Ex Parte Schultink et al

Patent Trial and Appeal Board

Oct 23, 2018

13501400 (P.T.A.B. Oct. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/501,400 05/14/2012
757 7590 10/23/2018
BGL
P.O. BOX 10395
CHICAGO, IL 60610
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Jan Schultink
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.
12869-17 9146
EXAMINER
PHAM, MINH CHAU THI
ART UNIT PAPER NUMBER
1776
MAIL DATE DELIVERY MODE
10/23/2018 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 JAN SCHUL TINK and RALF SAUER
Appeal2017-001384
Application 13/501,400
Technology Center 1700
Before MARK NAGUMO, WESLEY B. DERRICK, 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---6, 10, 12, 13, and 16-23. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm-in-part.
1 We refer to the Specification ("Spec.") filed April 11, 2012; Non-Final
Office Action ("Non-Final Act.") dated May 11, 2016; Appellants' Appeal
Brief ("App. Br.") filed May 18, 2016; Examiner's Answer ("Ans.") dated
September 9, 2016; and Appellants' Reply Brief ("Reply Br.") dated
November 1, 2016.
2 Appellants identify Eurofilters Holding N.V. as the real party in interest.
App. Br. 1.
Appeal2017-001384
Application 13/501,400
BACKGROUND
The subject matter on appeal relates to a vacuum cleaner bag holding
plate. Spec. 1. According to the Specification, injection molded holding
plates are conventionally attached to vacuum cleaner bags by ultrasonic
welding. Spec. 1. However, the energy used for such welding can damage a
sealing lip provided on the plate. Id. at 2. Appellants disclose providing a
second plastic material on the side of the plate to be joined to a bag, with the
second plastic material selected to permit ultrasonic welding at reduced
energy levels which avoid damage to the sealing lip. Id. Claim 1 is
illustrative:
1. A holding plate for a vacuum cleaner filter bag
with a bag wall, the holding plate comprising:
a base plate comprising a first plastic material, wherein
the base plate comprises a passage opening, and
a connecting element comprising a second plastic
material connected to the base plate by a material bond, the
second plastic material being different than the first plastic
material, the second plastic material comprising an injectable
material so that the connecting element is injected to the base
plate, the connecting element for connecting the base plate to
the bag wall by a material bond;
wherein the connecting element is arranged on a side of
the base plate to be connected to the bag wall so that the
connecting element is positioned between the base plate and the
bag wall when the holding plate is connected to the bag wall;
wherein the holding plate is an injection-molded part.
App. Br. 15 (Claims Appendix) (some indentation and paragraphing added).
Remaining independent claims 22 and 23 are similar to claim 1, and
further specify that the second plastic has a higher melt flow index ( claim
22) and lower melting temperature (claim 23) relative to the first plastic
material. Id. at 18-19.
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Appeal2017-001384
Application 13/501,400
REJECTIONS
I. Claims 1-6, 10, 12, 13, and 16-20, 22, and 23 3 stand rejected under
35 U.S.C. § I03(a) as unpatentable over Dijkman4 and Brech. 5
II. Claims 7-9 and 21 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Dijkman, Brech, and Chen. 6
OPINION
Rejection I
With regard to Rejection I, Appellants limit their arguments to the
independent claims. 7 See App. Br. 7-13. Accordingly, each remaining
claim subject to Rejection I stands or falls with the independent claim from
which it depends.
Claim 1
The Examiner finds that Dijkman discloses a polyethylene or
polypropylene holding plate for use in connection with a vacuum cleaner
bag. Non-Final Act. 2. The Examiner also finds that Dijkman discloses
optional provision of an additional layer of flexible or elastic material
between the holding plate and the bag when the plate is attached to the bag.
Id. (citing Dijkman 5:55---60). Other than the above-noted characteristics of
3 The Examiner apparently mistakenly includes claim 21 in the statement of
the rejection. The Examiner addresses the recitations of claim 21 only under
Rejection II.
4 US 6,379,409 Bl, issued April 30, 2002 ("Dijkman").
5 DEI02007040417 Al, published March 5, 2009 ("Brech"), as translated.
6 US 2007/0292858 Al, published December 20, 2007 ("Chen").
7 Appellants' bare identification of features recited in the dependent claims
(App. Br. 11) does not present argument against the Examiner's findings and
obviousness determination as applied to those claims. In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011).
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Appeal2017-001384
Application 13/501,400
flexibility and elasticity, Dijkman does not identify suitable materials for use
as the disclosed additional layer. The Examiner finds that Brech teaches use
of flexible elastomers in connection with hard plastic holding plates, and that
the disclosed elastomers advantageously can be formed on the holding plate
by two-component injection molding. Id. at 3--4 ( citing Brech ,r,r 11, 50).
Brech identifies thermoplastic polyamide elastomers (TP A), thermoplastic
urethane elastomers (TPU), and thermoplastic styrene elastomers (TPS), as
suitable for two-component injection molding with hard plastic holding
plates. Brech ,r 11. The issue presented by these findings is whether one of
ordinary skill in the art would have selected Brech's elastomers for use as
Dijkman's flexible, elastic additional layer.
Appellants argue that Dijkman's additional layer is "completely
different than the claimed connecting element," because Dijkman fails to
specify the additional layer being plastic and injectable. App. Br. 8; Reply
Br. 2. This argument fails to take into consideration Brech's teaching of
injectable elastomers. Appellants also argue that Brech's elastomer is not
used to connect the holding plate to a bag. Id. at 8-9. Here too, Appellants'
argument does not address the combined teachings of the references relied
upon in support of the Rejection. Dijkman discloses a hard plastic holding
plate and an unspecified flexible, elastic layer provided between the plate
and a bag. Brech teaches that certain thermoplastic elastomers can be
provided on hard plastic holding plates through two-component injection
molding. Appellants' arguments addressing the references individually and
in isolation is not persuasive of error in the determination that one skilled in
the art would have looked to Brech's elastomers for use in forming
Dijkman's additional layer with a reasonable expectation of success.
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Appeal2017-001384
Application 13/501,400
Appellants contend there would have been no reason to combine the
teachings ofDijkman and Brech. App. Br. 9-10. We disagree. Dijkman's
silence as to particular materials for use as the disclosed additional layer
would have provided a reason to look to other examples of materials used in
connection with vacuum cleaner holding plates. Moreover, Appellants do
not dispute that Brech teaches plate formation through two-component
injection molding or that such a procedure would have been viewed as a
fabrication process advantage.
Appellants argue that the phrase, "injected to the base plate," is
structurally distinct from materials that are "adhered" together. App. Br. 10.
We need not resolve the argument because, as noted, Appellants do not
dispute that Brech teaches two-component injection molding. See Spec. 1
( citing Brech as an example of known holding plates that "consist of two
different plastics and are manufactured in a two-component injection
molding process").
Claims 2 2 and 2 3
With regard to claims 22 and 23, Appellants further argue that
Dijkman and Brech are silent with regard to melt flow index or melting
temperature of the disclosed plastics. App. Br. 11-13. However,
Appellants' identify in the Specification the same materials taught by the
combination Dijkman and Brech-namely, polypropylene as a hard plastic
material and TPA, TPU, or TPS as a flexible elastomer. Spec. 3.
Accordingly, absent evidence to the contrary, we are not persuaded that
these same materials when provided in accordance with the teachings of
Dijkman and Brech would not have satisfied the recited melt index and
temperature properties.
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Appeal2017-001384
Application 13/501,400
For the foregoing reasons, Appellants do not identify reversible error.
Rejection I is sustained.
Rejection II
In rejecting each of claims 7-9 and 21, the Examiner further relies on
Chen, finding that Chen teaches use of energy directors to facilitate
ultrasonic welding. Non-Final Act. 4--5.
Claim 7 does not recite any feature related to energy directors.
Rather, that claim requires an indentation in which the connecting element is
partially or completely arranged. The Examiner nowhere addresses this
feature. As such, Rejection II as applied to claim 7 is not sustained.
Claims 8, 9, and 21 require energy directors for use in ultrasonically
welding the recited holding plate to a bag. Appellants argue that the
Examiner fails to articulate a reason why one of ordinary skill in the art
would have adopted Chen's energy directors in Dijkman's holding plate.
App. Br. 13-14; Reply Br. 3--4. We agree. The Examiner fails to identify
evidence sufficient to support a finding that Dijkman teaches ultrasonic
welding of the holding plate to a bag. Indeed, although Dijkman teaches
ultrasonic welding seams to form a bag (Dijkman 4:48-55), Dijkman
specifies that the holding plate is subsequently "adhered" to the bag (id. at
4:66-5:4). In sum, there is not a sufficient basis set forth by the Examiner
for use of ultrasonic welding to attach the holding plate to the bag. Belden v.
Berk-TekLLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015) ("[O]bviousness
concerns whether a skilled artisan not only could have made but would have
been motivated to make the combinations or modifications of prior art to
arrive at the claimed invention."). Absent any finding that one of ordinary
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Application 13/501,400
skill would have had a reason to use ultrasonic welding in lieu of Dijkman's
adhering step, we are persuaded that the Examiner erred in determining that
it would have been obvious to provide Dijkman's holding plate with
ultrasonic energy directors.
For the foregoing reasons, Rejection II is not sustained.
DECISION
The Examiner's decision is affirmed in part.
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-IN-PART
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