Ex Parte Bekele et al

Patent Trial and Appeal Board

Jul 19, 2018

12620071 (P.T.A.B. Jul. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/620,071 11/17/2009
144404 7590 07/23/2018
Alston & Bird/Sealed Air Corporation
Bank of America Plaza
101 South Tryon Street, Suite 4000
Charlotte, NC 28280-4000
FIRST NAMED INVENTOR
Solomon Bekele
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
031456/379289 9845
EXAMINER
ENGLISH, PATRICK NOLAND
ART UNIT PAPER NUMBER
1787
NOTIFICATION DATE DELIVERY MODE
07/23/2018 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):
usptomail@alston.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SOLOMON BEKELE and ROMANO SPIGAROLI
Appeal2017-010004
Application 12/620,071
Technology Center 1700
Before ADRIENE LEPIANE HANLON, MONTE T. SQUIRE, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-9 and 11-27. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 We cite the Substitute Specification ("Spec.") filed February 18, 2014;
Final Office Action ("Final Act.") dated June 3, 2016; Appellants' Appeal
Brief ("App. Br.") dated February 2, 2017; Examiner's Answer ("Ans.")
dated May 18, 2017, and Appellants' Reply Brief ("Reply Br.") dated July
18,2017.
2 Appellants identify Cryovac, Inc. as the real party in interest. App. Br. 1.
Appeal2017-010004
Application 12/620,071
BACKGROUND
The invention relates to films for use in producing pouches, such as
ostomy bags. Spec. ,r,r 1, 15. Claim 1 illustrates the subject matter on
appeal:
1. A radio frequency sealable film comprising first and
second exterior layers of the film, each of said first and second
layers forming exterior surfaces of the film, said exterior layers
comprising a blend of at least 25% by weight of an
ethylene/alpha olefin and 50% to 70% by weight of an ethylene
copolymer selected from the group consisting of ethylene vinyl
acetate, ethylene butyl acrylate, ethylene methyl acrylate,
ethylene-co-n-butyl acrylate-co-carbon monoxide, ethylene-co-
n-vinyl acetate-co-carbon monoxide, ethylene-co-n-butyl
acrylate-co-glycidyl methacrylate, and combinations thereof,
wherein the film has a dielectric loss of at least 0.02, and wherein
the film is capable of being RF welded to itself, and wherein all
the layers of the film are coextruded.
App. Br. 12 (Claims Appendix).
REJECTIONS
I. Claims 1-3, 5-8, 11, and 12 stand rejected under 35 U.S.C. § I03(a)
as unpatentable over Shirmer3 and Cooper. 4
II. Claims 1--4 and 24 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Shirmer and Helland. 5
III. Claims 22 and 23 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Shirmer, Cooper, and Yamamoto. 6
3 US 4,983,171, issued January 8, 1991 ("Shirmer").
4 US 4,425,268, issued January 10, 1984 ("Cooper").
5 WO 2007/129078 Al, published November 15, 2007) ("Helland").
6 US 5,582,820, issued December 10, 1996 ("Yamamoto").
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Application 12/620,071
IV. Claims 25 and 26 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Shirmer, Cooper, and Hodgson. 7
V. Claims 1-3, 5-9, 11-18, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Shirmer, Yamamoto, and Cooper.
VI. Claims 19 and 25-27 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Shirmer, Yamamoto, Cooper, and Hodgson.
VII. Claim 21 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Shirmer, Yamamoto, Cooper, and Helland.
OPINION
Rejection I
With regard to Rejection I, Appellants argue the claims as a group.
See App. Br. 4--10. In accordance with 37 C.F.R. § 4I.37(c)(l)(iv), we
select claim 1 as representative and decide the appeal from Rejection I based
on the representative claim alone.
Relevant to Appellants' arguments on appeal, the Examiner finds that
Shirmer discloses a multilayer film for use in producing ostomy bags, which
film includes a barrier layer provided between ethylene vinyl acetate (EVA)
non-barrier layers. Final Act. 2-3. The Examiner further finds that Shirmer
teaches that the non-barrier EV A layers may be blended with specified other
materials, including linear low density polyethylene (LLDPE), but that
Shirmer is silent regarding the relative amounts of EV A and LLD PE in the
blend. Id. at 3 (citing Shirmer 3:1-2, 16-18). The Examiner finds that
Cooper discloses an EVA-LLDPE blended film having specified relative
7 US 5,206,075, issued April 27, 1993 ("Hodgson").
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Application 12/620,071
amounts of EV A and LLD PE, and that Cooper characterizes the disclosed
films as providing puncture resistance. Id. at 3--4. Thus, according to the
Examiner, it would have been obvious to formulate Shirmer's EVA-LLDPE
blended layers with the relative EVA and LLDPE amounts taught by
Cooper. Id.
Appellants argue that Shirmer' s EV A layers are internal, and that
Shirmer therefore fails to suggest providing an EV A/LLDPE blend as an
exterior film surface. App. Br. 5---6; Reply Br. 5---6, 10. We disagree.
Shirmer identifies a so-called "non-forming web" as a "multilayer film ...
of the structure: EV A/SARAN/EV A, optionally
EV A/SARAN/EV A/LLDPE." Shirmer 3:60---62 (emphasis added).
Shirmer's optional addition of an LLDPE layer to the non-forming web does
not negate Shirmer's alternative disclosure in which the optional layer is
omitted. See In re Mills, 470 F.2d 649,651 (CCPA 1972) ("All the
disclosures in a reference must be evaluated, including nonpreferred
embodiments, and a reference is not limited to the disclosure of specific
working examples.") (internal citations omitted).
Appellants also argue that Shirmer teaches a plurality of possible
blends other than EV A/LLD PE, and fails to teach whether an EV A/LLD PE
would be heat sealable. App. Br. 5-6; Reply Br. 6-8. These arguments are
not persuasive of reversible error. The fact that Shirmer identifies plural
materials suitable for blending does not detract from the fact that EV A and
LLDPE are identified as two such materials. Shirmer identifies LLDPE
among a list of only eight other materials that are suitable for blending with
EVA. Shirmer 3:16-18. As noted, Cooper identifies EV A/LLDPE blends.
Regarding heat sealability of the EV A/LLD PE blend, Shirmer teaches that
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Application 12/620,071
the EV A component is provided for the purpose of heat sealing. Shirmer
2:66-67. Thus, Shirmer's teaching that blends of EVA and LLDPE can
serve as substitutes for EVA constitutes evidence that the EV A/LLDPE
blend was intended to maintain sufficient heat sealability.
Appellants rely on the Declaration of Dr. Bekele as evidence that one
of ordinary skill would not have expected an EV A/LLDPE film to retain the
same level of RF sealability as an EV A film. App. Br. 7. Appellants argue
that one of ordinary skill would not adopt the blend composition of Cooper
in Shirmer for that reason. Dr. Bekele's Declaration ("Decl.") 8 addresses a
prior rejection involving a different combination of references, in which RF
sealability was required. See Deel. ,r,r 3--4. However, as the Examiner
points out (Ans. 34), Shirmer does not require RF sealability. Thus,
Appellants' argument that there would have been no expectation of an
EV A/LLDPE blend providing sufficient RF sealability in Shirmer's film is
not persuasive of reversible error.
Appellants also rely on Dr. Bekele' s Declaration as evidence that one
of ordinary skill would not have used Cooper's cling film (including
tackifiers) to form ostomy bags. App. Br. 8; Deel. 9. However, the
Examiner's basis for Rejection I does not involve substituting a cling film of
Cooper for Shirmer's film layer. Rather, as noted, Shirmer already suggests
use of an EV A/LLD PE blend. Cooper is relied upon as evidence that
EV A/LLDPE blends with component amounts similar to those claimed are
known and that they provide puncture resistance. See Final Act. 3; Ans. 36.
See also, Shirmer 1 :39--42 (identifying "protection against ... puncturing"
8 Declaration of Dr. Solomon Bekele under 37 C.F.R. § 1.132, dated
November 20, 2014.
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Application 12/620,071
as a desired mechanical property of materials used to make collection
containers, such as ostomy bags).
For the foregoing reasons, Appellants' arguments do not persuade us
of reversible error. Accordingly, Rejection I is sustained.
Rejections II-VII
Appellants do not present any separate argument addressing any of
Rejections II-VII. Accordingly, each of Rejections II-VII is sustained for
the reasons set forth above in connection with Rejection I.
DECISION
The Examiner's decision rejecting claims 1-9 and 11-27 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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