Ex Parte Bekele

Board of Patent Appeals and Interferences

Jun 12, 2012

11100739 (B.P.A.I. Jun. 12, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/100,739 04/07/2005 Solomon Bekele D-43896-01 2739
7590 06/13/2012
Sealed Air Corporation
P.O. Box 464
Duncan, SC 29334
EXAMINER
WOOD, ELLEN S
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
06/13/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SOLOMON BEKELE
____________

Appeal 2011-003027
Application 11/100,739
Technology Center 1700
____________

Before BRADLEY R. GARRIS, CHARLES F. WARREN, and
KAREN M. HASTINGS, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 8-16 under 35 U.S.C. § 103(a) as being unpatentable over
the combined prior art of Douglas1 and Robichaud.2

1 US 2004/0175592 A1, published September 9, 2004.
2 US 5,306,533 issued April 26, 1994.
Appeal 2011-003027
Application 11/100,739

2
We have jurisdiction under 35 U.S.C. § 6(b).3
We REVERSE.

Representative claim 8 reads as follows:
8. An aseptic vertical form/fill/seal package comprises:
a) a sterilized food product; and
b) a sterilized form/fill/seal pouch in which the steailized food product
is disposed, the sterilized pouch comprising a coextruded muiltylayer film
comprising
iii) a core layer comprising ethylene vinyl alcohol copolymer;
iv) two intermediate layers each comprising a blend of
a) an amorphous polyamide having a glass transition
temperature of at least 80º C, and
b) a semicrystalline polyamide;
iii) two outer layers each comprising an olefinic polymer; and
iv) two tie layers each adhering an intermediate layer to a respective
out layer;
wherein the film exhibits
(a) an elongation at yield (ASTM D 882) of less than 15% in
each of the longitudinal and transverse direction, and
(b) a free shrink (ASTM D 2732) at 200ºF of less than 8% in
each of the longitudinal and transverse directions.

OPINION
The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). It is
elementary that to support an obviousness rejection, all of the claim
limitations must be taught or suggested by the prior art applied. See In re
Royka, 490 F.2d 981, 984-85 (CCPA 1974).

3 The Examiner’s objection to the Specification (Ans. 3) is not appealable
and is thus not considered.
Appeal 2011-003027
Application 11/100,739

3
After review of the respective positions provided by Appellant and the
Examiner, we agree with Appellant that the Examiner has not met the
burden in this case for substantially the reasons set forth by Appellant in the
Briefs (e.g., App. Br. 5-9; see also Reply Br.). We add the following for
emphasis.
As admitted by the Examiner, none of the applied art teaches the
claimed heat shrink value of “less than 8%” (generally Ans.). The
Examiner’s rejection in the Answer relies upon optimizing the free shrink
property of Douglas (Ans. 6). The Examiner relies upon a passage in
Douglas that indicates that other uses are contemplated, including fill and
seal packages (Ans. 7). The Examiner contends that the “free shrink is a
result effective variable and it would have been obvious to optimize [it] . . .
depending on the type of packaging formed” (Ans. 8). Appellant contends
however that since Douglas only teaches free shrink values on the order of
18% to 35% (App. Br. 6) versus the claimed “less than 8%”, Douglas
teaches away from making the claimed package. Appellant also points out
and discusses numerous passages in Douglas that indicate a desire for films
with substantial free shrink, on the order of 25% (App. Br. 5).
A preponderance of the evidence supports Appellant’s assertions.
Notably, the Examiner does not direct us to any evidence on this record that
the free shrink property is a result effective variable that would have been
optimized to the claimed range. The fact that the heat shrink values used by
Douglas are far outside the here claimed range militates against the
Examiner's conclusion that optimization of this parameter in Douglas would
result in the Appellant’s claimed values. In re Sebek, 465 F.2d 904, 906-07,
(CCPA 1972).
Appeal 2011-003027
Application 11/100,739

4
The Examiner did not rely upon Robichaud to cure the deficiencies
noted above.
For the foregoing reasons, and those presented by Appellant in the
Briefs, the Examiner has not satisfied the initial burden of presenting a prima
facie case of obviousness.
Accordingly, we reverse the Examiner’s § 103 rejection on appeal.
CONCLUSION
In summary, the rejection before us on appeal is reversed.

REVERSED

sld