Heine Heininga

Patent Trials and Appeals Board

Jun 30, 2020

13441358 - (D) (P.T.A.B. Jun. 30, 2020)

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.
13/441,358 04/06/2012 Heine Heininga POL766/4-002US 3107
22892 7590 06/30/2020
VINSON & ELKINS L.L.P.
1001 Fannin Street
Suite 2500
HOUSTON, TX 77002-6760
EXAMINER
THEIS, MATTHEW T
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
06/30/2020 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):
ggoel@velaw.com
iptldocket@velaw.com
sbrown@velaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HEINE HEININGA

Appeal 2019-006670
Application 13/441,358
Technology Center 3700
____________

Before JOHN C. KERINS, MICHAEL L. HOELTER, and
WILLIAM A. CAPP, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5, 6, 15, 25, 27, 29, 32, 37, 52–54,

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Polytex
Fibers Corporation.” Appeal Br. 3.
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and 58–72, which constitute all the claims pending in this application.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to bags with one or more easy
open features.” Spec. ¶ 6. Apparatus claim 1 and method claim 32 are
independent. Claim 1 is illustrative of the claims on appeal and is
reproduced below.
1. A bag having a top, a bottom, a first side, a second side,
an interior surface and an exterior surface, the bag comprising:
a first panel comprising a first layer laminated to a
second layer and having a top end, a bottom end, a first side, a
second side, an exterior surface and an interior surface,
a first side panel comprising a first layer laminated to a
second layer, and having a top end, a bottom end, a first side, a
second side, an exterior surface and an interior surface, the first
side of the first side panel attached to the second side of the first
panel;
a second panel comprising a first layer laminated to a
second layer, and having a top end, a bottom end, a first side, a
second side, an exterior surface and an interior surface, the first
side of the second panel attached to the second side of the first
side panel, wherein the top end of the second panel extends
further than the top end of the first panel, forming a flap that
enables the top end of the second panel to fold over the top end
of the first panel;
a second side panel comprising a first layer laminated to
a second layer, and having a top end, a bottom end, a first side,
a second side, an exterior surface and an interior surface, the
first side of the second side panel attached to the second side of

2 The Examiner included a reference to claims 55–57 (see Final Act. 1-
Office Action Summary) but these claims have been canceled. See Appeal
Br. 26 (Claims Appendix).
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the second panel and the second side of the second side panel
attached to the first side of the first panel, the first panel, first
side panel, second panel and second side panel defining a first
opening proximal to the top end of the first panel and a second
opening proximal to the bottom end of the first panel; and
an easy open feature attached to one of the exterior
surface of the first panel and the interior surface of the second
panel, the easy open feature enabled to be attached to the other
one of the exterior surface of the first panel and the interior
surface of the second panel to close the first opening using the
flap, the easy open feature comprising an elongated polymer
member having a first end proximate the first side of the first
panel and a second end proximate the second side of the first
panel;
wherein the elongated polymer member is enabled to
preferentially tear apart to open the bag when the flap is pulled
away;
wherein each of the first layers comprise a woven
polymer, and each of the second layers comprise an oriented
polymer film; and
wherein the bag is adapted to be filled with from 10 to
100 pounds of solid contents.
EVIDENCE
Name Reference Date
Provost US 5,172,980 Dec. 22, 1992
Calvert et al.
(“Calvert”)
US 6,047,883 Apr. 11, 2000
Thrall US 6,478,465 B1 Nov. 12, 2002
Floyd, JR. US 2007/0104905 A1 May 10, 2007
Clune et al. (“Clune”) USA 7,406,810 B2 Aug. 5, 2008
Lin et al. (“Lin”) US 7,731,425 B2 Jun. 8, 2010
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REJECTIONS3
Claims 1, 3, 5, 6, 15, 25, 27, 29, 52–54, and 59–61 are rejected under
35 U.S.C. §103(a) as unpatentable over Floyd, Clune, Provost, and Thrall.
Claim 2 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Floyd, Clune, Provost, Thrall, and Calvert.
Claims 32, 37, 63–68, and 70–72 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Floyd, Clune, and Provost.
Claim 62 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Floyd, Clune, Provost, and Thrall.
Claims 58 and 69 are rejected under 35 U.S.C. §103(a) as
unpatentable over Floyd, Clune, Provost, Thrall, and Lin.
ANALYSIS
The rejection of claims 1, 3, 5, 6, 15, 25, 27, 29, 52–54, and 59–61
as unpatentable over Floyd, Clune, Provost, and Thrall
Appellant argues all these claims together. See Appeal Br. 9–19. We
select claim 1 for review, with the remaining claims standing or falling with
claim 1. See 37 C.F.R. § 1.37(c)(1)(iv).
The Examiner primarily relies on the teachings of Floyd for disclosing
much of the recited bag structure, but acknowledges that “Floyd does not
disclose an easy open feature” or that “the bag is adapted to be filled with
from 10 to 100 pounds of solid content” as claimed. Final Act. 4–5. Clune
is relied on for disclosing the recited “easy open feature,” as well as its

3 The rejection of claim 5 as being indefinite under 35 U.S.C. § 112(b) has
been withdrawn. See Ans. 15.
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associated “elongated polymer member.”4 Final Act. 5 (specifically
referencing the Fig. 34A embodiment employing hook and loop bands). The
Examiner, however, notes that Clune discloses this “easy open feature” as
“attached to the interior surface of the second panel (at 330)” and relies on
Provost for teaching “the ability to have an easy open feature attached to an
exterior surface.”5 Final Act. 5 (referencing Provost Fig. 6) (emphasis
added). The Examiner relies on Thrall for teaching the scaling of the bag “to
contain between 10 and 100 pounds” because “to scale the bag [is] known in
the industry.”6 Final Act. 6.
Appellant initially contests the Examiner’s combination of Floyd’s
bag with Clune’s easy open feature. See Appeal Br. 9–10. Although
acknowledging that Floyd discloses a “pinched closure” type bag (see
Floyd ¶ 2), Appellant contends that modifying Floyd with Clune’s hook and
loop system “is substantially different and is not contemplated by Floyd.”
Appeal Br. 10.
This contention is not persuasive because although Floyd is relatively
silent as to any detail regarding a bag closure system (Floyd is instead

4 The Examiner reasons that it would have been obvious to employ Clune’s
“easy open and reclosable feature in order to allow the user to open and then
subsequently close the bag thereby protecting the internal contents from the
outside environment.” Final Act. 5.
5 The Examiner reasons that it would have been obvious to “attach the easy
open feature to an exterior surface of the first panel” as recited “because
such a change would require a mere choice between a finite number of
configurations with predictable results,” i.e., attachment to “the exterior
surface rather than the interior surface.” Final Act. 5–6.
6 The Examiner also reasons that “such a change would allow the bags to
carry a specific amount of materials that are suitable to a prospective user.”
Final Act. 6.
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directed to bag material), Floyd clearly discloses use of a “pinched closure”
system with the bag. See Floyd ¶¶ 2, 26. Further, Appellant does not
explain how or why Clune’s easy open feature employing hook and loop
bands 104 and 106 is not of the “pinched closure” type briefly described in
Floyd, or how such bands cannot also be easily opened. See, e.g., Clune’s
discussion of Figure 34A. Hence, Appellant’s contention that Clune’s bands
and Floyd’s closure are “substantially different and [] not contemplated by
Floyd” is not persuasive.
Appellant also challenges the Examiner’s reliance on Clune for
teaching the “elongated polymer member” limitation. See Appeal Br. 10,
12. Appellant focuses on Clune’s teaching of a barrier layer that may be
made of a polymer (see Clune 8:27–30) contending “[t]he ‘barrier layer’ in
Clune does not teach or suggest [] ‘the elongated polymer member.” Appeal
Br. 12. However, the Examiner additionally finds that Clune teaches a
closure system wherein “the closure strip is advantageously formed of the
same material as the substrate.” Ans. 17 (referencing Clune 2:57–58). The
Examiner notes that Clune specifically identifies one example of suitable
material as “polypropylene, polyester or nylon . . . and copolymers and
compatible mixtures that include at least one of such resins.” Ans. 18
(referencing Clune 2:59–64); see also Clune 15:23–24 (“parallel bands 104
and 106 of loops and fastener elements”); 15:40–41 (“[b]and 104 of loops
consists of a preformed, non-woven web of polymer fibers”). Hence,
Appellant is not persuasive that the Examiner erred in relying on Clune for
teaching this “elongated polymer member” limitation.
Appellant also contends that combining the teachings of Floyd and
Clune would involve “substantial modification.” Appeal Br. 11; see also id.
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at 12–14. Appellant alleges that “the Office has not demonstrated how the
‘parallel bands 104 and 106 of loops and fastener elements . . .on . . . front
face 108’ (see Clune col 15, ln 20–25) could ever be properly modified to be
operable with the ‘pinched closure’ in Floyd.” Appeal Br. 11. This
contention is not persuasive since it is clear that “[t]he modification is
intended to take the bag mouth of Floyd as shown in Figure 1 [] and attach a
known easy open feature in the form of the easy open and reclosable strip
(444) as demonstrated by Clune Fig. 34A.” Ans. 15–16. Appellant does not
explain what “substantial modification” might be involved in employing
Clune’s hook and loop closure system into the “pinched closure” system
described and illustrated in Floyd. See Floyd ¶¶ 2, 26, Fig. 1. As such,
Appellant’s contention is not persuasive of Examiner error.
Further, Appellant alleges that employing Clune’s closure “is an
additional workpiece in addition to the bag itself.” Appeal Br. 12.
However, even though it appears that Appellant’s own easy open feature 120
is likewise “an additional workpiece in addition to the bag itself ” (see
Appellant’s Figures 2A, 2B, 3), we have been instructed that a given course
of action often has simultaneous advantages and disadvantages, and this
does not necessarily obviate any or all reasons to combine teachings. See
Winner Int'l Royalty Corp. v. Wang, 202 F.3d 1340, 1349, n. 8 (Fed. Cir.
2000). Thus, we are not persuaded by Appellant’s contention that because
Clune’s closure “is an additional workpiece,” the references should not have
been combined. In short, we are not persuaded of Examiner error on this
point.
Appellant also relies on the embodiment of “figure 41A of Clune” as
support that Clune requires tearing of the bag yet “Floyd never discloses
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tearing the bag itself.” Appeal Br. 12. This contention is not persuasive
because the Examiner did not rely on this embodiment of Clune, but instead
on the Figure 34A embodiment. See Final Act. 5. Further, claim 1 is silent
as to how the bag is opened, only that there is “an easy open feature” which
is “enabled . . . to close the . . . opening using the flap.” On this latter point
of enabling closure, Appellant does not explain how Clune’s easy open
feature fails to likewise be so enabled.
Appellant also contends that the hook and loop bands “in Clune are
not a singular ‘member’ that ‘tears apart’, as required by claim 1.” Appeal
Br. 12. This argument is likewise not persuasive because claim 1 is silent as
to any singularity of the easy open feature. In fact, claim 1 recites this easy
open feature being “attached” to both an “exterior surface of the first panel
and the interior surface of the second panel” so that an opening can be
closed “using the flap.” Hence, it is not clear how Appellant can attempt to
distinguish Clune because Clune is “not a singular ‘member’” when this is
not a claimed feature. Appellant also does not explain how Clune’s hook
and loop closure system fails to be “enabled to preferentially tear apart to
open the bag when the flap is pulled away” as recited. Hence, we are not
appraised on Examiner error on this point.
Appellant further contends that “a closure device is a key technical
and economic feature of a commercial bag that involves substantially more
consideration and technical skill than ‘a mere choice of a known disclosure
device’ to implement.” Appeal Br. 13. However, Appellant does not
explain how, in view of the teachings of Floyd, Clune, and Provost, the
recited easy open feature would not have been rendered obvious to a skilled
person, albeit as a technical and economic feature.
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Appellant additionally contends that “the respective closure used in
Floyd and Clune teach away from each other, because they are not
compatible with each other.” Appeal Br. 15; see also id. at 14. However, as
the Examiner explains, Appellant “fails to disclose exactly how any of the
references teach away or discourage a solution taught from one another.”
Ans. 19. The Examiner “notes that the cited closures are different from one
another” but regardless, “they demonstrate different known bag closures.”
Ans. 19–20. In other words, Appellant does not make clear how Clune’s
closure system is precluded from being combined with Floyd’s bag. See
Ans. 19–20.
Appellant also contends “that Floyd would be rendered unsatisfactory
for its intended purpose, which is to provide a bag that can be torn open.”
Appeal Br. 15. However, Appellant does not make clear how Clune’s hook
and loop closure system cannot likewise be “torn open” as desired, and
thereafter still be enabled “to close the first opening” as also recited.
Appellant addresses Provost by attempting to incorporate additional
structure into the Examiner’s use of this reference. See Appeal Br. 15–17.
However, this contention is likewise without merit because, as the Examiner
clearly states, “the overall bag structure of Provost is not intended to be
bodily included into the modification.” Ans. 20. Instead, “Provost is relied
on only to teach the ability to attach a closure strip to outer surfaces of a bag
as shown in figure 6.” Ans. 20. Thus, Appellant’s attempt to bodily
incorporate more from Provost than the Examiner expressed, is not
persuasive of Examiner error.
Nor are we persuaded that the Examiner’s reliance on Provost was
“motivated by no other source than the teachings of claim 1 itself.” Appeal
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Br. 16; see also id. at 17 (“Such an explanation is evidence of improper
hindsight reasoning.”). This is because, as expressed by the Examiner,
Clune teaches attachment to an interior surface and Provost teaches
attachment to an exterior surface, such that the Examiner relied on “a mere
choice between a finite number of configurations,” which is not indicative of
hindsight reasoning, or of Examiner error. Final Act. 5; see also Ans. 20.
Regarding Thrall, as indicated above, the Examiner stated that scaling
the bag to accommodate a certain weight is “known in the industry.” Final
Act. 6; see also Appeal Br. 18. Appellant, however, believes otherwise
stating “that it is not obvious to ‘scale the bag’, because redesigning
commercial bags for different loads and capacities is a complex engineering
problem that is not trivial.” Appeal Br. 18. Appellant seems to assert that a
skilled person would undertake the “complex engineering problem”
involved in designing a new bag rather than take advantage of bags already
designed, and scale a desired bag accordingly. In view of these two
competing assertions, we are of the opinion that the Examiner has the better
position (i.e., a skilled person would be more inclined to “scale” from an
existing bag rather than address “the complex engineering problem”
encountered when starting from scratch).
Appellant also contends, “Thrall does not enable any weight capacity
greater than ‘20 pounds’” (Appeal Br. 18), but this is not responsive to the
Examiner’s rejection regarding scaling from a bag already known. See Final
Act. 6. It is also a misunderstanding of the teachings of Thrall. To be clear,
Thrall teaches a weight range within the recited range of “from 10 to 100
pounds.” See Thrall 10:1–2 (“in the range of from about 10 to 20 pounds”).
Additionally, regarding a variation in weight capacity, Thrall teaches that
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“the invention is not limited to any particular size bag” and that Thrall’s tab
assembly “may accordingly be varied to accommodate different bag sizes
and bag ply thicknesses, strengths and the like.” Thrall 10:2–6 (emphasis
added).
In summation, and based on the record presented, we are not
persuaded the Examiner erred in rejecting claims 1, 3, 5, 6, 15, 25, 27, 29,
52–54, and 59–61 as unpatentable over Floyd, Clune, Provost, and Thrall.
We sustain the Examiner rejection of these claims.
The rejection of (a) claim 2 as unpatentable over Floyd, Clune, Provost,
Thrall, and Calvert; (b) claims 32, 37, 63–68, and 70–72 as unpatentable
over Floyd, Clune, and Provost; (c) claim 62 as unpatentable over Floyd,
Clune, Provost, and Thrall; and, (d) claims 58 and 69 as unpatentable over
Floyd, Clune, Provost, Thrall, and Lin
Appellant does not separately argue these claims, but instead contends
that for the reasons presented above regarding claim 1, these claims should
be allowed. See Appeal Br. 20. We are not persuaded of Examiner error
regarding the rejection of claim 1. Consequently, we likewise sustain the
Examiner’s rejections of these claims as well.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5, 6,
15, 25,
27, 29,
52–54,
59–61
103(a) Floyd, Clune,
Provost, Thrall
1, 3, 5, 6,
15, 25, 27,
29, 52–54,
59–61

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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
2 103(a) Floyd, Clune,
Provost, Thrall,
Calvert
2
32, 37,
63–68,
70–72
103(a) Floyd, Clune,
Provost
32, 37, 63–
68, 70–72

62 103(a) Floyd, Clune,
Provost, Thrall
62
58, 69 103(a) Floyd, Clune,
Provost, Thrall,
Lin
58, 69
Overall
Outcome
1–3, 5, 6,
15, 25, 27,
29, 32, 37,
52–54, 58–
72

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