Ex Parte Strand et al

Board of Patent Appeals and Interferences

Apr 11, 2008

09774275 (B.P.A.I. Apr. 11, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte AARON STRAND, KARL L. LINCK, JUDY FISCHER,
THOMAS J. SPAETH, AND JERRY D. KOLBE
____________

Appeal 2007-3766
Application 09/774,275
Technology Center 3700
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Decided: April 11, 2008
____________

Before TERRY J. OWENS, MURRIEL E. CRAWFORD, and JENNIFER D.
BAHR, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

The Appellants appeal from a rejection of claims 75-78, 81-98, 101-116,
138-143 and 145-153. Claims 79, 80, 99, 100 and 144, which are all of the other
pending claims, stand withdrawn from consideration by the Examiner.
Appeal 2007-3766
Application 09/774,275

THE INVENTION
The Appellants claim a reclosable bag. Claim 75 is illustrative:
75. A reclosable bag for filling with at least one
food product, said reclosable bag comprising:

at least one sheet of web material comprising at
least one fold located therein, two areas of structural
weakness on opposite sides of said fold, and an opening
located directly opposite said fold, and

a reclosable fastener structure comprising two
releasably engageable tracks each having a skirt structure
of skirt web material extending therefrom, said fold being
located in said reclosable fastener structure intermediate
said skirt structures;

said skirt structures each including a distal margin;

said distal margins of said skirt structures being coupled
to said web material at corresponding opposed locations
respectively located between said areas of structural
weakness and said opening;

said reclosable fastener structure extending past said fold
and said areas of structural weakness;

said reclosable bag capable of being filled with at least
one food product through said opening.

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Application 09/774,275

THE REFERENCES
Lingenfelter US 3,181,583 May 4, 1965
Peppiatt US 5,221,143 Jun. 22, 1993
Plourde US 5,875,611 Mar. 2, 1999

THE REJECTIONS
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 75-78,
81-90, 96-98, 101-110, 116, 138-143, 145, 147 and 150-153 over Lingenfelter in
view of Plourde; claims 91, 92, 111, 112, 148 and 149 over Lingenfelter in view of
Plourde and admitted prior art; and claims 93-95, 113-115 and 146 over
Lingenfelter in view of Plourde and Peppiatt. Claims 86-88 and 106-108 also
stand rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the
enablement requirement.
OPINION
We affirm the rejections under 35 U.S.C. § 103 and reverse the rejection
under 35 U.S.C. § 112, first paragraph.
Rejection under 35 U.S.C. § 103 of claims 75-78, 81-90,
96-98, 101-110, 116, 138-143, 145, 147 and 150-153
over Lingenfelter in view of Plourde

The Appellants argue only the independent claims, i.e., claims 75, 96, 116
and 138, and the Appellants rely upon the same arguments regarding each of those
claims (Br. 14-42). We therefore limit our discussion to one of those claims, i.e.,

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claim 75. Our reasoning regarding that claim applies to claims 96, 116 and 138.
Also, because the claims which depend from the independent claims are not
separately argued, the dependent claims stand or fall with the independent claim
from which they depend. See 37 C.F.R. § 41.37(c)(1)(vii)(2007).
Lingenfelter discloses plastic bag 10 comprising flexible closure strips 14
and 16 and, between them, a rib-and-groove fastener (18, 20, 28, 30) (col. 2, ll. 2-
15). Flexible closure strips 14 and 16 are heat sealed to opposite sides of plastic
bag 10 (col. 2, ll. 15-17). In one embodiment plastic bag 10 is formed from a
single continuous thermoplastic sheet that is folded at its top upon itself to provide
two face-to-face panels (19, 21) that are heat sealed together along opposite edges
to form the two side edges of plastic bag 10 (col. 2, ll. 17-22; fig. 3). Along the
fold is rupturable tearline 32 (col. 2, ll. 22-23). To gain access to the contents of
plastic bag 10, flexible closure strips 14 and 16 are pulled outwardly to disengage
the rib-and-groove fastener and rupture tearline 32 (col. 2, ll. 32-39).
Plourde discloses plastic bag 50 comprising tube sheet material 10, the outer
surfaces of which are attached at offset seals 46 and 48 to zipper tape 20 (col. 1, ll.
12-16; col. 4, ll. 21-33). Tube sheet material 10 has, between zipper tape 20 and
offset seals 46 and 48, an end perforated longitudinally with two spaced-apart
perforations 40 that may be broken to gain access to the interior of bag 50 (col. 3,
ll. 66-67; col. 4, ll. 51-53).
The Examiner argues that it would have been obvious to one of ordinary
skill in the art to replace Lingenfelter’s single rupturable tearline 32 with Plourde’s

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two spaced-apart perforations 40 to increase the size of the bag’s opening by the
amount of bag material removed between Plourde’s spaced-apart perforations 40
(Ans. 9).
The Appellants argue (Br. 19-20):
Appellants disagree inasmuch as the width of the opening
(as distinguished from the length of the opening, which
runs from one side of the bag to the other) would not
necessarily be any larger. In fact, when the bag taught by
the Lingenfelter reference is opened by tearing along the
tearline 32, the resulting opening will likely be as wide as
the widths between the panels 19 and 21, since there is
relatively little material in the fold itself. In contrast, in
the bag taught by the Plourde ‘611 reference after the
material between the perforations 40 is removed (as best
shown in Fig. 4), the remaining portions of the sheet
material 10 will likely flop toward each other, thereby
actually narrowing the width of the opening.

The Appellants’ argument that the remaining portions of Plourde’s sheet
material likely will flop together and thereby narrow the width of the opening is
unconvincing because it is merely speculation by the Appellants’ counsel, and
unsupported attorney argument cannot take the place of evidence. See In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). The Appellants have not explained,
and it is not apparent, why bag material on each side of a cutout would be more
likely to flop together than bag material on each side of a slit.
Moreover, regardless of whether Plourde’s two spaced-apart perforations 40
provide a wider bag opening than Lingenfelter’s tearline 32, one of ordinary skill

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in the art would have appreciated that both Lingenfelter’s tearline 32 and Plourde’s
two spaced-apart perforations 40 are effective alternatives for providing an
opening in a plastic zipper-lock bag. For that reason alone it would have been
prima facie obvious to one of ordinary skill in the art to use Plourde’s two spaced-
apart perforations 40 in Lingenfelter’s bag. See KSR Int’l. Co. v. Teleflex Inc., 127
S.Ct. 1727, 1740 (2007), “if a technique has been used to improve one device, and
a person of ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.”
The Appellants argue that the top of Plourde’s tube sheet material 10 is an
arc, not a fold (Br. 23-24).
That argument is not convincing because Lingenfelter discloses the fold
relied upon by the Examiner (Ans. 11-12).
The Appellants argue that substituting the top portion of Plourde’s bag for
that of Lingenfelter would destroy the operation of Plourde’s tube sheet material
10 because Plourde’s bag must be filled from the side (Br. 24-25).
It is Lingenfelter’s bag, not Plourde’s bag, that is being modified by the
Examiner. Substituting Plourde’s two spaced-apart perforations for Lingenfelter’s
single rupturable tearline would have been prima facie obvious to one of ordinary
skill in the art for the reasons given above.
The Appellants argue (Br. 25-26):
In the Lingenfelter reference, the intermediate portions of
the closure strips 14 and 16 are attached to the panels 19

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and 21, respectively, of the bag 10. The distal portions of
the closure strips 14 and 16 are quite clearly adjacent but
not coupled to the panels 19 and 21 of the bag 10. In the
Plourde ‘611 reference, the offset seal 48 is quite clearly
not located at the distal portion of the segment of the
hood supporting the male zipper profile 24.

The meanings of “margin” include “the outside limit and adjoining surface
of something: EDGE ”.1 Thus, considering Lingenfelter’s
flexible closure strips 14 and 16 to correspond to the Appellants’ skirt structures,
both the lower edges of Lingenfelter’s flexible closure strips 14 and 16 in figure 3
and the adjacent seals between those strips and, respectively, panels 19 and 21, are
within Lingenfelter’s skirt structure distal margins. Furthermore, one of ordinary
skill in the art would have appreciated that a wider fold region would be desirable
to accommodate Plourde’s two spaced-apart perforations 40 and, therefore, would
have been led by the references to position Lingenfelter’s distal margin seals either
more toward or at the lower edges of flexible closure strips 14 and 16 in figure 3 to
provide the additional fold region material.
For the above reasons we are not convinced of reversible error in the
rejection under 35 U.S.C. § 103 of claims 75-78, 81-90, 96-98, 101-110, 116, 138-
143, 145, 147 and 150-153.
Rejections under 35 U.S.C. § 103 of claims 91, 92,
111, 112, 148 and 149 over Lingenfelter in view of Plourde
and admitted prior art, and claims 93-95, 113-115 and 146

1 Webster’s New Collegiate Dictionary 702 (G. & C. Merriam 1973).
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over Lingenfelter in view of Plourde and Peppiatt

The Appellants do not separately argue the rejections under 35 U.S.C. § 103
of dependent claims 91, 92, 111, 112, 148 and 149 over Lingenfelter in view of
Plourde and admitted prior art, and dependent claims 93-95, 113-115 and 146 over
Lingenfelter in view of Plourde and Peppiatt (Br. 14). For the reasons given above
regarding the independent claims, we are not persuaded of reversible error in those
rejections.
Rejection of claims 86-88 and 106-108 under
35 U.S.C. § 112, first paragraph, as failing
to comply with the enablement requirement

A specification complies with the 35 U.S.C. § 112, first paragraph,
enablement requirement if it allows those of ordinary skill in the art to make and
use the claimed invention without undue experimentation. See In re Wright, 999
F.2d 1557, 1561 (Fed. Cir. 1993).
The Examiner argues that “[t]he specification fails to provide an adequate
written description of the areas of structural weakness nonlinearly extending across
a width dimension or a length dimension” (Ans. 4).2

2 The Examiner’s argument appears to be directed toward the 35 U.S.C. § 112, first
paragraph, written description requirement rather than the enablement requirement.
A specification complies with the 35 U.S.C. § 112, first paragraph, written
description requirement if it conveys with reasonable clarity to those skilled in the
art that, as of the filing date sought, the inventor was in possession of the
invention. See Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir.
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The Appellants argue that those areas of structural weakness are shown in
figure 5, and the Appellants refer to the related description in the Specification,
which is (Spec. 20:1-3): “This embodiment includes score lines 12 laid out in an
alternative pattern that includes curve or arcuate section 13 and tear notch 24”
(Reply Br. 3). The Appellants argue: “Thus, the score lines 12 are nonlinear in that
they include the curve or arcuate sections 13 at each end thereof.” See id.
The Examiner has not explained why, in view of the disclosure pointed out
by the Appellants, one of ordinary skill in the art would not have been able to make
and use the claimed invention without undue experimentation.
The Examiner, therefore, has not established a prima facie case of failure to
comply with the 35 U.S.C. § 112, first paragraph, enablement requirement.
DECISION
The rejections under 35 U.S.C. § 103 of claims 75-78, 81-90, 96-98, 101-
110, 116, 138-143, 145, 147 and 150-153 over Lingenfelter in view of Plourde,
claims 91, 92, 111, 112, 148 and 149 over Lingenfelter in view of Plourde and
admitted prior art, and claims 93-95, 113-115 and 146 over Lingenfelter in view of
Plourde and Peppiatt are affirmed. The rejection of claims 86-88 and 106-108
under 35 U.S.C. § 112, first paragraph, enablement requirement, is reversed.

1991). The Examiner has not explained why the Appellants’ disclosure would
have failed to convey with reasonable clarity to those skilled in the art that, as of
the filing date sought, the Appellants were in possession of the invention.
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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)(1)(iv) (2006).

AFFIRMED

jlb

Reinhart Boerner Van Deuren S.C.
Attn: Linda Kasulke, Docket Coordinator
1000 North Water Street
Suite 2100
Milwaukee, WI 53202

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