Ex Parte Selle et al

Patent Trial and Appeal Board

Oct 24, 2017

13090733 (P.T.A.B. Oct. 24, 2017)

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.
13/090,733 04/20/2011 Paul A. Selle CMD 242 3095
22222 7590 10/26/2017
GEORGE R CORRIGAN
CORRIGAN LAW OFFICE
2168 COLLADAY POINT DRIVE
STOUGHTON, WI53589
EXAMINER
FERRERO, EDUARDO R
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
10/26/2017 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):
george.corrigan@corrigan.pro
gcorrigan@new.rr.com
kari.brekke@corrigan.pro
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL A. SELLE, CHRISTOPHER L. WHITE,
JAMES F. CAMPBELL, and TIMOTHY J. RYMER1
Appeal 2016-004585
Application 13/090,733
Technology Center 3700
Before KEN B. BARRETT, JAMES P. CALVE, and LEE L. STEPINA,
Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Office
Action rejecting claims 1—9, 11, and 12. Appeal Br. 5. Claims 10 and 16—
19 are cancelled, and claims 13—15 and 20-33 are withdrawn. Id. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify CMD Corporation as the real party in interest. Appeal
Br. 3.
Appeal 2016-004585
Application 13/090,733
CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below.
1. A bag machine for making bags from a tubular
film, comprising:
an input section;
a drum section, including a drum, disposed to receive the
film from the input section, and including at least one seal bar
on the drum, wherein the seal bar forms bags by sealing the
film;
an output section, disposed to receive the film from the
drum section; and
a first and second side frames, wherein the drum section
is mounted to the first and second side frames, and further
wherein the first side frame is a single metal plate and the
second side frame is a single metal plate, and further wherein
the first and second side frames are a bonding conductor.
REJECTIONS
Claims 1—3, 8, 9, 11, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wogelius (US 4,867,735, iss. Sept. 19, 1989), Waltz (US
2008/0096440 Al, pub. Apr. 24, 2008), Reifenhauser (US 4,906,228, iss.
Mar. 6, 1990), Pennington (US 4,036,676, iss. July 19, 1977), Brown (US
2,459,260, iss. Jan. 18, 1949), andNFPA (NFPA 77, Recommended Practice
on Static Electricity 2007 Edition (2006) (Nat’l Fire Protection Assoc.)).
Claims 4 and 7 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Wogelius, Waltz, Reifenhauser, Pennington, Brown, NFPA, and Selle
(US 7,445,590 B2, iss. Nov. 4, 2008) (“Selle ’590”).
Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Wogelius, Waltz, Reifenhauser, Pennington, Brown, NFPA, Selle ’590,
and Selle (US 2007/0179035 Al, pub. Aug. 2, 2007) (“Selle ’035”).
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Appeal 2016-004585
Application 13/090,733
ANALYSIS
Claims 1—3, 8, 9, 11, and 12 Rejected Over
Wogelius, Waltz, Reifenhauser, Pennington, Brown, and NFPA
Resolution of this appeal turns on claim construction. Claim 1 recites
a bagging machine with first and second side frames, which “are a bonding
conductor.” The Specification defines “bonding conductor” as follows.
Bonding, as used herein, is the use of an independent connection
between conductors or between a conductor and a dissipative
material to provide a path of low electrical impedance for easy
migration of charge where this cannot otherwise be ensured.
Bonding conductor, as used herein, is a conductor for bonding to
provide an effective bonding path to ground for high frequency
noise, such as in the 50kHz-IMhz range. Single bonding
conductor, as used herein, is a bonding conductor formed from a
single metal plate or piece.
Spec. 145 (emphasis added).
The Examiner determines that the “‘path of low electrical impedance
for high frequency noise’ is mentioned in the specifications but not really
claimed as such.” Ans. 8. The Examiner interprets “bonding” as follows.
Since bonding is the act of joining two electrical conductors
together, the fact that these components are joined or fastened
together and no electrical insulation is being disclosed makes
them a “bonding conductor”. The quality of the bonding is not
discussed, only the fact that they are bonded is relevant. Make
note too that the bonding does not need to be effected by a static
physical fastening method but also between parts with relative
movement, such as brushes against a rotating element or as
shown on Figures 4 and 5 of Wogelius where the grounding of
the movable support bar 160 to the plate 180, that can be
considered a “bonding conductor” by wav of contact 174 as the
heating bar 50 moves synchronously with anvil 20.
Ans. 4 (emphasis in original).
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Appeal 2016-004585
Application 13/090,733
The Examiner finds that Wogelius discloses a bag machine as recited
in claim 1, with a drum section mounted to first and second side frames, but
does not disclose first and second side frames as a bonding conductor. Final
Act. 2—3. The Examiner finds that making conducting parts of a machine for
grounding the machine as a whole, or sections of the machine, to earth was
widely known in the art as illustrated by Waltz, Reifenhauser, Pennington,
Brown, and NFPA to provide better operation of the electronic components.
Id. at 3. The Examiner determines it would have been obvious to make the
device frames bonding conductors to provide a bonding path to ground and
prevent damage to electronic components and injuries to operators from
electrostatic discharge (ESD). Id.', see also Ans. 3^4 (making the frames as
bonding conductors would be obvious because they are the largest metallic
structure and other components are attached thereto to join the frames or to
provide a bonding path to ground).
The Specification defines “bonding conductor” as “provid[ing] an
effective bonding path to ground for high frequency noise, such as in the
50kHz-IMhz range.” Spec. 145. ‘“When a patentee explicitly defines a
claim term in the patent specification, the patentee’s definition controls.’”
Nestle USA, Inc. v. Steuben Foods, Inc., 686 Fed.Appx. 917, 919 (Fed. Cir.
2017) (quotingMartekBiosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363,
1380 (Fed. Cir. 2009).
Because the Examiner’s interpretation of “bonding conductor” is
inconsistent with Appellants’ definition in the Specification, the Examiner
has not provided any findings as to whether the prior art teaches a bonding
conductor as defined by Appellants or whether it would have been obvious
to include such a bonding conductor on the bagging machine of Wogelius.
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Appeal 2016-004585
Application 13/090,733
As a result, the Examiner has not established by a preponderance of
evidence that the prior art teaches a “bonding conductor” that provides an
effective bonding path to ground for high frequency noise, such as in the
50kHz—IMhz range, as claimed. Nor has the Examiner established that it
would have been obvious to modify Wogelius to include such a bonding
conductor, as claimed. Thus, we do not sustain the rejection of claim 1 or its
dependent claims 2, 3, 8, 9, 11, and 12.
Rejections of Dependent Claims 4—7
The Examiner rejects dependent claims 4—7 as unpatentable over the
prior art references applied to the rejection of claim 1 and further in view of
Selle ’590 for features recited in claims 4 and 7 and Selle ’035 for features
recited in claims 5 and 6. See Final Act. 5—6. The Examiner’s reliance on
Selle’590 and Selle ’035 to teach features of the bagging machine recited in
claims 4—7 does not cure the deficiencies of the rejection of claim 1. Thus,
we do not sustain the rejections of claims 4—7.
DECISION
We reverse the rejections of claims 1—9, 11, and 12.
REVERSED
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