Jay S. Swamy

Patent Trials and Appeals Board

Nov 27, 2019

14454283 - (D) (P.T.A.B. Nov. 27, 2019)

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.
14/454,283 08/07/2014 Jay S. Swamy 5723-230961 7875
23643 7590 11/27/2019
Barnes & Thornburg LLP (IN)
11 S. Meridian Street
Indianapolis, IN 46204
EXAMINER
HOCK, ELLEN SUZANNE
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
11/27/2019 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):
INDocket@btlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAY S. SWAMY
Appeal 2019-002599
Application 14/454,283
Technology Center 1700
BEFORE JEFFREY B. ROBERTSON, N. WHITNEY WILSON, and
MICHAEL G. McMANUS, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–20. Appeal Br. 5–15. We have
jurisdiction under 35 U.S.C. § 6(b).

1 This Decision includes citations to the following documents:
Specification filed August 7, 2014 (“Spec.”); Final Office Action mailed
May 16, 2017 (“Final Act.”); Appeal Brief filed May 25, 2018 (“Appeal
Br.”); Examiner’s Answer mailed December 14, 2018 (“Ans.”); and Reply
Brief filed February 13, 2019 (“Reply Br.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Berry Plastics
Corporation. Appeal Br. 2.
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Application 14/454,283

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We REVERSE.
CLAIMED SUBJECT MATTER
Appellant states the invention relates to packages including a
container and a cover mounted on top of the container. Spec. ¶ 2. Claim 1,
the only independent claim on appeal reproduced below, is illustrative of the
claimed subject matter (Appeal Br. 16, Claims Appendix):
1. A package comprising
a container formed to include an interior product-storage
region and a brim arranged to surround an opening that opens
into the interior product-storage region and
a multilayer sheet including a sealant layer mated in direct
contact with the brim of the container to close the opening that
opens into the interior product-storage region formed in the
container, a skin layer, an adhesive layer directly adjacent the
sealant layer and arranged to interconnect the sealant layer and
the skin layer, the sealant layer including a removable portion
adapted to mate with the brim of the container and separate
therefrom during removal of the multilayer sheet from the brim
and a leave-behind portion adapted to separate from the adhesive
layer and the removable portion of the sealant layer to expose a
portion of the adhesive layer during removal of the multilayer
sheet from the brim and to remain in a stationary position on the
brim of the container after removal of a pad comprising the skin
layer, adhesive layer, and the removable portion of the multilayer
sheet, and sealant-layer bond means for establishing an anchor
bond between the leave-behind portion of the sealant layer and a
mating portion of the brim of the container that has a bond
strength that is greater than an interfacial bond strength of a
releasable bond between the leave-behind portion of the sealant
layer and a mating portion of the adhesive layer to cause the
leave-behind portion of the sealant layer to break away from the
adhesive layer due to cohesive bond failure to expose a portion
of the adhesive layer and to separate from the removable portion
of the sealant layer in response to application of a peeling force
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Application 14/454,283

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to the multilayer sheet when the multilayer sheet occupies a
container-closing position on the brim of the container,
wherein the sealant layer comprises a polypropylene
homopolymer having a melt flow rate of about 12 g/10 min to
about 40 g/10 min measured according to ASTM D1238.
Claim 13 is also independent and recites a container closure having
similar limitations to claim 1, including a sealant layer comprising
polypropylene. Id. at 17–18.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Haedt et al.
hereinafter “Haedt”
US 2006/0172131 A1 August 3, 2006
Kataoka et al.
hereinafter
“Kataoka”
US 6,905,744 B1 June 14, 2005
Chang et al.
hereinafter
“Chang”
US 2010/0247824 A1 September 30,
2010
“AtmeyerTM
Effective anti-fog
for polypropylene”
hereinafter
“Polyvel”
http://www.croda.com/assets/dpV1
/files/Atmer_7373.pdf
September
2012

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Application 14/454,283

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REJECTIONS3
1. The Examiner rejected claims 1–10 and 13–18 under
35 U.S.C. § 103 as obvious over Haedt and Kataoka. Final Act. 4–
9.
2. The Examiner rejected claims 11 and 12 under 35 U.S.C. § 103 as
obvious over Haedt, Kataoka, and Chang. Final Act. 9–10.
3. The Examiner rejected claims 19 and 20 under 35 U.S.C. § 103 as
obvious over Haedt, Kataoka, Chang, and Polyvel. Final Act. 10–11.

Rejection 1
We limit our discussion to claim 1, which is sufficient for disposition
of this rejection.

OPINION
The Examiner’s Rejection
The Examiner found Haedt discloses a multilayer film suitable for
packaging applications having the package structure recited in claim 1, with
the exception that Haedt is silent as to the first layer (sealant layer)

3 In the Final Action, the Examiner rejected claims 1 and 13 under 35 U.S.C.
§ 112(b) or § 112 (pre-AIA) second paragraph and claim 8 under 35 U.S.C.
§ 112(d) or § 112 (pre-AIA) fourth paragraph. Final Act. 2–3. Appellant
filed an amendment after final on August 16, 2017 amending claims 1, 8,
and 13, which was entered by the Examiner. Advisory Action mailed
August 16, 2017. The Examiner did not specifically withdraw the rejections
under 35 U.S.C. § 112 in the Advisory Action or Answer. However,
because claims 1, 8, and 13 no longer contain the language forming the basis
of the rejections, we treat these rejections as having been withdrawn by the
Examiner.
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comprising a polypropylene homopolymer having the melt flow rate recited
in claim 1. Final Act. 4–5. The Examiner found Kataoka discloses
multilayered films used in containers including a second and fourth layer
made of a mixed resin comprising 35 to 55% of polypropylene having a
MFR of 1 to 40 g/10 minutes. Id. at 5. The Examiner determined it would
have been obvious to have used a polypropylene homopolymer disclosed by
Kataoka in combination with polyester peelable heat seal layer of Haedt to
form a heat seal layer that maintains a sufficient heat resistance and
sealability. Id. at 6.

Appellant’s Contentions
Appellant argues the Examiner does not provide sufficient reasoning
as to why one of ordinary skill in the art would modify the sealant layer of
Haedt with the polypropylene of the second and fourth layers of Kataoka.
Appeal Br. 7. Appellant argues the polypropylene homopolymer in Kataoka
is used in an interior layer and not in a sealant layer, and as such serves a
different purpose and function than the polyester sealant layer in Haedt. Id.
at 8. Appellant contends the Examiner has relied upon an unreasonably
broad interpretation of Haedt, and specifically that any polymeric material
could be used in the first layer 11 (sealant layer) disclosed in Haedt. Reply
Br. 2–4. In addition, Appellant argues there are no teachings that adding a
polypropylene in combination with a polyester would still work in a sealant
layer as it is not clear that the combination would allow the sealant layer to
bond to the brim with sufficient strength and still separate from the
remaining film to expose the adhesive layer. Appeal Br. at 8–11. Appellant
argues polypropylene and polyester are incompatible, such that the
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Application 14/454,283

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modification proposed by the Examiner would render Haedt unsatisfactory
for its intended purpose. Id. at 12–13.

Issue
The dispositive issue is:
Has Appellant identified reversible error in the Examiner’s
determination that it would have been obvious to have combined the
polypropylene homopolymer disclosed in Kataoka with the polyester in the
peelable heat seal layer of Haedt to provide a package having a sealant layer
comprising polypropylene homopolymer as recited in claim 1?

Discussion
We are persuaded by Appellant’s argument the Examiner’s
combination of Haedt and Kataoka is not based on sufficient reasoning. In
particular, we agree with Appellant that Haedt, in disclosing a “polymeric
first layer 11,” does not disclose the use of any polymer including
polypropylenes, rather Haedt discloses the polymeric first layer 11 is an
alkyl-aromatic ester, where the alkyl-aromatic ester may be a homopolymer,
copolymer, or polymer blend. Haedt, ¶ 47. In this regard, although Haedt
discloses the terms “polymeric,” “copolymer,” “polyolefin,” and “polyester”
are broad terms (Haedt, ¶¶ 23, 24, 26, and 27) that include blends of two or
more polymers, we do not agree with the Examiner’s position that such
disclosures indicate that Haedt discloses polymers of alkyl-aromatic esters
may be blended with polymers not containing ester groups such as the
polypropylene polymers disclosed in Kataoka. Ans. 3–4. We also observe
that although Kataoka discloses the second and fourth layers may be mixed
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resins, such mixed resins are polyolefin copolymers and elastomers, and do
not include ester groups. Kataoka, col. 2, ll. 29–48, col. 4, ll. 1–7; col. 6, ll.
1–32. Thus, neither Haedt nor Kataoka discloses mixtures of polyolefins or
polyesters in the particular layers pointed to by the Examiner. In this regard,
we agree with Appellant that the Examiner’s statements that blending
polypropylene and polyester is known (Ans. 5) are not supported by
sufficient evidence (Reply Br. 5–6), particularly in view of the disclosures of
Haedt and Kataoka discussed above.
In addition, we agree with Appellant the Examiner has not provided
sufficient reasoning to explain how the combination of polyolefin polymers
from the second and fourth layers of Kataoka with the ester containing
polymers disclosed in Haedt would be expected to provide the resealable
effect desired in Haedt (see Haedt ¶ 10). Kataoka only generally discusses
the improvements in sealability as a result of the multilayered film as a
whole, and discloses that the second and fourth layers “impart the flexibility
without impairing the heat resistance of the multilayered film.” Kataoka,
col. 3, ll. 28–33, col. 6, ll. 1–6, 28–32. Further, the Examiner’s position that
the mixed resins of alpha-olefin elastomer in combination with
polypropylene homopolymer provides strength to the film and pinhole
resistance (Ans. 4, citing Kataoka, col. 5, ll. 25–28) pertains to mixed resin
(D), which is used in the third layer, rather than the second and fourth layers
in Kataoka relied upon by the Examiner. Kataoka, col. 2, ll. 28–49.
Accordingly, we reverse the Examiner’s rejection of claims 1–10 and
13–18 as obvious over Haedt and Kataoka.

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Application 14/454,283

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Rejections 2 and 3
Claims 11, 12, 19, and 20, which depend indirectly from independent
claims 1 and 13, stand rejected based on the same combination of Haedt and
Kataoka discussed above. Final Act. 9–11. The citation to Chang and
Polyvel fail to remedy the deficiencies identified above with respect to
Haedt and Kataoka. Accordingly, we reverse Rejections 2 and 3 for similar
reasons discussed above with respect to Rejection 1.
CONCLUSION
The Examiner’s rejections of claims 1–20 under 35 U.S.C. § 103(a)
are reversed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–10, 13–18 103 Haedt, Kataoka 1–10, 13–18
11, 12 103 Haedt, Kataoka,
Chang
11, 12
19, 20 103 Haedt, Kataoka,
Chang, Polyvel
19, 20
Overall
Outcome
1–20

REVERSED