Ex Parte Brauer et al

Patent Trial and Appeal Board

Apr 20, 2018

13105316 (P.T.A.B. Apr. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/105,316 05/11/2011
76656 7590
Patent Docket Department
Armstrong Teasdale LLP
7700 Forsyth Boulevard
Suite 1800
St. Louis, MO 63105
04/24/2018
FIRST NAMED INVENTOR
Jochen Brauer
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.
2181-00028 3008
EXAMINER
BATTISTI, DEREK J
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
04/24/2018 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):
USpatents@armstrongteasdale.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOCHEN BRAUER and ALFONS KRUSE
Appeal2017-004992
Application 13/105,316
Technology Center 3700
Before KEN B. BARRETT, WILLIAM A. CAPP, and
SEAN P. O'HANLON, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1-7, 10, and 12-20. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Nordenia Deutschland Halle GmbH as the real-party-
in-interest. Appeal Br. 1.
Appeal2017-004992
Application 13/105,316
THE INVENTION
Appellants' invention relates to flexible, dispensing containers. Spec.
i-fi-f l, 6. Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A stand-up bag for transporting and dispensing liquid
products, the stand-up bag formed from a heat-sealable plastic
film, the stand-up bag comprising:
two flexible film face panels connected by a head weld
along a top edge, by an inwardly folded film floor opposite the
top edge, and by longitudinal welds along longitudinal edges of
the face panels, a central longitudinal axis defined on a first
face panel of the two face panels between the film floor and the
head weld,
a film carry handle attached to the first face panel, the film
carry handle comprising a film strip, a longitudinal axis of the
film strip aligned with the central longitudinal axis, and
a reclosable closure including a reclosable spout having a
screw closure, the reclosable spout being positioned at an
intersection of the head weld and the central longitudinal axis,
such that the film carry handle is operable with one hand to
facilitate (i) metered dispensing of the liquid products from the
reclosable spout, and (ii) complete emptying of the stand-up
bag.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Suoss
Haimerl
Murray
Kujat
us 4,905,888
US 2006/0188178 Al
US 2009/0095369 Al
US 2011/0033133 Al
Mar. 6, 1990
Aug.24,2006
Apr. 16, 2009
Feb. 10,2011
The following rejections are before us for review:
1. Claims 1---6, and 10 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Murray, Haimerl, and Suoss.
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Application 13/105,316
2. Claims 12-14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Murray and Suoss.
3. Claims 15-19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Murray, Haimerl, and Suoss.
4. Claims 7 and 20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Murray, Haimerl, Suoss, and Kujat.
Claim 1
OPINION
Unpatentability of Claim 1-6 and 10
over Murray, Haimerl, and Suoss
The Examiner finds that Murray discloses a stand-up bag substantially
as claimed except for the handle limitations. Final Action 2-3. The
Examiner relies on Haimerl as disclosing a bag with a carry handle. Id. at 3.
The Examiner relies on Suoss as disclosing a handle being disposed along
the longitudinal axis of the container. Id. The Examiner finds that Suoss'
handle is capable of being operable with one hand as claimed. Id. The
Examiner concludes that it would have been obvious to a person of ordinary
skill in the art at the time of the invention to combine the teachings of
Murray, Haimerl, and Suoss to achieve the claimed invention. Id.
According to the Examiner, a person of ordinary skill in the art would have
done this to allow a user easy access to the contents of the bag. Id.
Appellants traverse the Examiner's rejection by arguing that adding a
handle to Murray would interfere with its described ergonomic shape for
holding the bag directly by hand. Appeal Br. 6. In response, the Examiner
states that the ergonomics of Murray would not be disturbed by combining it
with the handle of Haimerl. Ans. 3.
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Application 13/105,316
Murray discloses a flexible pouch for storing and serving a product.
Murray i-f 9. Murray's pouch exhibits a side edge that is ergonomically
shaped for holding the pouch while consuming a beverage. Id. The pouch is
defined by a panel which is formed using one or more sheets of material. Id.
i-f 25. The pouch includes a front wall 12 and a back wall 14. Id. The edges
of the pouch are joined along a seam using heat or ultrasonic energy. Id.
i-fi-125-26. An exemplary pouch is illustrated in Figure 1. Id., Fig. 1. After
considering the respective positions of Appellants and the Examiner in light
of the above referenced figures and descriptions of Murray, we determine
that Appellants' argument regarding interference between a handle and the
ergonomic shape of Murray lacks evidentiary support in the record. It
appears to us that either front wall 12 or back wall 14 could accommodate a
handle along the longitudinal centerline of either wall without interfering
with the ergonomic shape of the pouch.
Appellants next argue that Haimerl teaches a strap handle that is
located near the upper edge of the container so that it can be carried in an
upright or "stand-up" orientation. Appeal Br. 6. Thus, according to
Appellants, Haimerl does not disclose a handle with a longitudinal axis that
is aligned with a central longitudinal axis of a panel. Id. In response, the
Examiner points out that Haimerl is used to disclose a handle, not the
position of the handle. Ans. 2. The Examiner reminds us that Suoss is used
to disclose the claimed position of the handle. Id.
The Examiner's point is well taken. Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA
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Application 13/105,316
1981 ). The Examiner is correct in finding that Haimerl discloses a strap
handle on a packaging container made of plastic film. Haimerl, Abstract.
The Examiner is similarly correct in finding that Suoss' handle is aligned
with the central longitudinal access of a face panel. See Suoss, Fig. 1.
Appellants next argue that Suoss' handle is for carrying the carton.
Appeal Br. 7. Appellants contend that Suoss' handle is "not suitable for
pouring." Id. at 7-8. In response, the Examiner reiterates that it is the
handle of Haimerl that is used on the pouch of Murray and that Suoss is
merely relied on for positioning the handle on the longitudinal centerline of
Murray. Ans. 2-3, Final Action 3.
We are not persuaded that Suoss' handle is "not suitable for pouring"
as argued by Appellants. Appellants' claim limitation directed to a handle
that is "operable with one hand . .. "is a functional limitation. The
Examiner finds that Suoss' is capable of being operated with one hand.
Final Action 3. Appellants' argument to the contrary is not supported by
any persuasive evidence or technical reasoning. A patent applicant is free to
recite features of an apparatus either structurally or functionally. See In re
Swinehart, 439 F.2d 210, 212 (CCPA 1971) (there is nothing intrinsically
wrong with drafting claims that define something by what it does rather than
what it is). Yet, choosing to define an element functionally, i.e., by what it
does, carries with it a risk:
where the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent
characteristic of the prior art, it possesses the authority to
require the applicant to prove that the subject matter shown to
be in the prior art does not possess the characteristic relied on.
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Application 13/105,316
Swinehart, 439 F.2d at 213. Appellants' argument that Suoss' handle is not
suitable for pouring is mere attorney argument and does not rise to the level
of proof. See Estee Lauder, Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed.
Cir. 1997) (Attorney argument cannot take the place of evidence in the
record). In any event, the real issue is not only whether Suoss' handle
facilitates pouring from Suoss' container, rather, it is whether the strap
handle of Haimerl, disposed on the pouch of Murray, along the longitudinal
centerline of Murray as shown in Suoss, would be operable with one hand to
dispense as claimed. Having considered the combined teachings of Murray,
Haimerl, and Suoss, we determine that the Examiner's findings of fact on
this issue are supported by a preponderance of the evidence. 2
Appellants next argue that the Examiner's rejection lacks any
rationale as to why one of ordinary skill in the art would have combined the
references as proposed by the Examiner. Appeal Br. 9. According to
Appellants:
Id.
there is no rationale as to why one of ordinary skill in the art at
the time of Appellant's invention would combine these
references, with the alignment and positioning recited in
Appellant's claims, to solve the problem of metered pouring
from a flexible bag using a handle.
A reason to modify a prior art reference may be found explicitly or
implicitly in market forces; design incentives; the "interrelated teachings of
multiple patents"; "any need or problem known in the field of endeavor at
the time of invention and addressed by the patent"; and the background
2 Although unnecessary to support our decision here, it bears mention that
the basic concept of a fluid container that has handle that is useful for both
carrying and pouring (e.g., a tea kettle) is well known.
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Application 13/105,316
knowledge, creativity, and common sense of the person of ordinary skill.
Perfect Web Techs., Inc. v. Info USA, Inc., 587 F.3d 1324, 1328-29 (Fed. Cir.
2009) (quoting KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418-21). "[T]he
analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ."
KSR, at 418. An implicit motivation to combine exists when the
improvement is technology-independent and the combination of references
results in a product that is more desirable. Dystar Textilfarben GmBH & Co,
v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006).
Id.
Because the desire to enhance commercial opportunities by
improving a product or process is universal-and even
common-sensical-we have held that there exists in these
situations a motivation to combine prior art references even
absent any hint of suggestion in the references themselves.
In the instant case, Appellants acknowledge that their invention is
directed to solving "the problem of metered pouring from a flexible bag
using a handle." Appeal Br. 9. Appellants do not claim to be the first to
discover this problem and such a known problem provides ample reason to
combine the prior art in the manner proposed by the Examiner. See KSR, at
419--420. ("One of the ways in which a patent's subject matter can be
proved obvious is by noting that there existed at the time of invention a
known problem for which there was an obvious solution encompassed by the
patent's claims."). Here, the Examiner concludes that it would have been
obvious to combine the references to facilitate access to the contents of the
bag and to meter dispensing of a liquid product. Final Action 3. The
Examiner's conclusion that it would have been obvious to achieve the
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Application 13/105,316
claimed invention is supported by sound reasoning. Accordingly, we sustain
the Examiner's unpatentability rejection of claim 1 over Murray, Haimerl,
and Suoss.
Claim 2-6 and 10
Appellants do not argue for the separate patentability of claims 2---6
and 10 apart from arguments presented with respect to claim 1, which we
have previously considered. We sustain the Examiner's rejection of
claims 2---6 and 10. See 37 C.F.R. § 41.37(c)(iv) (failure to separately argue
claims).
Unpatentability of Claims 12-14
over Murray and Suoss
Claim 12 is an independent claim that is similar in scope to claim 1.
Claims App. Claims 13 and 14 depend from claim 12. Id. Appellants argue
claims 12-14 as a group. Appeal Br. 10-11. We select claim 12 as
representative. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Murray discloses the claimed invention
except for the handle. Final Action 4. The Examiner relies on Suoss as
disclosing a handle and concludes that it would have been obvious to include
a handle, as taught by Suoss, on the bag of Murray to allow the bag to be
transported or to access contents from within the bag. Id.
In traversing the rejection, Appellants raise essentially the same
arguments that we fully considered and found unpersuasive with respect to
claim 1 and find equally unpersuasive here. Appeal Br. 10-11. Once again,
we note that Appellants' "not suitable for pouring" argument lacks
evidentiary support.
We sustain the Examiner's unpatentability rejection of claims 12-14.
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Application 13/105,316
Unpatentability of Claims 15-19
over Murray, Haimerl, and Suoss
Appellants argue claims 15-19 as a group. Appeal Br. 11-12. We
select claim 15 as representative. See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 15 depends from independent claim 12 and adds the limitation:
"wherein the film carry handle is attached to an inside surface of the first
face panel." Claims App. The Examiner finds that Haimerl discloses a film
carry handle attached to an inside surface as claimed and concludes that it
would have been obvious to achieve the claimed invention for essentially the
same reasons given with respect to the rejection of claim 1. Final Action 5.
In traversing the rejection, Appellants rely solely on arguments that
we previously considered and found unpersuasive with respect to claim 1
and find equally unpersuasive here. Appeal Br. 11. Thus, for the reasons
discussed with respect to claim 1, we are not apprised of error in the
Examiner's rejection of claims 15-19. Accordingly, we sustain the
rejections of claims 15-19.
Claim 7
Unpatentability of Claims 7 and 20
over Murray, Haimerl, Suoss, and Kujat
Claim 7 depends from claim 1 and adds the limitation:
wherein the film carry handle further comprises a reinforcement
sheet attached to an inside surface of the bag, wherein the film
strip is defined by a handle loop formed from a portion of the
reinforcement sheet and having side edges defined by two slits
each extending longitudinally along the handle loop, and
wherein a closure sheet partially defining the inside of the bag
covers an opening formed by the handle loop.
Claims App. The Examiner relies on Kujat as disclosing a reinforcement
sheet as claimed and concludes that it would have been obvious to modify
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Murray's bag with the teachings of Kujat to achieve the claimed invention.
According to the Examiner, a person of ordinary skill in the art would have
done this to evenly distribute the bearing load on the bag. Final Action 6.
In traversing the rejection, Appellants do not challenge the
Examiner's specific fact findings with respect to Kujat and, instead, repeat
arguments that we have previously considered and found unpersuasive with
respect to the rejection of claim 1, which we find equally unpersuasive here.
Appeal Br. 12-13.
We sustain the rejection of claim 7.
Claim 20
Claim 20 depends from claim 12 and adds the identical limitation that
is recited in claim 7 discussed immediately above. In traversing the
rejection, Appellants, once again, merely repeat arguments that we have
previously considered and rejected. We sustain the unpatentability rejection
of claim 20.
DECISION
The decision of the Examiner to reject claims 1-7, 10, and 12-20 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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