ILLINOIS TOOL WORKS INC.

Patent Trials and Appeals Board

May 28, 2020

14754755 - (D) (P.T.A.B. May. 28, 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.
14/754,755 06/30/2015 Steven AUSNIT 121981-00467 5979
51468 7590 05/28/2020
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
825 Eighth Avenue
31st Floor
NEW YORK, NY 10019
EXAMINER
HARMON, CHRISTOPHER R
ART UNIT PAPER NUMBER
3649
MAIL DATE DELIVERY MODE
05/28/2020 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 STEVEN AUSNIT and ERIC PLOURDE

Appeal 2019-006463
Application 14/754,755
Technology Center 3600
____________

Before EDWARD A. BROWN, JAMES P. CALVE, and
BRANDON J. WARNER, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1 and 5–13. Claims 2–4 are cancelled.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

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 Illinois Tool
Works Inc. Br. 2.
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Application 14/754,755

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CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim on appeal, and reads:
1. A method for manufacturing reclosable packages,
including the steps of:
providing a web moving in a machine direction;
attaching a reclosure of continuous cross section across
the web in a transverse direction, wherein the reclosure includes
an interlocking element and further includes first and second
ends which are inwardly offset from respective first and second
edges of the web, thereby providing respective first and second
spaces of the web inwardly adjacent from respective first and
second edges of the web, the first and second spaces of the web
being outwardly adjacent from the respective first and second
ends of the reclosure;
bringing the first and second spaces of the web together,
thereby positioning portions of the interlocking element
proximate to the first and second ends of the reclosure into
unmated opposing end-wise alignment, the first and second
ends of the reclosure being separated by a gap;
sealing the first and second spaces of the web to each
other to form a fin seal; and
folding the fin seal, wherein inner surfaces of the fin seal
are adjacent to each other.
Br. 7 (Claims App.).

REJECTIONS
Claims 1, 5–9, and 11–13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Christoff (US 4,655,862, issued Apr. 7, 1987) and Yeager
(US 2009/0013644 A1, published Jan. 15, 2009).
Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Christoff, Yeager, and Ausnit (US 6,131,370, issued Oct. 17, 2000).

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ANALYSIS
Claims 1, 5–9, and 11–13 as unpatentable over Christoff and Yeager
Appellant argues the patentability of claims 1, 5–9, and 11–13 as a
group. Br. 4–5. We select claim 1 to decide the appeal as to this rejection,
and claims 5–9 and 11–13 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
As to claim 1, the Examiner finds that Christoff discloses, inter alia,
attaching a reclosure (reclosable fastener strip 44) across a web in a
transverse direction, wherein the reclosure includes first and second ends
which are inwardly offset from respective first and second edges of the web,
thereby providing respective first and second spaces (marginal areas 78) of
the web inwardly adjacent from the respective first and second edges; and
sealing the first and second spaces of the web together as a fin seal (fin
assembly 34). Non-Final Act. 2–3 (citing Christoff, Figs. 1, 2, 4, 5, 14).
The Examiner finds that Christoff discloses the claim limitation “the first
and second ends of the reclosure being separated by a gap” (hereafter, “gap
limitation”) in forming a lap seal of the longitudinal edges, and discloses
varying the fastener lengths relative to the web’s width at “‘any preferred
differential.’” Id. at 3 (citing Christoff, col. 8, ll. 62 et seq., Figs. 10, 14).
Appellant contends that Christoff does not disclose or suggest the gap
limitation of claim 1. Br. 4. Appellant contends that Figures 5, 8, and 9 of
Christoff show the zipper ends abutting each other and there is no indication
of a gap between the zipper ends when employing a fin seal (id.), and that
Figure 10 does not clearly disclose a gap in the finished product (id. at 5).
Appellant further contends that, in Christoff, the passages at column 6, lines
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49 et seq. and column 8, lines 49 et seq., and Figure 10 do not disclose the
claimed “gap” in combination with a fin seal. Id. at 4–5.
The Examiner responds that Christoff teaches both a lap seal and a fin
seal. Ans. 5–6. The Examiner disagrees that Christoff discloses abutting
ends of reclosure material or the ends of the closure touching. Id. at 6; Br. 5.
The Examiner submits that Figure 10 of Christoff shows bringing the first
and second spaces of the web together with the first and second ends of the
reclosure material having a gap, as claimed, and Christoff also describes
varying the margin from the fastener end to each side edge of the web at any
preferred differential. Ans. 6 (citing Christoff, col. 8, l. 62 et seq., Fig. 14).
The Examiner determines that, in Christoff, varying the spacing (marginal
area 78) of reclosure material with respect to the film edge is not exclusive
to the lap seal. Id.
We agree with the Examiner that Christoff’s teachings are not limited
to having the ends of the reclosure material abut or touch each other. First,
Figures 5, 8, and 9 of Christoff do not show that the zipper ends touch each
other, as Appellant contends. Br. 4. And, Appellant does not direct us to
any description in Christoff that clearly supports this position. Appellant’s
contention that Figure 10 of Christoff does not clearly disclose a gap in the
finished product is also unpersuasive because the Examiner cites Figure 14
of Christoff and related teachings to vary the length of the zipper relative to
the width of the web. Id. at 4–5; see Non-Final Act. 2–3; Ans. 6.
As noted by the Examiner, Christoff teaches that “the fastener strip
sections 44’ may be of any preferred differential in length relative to the
width of the web 31.” Christoff, col. 8, ll. 62–64 (emphasis added); see Ans.
6 (citing id. and Fig. 14). Christoff further describes:
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As shown in FIG. 14, for example, the fastener strip sections
44’ may be shorter than the width of the web so as to leave a
marginal area 78 along each longitudinal edge of the web
between such edge and the adjacent end of the fastener strip
44’ . . . .”
Id. at col. 8, l. 64–col. 9, l. 1. Appellant does not apprise us of error in the
Examiner’s finding that Christoff does not limit these teachings to varying
the spacing of the ends of the fastener strip from the respective edges of the
web for a lap seal only. Ans. 6. Nor does Appellant persuade us that
Christoff’s teachings are limited to abutting the fastener ends when forming
a fin seal in view of these teachings.
Second, the “bringing” step in claim 1 recites the gap limitation, but
the claim does not explicitly specify or limit any size of the gap. Nor does
Appellant direct us to any disclosure that defines a “gap” as having a
particular size. Accordingly, we must broadly construe the gap limitation to
mean that the first and second ends of the reclosure do not physically contact
each other (i.e., that they are “separated by a gap”). Appellant contends that
Christoff discloses a bag style in which “the zipper ends end up butting or
are at least immediately adjacent to each other (with no gap) at the edges of
the bag.” Br. 5 (emphasis added). To the extent Appellant is contending
that the term “gap” requires not only that the zipper ends do not touch each
other, but also that there be at least some specific distance between the
zipper ends, Appellant does not direct us to any support for such a position.
Additionally, the “sealing” and “folding” steps in claim 1 do not recite
any limitation that would require the resulting reclosable package, that is, the
“finished product,” to include a gap in combination with a fin seal. In other
words, claim 1 requires the first and second ends of the reclosure to be
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separated by a gap when the spaces are brought together as recited in the
bringing step, but claim 1 does not require the ends of the reclosure to be
spaced apart from the fin seal. Accordingly, Appellant’s contention that
Christoff does not disclose the claimed “gap” in combination with a fin seal
is also unpersuasive. Br. 5.
Third, the Examiner finds that Yeager teaches a configuration with a
reclosure material that does not extend across the width of the bag, such that
the reclosure material ends would not be placed in an abutting configuration
during a folding process. Ans. 6. Appellant does not apprise us of error in
this finding. Nor does Appellant apprise us of error in the Examiner’s
reasoning that one of ordinary skill in the art could have easily modified the
process of sealing a fin sealed bag configuration in a similar manner by
providing a shortened reclosable fastener, as exemplified by Yeager and
would have done so to prevent defective bag seals at the fin seal resulting
from imprecise positioning of the reclosure ends. Id. at 7.
Lastly, according to Appellant, in manufacturing a package with
margins and a lap seal, there would likely be an unintended gap between the
ends of the closure, but that with margins and the claimed fin seal, “one
skilled in the art would be drawn to having the ends of the closure touch (as
apparently shown in Figures 8 and 9 of . . . Christoff . . .) and nothing would
lead one skilled in the art to leave such a gap.” Br. 5. Appellant’s attorney
argument lacks evidentiary support, and thus, is unpersuasive. See Becton,
Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1260 (Fed.
Cir. 2010) (“Unsupported attorney argument . . . is an inadequate substitute
for record evidence.”). Furthermore, as discussed above, we are not
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persuaded that claim 1 requires both a gap and a fin seal in the finished
product.
For the foregoing reasons, we sustain the rejection of claim 1. Claims
5–9 and 11–13 fall with claim 1.

Claim 10 as unpatentable over Christoff, Yeager, and Ausnit
Appellant contends that Ausnit does not cure the deficiencies of
Christoff and Yeager as to the rejection of claim 1. Br. 6. As Appellant’s
arguments do not apprise us of error in the rejection of claim 1, we sustain
the rejection of claim 10 as unpatentable over Christoff, Yeager, and Ausnit
for the same reasons as for claim 1.

DECISION SUMMARY
In summary:

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5–9, 11–13 103(a) Christoff, Yeager 1, 5–9, 11–
13

10 103(a) Christoff, Yeager,
Ausnit
10
Overall
Outcome
1, 5–13

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PERIOD FOR RESPONSE

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