Ex Parte Wegner et al

Patent Trials and Appeals Board

Mar 6, 2019

13065227 - (D) (P.T.A.B. Mar. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/065,227 03/17/2011
2387 7590 03/08/2019
Olson & Cepuritis, LTD.
20 NORTH WACKER DRIVE
36THFLOOR
CHICAGO, IL 60606
FIRST NAMED INVENTOR
Kenneth E. Wegner
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.
JLS-110 7407
EXAMINER
FERRERO, EDUARDO R
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
03/08/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docket@olsonip.com
firm@olsonip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KENNETH E. WEGNER,
ANTHONY SIMON RICHARDS, and ANDREW J. RUSH
Appeal2017-007493
Application 13/065,227
Technology Center 3700
Before MICHELLE R. OSINSKI, JEREMY M. PLENZLER, and
GEORGE R. HOSKINS, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Decision rejecting claims 15, 16, and 18. 1 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Claim 1 7 is cancelled.
Appeal2017-007493
Application 13/065,227
CLAIMED SUBJECT MATTER
Claim 15 is independent. Claims 16 and 18 depend from claim 15.
Claim 15 is reproduced below:
15. A packaging apparatus for a flexible, tubular,
compartmented package which comprises:
a substantially vertical frame;
a pair of driven, parallel, grooved heat sealing rolls
rotatably mounted to the frame, each heat sealing roll defining
at least one opposed circumferential groove and the rolls
together defining at least one open passageway between
respective opposed grooves;
a membrane sheet supply mounted to the frame above the
heat sealing rolls and positioned to feed continuously a
membrane sheet between the heat sealing rolls;
an outer film sheet supply mounted to the frame on each
side of the membrane sheet supply and positioned to feed
continuously a substantially co-extensive outer film sheet
between the heat sealing rolls on each side of the membrane
sheet and in a face-to-face relationship with the membrane
sheet;
at least one downwardly extending stationary liquid
product dispensing nozzle on each side of the membrane sheet
between the membrane sheet and adjacent outer film sheet; and
a transverse heat sealing device having a laterally
reciprocatable heat sealing head assembly and a stationary heat
seal anvil mounted to the frame a predetermined distance below
the heat sealing rolls and adapted to fuse together a portions of
the membrane sheet and the outer film sheets contiguous
therewith; and
a transverse knife assembly below the transverse heat
sealing device which knife assembly includes a laterally
reciprocable knife and an opposed stationary anvil;
said parallel, grooved sealing rolls being spaced from one
another at a distance sufficient to pinch therebetween and heat-
seal to one another the membrane sheet and the outer film sheet
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Application 13/065,227
at pinch sites to form at least one tube having two adjacent
longitudinal compartments; and
said stationary liquid dispensing nozzles being positioned
to dispense a liquid product into the adjacent longitudinal
compartments formed by the sealing rolls.
REJECTIONS
1. Claims 15 and 16 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kopp '047 (US 3,391,047, issued July 2, 1968) and
Sandolo (US 5,361,560, issued Nov. 8, 1994).
2. Claims 15 and 16 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kopp '047, Center (US 5,235,794, issued Aug. 17, 1993),
Kopp '540 (US 4,603,540, issued Aug. 5, 1986), Maloney (US 4,631,905,
issued Dec. 30, 1986), Gaylor (US 5,466,474, issued Nov. 14, 1995), and
Sandolo.
3. Claim 18 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kopp '047, Sandolo, and Jacobson (US 3,628,306, issued
Dec. 21, 1971).
OPINION
Claims 15 and 16-Kopp '047 /Sando lo
The Examiner finds that "Kopp ['047] discloses a transverse heat
sealing device adapted to fuse together portions of the membrane sheet and
the outer film sheets mounted to the frame but it is not below the heating
seal rolls but instead it is part of them (Figure 1, longitudinal ribs 7)." Final
Act. 4. The Examiner finds that Sandolo teaches a separate transverse heat
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Application 13/065,227
sealing device and transverse knife assembly2 and proposes modifying Kopp
'047's arrangement to include "a combined welding and cutting device as
disclosed by Sandolo and place it [below] the heating seal rolls." Id.
Appellants respond, for example, that "[ c ]laims 15 and 16 call for a
transverse knife assembly below the transverse heat sealing device which, in
tum, is situated below the heat sealing rolls" and, specifically, a "transverse
knife assembly that is an entity separate from the heat sealing rolls and is
situated below the transverse heat sealing device." Appeal Br. 7. Appellants
contend that "[n]either Kopp ['047] nor Sandolo teaches the claimed
arrangement." Id. The Examiner explains that Sandolo's knife 33A is
below its transverse heat sealing device 33B because device 33B "seals the
package above and below the knife" and "the portion above the knife will be
considered the 'transverse sealing device."' Ans. 7.
The claims require "a transverse heat sealing device having a laterally
reciprocatable heat sealing head assembly and a stationary heat seal anvil"
and "a transverse knife assembly below the transverse heat sealing device."
Sandolo's cutter 33A is part of its "laterally reciprocatable heat sealing head
assembly." See Sandolo, 4:5-10 ("Opposite the cutter 33A is a cooperating
anvil 33B to effect the sealing and severing operation as the cutter 33A is
actuated. The seal is thus formed by the application of heat and pressure as
the cutter is actuated . . . . ").
Because Sando lo' s "transverse knife assembly" is part of its
"transverse heat sealing device," it cannot be situated below the "transverse
heat sealing device" as required by the claims.
2 The Examiner does not make any finding with respect to a transverse knife
assembly in Kopp '047.
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Application 13/065,227
Accordingly, we do not sustain the Examiner's decision to reject
claims 15 and 16 as unpatentable over Kopp '047 and Sandolo.
Claims 15 and 16-Kopp '047 /Center/Kopp '540/Maloney/Gaylor/Sandolo
As an alternative basis to the rejection discussed above, the Examiner
again finds that "Kopp ['047] discloses a transverse heat sealing device
adapted to fuse together portions of the membrane sheet and the outer film
sheets mounted to the frame but it is not below the heating seal rolls but
instead it is part of them (Figure 1, longitudinal ribs 7)," but relies on
various references, in addition to Sandolo, for the limitations missing from
Kopp '047's teachings. Final Act. 5-6.
Appellants do not dispute the Examiner's findings made in connection
with this particular rejection. See Appeal Br. 8-10. Rather, Appellants
contend that "Kopp ['047] likewise provides no motivation whatsoever to
separate the unitary rotating transverse heat sealing device from the heated
sealing rolls" and "Kopp ['047] provides no suggestion or motivation to one
of ordinary skill to tum to the selected secondary references." Id. at 9.
Those contentions are unpersuasive because there is no requirement that the
references provide a suggestion or motivation for the proposed modification.
The Examiner reasons that one skilled in the art would have modified
Kopp '047's transverse heat sealing device to "place it [below] the heating
seal rolls to be able to make packages longer than the periphery of the rolls."
Final Act. 5. With respect to that particular rationale, Appellants respond
that "[i]f Kopp ['047] desired, for whatever reason, to make longer sachets,
all Kopp ['047] had to do is increase the diameter of the heated sealing
rolls." Appeal Br. 9. Appellants contend that the "modification of Kopp
['047] as proposed by the Examiner involves substantial reconstruction of
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Application 13/065,227
Kopp ['047], extra work[,] as well as increased expense for no apparent
reason." Id. Those contentions are also unpersuasive. The fact that the
benefit resulting from the proposed modification identified by the Examiner
could be achieved in another manner does not identify error in the
Examiner's rationale. Although alleging "no apparent reason" for the
proposed modification, Appellants acknowledge the Examiner's rationale
when arguing the diameter increase noted above. Id.
Appellants additionally allege that the proposed modification to Kopp
['047]'s arrangement "is a departure from the operating principle taught,"
but offer no persuasive explanation identifying any meaningful departure
from Kopp ['047]'s teachings. Appeal Br. 9.
For at least these reasons, we are not apprised of error in the
Examiner's rejection of claims 15 and 16 as unpatentable over Kopp '04 7,
Center, Kopp '540, Maloney, Gaylor, and Sandolo.
Claim 18-Kopp '047 /Sandolo/Jacobson
Claim 18 depends from claim 15. The rejection of claim 18 relies on
the Examiner's erroneous findings set forth in the rejection based on the
combination of Kopp '047 and Sandolo discussed above. Final Act. 6. 3 The
stated basis for the rejection of claim 18 does not cure the deficiencies in the
rejection of claim 15 based on the combined teachings of Kopp '047 and
Sandolo.
Accordingly, we do not sustain the Examiner's decision to reject
claim 18.
3 There is no rejection presented relying on the combined teachings of Kopp
'047, Center, Kopp '540, Maloney, Gaylor, and Sandolo with those of
Jacobson.
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Application 13/065,227
DECISION
We REVERSE the Examiner's decision to reject claims 15 and 16 as
unpatentable over Kopp '04 7 and Sando lo.
We AFFIRM the Examiner's decision to reject claims 15 and 16 as
unpatentable over Kopp '047, Center, Kopp '540, Maloney, Gaylor, and
Sandolo.
We REVERSE the Examiner's decision to reject claim 18 as
unpatentable over Kopp '047, Sandolo, and Jacobson.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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