Ex Parte Schneider et al

Board of Patent Appeals and Interferences

Feb 26, 2007

09761500 (B.P.A.I. Feb. 26, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN H. SCHNEIDER, DONALD L. CREVIER,
STEVEN AUSNIT, MICHAEL McMAHON, LAWRENCE SHARE,
ERIC P. PLOURDE, and ROBERT E. HOGAN
____________

Appeal No. 2006-1232
Application No. 09/761,500
Technology Center 3700
____________

Before MURRIEL E. CRAWFORD, JENNIFER D BAHR, and STUART S.
LEVY, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
John H. Schneider et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1-4. We have jurisdiction
over this appeal under 35 U.S.C. § 6.
We AFFIRM.
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THE INVENTION
Appellants’ invention is a tamper-evident resealable package. The
package includes a zipper provided with a slider. The slider is either
contained in or blocked from movement along the zipper by package
material which must be removed or ruptured to permit operation of the slider
or to provide access to the package contents (Specification 2). Claim 1, the
only independent claim in this application, is representative of the invention
and reads as follows:
1. A reclosable package having a top, bottom, and
sides, said package comprising:
a first wall and a second wall opposite to
said first wall;
a first zipper profile having a first
interlocking member and a first flange portion,
said first flange portion having a distal end, said
first interlocking member being positioned
proximate to said distal end of said first flange
portion, a portion of said first flange portion being
attached to said first wall along a line extending
substantially from side to side of said package and
said distal end of said first flange portion being
free of attachment to said first wall;
a second zipper profile having a second
interlocking member engageable with said first
interlocking member and a second flange portion,
said second flange portion having a distal end, said
second interlocking member being positioned
proximate to said distal end of said second flange
portion, a portion of said second flange portion
being attached to said second wall along a line
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extending substantially from side to side of said
package and said distal end of said second flange
portion being free of attachment to said second
wall; and
at least one of said walls and flange portions
forming a wall segment beyond the attachment line
of said wall to its associated flange portion, said
segment extending over said profiles' interlocking
members and being sealed to an opposite one of
said segments thereby forming a seal, said seal
providing a frangible connection to provide a
tamper-evident feature for said reclosable package.

THE EVIDENCE
The Examiner relies upon the following as evidence of
unpatentability:
Thompson US 5,224,779 Jul. 06, 1993
Thomas US 5,713,669 Feb. 03, 1998
Ausnit US 6,131,369 Oct. 17, 2000
Tilman US 6,412,254 B1 Jul. 02, 2002 (Dec. 16, 1999)

THE REJECTIONS
Appellants seek review of the Examiner’s rejections of claim 1 under
35 U.S.C. § 102(b) as being anticipated by Thompson, claims 1-4 under 35
U.S.C. § 102(e) as being anticipated by Tilman, and claims 1-4 under 35
U.S.C. § 103(a) as being unpatentable over Tilman in view of Thomas,
unpatentable over Ausnit in view of Thomas, and unpatentable over Thomas.
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The Examiner provides reasons in support of the rejections in the
Examiner's Answer (mailed October 11, 2005). Appellants present
opposing arguments in the Brief (filed July 7, 2005).1

OPINION
The Thompson rejection
We turn our attention first to the rejection of claim 1 as being
anticipated by Thompson. In making this rejection, the Examiner relies on
the embodiment of Fig. 4 of Thompson. The deficiency of Thompson lies in
the positioning of the interlocking reclosure strips 17, 18 at ends of the lips
26, 27 that are secured to bag panels 10, 11, rather than at ends free of
attachment to the bag panels, as required to meet Appellants’ claim 1.
Appellants point out that Thompson (Fig. 4) discloses the interlocking
members (interlocking reclosure strips 17, 18) being positioned on the
flanges (lips 26, 27 of zipper strip 23) at ends which are opposite from the
ends (near folded nose portion 25) which are free of attachment to the first
and second walls (Br. 5). Therefore, as correctly noted by Appellants (id.),

1 Compliance of the specification with 37 CFR § 1.75(d)(1) is a petitionable
matter (MPEP § 1002.02(c) – item 4), not an appealable matter (MPEP §
1201). Accordingly, we will not review the first issue raised on page 4 of
the Brief.
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Thompson (Fig. 4) cannot disclose both “said first [or second] interlocking
member being positioned proximate to said distal end of said first [or
second] flange portion” and “said distal end of said first [or second] flange
portion being free of attachment to said first [or second] wall,” as called for
in claim 1. Appellants’ argument is well taken and lacks response by the
Examiner. The rejection cannot be sustained.

The Tilman rejections
We address together the rejections of claims 1-4 as being anticipated
by Tilman and as being unpatentable over Tilman in view of Thomas, as the
Examiner’s rationale is essentially the same in both rejections.
As best seen in Fig. 2, Tilman discloses a resealable package having
tamper-evident structure and a zipper-type closure mechanism 14, the
closure mechanism including first and second interlocking profiles 130, 131
closable by slider device 160 (col. 6 – not shown in Fig. 2). The
interlocking profiles 130, 131 include bonding strips 132, 142 and first and
second interlocking closure members 134, 144 projecting from base strips
133, 143. The bonding strips 132, 142, respectively, are secured to the first
and second panel sections 19, 20, respectively, of the package (col. 5, ll. 21-
24). The closure members 133, 134, which respond to the first and second
interlocking members recited in claim 1, are positioned proximate distal
ends of the profiles 130, 131 free of attachment to the first and second panel
sections 19, 20. In the embodiment of Fig. 2, Tilman illustrates and
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describes a tamper-evident structure 180 formed by extending the first and
second panel sections 19, 20 beyond the closure mechanism and folding the
panel sections 19, 20 at a first closed edge 18. Tilman’s tamper-evident
structure 180 is typically penetrated by either cutting along the closed edge
18 or by tearing the closed edge 18 from the package (col. 7, ll. 34-36).
Appellants contend Tilman does not anticipate claim 1 because the
tamper-evident feature described in Tilman’s Fig. 2 embodiment does not
comprise one segment extending over the zipper profiles and being sealed to
an opposite segment thereby forming a frangible seal, as called for in
Appellants’ claim 1. As explained more fully below, the Examiner relies on
the teachings of Thomas to address the tamper-evident seal limitation of
claim 1. Appellants further contend the packages of Tilman and Thomas are
manufactured by such completely different processes and have such widely
different configurations that “their combination with regard to certain
features would inevitably result in conflicts of purpose” (Br. 6).
The Examiner, noting Tilman’s disclosure (col. 7, ll. 46-48)) that “[i]n
some embodiments, tamper-evident structures can use principles described
in [the Thomas patent], incorporated by reference,” finds a teaching in
Tilman of an alternate tamper-evident structure embodiment wherein the
first closed edge is formed by a peelable seal rather than a fold. In making
the anticipation rejection, the Examiner contends Tilman’s incorporation by
reference to the tamper-evident structure principle described in Thomas
(Thomas, col. 3, ll. 60-67; col. 4, ll. 37-42) constitutes a disclosure by
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Tilman of an alternate embodiment of the tamper-evident structure 180
wherein the upper ends of the package panel sections 19, 20 are secured to
one another by a peelable seal rather than a fold. In the alternative, in
making the obviousness rejection, the Examiner contends the combined
teachings of Tilman and Thomas would have suggested such an alternate
embodiment to arrive at the claimed subject matter (Answer 4).
Thomas discloses a tamper-evident feature for a bag having a zipper
with a slider, wherein the tamper-evident feature includes first and second
upstanding panels 36, 38 joined to each other at their upper edges to form a
pocket in which the slider and zipper are captured (col. 3, ll. 60-64). The
upper edges of panels 36, 38 may be joined to each other by thermal fusion
or by integrally forming the upper edges with each other (col. 3, ll. 64-67).
To permit access to the bag, Thomas discloses three alternative
embodiments of a one-time breakable seal formed in the pocket. One
embodiment consists of a single line of weakness formed at the juncture of
the uppermost edges of panels 36, 38 (col. 4, ll. 34-36). A second
embodiment consists of parallel lines of weakness or perforations 40 (col. 4,
ll. 23-26). A third embodiment consists of a peelable seal formed by
detachably connecting the inner surfaces of panels 36, 38 with a tacky
adhesive-like substance well known in the art (col. 4, ll. 37-42).
Both the Examiner’s theory of anticipation and the Examiner’s
alternate theory of obviousness are well founded. The information
incorporated by reference into a patent is as much a part of the patent as if
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the text were repeated in the patent. See MPEP § 2163.07(b). Accordingly,
the embodiments of the tamper-evident structure taught by Thomas and
incorporated by reference into the Tilman patent are part of the disclosure of
Tilman. As such, Tilman discloses an embodiment of the tamper-evident
structure 180 wherein the upper edges of the panel sections 19, 20 are joined
by a peelable seal and thus anticipates the subject matter of claim 1. In the
alternative, Thomas’ disclosure of joining the uppermost edges of the panels
with a peelable seal as an alternative to integral formation of the uppermost
edges with each other would have suggested to the skilled artisan replacing
Tilman’s fold at first closed edge 18 with a peelable seal. Tilman’s
disclosure that the principles of tamper-evident structures described by
Tilman can be used in some embodiments of Tilman’s package belies any
notion that the manufacturing processes or configurations of Tilman and
Thomas are so different that their combination with regard to the tamper-
evident feature would inevitably result in conflicts of purpose, as urged by
Appellants (Br. 6).
For the reasons set forth above, the rejections of claim 1, and
dependent claims 2-4 which Appellants have not separately argued, as being
anticipated by Tilman and as being unpatentable over Tilman in view of
Thomas are both sustained.

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The Ausnit in view of Thomas rejection
As best seen in Figs. 4 and 5, Ausnit discloses a resealable package
having a zipper 16 with a slider 30. The zipper and slider are captured
within a pocket formed by extensions of package walls 53, 55 secured at
their upper ends with a tamper-evident seal 68 and provided with
perforations 54. To open the package 50, the user tears off the tamper-
evident seal 68 along the perforations 54 and moves the slider to open the
zipper interlocking members (col. 4, ll. 40-44).
The Examiner finds that Ausnit discloses the invention recited in
claims 1-4 except that Ausnit discloses lines of perforation, rather than a
frangible seal, to access the slider (Answer 5). Appellants do not contest this
finding.
The Examiner, apparently relying on the disclosure of Thomas (col. 4,
ll. 21-42), contends that it would have been obvious to substitute a peelable
seal (at 68) in Ausnit for the lines of perforation 54 to provide access to the
slider, “because these two slider accessing means were art-recognized
equivalents at the time the invention was made” (Answer 5). Appellants do
not contest the Examiner’s finding that a peelable seal securing the
uppermost edges of the package walls and lines of perforation were art-
recognized equivalent forms of one-time breakable seals for providing slider
access.
Appellants instead point out that Thomas’ upstanding panels 36, 38
are separate portions of web material thermally fused to the body panels 12,
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14 and argue there is nothing in the prior art to teach the combination of
Ausnit and Thomas (Br. 7).
That Thomas’ pocket is formed by upstanding panels 36, 38 thermally
fused to body panels 12, 14 rather than unitarily formed as one piece with
the body panels is of no moment. Appellants’ claims do not require one-
piece construction of the walls and wall segments, as explained more fully
below. In any event, Ausnit does disclose unitary one-piece formation of the
walls and the wall segments forming the pocket. The differences in panel
construction between Ausnit and Thomas are not of such a nature as to have
discouraged the substitution of Ausnit’s perforations 54 with a peelable seal
at 68, an art-recognized equivalent to the perforations, as evidenced by
Thomas.
For the reasons discussed above, Appellants’ arguments fail to
persuade us that the Examiner erred in rejecting claims 1-4 as being
unpatentable over Ausnit in view of Thomas. The rejection is sustained.

The Thomas rejection
We turn finally to the rejection of claims 1-4 as being unpatentable
over Thomas. The examiner finds that Thomas discloses all the features
claimed except for the wall segments (upstanding panels 36, 38) being
formed from package walls 12, 14 (Answer 5). The Examiner contends that
it would have been obvious to a person having ordinary skill in the art at the
time the invention was made to form the wall segments of Thomas from the
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package walls, “since it has been held that forming in one piece an article
which has formerly been formed in two pieces and put together involves
only routine skill in the art. Howard v. Detroit Stove Works, 150 U.S. 164
(1893)” (id.).
Appellants allege, without explanation, that the modification proposed
by the Examiner is not an obvious variation by way of forming in one piece
an article formerly formed in two pieces and put together (Br. 8).
Thomas discloses first and second panels 36, 38 “integrally formed”
with first and second body panels 12, 14, respectively, with lowermost strips
36a, 38a of the first and second upstanding panels 36, 38, respectively,
thermally bonded to an outer surface of the body panels 12, 14 (col. 3, ll. 32-
42).
Claims 1-4 do not require formation of the wall segments as one piece
with the first and second walls. Claim 1 merely requires at least one of the
walls and flange portions to form a wall segment beyond the attachment line
of said wall to its associated flange portion and claim 3 recites first and
second segments extending from the first and second walls. Thomas’ first
and second panels 36, 38 are integrally formed with and extend from the
first and second body panels 12, 14. This arrangement meets the limitation
in claim 1 that the wall (body panel 12 or 14) form a wall segment (panel 36
or 38) beyond the attachment line of the wall (body panel 12 or 14) to its
associated flange portion (flange 26 or 30) and the limitation in claim 3 that
the segments (panel 36 or 38) extend from the walls (body panel 12 or 14).
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We therefore conclude that the claimed feature perceived by the
Examiner to be lacking is in fact disclosed by Thomas. As Appellants have
not alleged that any other claimed feature is not taught by Thomas, we
sustain the Examiner’s rejection of claim 1, and claims 2-4 which Appellants
have not argued separately from claim 1, as being unpatentable over
Thomas.2

SUMMARY
The rejection of claim 1 as being anticipated by Thompson is
reversed. The rejections of claims 1-4 as being anticipated by Tilman,
unpatentable over Tilman in view of Thomas, unpatentable over Ausnit in
view of Thomas, and unpatentable over Thomas are all sustained.
Consequently, the decision of the Examiner to reject claims 1-4 is
AFFIRMED.

2 A disclosure that anticipates under 35 U.S.C. § 102 also renders the claim
unpatentable under 35 U.S.C. § 103, for “anticipation is the epitome of
obviousness.” Jones v. Hardy, 727 F.2d 1524, 1529, 220 USPQ 1021, 1025
(Fed. Cir. 1984). See also In re Fracalossi, 681 F.2d 792, 794, 215 USPQ
569, 571 (CCPA 1982); In re Pearson, 494 F.2d 1399, 1402, 181 USPQ
641, 644 (CCPA 1974).
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a). See 37 CFR §
1.136(a)(1)(iv).
AFFIRMED

MURRIEL E. CRAWFORD )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JENNIFER D BAHR ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
STUART S. LEVY )
Administrative Patent Judge )
Appeal No. 2006-1232
Application No. 09/761,500

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