Ex Parte Coyne et al

Patent Trial and Appeal Board

Jul 24, 2018

12829161 (P.T.A.B. Jul. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/829, 161 07/01/2010
48940 7590 07/24/2018
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 2100
CHICAGO, IL 60603-3406
FIRST NAMED INVENTOR
Dana Marie Coyne
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.
1410-97063-US 8018
EXAMINER
HELVEY, PETER N.
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
07/24/2018 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 PATENT TRIAL AND APPEAL BOARD
Ex parte DANA MARIE COYNE, JEANE. LEATHERSICH,
DEBORAH A. L YZENGA, and PAULE. DOLL
Appeal2017-010022
Application 12/829,161 1
Technology Center 3700
Before EDWARD A. BROWN, ANNETTE R. REIMERS, and
JEREMY M. PLENZLER, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Dana Marie Coyne et al. ("Appellants") seek review under 35 U.S.C.
§ 134(a) of the Examiner's decision, as set forth in the Non-Final Office
Action dated September 7, 2016 ("Non-Final Act."), rejecting claims 1, 2,
4--8, 13-20, and 22. 2 We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Appeal Brief identifies Kraft Foods Group Brands LLC, as the real
party in interest. Appeal Br. 3.
2 Claim 3 is cancelled, and claims 9-12, 21, and 23-25 are withdrawn from
consideration. Id. (Claims App.).
Appeal2017-010022
Application 12/829,161
CLAIMED SUBJECT MATTER
Claims 1, 17, and 22 are independent. Claim 1, reproduced below,
illustrates the claimed subject matter:
1. An apparatus comprising:
flow-wrapping material configured to be disposed about
an item to form a package having a fin seal spanning between
opposing end seals creating a sealed main portion, the flow-
wrapping material having first and second opening feature
portions disposed adjacent opposing lateral edges of the flow-
wrapping material, the first and second opening feature portions
being positioned to overlap within the fin seal;
a plurality of laterally-disposed, unconnected scribed lines
extending continuously from within the first opening feature
portion onto the sealed main portion such that first ends thereof
are disposed within the first opening feature portion and second
ends thereof are disposed on the sealed main portion; and
a tear-initiation element disposed on or in the flow-
wrapping material laterally aligned with the plurality oflaterally-
disposed scribed lines and closer to the first opening feature
portion than to the second opening feature portion, wherein the
package is configured to be opened by initiating a lateral tear
across the package with the tear-initiation element where the
plurality of laterally-disposed, unconnected scribed lines aid in
tearing through the fin seal, such that a top of the package is
removed.
Appeal Br. 15 (Claims App.).
REJECTION
Claims 1, 2, 4--8, 13-20, and 22 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Moteki (US 6,102,571, issued Aug. 15,
2000) and Bosman (US 8,297,841 B2, issued Oct. 30, 2012).
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Application 12/829,161
ANALYSIS
Claims 1, 2, 4-8, and 13-16
Appellants argue for patentability of claims 1, 2, 4--8, and 13-16
collectively. Appeal Br. 7-12. We select claim 1 as the representative
claim, and claims 2, 4--8, and 13-16 stand or fall with claim 1. See 37
C.F.R. § 4I.37(c)(l)(iv).
For claim 1, the Examiner finds that Moteki discloses a package
comprising a flow-wrapping material (packaging bag 1) configured to form
a package having a fin seal (longitudinal sealed portion 6) spanning between
opposing end seals (lateral sealed portions 4, 5) creating a sealed main
portion, the flow-wrapping material having first and second opening feature
portions ('joined flap on either side [at] 12") disposed adjacent opposing
lateral edges of the flow-wrapping material and positioned to overlap within
the fin seal ("first opening portion is roughened portion" and "second
opening portion is mated unroughened portion"), and a tear-initiation
element (first tearable rough surface portion 13). Non-Final Act. 3 (citing
Moteki, Figs. 2--4, 6). The Examiner also finds that Moteki "does not
expressly disclose the scribed lines extending continuously as claimed,
rather disclosing a general roughened area." Id.
The Examiner relies on Bosman to teach an opening mechanism for
packaging, comprising laterally disposed, unconnected scribed lines
extending continuously from within opening feature portions ("on the
overlapped fin seal") onto the sealed main portion (lines of weakness 30a,
30b). Id. at 4 (citing Bosman, Fig. 2). The Examiner reasons that because
Moteki and Bosman both teach similar opening mechanisms for opening a
pouch, it would have been obvious to substitute the continuous scribed line
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structure, as taught by Bosman, for the general roughened area, as taught by
Moteki, "to achieve the predictable result of easily opening the pouch
without compromising the initial sealed state." Id. The Examiner explains
that in Moteki, as modified, the first ends of the scribed lines are disposed
within the first opening feature portion and the second ends of the scribed
lines are disposed on the sealed main portion ( citing Moteki, Figs. 3, 4 ), and
"the package is configured to be opened by initiating a lateral tear across the
package with the tear-initiating element ... such that a top of the package is
removed" ( citing Moteki, col. 3, 11. 38-58). Id.
Appellants contend that Bosman's lines of weakness 30a, 30b are only
in outer layer 20 to define separable strip 32, and removing strip 32 does not
open the package. Appeal Br. 11; see Bosman, Figs. 2, 3. Rather,
Appellants contend, the top of the package is tom off after removing strip
32. Id. ( citing Bosman, Figure 4).
This contention is unpersuasive. The Examiner explains that
roughened opening features 9, 10, 12 in Moteki aid in tearing through the fin
seal, allowing the top of the package to be removed. Ans. 5. The Examiner
further explains that replacing these roughened opening features with
Bosman's scribed lines would result in the top of the package being
removed. Id. at 5---6. The Examiner's rationale for the modification is
premised on "the simple substitution of one known element [i.e., scribed
lines] for another [i.e., tearable roughened surface portions]" in Moteki's
packaging bag. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).
Appellants do not provide any persuasive argument or evidence to show that
this proposed substitution of known elements would have been uniquely
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Application 12/829,161
challenging to a person of ordinary skill in the art, or would not have yielded
predictable results. See id.
Appellants also contend that, in Bosman, lines of weakness 30a, 30b
extend entirely across the package material from fin seal edge to fin seal
edge, whereas claim 1 recites scribed lines having "first ends thereof ...
disposed within the first opening feature portion and second ends thereof ...
disposed on the sealed main portion." Appeal Br. 11. Appellants contend
that Figure 2 of Bosman shows that first line of weakness 30a "extends
entirely within sealed areas of the package, i.e., the fin seal 18 and the inner
seal 26," whereas claim 1 recites that the second ends of the scribed lines
"are disposed on the sealed main portion" of the package. Id.
These contentions are unpersuasive. Appellants' argument is
premised on the position that Bosman's lines of weakness 30a, 30b (Figure
2) have different lengths or extents than the claimed scribed lines. The
Examiner explains, however, that replacing roughened opening features 9,
10, 12 in Moteki with Bosman's scribed lines would not result in scribed
lines extending around the entirety of Moteki's package. Ans. 6. Rather, the
modification would result in the smaller, localized roughened surface
portions taught by Moteki being replaced with scribed lines. Id. As such,
the resulting scribed lines in Moteki would be sized such that "[t]he end
locations of the Moteki roughened opening features would readily
correspond to the ends of the scribed lines applied in place thereof." Id.
Appellants also contend there is no motivation for making the
Examiner's proposed modification because Moteki already solves the
problem addressed by the claimed subject matter, albeit with a different
solution. Appeal Br. 12.
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This contention is not persuasive. The Examiner's proposed
modification is based on the substitution of one known package opening
feature (scribed lines) for another (tearable rough surface portions) with
predictable results, not on solving a problem with Moteki. Ans. 7.
Appellants contend that Moteki teaches that the height of the
roughened areas is important to catch tear line Cl if this tear line curves
during opening of the package. Appeal Br. 13; see also id. at 8 ( citing
Moteki, col. 4, 11. 43---61 ). As such, Appellants assert, Moteki teaches
against replacing the roughened areas in Moteki with two broken lines of
weakness, as suggested by the Examiner, because such structure would not
meet the operational requirements in Moteki. Appeal Br. 13.
This argument is not persuasive. Moteki describes that, in instances
where tearing line Cl may curve upward or downward upon opening
packaging bag 1, tearable rough surface portions 9, 10 can have a length La
so that tearing line Cl passes through the tearable rough surface portions.
See Moteki, col. 4, 11. 43-61, Fig. 1. As noted by the Examiner, in order to
teach away, a reference must "actually criticize, discredit, or otherwise
discourage the claimed solution." Ans. 7-8 (citing In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004)). Appellants do not direct us to any disclosure
in Moteki that criticizes, discredits, or otherwise discourages utilizing
scribed lines instead of the tearable rough surface portions.
Appellants also contend that "[ r ]eplacing such a roughened area --
having a longitudinal span -- of Moteki with a single line of weakness of
Bosman would not meet this objective as such a line would be capable of
being tom at only one longitudinal position." Reply Br. 5. We note,
however, that the Examiner relies on Bosman to teach "a plurality of
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laterally disposed, unconnected scribed lines," as claimed. Non-Final Act. 3.
Accordingly, we are not persuaded by this contention.
Appellants further contend that Bosman teaches against modifying
lines of weakness 30a, 30b to remove most of their length, because this
would render strip 32 and release tab 34 unsatisfactory for its intended
purpose. Appeal Br. 13.
The contention is not persuasive. The Examiner explains that the
rejection does not modify Bosman in this manner, but, instead, relies on
modifications to Moteki. Ans. 8.
Appellants also contend that the Examiner is not proposing a simple
substitution; rather, modifications are necessarily made by the Examiner to
both Moteki and Bosman. Reply Br. 4--5. According to Appellants:
[ t ]he Examiner first proposes to substitute the rough surface
portions ofMoteki with the lines of weakness of Bosman (which
extend entirely across the package), and then further modify the
already-once modified Moteki to shorten the newly added lines
of weakness so that they no longer extend entirely across the
package but instead have lengths that meet the claim elements.
No rational explanation is offered in the Examiner's Answer for
shortening the lines of weakness of Bosman after they have been
added to Moteki, thus evidencing the improper application of
hindsight in the rejection.
Id. at 4.
We disagree with these contentions. The proposed combination of
teachings does not first modify Moteki by substituting its tearable rough
surface portions with Bosman's lines of weakness extending entirely around
the package, as depicted in Bosman. Rather, the Examiner relies on Bosman
to teach scribed lines and modifies Moteki to include such scribed lines
sized such that "[ t ]he end locations of the Moteki roughened opening
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features would readily correspond to the ends of the scribed lines applied in
place thereof." Ans. 6.
For the foregoing reasons, we sustain the rejection of claim 1 as
unpatentable over Moteki and Bosman. Dependent claims 2, 4--8, and 13-
16 fall with claim 1.
Claims 17-20
Claim 1 7 recites, inter alia, "a first and second plurality of laterally-
disposed, unconnected scribed lines disposed at least partially within each of
the opening feature portions respectively and with free ends thereof
extending onto the sealed main portion, wherein the first and second
plurality of laterally-disposed, unconnected scribed lines do not extend to an
adjacent lateral edge of the flow-wrapping material." Appeal Br. 17
(Claims App. (emphasis added)).
Appellants contest the rejection of claim 17, first referring to the
arguments presented against the rejection of claim 1 with respect to the
language, "are disposed on the sealed main portion" of the package. Id. at
12; see also id. at 11. Appellants also again contend that lines of weakness
30a, 30b in Bosman extend continuously across the package from fin seal
edge to fin seal edge, which is required for the operation of release tab 34 of
strip 32. Id. at 13. Appellants contend that, in contrast, claim 17 recites that
the scribed lines "do not extend to an adjacent lateral edge of the flow-
wrapping material." Id. Appellants also assert Bosman teaches away from
such configurations.
These contentions are unpersuasive for reasons similar to those
discussed above for claim 1. We sustain the rejection of claim 1 7, and of
dependent claims 18-20, as unpatentable over Moteki and Bosman.
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Claim 22
Claim 22 recites, inter alia, "a first and second plurality of laterally-
disposed, unconnected scribed lines disposed at least partially within the first
and second lateral edge portions respectively and extending away therefrom,
wherein the plurality of laterally-disposed, unconnected scribed lines at least
partially overlap on either side of the seal and do not extend to an adjacent
lateral edge of the flow-wrapping material." Appeal Br. 18 (Claims App.
(emphasis added)).
Appellants contend that claim 22 also recites that the scribed lines "do
not extend to an adjacent lateral edge of the flow-wrapping material." Id. at
13.
This contention is unpersuasive for reasons similar to those discussed
above for claim 1. We sustain the rejection of claim 22 as unpatentable over
Moteki and Bosman.
DECISION
We affirm the rejection of claims 1, 2, 4--8, 13-20, and 22.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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