ILLINOIS TOOL WORKS INC.Download PDFPatent Trials and Appeals BoardMay 28, 20202019006463 (P.T.A.B. May. 28, 2020) 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. 14/754,755 06/30/2015 Steven AUSNIT 121981-00467 5979 51468 7590 05/28/2020 McCarter & English LLP ACCOUNT: ILLINOIS TOOL WORKS INC. 825 Eighth Avenue 31st Floor NEW YORK, NY 10019 EXAMINER HARMON, CHRISTOPHER R ART UNIT PAPER NUMBER 3649 MAIL DATE DELIVERY MODE 05/28/2020 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 STEVEN AUSNIT and ERIC PLOURDE Appeal 2019-006463 Application 14/754,755 Technology Center 3600 ____________ Before EDWARD A. BROWN, JAMES P. CALVE, and BRANDON J. WARNER, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1 and 5–13. Claims 2–4 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Illinois Tool Works Inc. Br. 2. Appeal 2019-006463 Application 14/754,755 2 CLAIMED SUBJECT MATTER Claim 1 is the sole independent claim on appeal, and reads: 1. A method for manufacturing reclosable packages, including the steps of: providing a web moving in a machine direction; attaching a reclosure of continuous cross section across the web in a transverse direction, wherein the reclosure includes an interlocking element and further includes first and second ends which are inwardly offset from respective first and second edges of the web, thereby providing respective first and second spaces of the web inwardly adjacent from respective first and second edges of the web, the first and second spaces of the web being outwardly adjacent from the respective first and second ends of the reclosure; bringing the first and second spaces of the web together, thereby positioning portions of the interlocking element proximate to the first and second ends of the reclosure into unmated opposing end-wise alignment, the first and second ends of the reclosure being separated by a gap; sealing the first and second spaces of the web to each other to form a fin seal; and folding the fin seal, wherein inner surfaces of the fin seal are adjacent to each other. Br. 7 (Claims App.). REJECTIONS Claims 1, 5–9, and 11–13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Christoff (US 4,655,862, issued Apr. 7, 1987) and Yeager (US 2009/0013644 A1, published Jan. 15, 2009). Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Christoff, Yeager, and Ausnit (US 6,131,370, issued Oct. 17, 2000). Appeal 2019-006463 Application 14/754,755 3 ANALYSIS Claims 1, 5–9, and 11–13 as unpatentable over Christoff and Yeager Appellant argues the patentability of claims 1, 5–9, and 11–13 as a group. Br. 4–5. We select claim 1 to decide the appeal as to this rejection, and claims 5–9 and 11–13 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). As to claim 1, the Examiner finds that Christoff discloses, inter alia, attaching a reclosure (reclosable fastener strip 44) across a web in a transverse direction, wherein the reclosure includes first and second ends which are inwardly offset from respective first and second edges of the web, thereby providing respective first and second spaces (marginal areas 78) of the web inwardly adjacent from the respective first and second edges; and sealing the first and second spaces of the web together as a fin seal (fin assembly 34). Non-Final Act. 2–3 (citing Christoff, Figs. 1, 2, 4, 5, 14). The Examiner finds that Christoff discloses the claim limitation “the first and second ends of the reclosure being separated by a gap” (hereafter, “gap limitation”) in forming a lap seal of the longitudinal edges, and discloses varying the fastener lengths relative to the web’s width at “‘any preferred differential.’” Id. at 3 (citing Christoff, col. 8, ll. 62 et seq., Figs. 10, 14). Appellant contends that Christoff does not disclose or suggest the gap limitation of claim 1. Br. 4. Appellant contends that Figures 5, 8, and 9 of Christoff show the zipper ends abutting each other and there is no indication of a gap between the zipper ends when employing a fin seal (id.), and that Figure 10 does not clearly disclose a gap in the finished product (id. at 5). Appellant further contends that, in Christoff, the passages at column 6, lines Appeal 2019-006463 Application 14/754,755 4 49 et seq. and column 8, lines 49 et seq., and Figure 10 do not disclose the claimed “gap” in combination with a fin seal. Id. at 4–5. The Examiner responds that Christoff teaches both a lap seal and a fin seal. Ans. 5–6. The Examiner disagrees that Christoff discloses abutting ends of reclosure material or the ends of the closure touching. Id. at 6; Br. 5. The Examiner submits that Figure 10 of Christoff shows bringing the first and second spaces of the web together with the first and second ends of the reclosure material having a gap, as claimed, and Christoff also describes varying the margin from the fastener end to each side edge of the web at any preferred differential. Ans. 6 (citing Christoff, col. 8, l. 62 et seq., Fig. 14). The Examiner determines that, in Christoff, varying the spacing (marginal area 78) of reclosure material with respect to the film edge is not exclusive to the lap seal. Id. We agree with the Examiner that Christoff’s teachings are not limited to having the ends of the reclosure material abut or touch each other. First, Figures 5, 8, and 9 of Christoff do not show that the zipper ends touch each other, as Appellant contends. Br. 4. And, Appellant does not direct us to any description in Christoff that clearly supports this position. Appellant’s contention that Figure 10 of Christoff does not clearly disclose a gap in the finished product is also unpersuasive because the Examiner cites Figure 14 of Christoff and related teachings to vary the length of the zipper relative to the width of the web. Id. at 4–5; see Non-Final Act. 2–3; Ans. 6. As noted by the Examiner, Christoff teaches that “the fastener strip sections 44’ may be of any preferred differential in length relative to the width of the web 31.” Christoff, col. 8, ll. 62–64 (emphasis added); see Ans. 6 (citing id. and Fig. 14). Christoff further describes: Appeal 2019-006463 Application 14/754,755 5 As shown in FIG. 14, for example, the fastener strip sections 44’ may be shorter than the width of the web so as to leave a marginal area 78 along each longitudinal edge of the web between such edge and the adjacent end of the fastener strip 44’ . . . .” Id. at col. 8, l. 64–col. 9, l. 1. Appellant does not apprise us of error in the Examiner’s finding that Christoff does not limit these teachings to varying the spacing of the ends of the fastener strip from the respective edges of the web for a lap seal only. Ans. 6. Nor does Appellant persuade us that Christoff’s teachings are limited to abutting the fastener ends when forming a fin seal in view of these teachings. Second, the “bringing” step in claim 1 recites the gap limitation, but the claim does not explicitly specify or limit any size of the gap. Nor does Appellant direct us to any disclosure that defines a “gap” as having a particular size. Accordingly, we must broadly construe the gap limitation to mean that the first and second ends of the reclosure do not physically contact each other (i.e., that they are “separated by a gap”). Appellant contends that Christoff discloses a bag style in which “the zipper ends end up butting or are at least immediately adjacent to each other (with no gap) at the edges of the bag.” Br. 5 (emphasis added). To the extent Appellant is contending that the term “gap” requires not only that the zipper ends do not touch each other, but also that there be at least some specific distance between the zipper ends, Appellant does not direct us to any support for such a position. Additionally, the “sealing” and “folding” steps in claim 1 do not recite any limitation that would require the resulting reclosable package, that is, the “finished product,” to include a gap in combination with a fin seal. In other words, claim 1 requires the first and second ends of the reclosure to be Appeal 2019-006463 Application 14/754,755 6 separated by a gap when the spaces are brought together as recited in the bringing step, but claim 1 does not require the ends of the reclosure to be spaced apart from the fin seal. Accordingly, Appellant’s contention that Christoff does not disclose the claimed “gap” in combination with a fin seal is also unpersuasive. Br. 5. Third, the Examiner finds that Yeager teaches a configuration with a reclosure material that does not extend across the width of the bag, such that the reclosure material ends would not be placed in an abutting configuration during a folding process. Ans. 6. Appellant does not apprise us of error in this finding. Nor does Appellant apprise us of error in the Examiner’s reasoning that one of ordinary skill in the art could have easily modified the process of sealing a fin sealed bag configuration in a similar manner by providing a shortened reclosable fastener, as exemplified by Yeager and would have done so to prevent defective bag seals at the fin seal resulting from imprecise positioning of the reclosure ends. Id. at 7. Lastly, according to Appellant, in manufacturing a package with margins and a lap seal, there would likely be an unintended gap between the ends of the closure, but that with margins and the claimed fin seal, “one skilled in the art would be drawn to having the ends of the closure touch (as apparently shown in Figures 8 and 9 of . . . Christoff . . .) and nothing would lead one skilled in the art to leave such a gap.” Br. 5. Appellant’s attorney argument lacks evidentiary support, and thus, is unpersuasive. See Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1260 (Fed. Cir. 2010) (“Unsupported attorney argument . . . is an inadequate substitute for record evidence.”). Furthermore, as discussed above, we are not Appeal 2019-006463 Application 14/754,755 7 persuaded that claim 1 requires both a gap and a fin seal in the finished product. For the foregoing reasons, we sustain the rejection of claim 1. Claims 5–9 and 11–13 fall with claim 1. Claim 10 as unpatentable over Christoff, Yeager, and Ausnit Appellant contends that Ausnit does not cure the deficiencies of Christoff and Yeager as to the rejection of claim 1. Br. 6. As Appellant’s arguments do not apprise us of error in the rejection of claim 1, we sustain the rejection of claim 10 as unpatentable over Christoff, Yeager, and Ausnit for the same reasons as for claim 1. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5–9, 11–13 103(a) Christoff, Yeager 1, 5–9, 11– 13 10 103(a) Christoff, Yeager, Ausnit 10 Overall Outcome 1, 5–13 Appeal 2019-006463 Application 14/754,755 8 PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation