11973948 (P.T.A.B. Sep. 5, 2013)

Ex Parte Wallace et al

Patent Trial and Appeal BoardSep 5, 2013

11973948 (P.T.A.B. Sep. 5, 2013)

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. 11/973,948 10/11/2007 David C. Wallace 121981-00260 5986 51468 7590 09/06/2013 McCarter & English LLP ACCOUNT: ILLINOIS TOOL WORKS INC. 245 Park Avenue NEW YORK, NY 10167 EXAMINER HARMON, CHRISTOPHER R ART UNIT PAPER NUMBER 3721 MAIL DATE DELIVERY MODE 09/06/2013 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 DAVID C. WALLACE, LARS WIHLBORG and CLIFTON HOWELL ________________ Appeal 2011-010248 Application 11/973,948 Technology Center 3700 ________________ Before MICHAEL L. HOELTER, LYNNE H. BROWNE and ANNETTE R. REIMERS, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-010248 Application 11/973,948 2 STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from a final rejection of claims 1, 2, 4-8, 10-12, 14-18 and 20. Br. 2. Claims 3, 9, 13 and 19 have been canceled. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The disclosed subject matter “relates to a method an[d] apparatus for hermetically sealing a zipper into a reclosable package.” Spec. 11. Independent claim 1 is illustrative of the claims on appeal and is reproduced below: 1. A pair of opposed seal bars including a first seal bar and a second seal bar, wherein the first seal bar has a length-wise continuously concave sealing surface; wherein the second seal bar has a deformable sealing surface adapted to accommodate a transition in thickness from a side seal between first and second sheets of web to a zipper engaged between the first and second sheets of web adjacent to the side seal. REFERENCES RELIED ON BY THE EXAMINER Fener US 3,334,005 Aug. 1, 1967 Yeager US 5,902,047 May 11, 1999 1 Appellants’ Specification does not provide line or paragraph numbering. Accordingly, reference will only be made to the page number. Appeal 2011-010248 Application 11/973,948 3 THE REJECTIONS ON APPEAL 1. Claims 1, 2, 4-6, 8 and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Fener. Ans. 3. 2. Claims 1, 2, 4-8, 10-12, 14-18 and 20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Yeager and Fener. Ans. 4. ANALYSIS The rejection of claims 1, 2, 4-6, 8 and 10 as being unpatentable over Fener Appellants argue claims 1, 2, 4-6, 8 and 10 together2. Br. 4. We select claim 1 for review with claims 2, 4-6, 8 and 10 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claim 1 includes the limitations of a first seal bar having “a length- wise continuously concave sealing surface” and also a second seal bar whose “deformable sealing surface [is] adapted to accommodate a transition in thickness” between multiple layers. The Examiner relies on Fener, and particularly Figures 2 and 2a thereof, for disclosing these limitations. Ans. 3-4. Regarding the former limitation concerning the first seal bar, the Examiner finds that while Fener does not “directly disclose a len[g]th-wise continuously concave sealing surface,” it would have been an “obvious design choice … to include shaping the sealing bars in a continuously concave manner.” Ans. 4. Regarding the latter limitation concerning the second seal bar, the Examiner finds that “Fener is considered ‘adapted to’ accommodate the thickness transition as claimed.” Ans. 4. 2 Appellants also argue independent claim 11 but claim 11 was not rejected as being unpatentable solely in view of Fener. Br. 4; Ans. 3. Appellants argue claim 11 together with claim 1 and not separately therefrom. Br. 4. Appeal 2011-010248 Application 11/973,948 4 Appellants acknowledge that Fener’s Figure 2A “discloses two seal bars with complementary undulations, both concave and convex.” Br. 4. However, Appellants contend that “[t]his is quite different from presently pending independent claims 1 and 11 which recite a first seal bar with ‘a length-wise continuously concave sealing surface.’” Br. 4. Appellants also argue that Fener’s device “would NOT be ‘adapted to accommodate a transition in thickness’” as claimed. Br. 4. Appellants offer no explanation or present any evidence in further support of either assertion. Regarding the limitation directed to a “length-wise continuously concave sealing surface,” we note that Fener is entitled “Heat Sealing Apparatus for Making Contoured Seams.” Fener Title. Fener states that “this invention concerns apparatus to effect seams which are not straight” and instead may be “of any desired contour lying in one or more planes.” Fener 1:18-22. More specifically, Fener teaches that “there is an elongated sealing and cutting wire 16 which is bent in any desired contour to lie flat in a single plane, which in the embodiment shown, is a horizontal plane.” Fener 2:20-23. Fener’s Figure 2 discloses wire 16 having a length-wise continuous bend, but the bend is not continuous from one end of the wire to the other. Even assuming the claim limitation in question requires a continuous bend from one end of the wire to the other, we are provided no reason to doubt that the teachings of Fener would reasonably indicate to one skilled in the art that such a continuous curvature is equally likely. Although Appellants contend that Fener is “quite different” from that which is claimed and emphasizes the “continuously” term in that limitation (Br. 4), Appellants offer no reason or evidence as to why the claimed continuous curve would function any differently from that shown in Fener. Appellants do not Appeal 2011-010248 Application 11/973,948 5 indicate how Fener’s teaching that the device may be “of any desired contour” and need not be straight (Fener 1:18-22) would preclude one skilled in the art from making such a design choice. Accordingly, we agree with the Examiner that “Fener provides concave lengths” (Ans. 5) and as such, Appellants contention is not persuasive. Regarding the limitation directed to the second seal bar being “adapted to accommodate a transition in thickness,” we agree with the Examiner that “a limitation directed to an intended use of an apparatus or a process requires a structural difference or a manipulative difference between the claimed invention and the prior art.” Ans. 5. Here, Appellants present no such structural or manipulative difference, or any evidence or reasoning in support thereof, instead, Appellants merely contend that Fener’s device “would NOT” be so adaptable without explaining why or how this might be the case. Br. 4. In essence, Appellants do not persuade us the Examiner erred in making this finding and as such, Appellants’ contention is not persuasive. Accordingly, and based on the record presented, we sustain the Examiner’s rejection of claims 1, 2, 4-6, 8 and 10 as being unpatentable over Fener. The rejection of claims 1, 2, 4-8, 10-12, 14-18 and 20 as being unpatentable over Yeager and Fener Here, the Examiner addresses Yeager’s zipper but still finds that “Fener teaches shaping sealing bars in a concave manner as desired.” Ans. 4. The Examiner concludes that it would have been obvious to provide such “a continuously concave shaped sealing bar . . . to Yeager in order to provide a degree of deviation for accommodating a length of a zipper.” Ans. 4-5. Appeal 2011-010248 Application 11/973,948 6 Appellants address the curvature of the sealing bar shown in Yeager, and particularly that shown in Yeager’s Figures 6E and 6F. Br. 5. However, the Examiner relied on Fener for teaching a curved sealing bar, not Yeager. Ans. 4-5. Accordingly, Appellants contention is not persuasive. In view of the record presented, we sustain the Examiner’s rejection of claims 1, 2, 4-8, 10-12, 14-18 and 20 as being unpatentable over Yeager and Fener. DECISION The Examiner’s rejections of claims 1, 2, 4-8, 10-12, 14-18 and 20 are 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). AFFIRMED Klh