Ex Parte PetkovsekDownload PDFPatent Trial and Appeal BoardDec 4, 201714208261 (P.T.A.B. Dec. 4, 2017) 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. 14/208,261 03/13/2014 Gregory L. Petkovsek 15197.0447USU1 1232 23552 7590 12/06/2017 MERCHANT & GOULD P.C. P.O. BOX 2903 MINNEAPOLIS, MN 55402-0903 EXAMINER BATTISTI, DEREK J ART UNIT PAPER NUMBER 3782 NOTIFICATION DATE DELIVERY MODE 12/06/2017 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): US PT023552@ merchantgould .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREGORY L. PETKOVSEK (Applicant: Reynolds Presto Products Inc.) Appeal 2016-004295 Application 14/208,261 Technology Center 3700 Before KEN B. BARRETT, WILLIAM A. CAPP, and SEAN P. O’HANLON, Administrative Patent Judges. O’HANLON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Reynolds Presto Products Inc. (Appellant)1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 4-7, and 9—16.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 The Appeal Brief identifies Reynolds Presto Products as the real party in interest. Appeal Br. 3. 2 Claims 2, 3, and 8 are canceled. Id. at 27 (Claims App.). Appeal 2016-004295 Application 14/208,261 SUMMARY OF THE DECISION We AFFIRM. SUMMARY OF THE INVENTION Appellant’s disclosure relates to a reclosable zipper pouch. Spec. ^ 2. Claim 1, reproduced below from pages 26-27 (Claims Appendix) of the Appeal Brief, is illustrative of the claimed subject matter: 1. A recloseable zipper pouch comprising: (a) a surrounding wall having a closed bottom, first and second opposite sides, and first and second opposing wall panels between the first and second opposite sides, and an open mouth defined by free ends of the first and second opposing wall panels; the surrounding wall defining an interior volume therein; (b) a recloseable zipper closure below the mouth; the zipper closure providing selective access to the interior volume through the mouth; the zipper closure including: (i) a first zipper profile member on the first wall panel and extending toward the second wall panel; (ii) a second zipper profile member on the second wall panel and extending toward the first wall panel and in a location to engage the first profile member; (iii) the first and second profile members being constructed and arranged to selectively interlock when pressed together and unlock when forced apart; and (c) a flange extending from the second wall panel toward the first wall panel and in covering relation to a portion of the first wall panel extending between the first zipper profile member and the mouth, when viewed from the open mouth; (i) the flange having a fixed end at the second wall panel, adjacent to the second zipper profile, and a free end; the flange free end being adjacent to the mouth and at least adjacent to the first wall panel; (ii) the flange being angled at a non-perpendicular angle relative to the second wall panel, as the flange 2 Appeal 2016-004295 Application 14/208,261 extends from the fixed end to the free end of the first wall panel. REJECTIONS Claims 1, 4, 5, and 9-14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kasai (US 2011/0103717 Al, published May 5, 2011). Claims 6 and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kasai and Porchia (US 5,564,834, issued Oct. 15, 1996). Claims 7 and 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kasai and Pawloski (US 8,192,085 B2, issued June 5, 2012). ANALYSIS Obviousness Based on Kasai Appellant presents arguments for claims 1, 4, 5, and 9-14 collectively. Appeal Br. 15-25. We select claim 1 as representative, treating claims 4, 5, and 9-14 as standing or falling with representative claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Kasai discloses a reclosable zipper pouch substantially as recited in claim 1, including, inter alia, a flange (projection 5-1) extending from a fixed end at a second wall panel toward a first wall panel at a non-perpendicular angle. Final Act. 2-3. The Examiner also reasons that it would have been an obvious matter of design choice for one of ordinary skill in the art “to have the flange at a non-perpendicular angle, since [Appellant] has not disclosed that such a configuration solves any 3 Appeal 2016-004295 Application 14/208,261 stated problem or is for any particular purpose and it appears that the invention would perform equally well with a perpendicular flange.” Id. at 3. Appellant presents several arguments, each of which is discussed below. For the following reasons, we are not persuaded by Appellant’s arguments. Claim Construction Appellant argues that Kasai does not satisfy the claim 1 requirement that the flange free end be adjacent to the mouth because “[i]n Kasai, the free end of flange (5-1) is adjacent the profile, not the mouth.” Appeal Br. 19. Appellant further argues that because claim 1 requires “the mouth 36 is defined as by free ends of the first and second opposing wall panels,” “claim 1 also requires the flange to extend from the fixed end to the free end of the first wall panel.” Id. at 18-19; see also Reply Br. 5 (arguing that “claim 1 requires the flange to extend to the top edge that defines the mouth”). According to Appellant, “[i]n the [Specification, the open mouth of the zipper pouch 20 is illustrated at reference numeral 36, which is at the free ends of the first and second opposing wall sections 26, 28.” Appeal Br. 22. Appellant also asserts that the plain meaning of “[a] free end is at an end, a termination of something,” but does not include the Examiner’s interpretation that “the words ‘free ends’ could begin substantially down the wall of the bag.” Id.; see also Reply Br. 6; and Adv. Act. 2 (transmitted June 17, 2015) (determining that “the ‘free ends’ could begin substantially down the wall of the bag (so long as the zipper is below it)”). Thus, we understand Appellant to argue that, as used in claim 1, the “free ends” of the wall panels means the terminal tips of the wall panels, and “the flange free 4 Appeal 2016-004295 Application 14/208,261 end being adjacent to the mouth” requires the flange free end to extend to the terminal tip of the first wall panel. During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification. In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Here, the narrow definition of “adjacent” advanced by Appellant is inconsistent with the Specification, and, therefore, is improper. The Specification states that “[t]he first zipper profile member 40 is adjacent to the mouth 36. In the embodiment shown, the first zipper profile member 40 is spaced from the mouth 36.” Spec. ^ 19; see also id. at Figs. 2, 3. The Specification thus establishes that “adjacent” allows for some amount of spacing between the adjacent components. As Kasai’s projection 5-1 is near the mouth, and is intermediate the mouth and zipper elements 3-1, 3-2, we agree with the Examiner that the free end of projection 5-1 is adjacent the mouth. Regarding the recited “free end of the first wall panel,” we note that Appellant does not cite to, nor does our review reveal, any portion of the Specification supporting the definition advanced by Appellant. To the contrary, the Specification suggests that the “free ends” are not limited to the terminal tips of the walls. For example, paragraph 31 states (with emphasis added) that “when a consumer applies a pulling force at the mouth 36 to opening flange 74 and opening flange 78,” and, thus, discloses that opening 5 Appeal 2016-004295 Application 14/208,261 flanges 74, 78 are at the mouth. Figures 2 and 3 illustrate these flanges as being spaced away from the terminal tips of first and second wall panels 26, 28. And because, as Appellant acknowledges, mouth 36 is defined by these free ends, it follows that the free ends also extend some distance away from the terminal wall tips. Thus, we agree with the Examiner that the broadest reasonable interpretation of wall panel free ends is a terminal region of the wall panels, but is not limited to the terminal tips of the wall panels. Kasai’s Disclosure Appellant also argues that “Kasai illustrates the flange 5-1 as being at a 90 degree angle at the fixed end of the wall panel.” Appeal Br. 17. Appellant further asserts that because flange 5-1 is described and shown in Kasai Figure 6(b) as being deflected toward the content side, rather than toward the mouth side, “tip portion (A) is described and depicted in a direction that is directly opposite of the direction that is claimed - the claim requires the flange to extend at a non-perpendicular angle from the fixed end to the free end of the first wall panel.” Reply Br. 3 (citing Kasai ^ 114). Appellant’s arguments are premised on the interpretation that “as the flange extends from the fixed end to the free end of the first wall panel,” as recited in claim 1, requires the flange to extend to the terminal tip of the first wall panel. As explained above, however, the claim is not so limited. Rather, the first wall panel “free end” includes a terminal region of the first wall panel, and, thus, it is of no matter that Kasai’s projection 5-1 bends toward the content side rather than the mouth side; it nonetheless is angled relative to the second wall panel and extends to the free end of the first wall panel. Appellant’s claim 1 requires no more. 6 Appeal 2016-004295 Application 14/208,261 To the extent that Appellant argues claim 1 requires the entirety of the flange, including the fixed end at the second wall panel, to be angled, we do not agree that the claim is so limited. The relevant portion of claim 1 recites “the flange being angled at a non-perpendicular angle relative to the second wall panel, as the flange extends from the fixed end to the free end of the first wall panel.” Appeal Br. 27 (Claims App.). There is no requirement that the entirety of the flange be angled, just that some portion is angled as the flange extends from the second wall panel to the first wall panel. Because the arguments are not commensurate with the scope of the claims, they are unpersuasive. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Conclusion Accordingly, for the foregoing reasons, we sustain the rejection of claims 1, 4, 5, and 9-14 as being unpatentable over Kasai. Obviousness Based on Kasai and Porchia With respect to the rejection of claims 6 and 15, Appellant relies on the arguments discussed above in regard to the rejection of claim 1. Appeal Br. 23-25. Accordingly, for the same reasons as discussed above, we also sustain the rejection of claims 6 and 15 as being unpatentable over Kasai and Porchia. Obviousness Based on Kasai and Pawloski With respect to the rejection of claims 7 and 16, Appellant relies on the arguments discussed above in regard to the rejection of claim 1. Id. at 24-25. Accordingly, for the same reasons as discussed above, we also 7 Appeal 2016-004295 Application 14/208,261 sustain the rejection of claims 7 and 16 as being unpatentable over Kasai and Pawloski. DECISION The Examiner’s decision to reject claims 1, 4-7, and 9-16 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)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation