Ronald Zwaga et al.Download PDFPatent Trials and Appeals BoardOct 21, 201913824834 - (D) (P.T.A.B. Oct. 21, 2019) Copy Citation 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. 13/824,834 06/06/2013 Ronald Zwaga 6012-130692 8931 28289 7590 10/21/2019 THE WEBB LAW FIRM, P.C. ONE GATEWAY CENTER 420 FT. DUQUESNE BLVD, SUITE 1200 PITTSBURGH, PA 15222 EXAMINER TECCO, ANDREW M ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 10/21/2019 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): patents@webblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RONALD ZWAGA, REMI DE OLDE, ALAIN WIETSE BASTIAAN TASMA, and GERARD BUIS ____________________ Appeal 2019-000639 Application 13/824,834 Technology Center 3700 ____________________ Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision rejecting claims 1, 5, 8, and 9.1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 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 Packable B.V. Appeal Br. 2. Appeal 2019-000639 Application 13/824,834 2 THE CLAIMED SUBJECT MATTER Appellant’s invention relates to a method for providing a packaging for modified atmosphere packaging. Spec. 1:3–4. Sole independent claim 1, reproduced below, illustrates the claimed invention: 1. A method for providing a packaging for modified atmosphere packaging, comprising the steps of: providing an unfolded sheet for folding a box; providing a lower mould; folding the unfolded sheet in and directly against the lower mould into a box having a bottom, wall parts, an access opening and horizontal flange parts bordering the access opening, which flange parts have edges and compose an endless circumferential flange and wherein adjacent flange parts are arranged in a single plane and abut with one another only at their edges and wherein no parts of the sheet are overlapping; providing a plastic foil; providing a flat, heated upper mould, wherein the inner surface of the upper mould is provided with a plurality of suction openings; arranging the plastic foil over the folded box; pressing the upper mould on top of the lower mould; heating the plastic foil by sucking the plastic foil against the substantially flat upper mould; and pressing with the upper mould the heated plastic foil against the inner wall of the box and simultaneously against the circumferential flange and generating low pressure between the inner wall of the box and the heated plastic foil through box suction openings arranged at the bottom in the corners of the box, such that the plastic foil is laminated to the box and only the plastic foil is holding the adjacent wall parts and flange parts together. REJECTION Claims 1, 5, 8, and 9 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Faller (US 4,257,530, issued Mar. 24, 1981), Le Floch Appeal 2019-000639 Application 13/824,834 3 (FR 2487297 A1, published Jan. 29, 1982)2, Piltz (US 4,056,221, issued Nov. 1, 1977), Maeaettae (US 2009/0152333 A1, published June 18, 2009), and Rigby (US 5,356,070, issued Oct. 18, 1994). DISCUSSION The Examiner finds Faller discloses many of the limitations of claim 1, including box suction openings 84, 85 “near” corners of the box, but “does not disclose the box suction openings are provided at the corners of the box.” Final Act. 5. The Examiner finds that Piltz teaches openings at the corners of a box. Id. The Examiner determines that it would have been obvious “to modify the invention of Faller with the openings of Piltz,” in order to “allow the foil to give way to any blows against the corners while at the same time the package will be extremely tight.” Id. As an alternative, the Examiner finds that Maeaettae also teaches holes at the corners of a box, and concludes that it would have been obvious “to modify the position of the suction holes of Faller with the corner positions of Maeaettae . . . to ensure the film was held down across the entire surface of the tray, thus keeping the effective inner volume of the tray as large as possible.” Id. at 6. Appellant argues, inter alia, that claim 1 is a method claim, and that the corner holes of claim 1 “function to allow the vacuum to draw the foil against the box,” whereas Piltz teaches “circular holes 9 to relieve stress,” but does not disclose or suggest “an arrangement whereby a flat packing element includes corner holes so that foil applied thereto may be urged toward those corner holes.” Appeal Br. 11. Appellant contends that because 2 All citations to Le Floch are with respect to the machine translation of this document included in the file wrapper. Appeal 2019-000639 Application 13/824,834 4 “Piltz already has laminated film . . . there would be no need for such corner holes to use a vacuum to pull the foil against the box.” Id. As to Maeaettae, Appellant contends that Maeaettae already has a plastic coating on the walls of the container, and that there is no reason “to look to Maeaettae for suggestions on how to best draw foil using a vacuum against the inner walls of a box. There is no need for a vacuum by Maeaettae since the foil has already been applied to the blank cardboard.” Id. at 12. The Examiner responds that, although Piltz’s openings 9 address forces applied to the corner, they would still “result in holes, suitable as suction openings when combined with Faller, at the corner of the tray as required by the claim.” Ans. 9. As to Maeaettae, the Examiner notes that “Maeaettae simply teaches that the existing suction openings of Faller can be positioned ‘at’ the corners.” Id. According to the Examiner, “the teachings of Piltz and Maeaettae are simply to show that an already existing feature of Faller could be at a slightly different position. In this case, ‘at’ the corner, rather than ‘near’ the corner,” and is considered “to be an obvious modification for the reasons provided in the final Office Action.” Id. For the following reasons, we do not sustain this rejection. Claim 1 recites (with emphasis added), inter alia, “generating low pressure between the inner wall of the box and the heated plastic foil through box suction openings arranged at the bottom in the corners of the box, such that the plastic foil is laminated to the box.” Piltz discloses that stamped holes 9 permit the outer foil to “more or less give way to any blows against the corners. Consequently, the corners will be somewhat ‘softer’ while at the same time the package will be extremely tight.” Piltz 2:54–58. In Piltz, material is removed to reduce the thickness of the laminated construction to Appeal 2019-000639 Application 13/824,834 5 “avoid building up rather great strains in the finished package,” which can be accomplished by removing material 8 at the sides. Piltz 2:48–49, Fig. 1. “The same effect is aimed at in modelling the scratching-lines 7 shown in FIGS. 1–3. A similar effect is also caused by the circular holes 9 at the inner points of the removed parts 8.” Id. at 2:50–53. Thus, Piltz uses holes at the corner as one of several ways to reduce the amount of material to avoid strains in the completed product. As correctly noted by Appellant (Appeal Br. 11), Piltz does not apply vacuum at the corner holes to pull the foil against the box. Maeaettae discloses a box with plastic coating 9 on the box (Maeaettae, Fig. 5), and discloses that a heated “bottom tool melts, or rather softens, the plastic coating to become deformable, such that the plastic coating 9 double-folded in the compressions 8 self-adheres by way of fusing to itself to establish a smooth plastic surface.” Maeaettae ¶ 28, Fig. 6. As correctly noted by Appellant (Appeal Br. 12), Maeaettae already has a plastic coating on the walls, and does not suggest applying suction at the corner holes to draw the foil (plastic coating) against the inner wall of a box. Although we appreciate the Examiner’s position that “the teachings of Piltz and Maeaettae are simply to show that an already existing feature of Faller could be at a slightly different position,” the Examiner, however, does not adequately explain how or why one of ordinary skill in the art would have combined Faller with Piltz or Maeaettae to meet all the requirements of claim 1. Specifically, the mere existence of holes at a corner is insufficient, because neither Piltz nor Maeaettae uses suction at corner holes to laminate a foil to a box. Appeal 2019-000639 Application 13/824,834 6 Further, the Examiner’s reason why one of ordinary skill in the art would modify the openings of Faller with the corner holes of Piltz, namely, to allow the foil to give way to any blows against the corners, is inadequate because Piltz discloses that “the outer foil(s) (12, 13 and 12', respectively) can more or less give way to any blows against the corners,” but, Faller does not have foil at the corners that would need to give way. See Piltz 2:54–59 (emphasis added); Faller, Fig. 7. The Examiner’s position that Maeaettae’s corner holes would “ensure the film was held down across the entire surface of the tray” is based on speculation given that Maeaettae does not apply vacuum to the corner holes to laminate the foil to the box. Moreover, given that Faller discloses the advantages of having the liner shaped with rounded corners, which include “to assure more even heating in microwave ovens and to establish a layer of insulating air between portions of the liner and the tray” (Faller 2:5–8), to render “the tray more resistant to freeze/thaw cycles during storage or marketing” (id. at 6:5–6), and so that “the flanges remain relatively cool after reheating in a microwave oven and can be more comfortably gripped by a consumer” (id. at 6:26–30), the Examiner does not explain adequately why the purported advantage of increased inner volume would outweigh each of the explicit advantages disclosed by Faller that would cause one of ordinary skill to modify Faller as the Examiner suggests. See Reply Br. 3–4. In conclusion, for the foregoing reasons, we do not sustain the rejection of claim 1 as the rejection is not supported by a rational underpinning. We also do not sustain the rejection of dependent claims 5, 8, and 9 for the same reasons. Appeal 2019-000639 Application 13/824,834 7 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 5, 8, 9 103 Faller, Piltz, Le Floch, Maeaettae 1, 5, 8, 9 REVERSED Copy with citationCopy as parenthetical citation