Ex Parte Huerta et al

Patent Trial and Appeal Board

Jul 31, 2018

12313396 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/313,396
7590
Cryovac Inc.
P.O.Box464
Duncan, SC 29334
FILING DATE FIRST NAMED INVENTOR
11/20/2008 Diana L. Huerta
07/31/2018
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.
D-44114-03 3383
EXAMINER
HELVEY, PETER N.
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
07/31/2018 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
Ex parte DIANA L. HUERTA, ROBERT A. ODABASHIAN,
STEPHEN F. COMPTON, SUMITA RANGANATHAN,
MICHAEL J. ROSINSKI, H. WALKER STOCKLEY,
SCOTT C. BOSSONG, and RICHARD K. WATSON
Appeal2016-007469
Application 12/313,396 1
Technology Center 3700
Before: STEVEN D.A. MCCARTHY, ANNETTE R. REIMERS, and
NATHAN A. ENGELS, Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
14--18, 20, and 27-31. Claims 1-13, 19, and 21-26 are withdrawn. We
have jurisdiction under 35 U.S.C. § 6(b ).
We reverse.
1 Appellants identify Cryovac, Inc. as the real party in interest. Appeal Br. 3.
Appeal2016-007469
Application 12/313,396
ILLUSTRATIVE CLAIM
Claim 14, reproduced below, is the only independent claim subject to
this Appeal.
14. A heat-shrinkable packaging article comprising a heat-
shrinkable multilayer film having an inside seal layer heat sealed
to itself at a heat seal, the article having a first side and a second
side, the article having a skirt or header outward of the heat seal,
the skirt or header comprising an article edge and a pair of tear
initiators, each pair of tear initiators having a first tear initiator
and a second tear initiator, the first tear initiator of the pair being
in the first side of the article, and the second tear initiator of the
pair being in the second side of the article, the article being
capable of having a manually-initiated, manually-propagated
first tear in the first side of the article, and a manually-initiated
and manually-propagated second tear in the second side of the
article, the first tear and the second tear each being capable of
being propagated in a machine direction from the pair of first and
second tear initiators, with each tear being propagated in the
machine direction through the heat seal and down the length of
the article, or across the article, with each tear being capable of
being manually propagated in the machine direction through and
to an opposite article edge, so that upon using the multilayer film
to make a packaged product by placing a product inside the
article with the article being sealed closed around the product so
that a package is formed, and thereafter shrinking the film around
the product, the resulting package can be manually opened, and
the product readily removed from the package, by manually
initiating machine-direction tears from the first and second tear
initiators, with the tears being manually propagated through the
seal and to the opposite edge of the article, with the multilayer
film exhibiting a Peak Load Impact Strength of at least 50
Newtons per mil measured using ASTM D 3763-95A, with at
least one layer of the multilayer film containing at least one
incompatible polymer blend selected from the group consisting
of:
(A) a blend of from 80 to 35 weight percent ethylene
homopolymer and/or ethylene/alpha-olefin copolymer with from
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Application 12/313,396
20 to 65 weight percent ethylene/unsaturated ester copolymer
having an unsaturated ester content of at least 10 weight percent;
(B) a blend of ionomer resin with ethylene/unsaturated
ester copolymer, and/or polybutylene, and/or propylene
homopolymer and/or propylene copolymer;
(C) a blend of homogeneous ethylene/alpha-olefin
copolymer with recycled polymer blend comprising ethylene
homopolymer, propylene homopolymer, ethylene copolymer,
propylene copolymer, polyamide, ethylene/vinyl alcohol
copolymer, ionomer resin, anhydride-modified ethylene/alpha-
olefin copolymer, and/or antiblock;
(D) a blend of from 10 to 75 weight percent
ethylene/unsaturated ester copolymer with from 90 to 15 weight
percent polypropylene and/or propylene/ethylene copolymer,
and/or polybutylene, and/or modified ethylene/alpha-olefin
copolymer, and/or styrene homopolymer, and/or
styrene/butadiene copolymer;
(E) a blend of from 90 to 15 weight percent
ethylene/alpha-olefin copolymer with from 10 to 75 weight
percent polypropylene and/or polybutylene;
(F) a blend of from 90 to 25 weight percent homogeneous
propylene homopolymer and/or homogeneous propylene
copolymer with from 10 to 7 5 weight percent homogeneous
ethylene/alpha-olefin copolymer and/or ethylene/unsaturated
ester copolymer;
(G) a blend of propylene homopolymer and/or
propylene/ethylene copolymer and/or polybutylene with
ethylene/methyl acrylate copolymer and/or ethylene/acrylic acid
copolymer and/or ethylene/butyl acrylate copolymer;
(H) a blend of polyamide with polystyrene and/or
ethylene/alpha-olefin copolymer and/or ethylene/vinyl acetate
copolymer and/or styrene/butadiene copolymer; and
(I) a blend of polyamide 6 and polyamide 6I6T; and
wherein at least a portion of the skirt or header is heatset
with a remainder of the film remaining heat-shrinkable, so that
upon forming the package and shrinking the film around the
product, the shrinkage and curl of the skirt or header is reduced,
and wherein the heat-shrinkable packaging article does not
comprise a patch thereon.
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Application 12/313,396
THE REJECTIONS
Claims 14, 16, 17, 20, and 27-31 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable in view ofNoel et al. (US 6,355,287 B2;
Mar. 12, 2002), Mize et al. (US 2004/0118735 Al; June 24, 2004), Yazaki et
al. (US 5,468,444; Nov. 21, 1995), and Berbert et al (US 2005/0254731 Al;
Nov. 17, 2005).
Claims 15 and 18 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable in view ofNoel, Mize, Yazaki, Berbert, and Wellman (US
3,815,810; June 11, 1974).
ANALYSIS
Appellants' invention relates to "heat-shrinkable packaging articles
that are easy to open, particularly packaging articles for food packaging end
use." Spec. 1:11-12. With reference to the claim language "skirt or
header," the Specification explains that "the phrase 'skirt' refers to that
portion of the packaging article that is outward of a heat seal, e.g., the excess
length or width on the non-product side of any factory heat seal on the
packaging article" (Spec. 24: 17-19) and "the film outward of a customer
seal is referred to as a 'tail' or 'header' of the packaging article" (Spec.
23:20-21). Accord, e.g., Spec. 2:15-16; 7:14--15. Further, the Specification
states that "[i]n the packaging of a product in a heat-shrinkable film that is
thereafter shrunk around the product, the header and/or skirt of the
packaging article tends to shrink and curl." Spec. 45:7-9.
Appellants argue the Examiner erred in finding that Berbert teaches or
suggests the limitation "wherein at least a portion of the skirt or header is
heatset with a remainder of the film remaining heat-shrinkable, so that upon
forming the package and shrinking the film around the product, the
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Application 12/313,396
shrinkage and curl of the skirt or header is reduced," as required by
independent claim 14. Appeal Br. 10. According to Appellants, Berbert
only discloses heat setting an entire film, not limiting the heatset to a header
or skirt portion of a packaging article. Appeal Br. 11.
The Examiner "agrees that Berbert teaches its entire film structure to
be heatset," but the Examiner states that Berbert teaches that its heatset film
retains the ability to heat shrink. Ans. 8. According to the Examiner, "[t]he
concepts of a film being 'heatset' and 'heat shrinkable' are not necessarily
mutually exclusive," and the Examiner states that the disputed limitation
"does not require the remainder of the film to not be heatset, as appellant
argues." Ans. 7.
We disagree with the Examiner. As argued by Appellants (see, e.g.,
Reply Br. 2), the plain language of claim 14 requires a distinction between
"at least a portion of the skirt or header" and "a remainder of the film." In
particular, claim 14 requires that the skirt or header is "heatset" with the
remainder of the film "remaining heat-shrinkable." Appellants'
specification defines heatsetting differently than heat shrinking, stating that
"the term 'heatsetting' refers to reheating the film under restraint, i.e., so that
it cannot undergo substantial shrinkage during reheating" (Spec. 45:18-19)
and stating "the phrase 'heat-shrinkable' is used in reference to films which
exhibit a total free shrink ... ofat least 10% at 185°F" (Spec. 44:13-16).
Even if the Examiner is correct that heatset and heat shrinkable are not
mutually exclusive, we agree with Appellants that the Examiner has not
adequately explained how Berbert's teachings regarding heatsetting an entire
film would reasonably teach or suggest heatsetting the skirt or header "with
a remainder of the film" remaining heat-shrinkable. See Reply Br. 2. In
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Application 12/313,396
other words, even if Berbert teaches or suggests that its heatset film can be
subsequently heat shrunk, Berbert does not teach or suggest heatsetting a
portion of the skirt or header "so that upon forming the package and
shrinking the [ remainder of the] film around the product, the shrinkage and
curl of the skirt or header is reduced," as claimed.
Accordingly, we do not sustain the Examiner's rejection of
independent claim 14, nor the rejection of dependent claims 15-18, 20, and
2 7-31, each of which depends from claim 14 and therefore includes the
disputed limitation.
DECISION
We reverse the Examiner's rejection of claims 14--18, 20, and 27-31.
REVERSED
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