Ex Parte 6979482 et al

Patent Trial and Appeal Board

Jan 31, 2013

95001639 (P.T.A.B. Jan. 31, 2013)

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.
95/001,639 06/02/2011 6979482 63833-250 4835
32642 7590 01/31/2013
STOEL RIVES LLP - SLC
201 SOUTH MAIN STREET, SUITE 1100
ONE UTAH CENTER
SALT LAKE CITY, UT 84111
EXAMINER
GELLNER, JEFFREY L
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
01/31/2013 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
____________________

GRAPHIC PACKAGING INTERNATIONAL, INC.
Requester, Appellant

v.

EXOPACK-TECHNOLOGY, LLC.
1

Patent Owner, Respondent
____________________

Appeal 2013-000117
Inter partes Reexamination Control 95/001,639
Patent US 6,979,482 B2
2

Technology Center 3900
____________________

Before LINDA E. HORNER, DANIEL S. SONG and
KEN B. BARRETT, Administrative Patent Judges.

SONG, Administrative Patent Judge

DECISION ON APPEAL

1
Exopack-Technology, LLC. is the Patent Owner and the real party in
interest (Respondent Brief of Patent Owner (hereinafter "Resp. Br.") 2).
2
Patent US 6,979,482 B2 (hereinafter "482 patent") issued Dec. 27, 2005
to Hartzell et al.
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STATEMENT OF THE CASE
Claims 1-16 have been confirmed by the Examiner (Appeal Brief of
Requester 2; see also Right of Appeal Notice
3
1). In its Appeal Brief
(hereinafter "App. Br."), the Requester appeals under 35 U.S.C. §§ 134 and
315 from the Examiner's refusal to adopt certain proposed rejections. The
Requester also relies on its Rebuttal Brief (hereinafter "Rebut. Br.") in
support of its positions. The Patent Owner relies on its Respondent Brief
(hereinafter "Resp. Br.") in support of the Examiner's refusal. We have
jurisdiction under 35 U.S.C. §§ 134 and 315.
The following proceedings have been identified as being related to
subject '482 patent (App. Br. 2; Resp. Br. 2):
1. Reexamination Control 95/001,638 (Appeal 2013-000116) for
U.S. Patent No. 7,090,904 which issued from a continuation-in-part
application of the application that issued as the subject '482 patent;
2. Reexamination Control 95/001,640 (Appeal 2013-002432) for
U.S. Patent No. 7,544,403 which issued from a continuation application of
the application that issued as the subject '482 patent; and
3. Exopack-Technology, LLC v. Graphic Packaging Holding Co.
et al., Civil Action No. 7:11-cv-00337-TMC (D.S.C.) in which the subject
'482 patent, and related U.S. Patent Nos. 7,090,904 and 7,544,403 have been
asserted. This legal action has been stayed pending this reexamination
proceeding.

3
The Examiner's Answer mailed March 2, 2012 merely incorporates by
reference the Right of Appeal Notice (hereinafter "RAN") mailed October
21, 2011, and thus, we cite to the RAN herein.
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An oral hearing with the representatives of the Requester and the
Patent Owner was held before the Patent Trial and Appeal Board on January
9, 2013, the transcript of which will be entered into the electronic record in
due course.
We AFFIRM the Examiner's refusal to adopt the proposed rejections.

THE INVENTION
The '482 patent is directed to a multiwall bag having a slider zipper
and fin combination (Abstract). Independent claim 1 is representative and
reads as follows (Claims Appendix, italics added):
1. A multiwall bottom-filled bag of tubular form
comprising:
an inner tube having at least one layer of polymeric
material including an inner front wall region and an inner back
wall region positioned to face opposite the inner front wall
region;
an outer tube having at least one layer of paper material
and positioned to substantially surround outer surfaces of the
inner tube, the outer tube having an open end region, a closed
end region being initially in an open position, adapted to
receive filling material therethrough, and then sealingly closed
to a closed position, an outer front wall region positioned
between the open end region and the closed end region, and an
outer back wall region positioned between the open end region
and the closed end region and positioned to face opposite the
outer front wall region;
a bag seal zone formed adjacent the open end of the outer
tube so that the at least one layer of polymeric material of inner
surfaces of the inner front wall region of the inner tube
abuttingly contacts and seals to inner surfaces of the inner back
wall region of the inner tube, the bag seal zone comprising a
heat seal so that inner surfaces of the polymeric material of the
inner front wall region are heatingly sealed to the inner surfaces
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of the polymeric material of the inner back wall region, the heat
seal allowing the inner surfaces of the inner front wall and
inner back wall regions to peelingly separate and unseal the
inner surfaces of the inner front and back wall regions without
substantial damage to the inner surfaces thereof when initially
opening the bag and further remaining unsealed after initial
opening even when the zipper block is in the closed position to
thereby indicate that initial opening has occurred and indicate
that tampering with the opening of the bag may have occurred;
a fin member formed of a plastic material and connected
to the bag seal zone and extending substantially the entire
lateral extent of and along the outer front and back wall regions,
the fin member including at least a pair of spaced-apart elongate
fin strips positioned to face opposite each other;
a zipper track connected to each of the pair of elongate
fin strips of the fin member, the zipper track including a first
track strip and a second track strip, the first and second track
strips being adapted to be positioned between an open
positioned defined by the first and second track strips being
spaced apart to allow access to inner portions of the bag and a
sealingly closed position defined by the first and second track
strips abuttingly contacting each other to prevent ready access
to the inner portions of the bag; and
a zipper block slidably connected to the zipper track to
allow the zipper block to slidably move along the zipper track
and move the first and second track strips between the open
position and the closed position, the fin member, the zipper
track, and the zipper block defining a slider zipper and fin
combination, so that when the bag is filled the heat seal
enhances protection of at least portions of the slider zipper and
fin combination by operating as a stop region for the filling
material and thereby enhancing filling performance of the bag.

Independent claim 9 similarly recites "a fin member connected to the
bag seal zone."

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PROPOSED REJECTIONS NOT ADOPTED
1. Claims 1-4 and 7 under 35 U.S.C. § 103(a) as unpatentable over
the combination of Sullivan,
4
Hustad
5
and Tilman.
6

2. Claims 5 and 6 under 35 U.S.C. § 103(a) as unpatentable over
the combination of Sullivan, Hustad and Tilman in view of PSSMA
7

and Frisk.
8

3. Claim 8 under 35 U.S.C. § 103(a) as unpatentable over the
combination of Sullivan, Hustad and Tilman in view of St. Phillips.
9

4. Claims 9-12 and 15 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Sullivan and Hustad.
5. Claims 13 and 14 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Sullivan and Hustad in view of PSSMA and
Frisk.
6. Claim 16 under 35 U.S.C. § 103(a) as unpatentable over
Sullivan and Hustad in view of St. Phillips.

ISSUE
The dispositive issue of the appeal is whether Sullivan discloses "a fin
member … connected to the bag seal zone."

4
U.S. Patent No. 4,637,063 issued to Sullivan et al. on January 13, 1987.
5
U.S. Patent No. 5,456,928 issued to Hustad et al. on October 10, 1995.
6
U.S. Patent No. 5,211,482 issued to Tilman on May 18, 1993.
7
Reference Guide For The Paper Shipping Sack Industry, Paper Shipping
Sack Manufacturers' Association, Inc., pages 9-13 (1991).
8
U.S. Patent No. 6,974,612 B1 issued to Frisk et al. on December 13, 2005.
9
U.S. Patent No. 5,964,532 issued to St. Phillips et al. on October 12, 1999.
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PRINCIPLES OF LAW
Claims are to be given their broadest reasonable interpretation
consistent with the specification, reading the claim language in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). This
is the standard for claim interpretation in both original examination and re-
examination. See In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984).

FINDINGS OF FACT
1. A. Annotated Figures 5 and 7 of the '482 patent as provided by the
Patent Owner with additional reference numerals are reproduced
below (Resp. Br. 10).

FIG. 7
Figure 5 shows a fragmentary perspective view of multiwall
bag 20 with a bag seal zone 21 to which a combination of a fin
member 22, a zipper track 24, and a zipper block 34 is connected (col.
4, ll. 1-4, 54-56). Figure 7 is a fragmentary sectional view of the
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zipper/fin member combination connected to the bag seal zone 21, the
fin member having fin strips 28, 29 (col. 4, ll. 5-8; col. 5, ll. 14-25).

B. The specification of the '482 patent states "[t]he fin member is
formed of a plastic material and is connected to the bag seal zone."
(Col. 2, ll. 36-37).

C. The specification of the '482 patent also states "[a] combination
of a fin member, a zipper track connected to the fin member, and a
zipper block connected to the zipper track are connected to or attached
to the bag seal zone of bag." (Col. 3, ll. 24-27).

D. The specification of the '482 patent also states:
FIG. 5 is a fragmentary perspective view of a tube body
with a bag seal zone being connected to a slider zipper and fin
combination according to an embodiment of the present
invention;

FIG. 6 is an enlarged perspective fragmentary view of a
slider zipper and fin combination connected to the bag seal zone
of a multiwall bag according to an embodiment of the present
invention[.]
(Col. 4, ll. 1-8).

E. As to Figures 5 and 6, the specification of the '482 patent states:
As shown in FIGS. 5 and 6, the fin member 22 is formed
of a plastic material and is connected to or attached to the bag
seal zone 21. This connection or attachment, for example, can
be on the outer surface of the outer tube 35 such as by use of an
adhesive material as illustrated or by attachment to one of the
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inner layer 41 of the inner tube 37 or to any layers 42, 47, 48
therebetween (see FIGS. 2, 5 and 7).
(Col. 5, ll. 14-21).

F. The specification of the '482 patent further states
The combination of the fin member, the zipper track, and
the zipper block can be connected to the bag seal zone 21 by
several methods. Such methods can include at least one of the
following: applying an adhesive material between inner
surfaces of the fin member 22 and outer surfaces of the tube
body 40 in the bag seal zone 21, adhering the fin member 22 to
the tube body 40 between the at least one polymeric layer 41
and the at least one paper layer 46, and adhering the fin member
22 to inner surfaces of the tube body 40. Other methods for
connected [sic, connecting] the combination to the bag seal
zone 21 will be known of ordinary skill in the art and are to be
considered within the scope of the present invention.
(Col. 8, l. 65-col. 9, l. 9, emphasis added).

2. A. Sullivan discloses a reclosable bag with a sealed laminated liner
(Title; Abst.). Figures 4 and 5 of Sullivan are reproduced below.

FIG. 4 FIG.6
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Figure 4 of Sullivan shows a sectional view of a bag including a
wall panel 18 and a plastic liner 21 having a hermetic seal 24 (col. 2,
ll. 22-23, 39-42, 57-62; col. 2, l. 66-col. 3, l. 4; col. 3, ll. 14-19).
Figure 4 also shows a top closure 25 with a zipper 26, slider 27, and
attachment flanges 29, 32 that secure the top closure 25 to the wall
panel 18 via adhesive 30, 33 (col. 3, ll. 48-59). Figure 6 of Sullivan
shows a perspective view of bag body 17 with the wall panel 18, the
liner 21 being spot sealed to the inside paper layer of the bag body 17
via adhesive spots 21a (col. 3, ll. 36-42).

B. Sullivan also states:
In order to avoid any tearing loose of fibers from the
contiguous paper layer of the bag during manipulations of the
liner 21, the liner is maintained free from the paper throughout
at least its upper primary closure portion. For maximum
assurance against fiber contamination, only the lower end
portion of the liner 21 may be spot sealed to the inside paper
layer of the bag body as by means of adhesive spots 21a (FIG.
6) (such as a starch/dextrine glue) similarly as the layers of the
bag body may be tacked in order to avoid displacement during
bottom end filling of the bag.
(Col. 3, ll. 32-42).

C. Sullivan further states:
In a preferred construction, the top closure 25 comprises a zipper 26
having a slider 27 for manipulating the same and equipped with
stringers 28. One of the stringers 28 is adhesively attached to an
attachment flange 29 which in turn is attached as by means of
adhesive 30 to the top end of one of the bag panels 18. The other
stringers 28 is attached as by means of adhesive to a return bent flange
31 of an attachment flange 32 of the closure 25 and which is attached
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as by means of adhesive 33 to the top end portion of the other of the
wall panels 18 of the bag body.
(Col. 3, ll. 48-59).

ANALYSIS
Proposed Rejection 1
In Proposed Rejection 1, the Requester asserts that Sullivan discloses
every limitation of claim 1 except for the heat seal 24 being peelingly
separable, and a fin member "formed of a plastic material." (App. Br. 14).
The Requester argues that it would have been obvious to combine Sullivan
with Hustad which discloses a peelable seal and Tilman which discloses a
polyethylene zipper strip having integral fin strips (App. Br. 14-15).
The Examiner finds that Sullivan does not disclose the limitation that
the fin member be "connected to" the bag seal zone as recited in claim 1
because in Figures 2 and 4, the fin strips 29 and 32 are shown to be
unconnected to, and separated from, the bag seal zone 24 (RAN 4, 5, 12).
The Examiner also observes that the adhesives 30, 33 that connects to the
attachment flanges 29, 32 do not appear to be "involved with the bag seal
zone 24" and that the specification of the '482 patent teaches away from the
fin member being connected to the bag seal zone (RAN 5). The Examiner
also states that the Requester relies exclusively on Sullivan for this limitation
(RAN 4-5), but nonetheless observes that neither Hustad nor Tilman
discloses a fin member connected to the seal zone (RAN 12, 13). The Patent
Owner agrees with the Examiner and argues that the Requester applies a
claim construction of the limitation "connected to" which is unreasonably
broad in view of the specification of the '482 patent (Resp. Br. 9-10).
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The Requester argues that in Sullivan, the attachment flanges 29, 32
(i.e. fin strips) are connected to the hermetic seal 24 (i.e. bag seal zone) as
recited in claim 1 because the attachment flanges 29, 32 are connected via
adhesive 30, 33 to the wall panels 18, which in turn are connected by
adhesive spots 21a to liner 21, which is connected to the hermetic seal 24
(App. Br. 15-16; Reb. Br. 2). The Requester argues that the specification of
the '482 patent does not provide a definition of "connected to" that would
limit its scope, and the Examiner has improperly applied a narrow
construction importing limitations from the specification (App. Br. 16; Reb.
Br. 2). The Requester's arguments with respect to the disclosure of Sullivan
are substantively the same as those presented with respect to the related
Reexamination Control 95/001,638 (Appeal 2013-000116) for U.S. Patent
No. 7,090,904.
We agree with the Examiner's finding that Sullivan does not disclose a
fin member that is connected to the bag seal zone for substantively the same
reasons discussed in our decision of Appeal 2013-000116. As noted, the
Requester relies on the adhesive 30, 33, wall panels 18, adhesive spots 21a,
and the liner 21 that intervene between the attachment flanges 29, 32 and the
hermetic seal 24. However, we find the Requester's circuitous application of
the various bag components of Sullivan to be strained and the Requester's
arguments to be based on an unreasonable interpretation of the claim that
does not take into proper consideration how one of ordinary skill in the art
would understand the claim in view of the specification of the '482 patent.
The specification of the '482 patent explains that the recited
connection between the fin member and the bag seal zone is shown in
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Figures 5 and 6 (FF 1A, 1D). The textual description of these figures, in
addition to the figures themselves, gives an indication of the connection
contemplated by the inventor (FF 1A, 1D, 1E). Nowhere in the specification
of the '482 patent does it describe or suggest a connection through a series of
intervening components that do not relate to the attachment of the fin
member to the bag seal zone. Whereas an intervening structure in the form
of an adhesive material is contemplated and described in the specification of
the '482 patent (FF 1E, 1F), we observe that the adhesive material is the
mechanism for attachment of the fin member to the bag seal zone. In this
regard, we further observe that the specification of the '482 patent utilizes
the terms "connected to" and "attached to" synonymously (FF 1C-1E).
Whereas the claim recites that the fin member be "connected to the
bag seal zone," the Requester relies on four intervening structures in the bag
of Sullivan to argue that the attachment flanges are "connected to" the
hermetic seal. However, the degree of separation between the between the
attachment flanges 29, 32 and the hermetic seal 24 is too great and the
connection between is too attenuated by the intervening structures which
includes the wall panels 18, adhesive spots 21a, and the liner 21 so that the
arrangement of the bag components in Sullivan can be considered to
"connect" the attachment flanges 29, 32 and the hermetic seal 24 in a
manner encompassed by claim 1. In this regard, the multiple intervening
components or parts of the bag relied upon by the Requester cannot be
reasonably characterized as part of an attachment mechanism. Even the
Requester's characterization of Sullivan seems to undermine its position, the
Requester stating that the attachment flanges 29, 32 "are connected to the
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panels 18 of the outer tube (bag body) 17 by adhesive 30, 33," and the bag
walls 18 are "connected to" the liner 21 by adhesive spots 21a (App. Br. 15
(emphasis added)).
The Requester refers to the statement in the specification of the '482
patent that other methods for connecting the fin member to the bag seal zone
will be known to a person of ordinary skill in the art in support of the
assertion that the arrangement of bag components as disclosed in Sullivan is
encompassed by claim 1 (Reb. Br. 3; FF 1F). However, mere mention of
"other methods" does not eliminate the requirement that the fin member be
"connected to the bag seal zone" recited in the claim. In this regard, even
the statement relied upon by the Requester limits its scope to methods for
connecting the combination to the bag seal zone (FF 1F). The Requester
asserts that it is applying the broadest reasonable interpretation but with the
exception of the above noted statement regarding "other methods," the
Requester does not appear to take in to any substantive consideration, the
specification of the '482 patent in asserting that Sullivan discloses the
pertinent limitation.
While the Requester cites to various legal precedent in support of its
position that "connected to" should be given a broader interpretation (App.
Br. 16; Reb. Br. 2, 3), the Patent Owner cites to other precedent in support of
the Examiner's position (Resp. Br. 9, 10). These arguments merely highlight
the fact that claim interpretation is fact specific, and in the cases before the
Office, what may be considered "reasonable" in one case may not be
reasonable in another. The Requester's overly broad interpretation of the
limitation "connected to" essentially renders the limitation meaningless as all
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components or parts of the bag would be attached to each other by multiple
intervening components or parts. While we agree that the Requester's
interpretation is "broad," we disagree that it is "reasonable." In re Am. Acad.
of Sci. Tech. Ctr., 367 F.3d at 1364. We find no reasonable basis to
conclude that this limitation of claim 1 would be understood by one of
ordinary skill in the art in the manner advocated by the Requester when
reviewing the specification of the '482 patent so as to encompass the bag of
Sullivan, and the Requester has not set forth any persuasive evidence that
supports a different conclusion.
The Requester further takes issue with the Examiner's statement that
Sullivan “„appears to specifically teach away from the fin member
connected to the bag seal zone‟” (App. Br. 15; RAN 12, citing Sullivan, col.
3, ll. 32-42) based on its teaching that fiber contamination during tearing of
the paper layer should be avoided by providing a spot seal only at the lower
end portion of the liner 21 using adhesive spots 21a. The Requester argues
that the alleged teaching away by Sullivan is not relevant to the question of
whether Sullivan, "unmodified, discloses this limitation when the claim is
correctly construed." (App. Br. 18). While we agree with the Requester on
this point, this error of the Examiner is inconsequential because we agree
with the Examiner's fact finding that Sullivan does not disclose a fin member
"connected to" the bag seal zone as discussed supra.
As to the asserted confusion by the Requester as to the Examiner's
comments regarding references Hustad, Tilman and St. Phillips (App. Br.
16-17, citing RAN 12-13), we observe that these references are not pertinent
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to the disposition of the present appeal, the Requester having relied on
Sullivan for disclosing the "connected to" limitation at issue.
Finally, the Requester also argues that the Examiner has changed his
mind as to Sullivan in the related Reexamination Control 95/001,640
(Appeal 2013-002432) for U.S. Patent No. 7,544,403, and thus, "in effect,
[held] that the claims of the '482 patent are unpatentable over Sullivan."
10

(App. Br. 17-18). However, the pertinent statement does not impact our
finding. Firstly, the statement was not made in the reexamination of the '482
patent which is subject of the present appeal. Secondly, based on our review
of the record in the Appeal 2013-002432, we do not agree that the Examiner,
in fact, "changed his mind" with respect to the scope of Sullivan.
11
Thirdly,
for the reasons discussed supra, we disagree that Sullivan discloses a fin
member "connected to the bag seal zone."

10
The Requester's assertion is based on the statement "Examiner considers
that Sullivan's fin members are connected to the bag seal zone through the
bag walls, liner, and adhesive spots" which was made by the Examiner in the
related Reexamination Control 95/001,640 (hereinafter "Reexam. '640")
(RAN 20 of Appeal 2013-002432).

11
It is evident that the Examiner's statement in Reexam. '640 regarding the
fin members of Sullivan being connected to the bag seal zone is a
misstatement. The record of Reexam. '640 is clear that the Examiner's
position is that Sullivan does not disclose a fin member "attached to the bag
seal zone" and the Examiner refused to adopted the proposed rejection based
on Sullivan based on this deficiency (RAN 20, 39, 41 of Appeal 2013-
002432). While the language "attached to" at issue in Reexam. '640 differs
from "connected to" at issue in the present appeal, the Examiner also stated
in Reexam. '640 that he is "making no distinction" between these terms
(RAN 39 of Appeal 2013-002432), a position with which we agree in view
of their synonymous use in the subject '482 patent which has the same
specification as the U.S. Patent No. 7,544,403.
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In view of the above, we are not persuaded that the Examiner erred in
refusing to reject independent claim 1 for the reasons proposed by the
Request. Claims 2-4 and 7 ultimately depend from claim 1, and the
Requester states that "[w]hether claims 2-4 and 7 should be rejected as
unpatentable over Sullivan in view of Hustad and Tilman depends on
whether claim 1 should be so rejected." (App. Br. 20-21). Hence, we sustain
the Examiner's refusal to adopt the Requester's Proposed Rejection 1.

Proposed Rejections 2-6
The Requester also appealed the Examiner's refusal to adopt these
proposed rejections (App. Br. 21-32). However, the dispositive issue with
respect to these proposed Rejections is the same as Proposed Rejection 1,
namely, whether the bag disclosed in Sullivan satisfies the limitation "a fin
member […] connected to the bag seal zone." (See App. Br. 23, 24, 28, 30-
32). Because we find that Sullivan does not disclose a fin member that is
connected to the bag seal zone as discussed supra, we similarly sustain the
Examiner's refusal to adopt the Proposed Rejections 2-6 as well.

CONCLUSION
The Examiner's refusal to adopt Proposed Rejections 1-6 is
AFFIRMED.

Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. §§ 1.956 and 41.77(g).

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AFFIRMED

alw

Patent Owner:
STOEL RIVES LLP - SLC
201 SOUTH MAIN STREET, SUITE 1100
ONE UTAH CENTER
SALT LAKE CITY, UT 84111

Third Party Requester:

WOMBLE, CARLYLE, SANDRIDGE & RICE, PLLC
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037