11086106 (B.P.A.I. Nov. 1, 2010)

Ex Parte Caudle

Board of Patent Appeals and InterferencesNov 1, 2010

11086106 (B.P.A.I. Nov. 1, 2010)

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. 11/086,106 03/22/2005 Timothy G. Caudle D-43819-01 3934 7590 11/01/2010 Sealed Air Corporation P.O. Box 464 Duncan, SC 29334 EXAMINER HARMON, CHRISTOPHER R ART UNIT PAPER NUMBER 3721 MAIL DATE DELIVERY MODE 11/01/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte TIMOTHY G. CAUDLE ____________ Appeal 2009-001315 Application 11/086,106 Technology Center 3700 ____________ Before JENNIFER D. BAHR, JOHN C. KERINS and STEFAN STAICOVICI, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-001315 Application 11/086,106 2 STATEMENT OF THE CASE Timothy G. Caudle (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-14, the only claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b) (2002). We REVERSE. THE INVENTION Appellant’s invention is directed to an apparatus for positioning and attaching fitments to a film. Claim 1, reproduced below, is illustrative of Appellant’s invention: 1. An apparatus for positioning and attaching a plurality of fitments to a film, comprising: a) a guiding device for guiding a plurality of fitments; b) an attaching device for attaching the fitments to the film; c) a means for advancing the attached fitments and film; and d) an indexing device for indexing the fitments, the indexing device comprising iv) a spring housing, v) a spring, and vi) a fastener, the indexing device being configured such that when a first fitment has been attached to the film and then advances past the indexing device, the Appeal 2009-001315 Application 11/086,106 3 spring controllably releases the first fitment, and a second fitment is advanced into attaching position; and wherein the spring can operatively engage each fitment by catching each fitment, and can then release each fitment in sequential fashion. THE REJECTIONS The Examiner has rejected claims 1-4 and 6-13 under 35 U.S.C. § 102(b) as being anticipated by Pritchard (US 6,182,426 B1, issued February 6, 2001), or, in the alternative, as being unpatentable over Pritchard. The Examiner has also rejected claims 5 and 14 under 35 U.S.C. § 102(b) as being anticipated by Pritchard, and alternatively under 35 U.S.C. § 103(a) as being unpatentable over Pritchard. ISSUE Does the Pritchard patent disclose a construction of an indexing device in which a spring is operable to engage each fitment, by catching the fitment, and operable to release each successive fitment in a sequential manner? ANALYSIS The Examiner found, in elucidating the anticipation rejection, that the Pritchard indexing device includes a spring housing, a spring, and a fastener, and that: [e]ach fitment is considered caught by the spring mechanism and therefor [sic] also by the spring as the operation is spring biased to the catching position and moves against the bias to open to release fitments individually/sequentially Appeal 2009-001315 Application 11/086,106 4 (Answer 3). This finding has some pertinence to the limitation in each independent claim (1, 6, 11) that the indexing device be configured such that a spring controllably releases a first fitment, in that the spring of the spring housing 124 in Pritchard appears to operate in conjunction with rods 126, which turn downwardly (presumably as the spring deforms), to release the fitment. (Pritchard, col. 7, ll. 4-8). However, independent claims 1 and 11 further require that the spring itself be capable of operatively engaging each fitment by catching each fitment, and independent method claim 6 affirmatively recites that the spring engages the fitment by catching the fitment. As Appellant points out (see, e.g., Reply Br. 2), Pritchard discloses that the pair of rods 126 embraces, or catches, in the parlance of the appealed claims, the fitments to hold them in position to be sealed to the film. (Pritchard, col. 6, ll. 53-58). That these rods are described as turning downwardly (Pritchard, col. 7, ll. 6-8), in contrast to elastically deforming, for example, evinces that the rods are not a spring or a portion of a spring in the spring-biased locator 124. The Examiner’s position that Pritchard discloses the catching of each fitment by the spring, because it is caught by the “spring mechanism”, by which we presume the Examiner means the “spring-biased locator 124”, amounts to an unreasonably broad interpretation, in light of Appellant’s Specification, of the actual claim language calling for the spring itself to catch the fitment. We are unable to sustain the anticipation rejection of claims 1, 6 and 11, and of claims 2-4, 7-10, 12 and 13 depending from those claims. The alternative ground of rejection of claims 1-4 and 6-13 as being Appeal 2009-001315 Application 11/086,106 5 unpatentable over Pritchard is directed only to the absence of a disclosure in Pritchard of a fastener being included in the indexing device. The reasoning presented does not remedy the deficiency noted above. The rejection will not be sustained. The rejection of claims 5 and 14, which depend from claims 1 and 11, respectively, as being anticipated by, or as being unpatentable over, Pritchard, is directed to claim limitations involving a range of spring constants for the claimed spring. The reasoning presented by the Examiner does not remedy the deficiency noted above. The rejection will not be sustained. CONCLUSION The Pritchard patent has not been shown by the Examiner to disclose a construction of an indexing device in which a spring is operable to engage each fitment, by catching the fitment, and operable to release each successive fitment in a sequential manner. DECISION The decision of the Examiner to reject claims 1-14 is reversed. REVERSED Appeal 2009-001315 Application 11/086,106 6 mls SEALED AIR CORPORATION P.O. BOX 464 DUNCAN, SOUTH CAROLINA 29334