Ex Parte Van Erden

Board of Patent Appeals and Interferences

Apr 24, 2006

09974400 (B.P.A.I. Apr. 24, 2006)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
___________

Ex parte DONALD L. VAN ERDEN
____________

Appeal No. 2006-1088
Application No. 09/974,400
_____________

ON BRIEF
_____________

Before KIMLIN, GARRIS, and JEFFREY T. SMITH, Administrative
Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 3-9
and 11-14. Claim 1 is illustrative:
1. A reclosable zipper comprising:

a first profile and a second profile;

said first profile including an interlocking member and
a flange extending laterally from one side only of said
interlocking member;

said second profile including an interlocking member
interlockable with said first profile interlocking member and a
flange extending laterally from said second profile interlocking
member in only the same direction as said first profile flange,
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Application No. 09/974,400

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said second profile flange being attached to said first profile
flange by a peel seal; and

a slider disposed on said interlocking members, said slider
being adapted to open the zipper as it is moved along said
interlocking members in an opening direction and to close the
zipper as it is moved along said interlocking members in a
closing direction.

The examiner relies upon the following references as
evidence of obviousness:
Yeager 5,829,884 Nov. 3, 1998
Thieman 5,956,924 Sep. 28, 1999
Appellant’s claimed invention is directed to a reclosable
zipper having first and second profiles which include
interlocking members and flanges extending laterally from only
one side of the interlocking member. The zipper also comprises
a slider disposed on the interlocking members to facilitate
opening and closing the zipper.
Appealed claims 1, 3-9 and 11-14 stand rejected under
35 U.S.C. 103(a) as being unpatentable over Yeager in view of
Thieman.
Appellant does not separately argue any particular claim on
appeal. Accordingly, all the appealed claims stand or fall
together with claim 1. In re McDaniel, 293 F.3d 1379, 1383,
63 USPQ2d 1462, 1465 (Fed. Cir. 2002).

Appeal No. 2006-1088
Application No. 09/974,400

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We have thoroughly reviewed each of appellant’s arguments
for patentability. However, we are in complete agreement with
the examiner that the claimed subject matter would have been
obvious to one of ordinary skill in the art within the meaning
of § 103 in view of the applied prior art. Accordingly, we will
sustain the examiner’s rejection for the reasons set forth in
the answer, and we add the following for emphasis only.
There is no dispute that Yeager, like appellant, discloses
a reclosable zipper comprising first and second profile strips
having interlocking members and flanges extending laterally from
the profiles. Also, flange 40 of Yeager is longer than flange
42 and the flanges are connected by a peel seal

. As appreciated by the examiner, Yeager does not teach
the use of a slider to open and close the zipper. However, we
fully concur with the examiner that Thieman evidences the
obviousness of employing a slider to open and close a zipper.
As for the claim limitation that the first and second flanges
extend laterally from one side only of the interlocking member,
we agree with the examiner that not only does Thieman establish
the obviousness of this limitation, but portion 43 of Yeager’s
Appeal No. 2006-1088
Application No. 09/974,400

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flange can be reasonably considered as an attachment point
rather than a flange.
Appellant contends that the claim limitation regarding the
flange extending laterally from one side only of the
interlocking member “is quite different from the Yeager
reference which discloses a construction where the zipper,
including the profiles and flanges, are completely within the
reclosable bag” (page 4 of brief, last paragraph). However, as
properly noted by the examiner, the zipper of the claimed
invention is also employed within a reclosable bag (see
appellant’s Figure 15).
Appellant also maintains that “[a] slider-operated zipper
could not function with the apparatus disclosed by the Yeager
reference as such a flange would prevent the slider from
functioning” (id.). However, appellant has not rebutted the
examiner’s reasonable position that “the flanges [of Yeager] are
only bonded at the end portions and therefore the slider could
still operate between the bonded portions” (page 4 of answer,
second paragraph). As for appellant’s argument that a slider
for the Yeager zipper “would be positioned within the bag and
out of reach” (page 5 of brief, first paragraph), we do not
understand how the zipper would be out of reach once the outer
Appeal No. 2006-1088
Application No. 09/974,400

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seal of Yeager’s package is opened. Again, appellant’s zipper
is also disclosed to be used within a bag.
Also, contrary to appellant’s arguments, we do not find
that the use of impermissible hindsight is necessary for
concluding that it would have been obvious for one of ordinary
skill in the art to use a slider of the type disclosed by
Thieman to facilitate opening and closing the zipper of Yeager.
As a final point, we note that appellant bases no argument
upon objective evidence of nonobviousness, such as unexpected
results, which would serve to rebut the inference of obviousness
established by the applied prior art.
In conclusion, based on the foregoing and the reasons well-
stated by the examiner, the examiner’s decision rejecting the
appealed claims is affirmed.
Appeal No. 2006-1088
Application No. 09/974,400

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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(iv)(effective Sept. 13, 2004).
AFFIRMED

Edward C. Kimlin )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Bradley R. Garris ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Jeffrey T. Smith )
Administrative Patent Judge )

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