Ex Parte Slaters

Board of Patent Appeals and Interferences

Jul 26, 2007

10190123 (B.P.A.I. Jul. 26, 2007)

The opinion in support of the decision being entered today
is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte ARTHUR R. SLATERS, JR.
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Appeal 2007-2107
Application 10/190,123
Technology Center 1734
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Decided: July 26, 2007
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Before THOMAS A. WALTZ, PETER F. KRATZ, and
JEFFREY T. SMITH, Administrative Patent Judges.

WALTZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Primary Examiner’s final rejection of claims 1-6 and 8-21, which are the
only claims pending in this application. We have jurisdiction pursuant to
35 U.S.C. § 6(b).
According to Appellant, the invention is directed to a method of
forming plastic carriers by punching carriers from a web of plastic in
adjacent rows and ranks, and separating carriers within the ranks to leave
Appeal 2007-2107
Application 10/190,123

carriers interconnected only in rows after the web is advanced from the
punch press (Br. 7-10). Independent claim 1 is illustrative of the invention
and is reproduced below:
1. A method of forming plastic carriers for containers, said
method comprising steps of:
providing a web of carrier material by welding at least two sheets
together;
forming carriers in the web in adjacent rows and adjacent ranks, with
adjacent carriers in a row remaining connected to each other and adjacent
carriers in a rank remaining connected to each other, said forming including
removing material from the web to form apertures in the nature of loops for
holding containers, a handle and a truss-like suspension between the handle
and the apertures;
advancing the web of formed carriers; and
after forming said carriers in adjacent rows and adjacent ranks, and
after advancing the web of formed carriers interconnected in rows and in
ranks, separating carriers within said ranks to leave carriers interconnected
only in said rows.
The Examiner has relied on the following prior art references as
evidence of obviousness:
Fisher US 3,044,230 Jul. 17, 1962
Marco US 5,072,829 Dec. 17, 1991
Broskow US 5,487,465 Jan. 30, 1996
Jackson US 6,394,330 B1 May 28, 2002

ISSUES ON APPEAL
Claims 1-6, 8, 9, 13, 14, 16, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Broskow in view of Fisher and Jackson
(Answer 3).
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Claims 3, 4, 9-12, 15-18, and 21 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Broskow in view of Fisher, Jackson, and
Marco (Answer 5).
Appellant contends that claim 1 on appeal requires advancing the web
with formed carriers remaining connected in both rows and ranks, and
Jackson does not teach partial slitting for the purpose of improving the
performance of upstream processing (Br. 16).
Appellant contends that it was not known to perform downstream
separation of connected ranks of carriers, and Jackson does not teach
modification of the stamping process by removing the slitting operation
some distance from the punch press (Br. 17). Appellant further contends
that there is no “connecting reference” to lead one to combine the teaching
of Jackson with Broskow and Fisher (Br. 17).
Appellant contends that Jackson does not address the problem
addressed by Appellant, and does not teach where the final slitting should
occur relative to the punching process (Reply Br. 6-8, 11).
The Examiner contends that Jackson teaches that it is generally more
efficient to process material in wider webs, and that wandering and other
problems are avoided by keeping the web portions together as a full width
web until complete separation near the winding station (Answer 7).
Accordingly, the issue presented from the record in this appeal has
been agreed upon by Appellant and the Examiner, and we agree: namely,
whether it would have been obvious to one of ordinary skill to have punched
rows and ranks of carriers in a single wide continuous web, followed by
separation of the single wide continuous web into individual webs each
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having a row of carriers only after advancing the web away from the punch,
as opposed to separating into individual webs during the punching (Answer
7; Reply Br. 5).
We determine that the Examiner has properly established a prima
facie case of obviousness in view of the reference evidence, which prima
facie case has not been adequately rebutted by Appellant’s arguments.
Therefore we AFFIRM both grounds of rejection on appeal essentially for
the reasons stated in the Answer, as well as those reasons set forth below.
OPINION
We determine the following factual findings from the record in this
appeal:
(1) Broskow discloses a method of making plastic carriers for carrying
containers comprising providing two continuous sheets of plastic material,
joining the two sheets at a seam or joined portion by heat seal fusing to form
a combined sheet, stamping the combined sheet by a stamping die
(punching) to form a continuous strip of carriers having a handle and
apertures, and rolling the continuous web of carriers (Answer 3; see
Broskow, Figures 1 and 5; Abstract; col. 1, ll. 5-6 and 57-65; col. 3, ll. 40-
42; and col. 4, ll. 30-57);
(2) Fisher discloses a carrier for containers with slits and holes made
by a punch press, and teaches that the carrier could be formed from a blank
much wider that that shown, with several carriers being formed
simultaneously side by side (Answer 4; see Fisher, col. 1, ll. 8-9; col. 2, ll.
12-19; and Figures 1 and 2);
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Application 10/190,123

(3) Jackson teaches that it is generally more efficient to produce
and/or process material in wider webs but often more convenient to package,
ship, sell, and/or use the material in narrower rolls (Answer 4; see Jackson,
Abstract; and col. 1, ll. 13-21);
(4) Jackson teaches the problem of “wandering” which happens to
narrow webs when guided and under tension (col. 2, ll. 13-21);
(5) Jackson discloses a two-stage separation process to combat
“wandering” where the first stage involves a partial separation but leaves the
web portions connected to be handled as a full width web, and after
handling, processing, and transporting, complete separation occurs near the
winding station (Answer 4; see Jackson, col. 3, l. 59-col. 4, l. 19; and col. 6,
ll. 9-16);
(6) Jackson teaches that the web portions after the first stage
separation can be handled as a full width web, thus allowing conventional
apparatus to be employed but avoiding the handling and tensioning of each
of the web portions separately that can lead to wandering (Answer 4; see
Jackson, col. 6, ll. 40-53);
(7) Jackson teaches that other web processes can be done during the
period when the full width web is being guided and transported between the
first and second separation stages (col. 7, ll. 6-12);
(8) Jackson teaches various web materials can be employed, and the
“lines of weakness” that substantially separate the web portions can be slits
or other alternatives (col. 9, ll. 39-55; and col. 11, ll. 21-24); and
(9) Marco teaches carrier stock with weakened perforated lines to
facilitate severance (Answer 6; see Marco, col. 4, ll. 12-20).
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Appeal 2007-2107
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Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of (1) the scope and content of the prior art; (2) the differences
between the claimed subject matter and the prior art; (3) the level of ordinary
skill in the art; and (4) secondary considerations. See Graham v. John Deere
of Kansas City, 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966). “[A]nalysis
[of whether the subject matter of a claim is obvious] need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex,
Inc., 127 S. Ct. 1727, 1740-41, 82 USPQ2d 1385, 1396 (2007), quoting In re
Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336-37 (Fed. Cir. 2006). The
analysis supporting obviousness should be made explicit and should
“identify a reason that would have prompted a person of ordinary skill in the
art to combine the elements” in the manner claimed. KSR, 127 S. Ct. at
1731, 82 USPQ2d at 1389.
Applying the preceding legal principles to the factual findings in the
record of this appeal, we determine that the Examiner has properly stated an
analysis identifying reasons why a person of ordinary skill in the art would
have combined the elements in the manner claimed. As shown by factual
findings (1) and (2) listed above, and acknowledged by Appellant as known
in the art (Br. 14), we determine that the formation of plastic carriers in
adjacent rows and ranks would have been well within the ordinary skill in
this art. As shown by factual findings (3) through (6) listed above, we
determine that Jackson teaches the benefits and advantages of processing
web material in full width, with partial separation leaving connected
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portions, and only completely separating into rows after processing but
before the winding operation. As further shown by factual finding (7) listed
above, we determine that Jackson clearly teaches that other processing,
which one of ordinary skill would have interpreted as including stamping or
punch pressing, should occur between the first and second (complete)
separation stages. Accordingly, we agree with the Examiner that Jackson
teaches and suggests the benefits of keeping the portions of the web as a full
width web material until just before complete separation into rows for
winding into an end use roll.
As shown by factual findings (8) and (9) listed above, and not
contested by Appellant (Br. 23), we determine that the perforated lines
taught by Marco would have been within the scope of the lines of weakness
contemplated by Jackson to facilitate separation in the first and/or second
stage.
For the foregoing reasons and those stated in the Answer, we affirm
both rejections presented in this appeal. The decision of the Examiner 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)(1)(iv).
AFFIRMED

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Todd T. Taylor
Taylor & Aust, PC
142 S. Main St.
P.O. Box 560
Avilla, IN 46710

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