Dow Global Technologies LLC

Patent Trials and Appeals Board

Mar 10, 2020

14928572 - (D) (P.T.A.B. Mar. 10, 2020)

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.
14/928,572 10/30/2015 Marcos Pini Franca 171308.01240 5676
124679 7590 03/10/2020
Quarles & Brady LLP/The Dow Chemical Company
411 East Wisconsin Avenue, Suite 2400
Milwaukee, WI 53202
EXAMINER
TAWFIK, SAMEH
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
03/10/2020 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):
pat-dept@quarles.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARCOS PINI FRANCA, BRUNO RUFATO PEREIRA,
RAIMUND GERSTNER, and LIANGKAI MA

Appeal 2019-005200
Application 14/928,572
Technology Center 3700
____________

Before MURRIEL E. CRAWFORD, KENNETH G. SCHOPFER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

SCHOPFER, 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, 2, and 7–15. 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. Appellant identifies the real party in interest as Dow Global
Technologies LLC. Appeal Br. 3.
Appeal 2019-005200
Application 14/928,572

2
BACKGROUND
The Specification “is directed to a process for sealing a flexible
fitment between two flexible films.” Spec. ¶ 1.

ILLUSTRATIVE CLAIM
Claim 1 is the only independent claim on appeal and recites:
1. A process comprising:
A. providing a fitment with a base having a wall
thickness (Tw), the base comprising an ethylene/α-olefin multi-
block copolymer;
B. placing the base between two opposing multilayer
films, each multilayer film having a respective seal layer
comprising an olefin-based polymer;
C. positioning the base and opposing multilayer films
between opposing seal bars, each seal bar comprising
(i) a front surface,
(ii) a recessed surface a distance (x) behind the
front surface, the recessed surface having a first end and
an opposing second end, and
(iii) a curved surface at each opposing end, the
curved surface extending between the front surface and the
recessed surface, each curved surface having a radius of
curvature (Rc) greater than or equal to distance (x); and
D. heat sealing the base to each multilayer film.
Appeal Br. 19.
Appeal 2019-005200
Application 14/928,572

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REJECTION
The Examiner rejects claims 1, 2, and 7–15 under 35 U.S.C. § 103 as
unpatentable over Buchanan2 in view of Barry.3
DISCUSSION
We are persuaded of error in the rejection of claim 1, as discussed
below.
With respect to claim 1, the Examiner finds, inter alia, that Buchanan
teaches a method including the use of opposing seal bars with the structure
required by the claim. Final Act. 2–3. Specifically, the Examiner first finds
that Buchanan teaches seal bars 33 and 34 with a front surface “via front
surface of each bar,” a recessed surface “via channel 35” with first and
second ends “via two ends of 35,” and a curved surface “via each end of
recess 35 partially curved between the front surface of the bar and the
recessed portion.” Id. In the Answer, the Examiner provides a slightly
different interpretation of Buchanan:
The office maintains that the applied art of ‘544 indeed discloses
the claimed heat seal bar structure as clearly shown in Fig. 4,
with the claimed front surface via the front surface of 34,
recessed surface via at the lower portion of the formed recess 36,
curved surface at each opposing end, via the curved portion
between the front surface 34 and lower recess surface 36[.]
Ans. 5. Thus, in the Answer, the Examiner relies on Buchanan’s annular
groove 36 as the recessed portion of the seal bar. However, the Examiner
also provides an annotated figure indicating it is surface 35 that forms both
the claimed recessed surface and the claimed curved surfaces. Id.

2 Buchanan, US 5,855,544, iss. Jan. 5, 1999.
3 Barry et al., US 9,752,024 B2, iss. Sept. 5, 2017.
Appeal 2019-005200
Application 14/928,572

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Regardless of whether the Examiner is relying on element 35 or 36 in
Buchanan, we agree with Appellant that the Examiner has not established
that Buchanan teaches a seal bar with the structure claimed, under the
broadest reasonable interpretation of the claim. See Appeal Br. 10–13; see
also Reply Br. 3–9. In particular, we determined the Examiner erred in
relying on the same surface as both the claimed recessed surface and the
claimed curved surfaces.
During prosecution, the scope of the claims is determined by giving
claims “their broadest reasonable interpretation consistent with the
specification” and “in light of the specification as it would be interpreted by
one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004). First, our interperetation of the claim is guided
by a plain reading of the claim. Claim 1 first requires “a recessed surface a
distance (x) behind the front surface, the recessed surface having a first end
and an opposing second end.” Claim 1 then requires “a curved surface at
each opposing end, the curved surface extending between the front surface
and the recessed surface.” Because the claim requires that each curved
surface is situated between the front surface and the recessed surface, one of
ordinary skill in the art would understand that the curved surfaces are
separate surfaces from either the front surface or the recessed surface. Thus,
one of ordinary skill in the art would understand the claim to require four
separate surfaces: a front surface, a recessed surface, a first curved surface
at a first end of the recessed surface and extending between the front surface
and the recessed surface, and a second curved surface at a second end of the
recessed surface and extending between the front surface and the recessed
surface.
Appeal 2019-005200
Application 14/928,572

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Further, we find that this interpretation of the claim is consistent with
how the surfaces are described in the written disclosure. In each
embodiment depicted in the Figures, one of ordinary skill in the art would
recognize four surfaces as denoted above. See Spec. Figs. 3–8. This
configuration is described with respect to Figure 4, for example, as including
four separate surfaces on each seal bar: front surface 24b; recessed surface
26b; and curved surfaces 32, 34. See id. ¶¶ 111–114.
Thus, we determined that under the broadest reasonable interpretation
of the claim, claim 1 requires the positioning of a seal bar that includes the
four surfaces discussed above, i.e., a front surface, a recessed surface, and
two curved surfaces between the recessed surface and the front surface.
Under this interpretation, the Examiner has failed to establish that Buchanan
teaches opposing seal bars as required by the claim. The Examiner identifies
either element 35 or element 36 as both the recessed surface and the curved
surface in Buchanan. However, one of ordinary skill in the art would
understand that each of these elements includes only one surface, whether it
is described as a recessed surface or a curved surface. Because these
elements are one surface, we fail to see how Buchanan discloses separate
curved surfaces that extend between a recessed surface and the front surface
of each seal bar.
Based on the foregoing, we determine the Examiner erred in
determining that Buchanan discloses seal bars as claimed. Further, the
Examiner has not provided any reason based on the art of record or
otherwise, that shows that providing opposing seal bars with the structure
required by the claim would have been obvious. Accordingly, we do not
Appeal 2019-005200
Application 14/928,572

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sustain the rejection of claim 1. For the same reasons, we do not sustain the
rejection of dependent claims 2 and 7–15.

CONCLUSION
We REVERSE the rejection of claims 1, 2, and 7–15.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1, 2, 7–15 103 Buchanan, Barry 1, 2, 7–
15

REVERSED