Ex Parte Brebion

Patent Trial and Appeal Board

Oct 24, 2017

13813244 (P.T.A.B. Oct. 24, 2017)

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.
13/813,244 01/30/2013 Herve M Brebion D-44501-01 2338
28236 7590 10/26/2017
LAW DEPARTMENT
SEALED AIR CORPORATION
2415 Cascade Pointe Boulevard
Charlotte, NC 28208
EXAMINER
PATTERSON, MARC A
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
10/26/2017 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):
patents @ sealedair.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HERVE M. BREBION
Appeal 2017-001996
Application 13/813,2441
Technology Center 1700
Before MICHAEL P. COLAIANNI, WESLEY B. DERRICK, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1—9, 11, 12, 15, 16, and 19-24. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
1 Appellant identifies Cryovac, Inc. as the real party in interest. Br. 2.
2 In our Opinion, we refer to the Final Action mailed May 7, 2015 (“Final
Act.”); the Advisory Action mailed December 4, 2015 (“Adv. Act.”); the
Appeal Brief filed March 7, 2016 (“Br.”); and the Examiner’s Answer
mailed September 26, 2016 (“Ans.”). Appellant did not file a Reply Brief.
Appeal 2017-001996
Application 13/813,244
The claims are directed to heat-sealed packages. Claim 1, reproduced
below with disputed limitations italicized, is illustrative of the claimed
subject matter:
1. A package comprising:
a heat seal between a first film and a second film
wherein:
the first film comprises:
at least 70% by weight of the first film of one or
more polyamides; and
at least one modified interior layer comprising:
at least 70% by weight of the modified
interior layer of one or more polyamides; and
one or more modifiers selected from
ethylene/alkyl (meth)acrylate copolymers,
ethylene/(meth)acrylic acid copolymers, and ionomers; and
the second film comprises at least 70% by weight of the
second film of one or more polyamides.
Br. 7 (Claims App’x).
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Berrier et al. US 2004/0043233 A1 Mar. 4, 2004
(“Berrier”)
Ng et al. (“Ng”) WO 95/15992 June 15, 1995
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Appeal 2017-001996
Application 13/813,244
REJECTIONS
The Examiner maintains and Appellant seeks review of the rejection
under 35 U.S.C. § 103(a) of claims 1—9, 11, 12, 15, 16, and 19-24 over
Berrier in view of Ng. Final Act. 2; Ans. 2.
OPINION
Appellant contends that the Examiner fails to establish a prima facie
case of obviousness of each of the claims on appeal.
Rejection of claims 1—3, 6, 9, 11, 12, 15, 16, 19, and 21—24
Appellant argues for the reversal of the obviousness rejection of
claims 1—3, 6, 9, 11, 12, 15, 16, 19, and 21—24 on the basis of limitations
present in independent claim 1. See Br. 3—4. Therefore, for these claims we
limit our analysis to claim 1. Claims 2, 3, 6, 9, 11, 12, 15, 16, 19, and 21—24
will stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Berrier describes or suggests every limitation
of the package recited in claim 1 except for (1) the sealing of the film to a
second film comprising at least 70% polyamide by weight; and (2) a
modified interior layer comprising ethylene methacrylic acid copolymer.
Final Act. 2—3. As to (1), the Examiner finds that Berrier discloses a film
comprising a seal layer comprising 100% by weight polyamide and sealing a
film to itself. Id. The Examiner determines that it would have been obvious
to one of ordinary skill in the art to seal the film to a second film identical to
itself (100% by weight polyamide). Id.', see, e.g., Berrier | 68. As to (2), the
Examiner finds that Ng teaches a package for food and liquid products
comprising a heat sealable layer comprising a blend of polyamide and
ethylene methacrylic acid copolymer. Id. at 3. The Examiner concludes that
it would have been obvious to one of ordinary skill in the art to provide for
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Appeal 2017-001996
Application 13/813,244
ethylene methacrylic acid copolymer in packaging for food and liquid
products as taught by Ng. Id.
Appellant argues that claim 1 requires a modified interior layer
comprising one or more modifiers, but combining Ng with Berrier would
result in the outer heat seal layer being modified, and not modification of an
interior layer. Br. 3. Appellant further argues that Ng teaches blending
polyamide with certain modifiers to improve the heat-sealable and/or film
blocking properties of the blend and the resulting heat-sealable film, and that
these properties are surface phenomena. Id. at 3^4. Appellant contends that,
therefore, Ng is concerned with surface phenomenon, not with modifying an
interior layer of the film to comprise modifiers. Id.
Paragraph 59 of Berrier states: “[t]he film of the present invention
may include one or more additional layers 22, 24. The additional layers may
comprise any of the materials, and in any of the amounts, discussed above
with respect to the first and second layers.”
The Examiner finds that paragraph 59 of Berrier discloses an
additional layer that is an interior layer comprising the same composition as
the seal layer. Final Act. 2.
Appellant argues that the Examiner’s reading of paragraph 59 of
Berrier is not accurate because Berrier does not teach that the seal layer and
an interior layer have the same composition such that the importation of a
polymer disclosed in Ng for use in the outer seal layer would also be used in
an interior layer of Berrier. Br. 4. Appellant argues that in paragraph 59 of
Berrier, the materials “discussed above with respect to the first and second
layers” are all polyamides, and Berrier does not disclose any non-polyamide
materials above paragraph 59. Id.
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Appeal 2017-001996
Application 13/813,244
The Examiner responds that the interior layer disclosed by Berrier has
the same composition as the seal layer, and the combination of Ng and
Berrier would incorporate modifiers into the heat seal layer and also the
interior layer of Berrier. Adv. Act. 2; Ans. 6. The Examiner also finds that
Berrier discloses that the seal layer comprises polyamide, and use of
“comprising” means that the seal layer (and consequently, the interior layer)
may include other components, such as the modifier of Ng. Ans. 6.
Appellant’s arguments are not persuasive of harmful error by the
Examiner. One cannot show nonobviousness by attacking references
individually when the rejection is based on a combination of references. In
re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Each reference
cited by the Examiner must be read, not in isolation, but for what it fairly
teaches in combination with the prior art as a whole. See id. In the instant
case, the combination of Berrier and Ng teaches a film layer comprising a
polyamide and ethylene methacrylic acid copolymer, and the film layer may
comprise a sealant layer and an additional layer. Consequently, the
combined references disclose a modified interior layer comprising a
modifier as in claim 1, as well as all other elements of claim 1.
Rejection of claims 4 and 7
Claim 4 further requires the modifier of claim 1 to be an
ethylene/alkyl (meth)acrylate copolymer and to comprise at least 20% alkyl
(meth)acrylate monomer content based on the weight of the copolymer. Br.
7 (Claims App’x). Claim 7 further requires the modifier of claim 1 to be an
ethylene/alkyl (meth)acrylate copolymer and to comprise at least 18%
methyl acrylate monomer content based on the weight of the copolymer and
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Appeal 2017-001996
Application 13/813,244
the ethylene/alkyl (meth)acrylate copolymer has a melting temperature of at
least 92°C. Id.
With respect to claims 4 and 7, the Examiner finds that Ng fails to
disclose at least 18 % and at least 20% alkyl methacrylate monomer by
weight of the copolymer and a melting temperature of at least 92°C. Final
Act. 3. The Examiner finds that Ng discloses a preferred melting
temperature of less than or equal to 180°C, and determines that it would
have been obvious for one of ordinary skill in the art to select a content of
alkyl methacrylate monomer depending on the desired melting point of the
layer. Id.
Appellant argues that the portion of Ng to which the Examiner cites
refers to the melting point of polyamide, not to an ethylene/alkyl
(meth)acrylate copolymer. Br. 5. Appellant contends that Ng consequently
would not lead one of ordinary skill in the art to modify the monomer
content of an ethylene/alkyl (meth)acrylate copolymer, and no prima facie
case of obviousness is established. Id.
Here Appellant shows harmful error by the Examiner, as no prima
facie case of obviousness is demonstrated by the Examiner’s reference to the
melting point of a polyamide. The Examiner points to no other teaching of
the ethylene/alkyl (meth)acrylate copolymer comprising at least 20% alkyl
(meth)acrylate monomer content (claim 4) or the ethylene/alkyl
(meth)acrylate copolymer comprising methyl acrylate monomer content of
at least 18% based on the weight of the copolymer. We reverse the rejection
of claims 4 and 7.
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Appeal 2017-001996
Application 13/813,244
Rejection of claim 5
Claim 5 further requires the modifier of claim 1 to be an
ethylene/alkyl (meth)acrylate copolymer comprising ethylene/methyl
acrylate copolymer. Br. 7 (Claims App’x).
The Examiner finds that the copolymer taught by Ng comprises
ethylene/methyl acrylate copolymer. Final Act. 3.
Appellant argues that the Examiner fails to point to any disclosure in
Berrier or Ng teaching or suggesting the required copolymer. Br. 5.
Claim 5 depends from claim 3. With respect to claim 3, the Examiner
also finds that the modifier taught by Ng comprises a copolymer of
polyethylene and an ester of an acid that is methacrylic acid, the modifier,
therefore, being ethylene/alkyl methacrylate copolymer. See Final Act. 4.
The Examiner thus, unambiguously identifies disclosure in Ng that teaches
the claimed modifier. Appellant’s argument to the contrary is not
persuasive.
Rejection of claim 20
Claim 20 further requires the modified interior layer of claim 1 to
comprise from 0.5% to 10% of the one or more modifiers by weight of the at
least one modified interior layer. Br. 9 (Claims App’x).
The Examiner finds that Berrier discloses polyamide in the amount of
90% or more or ranges within that range, therefore, the interior layer would
comprise modifier in the amount of 0.5 to 10%. Final Act. 4.
Appellant argues that Berrier’s recitation of 90% or more polyamide
in a layer does not teach or suggest any particular amount of a modifier, at
least because Berrier does not teach any modifier at all. Br. 5.
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Application 13/813,244
As with claim 1, we do not read each reference in isolation, but rather
for what the reference teaches in combination with other cited prior art. See
In re Merck, 800 F.2d at 1097. Berrier’s teaching of a layer comprising “at
least about 90%” of one or more polyamides (see Berrier 134) means that
about 10% of other materials may be present in the layer. Ng’s teaching of
claimed modifiers, combined with Berrier’s teaching, means that up to about
10% of the layer may comprise one or more modifiers, meeting the
limitation of claim 20.
Appellant’s argument is not persuasive of reversible error by the
Examiner in rejecting claim 20.
DECISION
The Examiner’s rejection of claims 1—3, 5, 6, 8, 9, 11, 12, 15, 16, and
19—24 is affirmed.
The Examiner’s rejection of claims 4 and 7 is reversed.
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-IN-PART
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