable over Wilfong, Christensen or
Kohn, and Price. Claims 2-5, 9, 12, 22, and 25 fall with claim 1.
Rejection 2
Claims 6 and 8 depend directly or indirectly from claim 1. Appeal Br.
29-30 (Claims App.). Appellants do not offer separate arguments for the
patentability of claims 6 and 8 apart from the arguments raised in connection
with claim 1. Id. at 6-28. We do not sustain the rejection of claims 6 and 8
as unpatentable over Kessler, Christensen or Kohn, Price, and Dollheimer
for the same reasons stated above for claim 1. We sustain the rejection of
claims 6 and 8 as unpatentable over Wilfong, Christensen or Kohn, Price
and Dollheimer for the same reasons stated above for claim 1.
Rejection 3
Claims 13 and 14 depend from claim 1. Appeal Br. 30-31 (Claims
App.). Appellants do not offer separate arguments for the patentability of
claims 13 and 14 apart from the arguments raised in connection with claim
I. Id. at 6-28. We do not sustain the rejection of claims 13 and 14 as
unpatentable over Kessler, Christensen or Kohn, Price, Broering, and
Kraimer for the same reasons stated above for claim 1. We sustain the
rejection of claims 13 and 14 as unpatentable over Wilfong, Christensen or
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Kohn, Price, Broering, and Kraimer for the same reasons stated above for
claim 1.
Rejection 4
Claims 23 and 24 depend directly or indirectly from claim 1. Appeal
Br. 32-33 (Claims App.). Appellants do not offer separate arguments for the
patentability of claims 23 and 24 apart from the arguments raised in
connection with claim 1. Id. at 6-28. We do not sustain the rejection of
claims 23 and 24 as unpatentable over Kessler, Christensen or Kohn, Price,
and Tankersley for the same reasons stated above for claim 1. We sustain
the rejection of claims 23 and 24 as unpatentable over Wilfong, Christensen
or Kohn, Price and Tankersley for the same reasons stated above for claim 1.
Rejection 5
Independent claim 15 recites a method of manufacturing a bag having
a bottom handle with pertinent limitations substantially similar to claim 1.
Appeal Br. 31 (Claims App.). The rejection is based on findings and
reasoning based on Kessler that are substantially similar to claim 1. Final
Act. 10-12. Appellants provide the same arguments for claim 15 as for
claim 1. Appeal Br. 6-13. We, thus, do not sustain the rejection of claim 15
and its dependent claims 18 and 19 for the same reasons discussed above for
Rejection 1 based on Kessler.
Rejection 6
Claims 20 and 21 depend directly or indirectly from claim 15. Appeal
Br. 32 (Claims App.). The Examiner does not rely on the additional
disclosure from Tankersley to cure the deficiencies in the rejection of claim
15. Final Act. 12-13. We, thus, do not sustain the rejection of claims 20
and 21 for the same reasons discussed above in connection with claim 15.
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DECISION
The Examiner's decision rejecting claims 1-6, 8, 9, 12-14, and 22-25
is sustained.
The Examiner's decision rejecting claims 15 and 18-21 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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