The Procter & Gamble Company

Patent Trials and Appeals Board

Sep 30, 2021

2020006586 (P.T.A.B. Sep. 30, 2021)

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.
15/451,445 03/07/2017 Hugh Joseph O'DONNELL 14237 4589
27752 7590 09/30/2021
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
WEINERTH, GIDEON R
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
09/30/2021 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):
centraldocket.im@pg.com
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HUGH JOSEPH O’DONNELL and
EDWARD DANIEL THEISS III
Appeal 2020-006586
Application 15/451,445
Technology Center 3700
Before JOHN C. KERINS, JILL D. HILL, and
GEORGE R. HOSKINS, Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5, 7–16, 18, 19, and 21–24. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies The Procter & Gamble Company of
Cincinnati, Ohio as the real party in interest. Appeal Br. 1.
Appeal 2020-006586
Application 15/451,445

2
BACKGROUND
Claims 1, 23, and 24 are independent. Claim 1, reproduced below,
illustrates the claimed subject matter, with certain key limitations italicized
that are commonly recited in each independent claim:
21. A flexible package for retail sale of a consumer product,
the package comprising:
a flexible film panel, wherein the flexible film panel is
formed of only a film;
a graphic disposed on the panel; and
a plurality of raised reinforcing lines disposed on the
panel, wherein:
the plurality of raised reinforcing lines are separate
elements from the flexible film panel;
each of the raised reinforcing lines have an overall
height of about 40 microns to about 5,000 microns;
each of the raised reinforcing lines has an overall
width of about 25 microns to about 25,000 microns;
the plurality of raised reinforcing lines surround
about 50% to about 100% of an outer perimeter of the
graphic;
the plurality of raised reinforcing lines extend over
a reinforcing area that is about 35% to about 100% of a
total area of the panel; and
the plurality of raised reinforcing lines cover a
total line area on the flexible film panel, and the total line
area is about 1% to about 35% of the reinforcing area.
REFERENCES
Name Reference Date
Scarbrough US 6,979,487 B2 Dec. 27, 2005
Weiss US 2011/0000802 A1 Jan. 6, 2011
REJECTION
Claims 1–3, 5, 7–16, 18, 19, and 21–24 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Weiss and Scarbrough. Final Act. 2.
Appeal 2020-006586
Application 15/451,445

3
ANALYSIS
Each of independent claims 1, 23, and 24 recite a “flexible package
. . . comprising: a flexible film panel . . . formed of only a film; . . . and a
plurality of raised reinforcing lines disposed on the panel.”
The Examiner finds that Weiss discloses, inter alia, a flexible package
comprising a panel of flexible material. Final Act. 2. The Examiner
contends that Weiss discloses varnishing an outer surface of the package,
which may be an overwrap layer of polymeric film. Id. (citing Weiss ¶¶ 40,
43, 65). Alternatively, the Examiner contends, Weiss discloses a “film
laminated board, wherein the top or bottom part of the laminated panel is
film,” the laminated panel comprising “any suitable material such as
plastic.” Id. (citing Weiss ¶ 40). Further, the Examiner finds and contends,
Weiss discloses using “flexography, which is a method known in the art to
be used in printing on plastic or polymer film” (Weiss ¶ 42), and a skilled
artisan would have recognized “that the plastic substrate of Weiss may be [a]
polymer film surface as typically used in flexographic printing.” Id. at 2–3.
The Examiner finds that film is a commonly known substrate for
flexographic printing. Final Act. 3. The Examiner reasons that, while Weiss
does not disclose a “flexible film,” its packaging may be “overwrapped in
film,” and a skilled artisan would have recognized “that this outer
overwrapping may have varnish applied thereon to allow the outermost
portion of the container to also have a textural effect to be handled by a
potential consumer.” Id. at 10 (citing Weiss ¶¶ 40, 65). Furthermore, the
Examiner argues, Weiss discloses using flexographic printing, which is
known to employ “web or film sheets to apply a coating on a continuous
wound surface,” and a skilled artisan would have recognized that Weiss’
Appeal 2020-006586
Application 15/451,445

4
disclosed plastic “may be in a film form as is typically practiced in
flexographic printing.” Id. (citing Weiss ¶ 42; Flexoqraphy: Principles and
Practices; and Handbook of Print Media: Technologies and Production
Methods).
Appellant argues that Weiss does not disclose “‘a flexible package . . .
comprising: a flexible film panel . . . formed of only a film ... and a plurality
of raised reinforcing lines disposed on the panel,’ as recited in independent
Claims 1, 23, and 24.” Appeal Br. 4 (emphasis omitted). According to
Appellant, while Weiss discloses plastic, it does not disclose a flexible film.
Id. at 5. Appellant contends that Weiss may disclose a film overwrap, but
the Examiner has not established that a film overwrap is a flexible film panel
formed of only a film. Id. Regarding the Examiner’s contention that Weiss’
disclosure of flexographic printing teaches the claimed flexible film panel
formed of only a film with separate raised reinforcing lines, Appellant
argues that the mere mention of flexographic printing does not teach
applying one or more varnishes to a flexible film. Id. at 6–7.
The Examiner responds that “a direct mention of a film substrate in
Weiss or Scarbrough is unnecessary in [the pending] obviousness rejection.”
Ans. 8. The Examiner notes that “[b]oth Weiss and Scarbrough are
expansive in describing the possible substrates on which the lines or textural
patterns are applied,” teaching that “any suitable material may be the
printing substrate or medium,” and it “is known in the art [that] film is a
suitable material.” Ans. 8–9, 10 (emphasis omitted) (“Film is a known
packaging material.”).
The Examiner again asserts that, based on Weiss’ expansive substrate
disclosure, a skilled artisan would have recognized “that the plastic disclosed
Appeal 2020-006586
Application 15/451,445

5
in Weiss may be in a film form as is typically practiced in flexographic
printing.” Ans. 10. To support this assertion, the Examiner relies on
reference manuals Flexography: Principles and Practices and Handbook of
Print Media: Technologies and Production Methods, which the Examiner
contends “disclose the known use and practice of applying ink to film
substrates.” Id. The Examiner further contends that the two reference
manuals establish that flexography is known to be “suitable for printing on
flexible materials such as plastic film (Handbook of Print Media pages 397-
398),” and “uses film supplied in roll form and pigmented UV-curable
flexo-inks . . . (Flexography Principles and Practices 5th edition, pages 3-
5).” Id. (emphases added). The Examiner contends that the reference
manuals evidence film being “an obvious and ordinary material on which
printing occurs in the packaging art.” Id. at 10–11.
Weiss discloses packaging 10 for consumer goods with a
discontinuous tactile coating 16 of varnish 18 creating raised features on the
package’s outer surface. See Weiss, Title, Abstract, ¶¶ 69–72. A review of
Weiss informs us that its disclosure is directed more toward the particulars
of the coating 16 (see Weiss ¶¶ 7, 14–39, 46–50, 66–67, 72–79) and the
arrangement of the box and the articles therein (see Weiss ¶¶ 51–64, 68–71),
than toward the composition of the package 10 (see Weiss ¶¶ 40–42) or an
overwrap thereon (see Weiss ¶¶ 65). While Weiss’ substrate composition
disclosure may be considered “expansive” in a sense that it is broad, it does
not provide extensive detail.
Weiss discloses that its packaging can be formed “from any suitable
material or combinations of materials” to which varnish can be applied.
Weiss ¶ 40. Weiss discloses that suitable materials include, generally,
Appeal 2020-006586
Application 15/451,445

6
“paper, board (for example, paperboard, cardboard or carton board),
laminated board (for example, film laminated board or, foil laminated
board), plastic, metal and combinations thereof.” Id. Weiss discloses a
preferred board weight. Weiss ¶ 41. Weiss further discloses that its package
may be formed from one or more laminar blanks, preferably folded, with
varnish applied to the outer surface “in any suitable manner” such as
gravure/rotogravure printing, “flexographic printing, lithographic printing,
offset printing or screen printing.” Weiss ¶ 42. Lastly, Weiss discloses that,
when the package is a container of smoking articles, the container can be
overwrapped in a known manner with any suitable known material such as
certain films. Weiss ¶ 65.
Weiss’ brief and generalized discussion of package composition,
itself, is not sufficient to say that Weiss discloses the claimed flexible
package comprising a flexible film panel formed of only a film, on which a
plurality of raised reinforcing lines are disposed. In addition, Weiss’
mention of “flexographic printing” is likewise insufficient to support a
finding that Weiss discloses the claimed flexible package comprising a
flexible film panel formed of only a film, on which a plurality of raised
reinforcing lines are disposed. While the Examiner relies on the two
reference manuals in an attempt to establish the knowledge of a skilled
artisan upon considering the “flexographic printing” disclosure in Weiss, the
claims are not rejected based on the two reference manuals, and the
Examiner has not made findings and supplied reasoning in accordance with
the requirements of establishing prima facie obviousness for either reference
manual. We decline to allow substantive claim limitations to be considered
Appeal 2020-006586
Application 15/451,445

7
within the knowledge of a skilled artisan without proper and timely fact
finding and reasoning.
For this reason, we do not sustain the pending obviousness rejection.
DECISION SUMMARY
In summary:

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5, 7–
16, 18, 19,
21–24
103 Weiss, Scarbrough 1–3, 5, 7–
16, 18, 19,
21–24

REVERSED