Ex Parte SEPTIEN ROJAS et al

Patent Trial and Appeal Board

Aug 10, 2018

13973312 (P.T.A.B. Aug. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/973,312 08/22/2013
51468 7590 08/10/2018
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
825 Eighth A venue
31st Floor
NEW YORK, NY 10019
FIRST NAMED INVENTOR
Jose Manuel SEPTIEN ROJAS
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.
121981-00437 5422
EXAMINER
HELVEY, PETER N.
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
08/10/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSE MANUEL SEPTIEN ROJAS,
LARS WIHLBORG, CHARLES GRECO, JEFFRY MAURO,
and GLYN RUSSELL
Appeal2017-010269
Application 13/973,312
Technology Center 3700
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the
Examiner's rejection of claims 1-12. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We REVERSE.
1 According to Appellants, the "real party in interest is ... Illinois Tool
Works Inc." Br. 2.
Appeal2017-010269
Application 13/973,312
According to Appellants, the invention relates to "child-resistant
reclosable packages or bags." Spec. ,r 2. Claims 1 and 7 are the independent
claims on appeal. Below, we reproduce claim 1 as illustrative of the
appealed claims.
1. A container or bag, including:
a first wall and a second wall, the first wall and the second
wall being joined together so as to form a storage volume
therebetween and a mouth;
a zipper attached to the first wall and second wall, thereby
making the mouth reclosable, and defining an inside of the
container or bag oriented toward the storage volume and an
outside of the container or bag oriented toward the mouth, the
zipper including;
a first profile including a first interior flange, a first
interlocking element and a first exterior flange; and
a second profile including a second interior flange,
a second interlocking element and a second exterior
flange, the second exterior flange having sufficient length
to include a manually grippable portion;
wherein the first interior flange is attached to the first wall
on an inside of the container or bag, the second interior flange is
attached to the second wall on an inside of the container or bag;
and
wherein the second wall extends beyond the second
exterior flange, the second exterior flange being unattached to
the second bag wall, whereby opening forces applied to the
outside of the second wall of the package or bag are transmitted
to the second interior flange and to the interior of the first and
second interlocking elements whereby increased interior opening
forces are encountered, thereby resisting access to the interior of
the bag, and whereby opening forces applied to the manually
grippable portion of the second exterior flange are transmitted to
the first and second interlocking elements whereby decreased
exterior opening forces are encountered.
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Appeal2017-010269
Application 13/973,312
REJECTIONS AND PRIOR ART
The Examiner rejects claims 1--4 and 7-10 under 35 U.S.C. § I02(b)
as anticipated by Pawloski et al. (US 2010/0014786 Al, pub. Jan. 21, 2010)
(hereinafter "Pawloski").
The Examiner rejects claims 5, 6, 11, and 12 under 35 U.S.C. § I03(a)
as unpatentable over Pawloski and Simonsen et al. (US 5,017,021, iss.
May 21, 1991) (hereinafter "Simonsen").
ANALYSIS
Anticipation Re;ection of Claims 1-4 and 7-10
Based on our review of the record, including the Examiner's Non-
Final Office Action and Answer, and Appellants' Appeal Brief, for the
reasons discussed below, the Examiner fails to support adequately the
anticipation rejection of claims 1--4 and 7-10 based on Pawloski. Thus, we
do not sustain the rejection.
With respect to independent claims 1 and 7, the Examiner finds,
referring to Pawloski's Figure 2D, that Pawloski's closure profiles 80 and 86
disclose the claimed "first interlocking element" and "second interlocking
element," respectively. Answer 2. The Examiner also finds that Pawloski's
"portion of 90 to the right of 86 in Fig[ ure] 2D" and "portion of 90 to the left
of 86 in Fig[ure] 2D." disclose the claimed second interior and exterior
flanges, respectively. Id. The Examiner further finds that because
Pawloski's "bag closure structure is identical to that claimed" (id. at 4),
Pawloski provides the claimed "increased ... opening forces" when
"opening forces [are] applied to the outside of the second wall," and
provides the claimed "decreased ... opening forces" when "opening forces
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Appeal2017-010269
Application 13/973,312
[are] applied to the manually grippable portion of the second exterior flange"
(id.; Br., Claims App.).
Appellants argue that the Examiner's anticipation rejection is in error
because Pawloski does not disclose the claimed increased and decreased
opening forces, when forces are applied to different portions of the bag or
container, as claimed. Br. 8. As stated above, based on our review, the
Examiner does not support adequately the finding that Pawloski' s discloses
the claimed increased and decreased opening forces.
Appellants' Specification describes that the increased and decreased
opening forces result from an arrangement in which "interior wing 42 of
arrowhead element 40 is more enlarged and protruding than ... exterior
wing 44 of arrowhead element 40. This causes the interior or product side or
inside opening force to be greater than the exterior or consumer side or
outside opening force." Spec. ,r 17. We disagree with the Examiner that
Pawloski's "bag closure structure is identical to that claimed." Answer 4.
Rather, as shown in Pawloski's Figure 2D, it appears that closure profile 84
(using the claims' nomenclature) is not an arrowhead element more enlarged
and protruding on one side than the other. See Pawloski Fig. 2D. Instead, it
appears from this figure that closure profile 84 is the same size and shape on
each side. Thus, it is not clear that Pawloski discloses any structure that may
provide the claimed increased and decreased opening forces.
Notwithstanding the above discussion, independent claims 1 and 7
further recite that "the second exterior flange having sufficient length to
include a manually grippable portion." Br., Claims App. As discussed
above, the Examiner relies on Pawloski' s "portion of 90 to the left of 86 in
Fig[ ure] 2D" to disclose the claimed second exterior flange. Answer 2.
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Appeal2017-010269
Application 13/973,312
Based on our review of Pawloski, however, including Pawloski's Figure 2D,
it appears that Appellants are correct that "the stub of an element extending
'to left of 86' is hardly of sufficient length to include a manually grippable
portion." Br. 9. Conversely, the Examiner does not demonstrate where
Pawloski describes that any portion of base 90 to the left ( as shown in
Figure 2D) of closure profile 86 has sufficient length to include a manually
grippable portion, as claimed.
Thus, based on the foregoing, we do not sustain the Examiner's
anticipation rejection of independent claims 1 and 7. Further, we do not
sustain the Examiner's anticipation rejection of claims 2--4 and 8-10 that
depend from claims 1 and 7.
Obviousness Reiection of Claims 5, 6, 11, and 12
With respect to dependent claims 5, 6, 11, and 12, the Examiner does
not rely on Simonsen to disclose anything related to a manually grippable
portion. Thus, we do not sustain the obviousness rejection of claims 5, 6,
11, and 12, for the same reasons we do not sustain the anticipation rejection
of claims 1 and 7, above.
DECISION
We REVERSE the Examiner's anticipation and obviousness
rejections of claims 1-12.
REVERSED
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