PARKS, KEVIN L.

Patent Trials and Appeals Board

Jul 23, 2021

2019005385 (P.T.A.B. Jul. 23, 2021)

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.
13/333,700 12/21/2011 KEVIN L. PARKS 32370.00 7119
37833 7590 07/23/2021
Richard C. Litman
Nath, Goldberg & Meyer
112 S. West Street
Alexandria, VA 22314
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
07/23/2021 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):
litman@4patent.com
tharkins@nathlaw.com
uspto_nva@nathlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN L. PARKS
Appeal 2019-005385
Application 13/333,700
Technology Center 3700
Before BENJAMIN D. M. WOOD, WILLIAM A. CAPP, and
SUSAN L. C. MITCHELL, Administrative Patent Judges.
MITCHELL, 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 9–11 and 17.2 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(a). Appellant identifies the real party in interest as Kevin L. Parks.
Appeal Br. 3.
2 This appeal is taken from the Examiner’s decision as set forth in the Final
Office Action dated February 8, 2017 (“Final Act.”).
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CLAIMED SUBJECT MATTER
The claims are directed to “a collapsible bag closed by drawstring and
zipper for transporting food.” Specification (December 21, 2011) (“Spec.”)
¶ 2. According to the specification, there was a desire for a reusable bag for
food and merchandise that was flexible, which would allow it to conform to
the items it contains, and could be easily and securely closed. Id. ¶¶ 3, 5.
Figures 1 and 2 show the claimed invention closed by drawstring and
zipper, while Figure 3 shows the claimed invention in an open, laid-out
position. Id. ¶¶ 8–10, Figs. 1–3. Figures 2 and 3 are reproduced below:

Figure 2 shows a bag 10 that is closed in two locations, each location
using a different closing method. First, a drawstring 22 cinches the hem at
the top of the bag. Id. ¶ 13. The handles 14, which extend up from and are
evenly spaced around the reinforced hem at the top of the bag 10, are joined
together when the drawstring is tightened so they can be used to carry the
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bag. Id. ¶ 14. Second, a fastener member, preferably a zipper, joins the
radially extending diverging edges 18, 18a. Id. ¶¶ 11, 13.
Figure 3, which depicts an open bag laid flat, shows more of the bag’s
features. Id. ¶ 9. The flat bag shows handles 14 radially spaced out by
about 90 degrees along the bag’s peripheral hem 12. Id. ¶ 13. Fastener
member 20 is unfastened, leaving apart the radially extending diverging
edges 18, 18a. Id. Edges 18, 18a intersect near the center of the bag and
diverge towards its periphery. Id. ¶ 12. Edges 18, 18a define a cutout
sector, which is a “triangular or pie-shaped sector” removed from the top
and bottom sheets of bag 10 in an arc between 60 and 90 degrees. Id. When
fastener member 20 is open, edges 18, 18a are apart, so the cutout sector is
open, which enables a consumer to place food or items onto rigid base plate
16 at the bottom of the inside of bag 10. Id. Drawstring 22 traverses the
cutout sector. Id. ¶ 14. Barrel lock 24 is on the drawstring 22. Id. ¶ 13.
When drawstring 22 is pulled tight using barrel lock 24, peripheral hem 12
of bag 10 also tightens, thereby cinching bag 10 around the items inside it.
Id. ¶¶ 13–14.
Claim 9, reproduced below, is an independent claim that illustrates the
claimed subject matter wherein emphasis is added on the limitation at issue
on appeal:
9. A collapsible bag capable of assuming the configuration of the
items carried therein, comprising:
a body member having substantially circular, flexible walls
defining a bag, a central area, and a circular periphery, the body
member having a cutout sector defining an opening into the bag,
the opening having opposed edges, the body member being made
from a rugged, flexible material, whereby the bag retains its
circular configuration when laid out on a flat surface;
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a rigid base plate positioned at the central area of the circular
walls;
a reinforced hem extending around the periphery of the body
member, wherein the reinforced hem is tubular, the bag further
including a drawstring encapsulated in the reinforced hem, the
drawstring having opposite ends extending across the cutout
sector in said body member;
a plurality of handles extending from the reinforced hem and
strategically spaced therearound, wherein the plurality of handles
comprises four handles radially spaced diametrically apart by
about 90°; and
a fastener disposed on the edges for optionally securing said
edges together to close the opening in the bag, wherein the bag
substantially retains its circular configuration throughout the
closure.
Corrected Appeal Brief (February 7, 2018) (“Corrected Appeal Br.”) 15,
Claims Appendix (emphasis added). Claim 17, the other independent claim
on appeal, is almost identical to claim 9; the sole difference is claim 17
recites the transition phrase “consisting of” where claim 9 recites
“comprising.” Id. at 16; Appeal Brief (December 26, 2017) (“Appeal Br.”)
7 (acknowledging this as the sole difference). The remaining claims on
appeal, claims 10 and 11, both depend directly from claim 9.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Dilar et al. (“Dilar”) U.S. Pat. No. 2,781,811 Feb. 19, 1957
Dodd US 2010/0104222 Al Apr. 29, 2010
Gilstrap U.S. Pat. No. 5,450,629 Sept. 19, 1995
Bornemeier et al.
(“Bornemeier”)
U.S. Pat. No. 7,694,494 B2 Apr. 13, 2010
Lee US 2010/0284631 Al Nov. 11, 2011
Somers, Jr. (“Somers”) U.S. Pat. No. 2,897,863 Aug. 4, 1959
Cliett U.S. Pat. No. 391,022 Oct. 16, 1888
Birds US 2008/0205797 Al Aug. 28, 2008

REJECTIONS
The Final Office Action (“Final Act.”) includes the following
rejections under pre-AIA sections of Title 35, see Final Act. 2:
Rej. Claims
Rejected
35 U.S.C. § Reference(s)/Basis
1 9–11, 17 112, first
paragraph
Lack of written description
2 9, 10, 17 103(a) Dilar, Dodd, Gilstrap, Bornemeier or
Lee, Somers or Cliett
3 11 103(a) Dilar, Dodd, Gilstrap, Bornemeier or
Lee, Somers or Cliett, Birds

OPINION
Lack of written description (Claims 9–11 and 17)
The Examiner finds that the specification lacks written description
support for the final limitation of independent claims 9 and 17 as amended to
include the following new matter: “wherein the bag substantially retains its
circular configuration throughout the closure.” Final Act. 3. The Examiner
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finds that the unfastened edges of the cutout sector in Figure 3 do not
suggest that the bag retains a substantially circular configuration when the
edges are fastened to close the bag. Id. at 3, 9. The Examiner also observes
that Figures 1 and 2 fail to provide support for this limitation because their
depictions assume a closed configuration. Id. at 3.
Appellant contends that the specification, viewed in its entirety,
provides written description support for this limitation. Appeal Br. 10–11.
Appellant asserts “[i]t seems clear that a circular bag having circular walls
would retain its circular configuration when closed.” Appeal Br. 11.
Appellant also cites paragraphs 11, 13, and 14 of the Specification as
representative examples of written description support for this limitation. Id.
at 10–11.
The Examiner responds that the specification “never describes or
suggests the bag as being circular after the radial edges are fastened.”
Examiner’s Answer (April 3, 2018) (“Ans.”) 3 (citing Figs. 1, 2). Instead,
the Examiner observes, it only describes the bag as circular when it is open
and laid out, id. (citing Fig. 3), concluding there is not sufficient written
description for the limitation, id. at 4.
Next, the Examiner counters that two of Appellant’s examples (Spec.
¶¶ 11, 13) relate to the bag in an open, laid-out configuration. Id. at 3. And
though the third example (Spec. ¶ 14) describes the bag in a closed
configuration by pulling the bag up around the items, the Examiner notes
that closing in this manner “is insufficient to suggest that the bag maintains
its circular configuration after the radial edges are fastened.” Id. The
Examiner agrees that the top sheet, bottom sheet, and peripheral hem are of
circular configuration before any material is removed. Id. But removing
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material from these three features to create the cutout sector also removes
the bag’s circular configuration when open and closed. Id. As with Dilar,
after fastening the radial edges to close the cutout sector, the bag would no
longer have a circular configuration. Id. at 4.
We agree with the Examiner and do not find Appellant’s argument
persuasive. To satisfy the written description requirement of § 112, first
paragraph, the application’s disclosure must “reasonably convey[] to those
skilled in the art that the inventor had possession of the claimed subject
matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d
1336, 1351 (Fed. Cir. 2010) (citations omitted). Appellant’s application
does not demonstrate possession of the claimed subject matter with the
limitation at issue.
As the Examiner correctly observes, the only description of a circular
configuration relates to the bag when it is open and laid out. This is depicted
in figure 3 and described in three paragraphs of the specification. Spec. ¶¶ 4
(“Generally circular in configuration when laid out, the bag is designed with
a missing sector to enhance closing.”), 11 (“When open and laid-out, as
shown in Fig. 3, the bag 10 is of circular configuration . . .”), 13 (“. . . the
drawstring 22 tightens the peripheral hem 12 of the circular bag 10 . . .”),
Fig. 3. None of this disclosure addresses the configuration of the bag
throughout the closure.
Paragraph 14 is the sole remaining part of the application Appellant
relies on as disclosure for the limitation. This paragraph explains how the
two methods of closing the bag function to secure items inside it: first, the
radial edges are zipped; second, the bag is pulled around the items; and last,
the drawstring is pulled tight. Id. ¶ 14. Again, this does not address the
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configuration of the bag throughout the closure, much less indicate that the
bag substantially retains its circular configuration throughout the closure.
Appellant’s conclusory assertion also fails to overcome the rejection.
This statement—that “[i]t seems clear that a circular bag having circular
walls would retain its circular configuration when closed”—finds no support
in the portions of the Specification cited by Appellant. As we explained
above, the Specification, namely the sections cited by Appellant as support,
is silent on this limitation. Nor is there any other evidence in the record that
supports Appellant’s assertion. And the Examiner further undermines
Appellant’s conclusory assertion by persuasively explaining that the cutout
sector and rigid base plate contribute to—and, more relevantly, prevent—the
bag’s circular configuration in both an open, laid-out configuration and a
closed position when the radial edges are secured together. Ans. 3–4.
In light of the above, we affirm the Examiner’s rejection of claims 9–
11 and 17 for lack of written description.
Obviousness over Dilar in view of Dodd, Gilstrap, Bornemeier or Lee, and
Somers or Cliett (Claims 9 and 17)
The Examiner finds that Dilar teaches each limitation of claim 9
except the following limitations:
(1) the body member having substantially circular, flexible
walls;
(2) the base plate positioned at the central area being a rigid
base plate;
(3) the drawstring having opposite ends extending across the
cutout sector in said body member;
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(4) a plurality of handles extending from the reinforced hem
and spaced there around, wherein the plurality of handles
comprises four handles radially spaced diametrically
apart by about 90 degrees; and
(5) a cutout sector configured to allow the bag to retaining
its substantially circular configuration throughout the
closure.
Final Act. 4. The Examiner finds that: (1) Dodd teaches the first and second
limitations, id. at 4–5 (citing Dodd ¶¶ 18, 19, 22, Figs. 5–8); (2) Gilstrap
teaches the third limitation, id. at 5–6 (citing Gilstrap, Figs. 2, 3C, 3D);
(3) Dodd, Bornemeier, and Lee teach the fourth limitation, id. at 6 (citing
Dodd ¶ 22, Figs. 5–8; Bornemeier 6:9–62, Fig. 2; Lee ¶¶ 54–56, Figs. 4–6e);
and (4) Somers and Cliett teach the fifth limitation, id. at 7 (citing Somers
1:56–57, 2:1–22, Figs. 1–2, Cliett 19–77, Fig. 1).
In response to Appellant’s prior arguments, the Examiner notes that
attacking individual references cannot overcome an obviousness rejection
based on a combination of references. Id. at 9 (citing In re Keller, 642 F.2d
413 (CCPA 1981); In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986)).
The Examiner also recognizes that combining or modifying prior art may
establish obviousness “where there is some teaching, suggestion, or
motivation to do so found either in the references themselves or in the
knowledge generally available to one of ordinary skill in the art.” Id. (citing
In re Fine, 837 F.2d 1071 (Fed. Cir. 1988); In re Jones, 958 F.2d 347 (Fed.
Cir. 1992); KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007)).
Appellant raises two types of arguments to overcome this rejection.
The main argument asserts that individual references fail to teach specific
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limitations without considering what the combination of references teaches
as a whole. First, Appellant argues Dilar does not disclose “the circular
configuration of the claimed bag,” or second, that the bag of Dilar “retain[s]
a circular shape upon closure.” Appeal Br. 13. Third, Appellant argues
neither Dilar nor Dodd teaches a bag with both a drawstring and handles. Id.
Fourth, Appellant argues Bornemeier does not disclose “a plurality of
handles extending from the reinforced hem and strategically spaced
therearound, wherein the plurality of handles comprises at least two handles
spaced diametrically apart.” Id. at 13–14. In advancing these arguments,
Appellant does not address whether any combination of these references
teaches the alleged missing limitations.
As for its remaining argument, Appellant asserts that Dilar does not
“possess or need handles.” Id. According to Appellant, Dilar “does not
want handles, but, rather, uses and needs drawstring.” Id.
The Examiner’s answer addresses the purported shortcomings
identified by Appellant. The Examiner answers that Dilar teaches the bag’s
circular configuration. Ans. 4–5. The Examiner points to Dilar’s teaching
of an analogous collapsible bag, depicted in Dilar’s Figure 4, that comprises
a circular sheet with a cutout triangular sector defined by radial edges that
diverge towards the bag’s periphery. Dilar, 1:72–2:44, Fig. 4. Next, the
Examiner answers that Somers and Cliett teach that the bag retains its
circular configuration upon closure, so Appellant’s argument that Dilar fails
to teach this limitation is irrelevant as the Examiner does not rely on Dilar
for teaching this feature. Ans. 5–6 (citing In re Keller, 642 F.2d 413 (CCPA
1981); In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986)). Finally, the
Examiner answers that Bornemeier and Lee teach that drawstring bags were
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known in the prior art to also have handles as a means to carry the bags, and
Dodd and Lee teach that handles in the prior are were known to be
positioned along an outer perimeter and extend from the bags’ perimeter
with at least two carrying handles spaced diametrically apart. Id. at 8–9.
The Examiner also addresses Appellant’s argument that Dilar does not
want or need handles. Id. at 6–7. The Examiner counters that Dilar “does
not in any way specifically criticize, discredit, or otherwise discourage the
use of handles.” Id. at 6. And though Dilar discloses the bag may be
dragged, this provides sufficient suggestion and motivation, rather than lack
of desire, for a means, such as handles, to drag the bag. Id.
We do not find Appellant’s arguments persuasive. First, we reject
Appellant’s attempts to overcome the obviousness rejection by arguing
individual references of the combination fail to teach every limitation.
Although this may be an appropriate analysis for an anticipation analysis
under § 102, see In re Skvorecz, 580 F.3d 1262, 1266 (Fed. Cir. 2009)
(“Anticipation requires that all of the claim elements and their limitations are
shown in a single prior art reference.”), the Examiner correctly notes that a
combination of references can establish obviousness even if individual
references do not independently teach every claimed limitation. See In re
Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”); In re Keller, 642 F.2d
at 424. This follows the proper test for obviousness, which scrutinizes
“what the combined teachings of the references as a whole would have
suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d at 424
(citations omitted); see also Cohesive Techs., Inc. v. Waters Corp., 543 F.3d
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1351, 1364 (Fed. Cir. 2008) (“Obviousness can be proven by combining
existing prior art references, while anticipation requires all elements of a
claim to be disclosed within a single reference.”) (citations omitted).
Upon reviewing the disclosures of the references cited in the rejection
and comparing them to the four limitations purportedly not taught therein,
we conclude that Appellant fails to show the Examiner erred in rejecting
claims 9 and 17 as obvious. First, Dilar teaches that the bag has a circular
configuration quite similar to the claimed bag when laid out flat. Dilar
1:72–2:44, Fig. 4. Second, Somers and Cliett teach that the bag retains a
circular configuration throughout the closure. Somers 1:56–2:22, Figs. 1, 2
(depicting a bag that maintains its configuration when open and closed);
Cliett 19–77, Fig. 1 (depicting a bag that maintains its configuration when
open and closed). Third, Dodd and Bornemeier or Lee teach the use of
handles and drawstring. Dodd teaches the placement of the handles, and
Bornemeier and Lee teach the combination of handles and drawstring. Dodd
¶ 22, Figs. 5–8 (describing and depicting handles 12a–d at every other
corner 14a, 14c, 14e, 14g of the octagonal perimeter); Bornemeier 6:9–62,
Fig. 2 (describing and depicting a bag with handles 209, 282 for carrying the
bag and a drawstring 207 for closing the bag); Lee ¶¶ 54–56, Figs. 4–6e
(same). The Examiner confirms that, for the purposes of the rejection, Dodd
teaches the placement of the handles and Bornemeier and Lee teach the
desirable combination of both handles and drawstring as respective means to
carry and close the bag. Ans. 8. Fourth, Dodd and Lee disclose “a plurality
of handles extending from the reinforced hem and strategically spaced
therearound, wherein the plurality of handles comprises at least two handles
spaced diametrically apart.” Dodd ¶ 22, Figs. 5–8 (describing and depicting
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handles 12a–d at every other corner 14a, 14c, 14e, 14g of the octagonal
perimeter); Lee ¶ 56 (handles are “directly opposite each other”), Figs. 4–6e
(depicting bag with handles 71 across from each other, equally spaced along
channel 22 containing the drawstring 41 used to close the bag).
Finally, Appellant’s argument that one of skill in the art would have
had no reason to combine the teachings of the references because Dilar has
no need or desire for handles is unpersuasive. Appellant’s support for this
assertion is Dilar’s description that the bag can be dragged or carried away.
Appeal Br. 13 (citing Dilar 2:30–34, Fig. 3). We agree with the Examiner
that this is not sufficient to undermine a suggestion or rationale to combine
the references. Ans. 6–7. We further agree that Dilar, when viewed in its
entirety, does not criticize or advise against the use of handles. Considering
the record, we conclude this argument fails to overcome the Examiner’s
repeated conclusions based on record evidence that it would have been
obvious to a person of ordinary skill in the art to combine the references in
the rejection to arrive at the subject matter of claims 9 and 17. Final Act. 4–
7.
In light of the above, we affirm the Examiner’s rejection of claims 9
and 17 as obvious.
Remaining obviousness rejections (Claims 10–11)
Because Appellant acknowledges that its § 103 argument focuses on
claim 9 (Appeal Br. 9) and does not offer separate arguments for
patentability of claims 10 and 11, and because remaining claims 10 and 11
depend from claim 9, these claims stand or fall with claim 9. 37 C.F.R.
§ 41.37(c)(1)(iv). Therefore, for the same reasons that we have stated
above, we sustain the rejection of claims 10 and 11.
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CONCLUSION
Because Appellant fails to show the Examiner erred, the Examiner’s
rejections are sustained.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
9–11, 17 112, first
paragraph
Lack of written
description
9–11, 17
9, 10, 17 103(a) Dilar, Dodd,
Gilstrap, Bornemeier
or Lee, Somers or
Cliett
9, 10, 17
11 103(a) Dilar, Dodd,
Gilstrap, Bornemeier
or Lee, Somers or
Cliett, Birds
11
Overall
Outcome
9–11, 17

TIME 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED