11858718 (P.T.A.B. Mar. 31, 2014)

Ex Parte Franko

Patent Trial and Appeal BoardMar 31, 2014

11858718 (P.T.A.B. Mar. 31, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/858,718 09/20/2007 Joseph D. Franko SR. 20070642.ORI 3259 32863 7590 03/31/2014 WALTER K. ROLOFF 490 HARBOR COURT SHOREVIEW, MN 55126 EXAMINER LEWIS, JUSTIN V ART UNIT PAPER NUMBER 3725 MAIL DATE DELIVERY MODE 03/31/2014 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 JOSEPH D. FRANKO, SR. ____________ Appeal 2012-002086 Application 11/858,718 Technology Center 3700 ____________ Before JENNIFER D. BAHR, JOHN C. KERINS and WILLIAM A. CAPP, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-002086 Application 11/858,718 2 STATEMENT OF THE CASE Joseph D. Franko, Sr. (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1, 2, and 4-17. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellant’s invention is directed to an expanded content label. Independent claim 1 is illustrative: 1. An expanded content label suitable for use on a container having an area of relatively sharp curvatures comprising: (a) a base ply having an under side designed to be adhered to a container to be labeled and an upper side and having a first edge and an opposite edge, said edges defining the length thereof; (b) a top ply having a first edge and an opposite edge, said edges defining the length thereof; (c) a hinge connecting said first edge of said base ply with said first edge of said top ply; and (d) a release-reseal system connecting said base ply with said top ply at a location intermediate the edges of said base ply and said top ply and wherein said top ply is severed at said intermediate location enabling said expanded content label to open and reseal at said location intermediate said ends of said plies, wherein said top ply, beyond the location where said top ply is severed, is entirely removed from the label leaving only said base ply between (i) the location where said top ply is severed and (ii) said opposite edge. Appeal 2012-002086 Application 11/858,718 3 THE REJECTION The Examiner has rejected claims 1, 2 and 4-17 under 35 U.S.C. § 102(b) as being anticipated by Franko (US 2004/0207193 A1, published Oct. 21, 2004). ANALYSIS The Examiner identifies Figures 6a and 7 of Franko, together with claims 11 and 12, as evidencing an expanded content label that meets all limitations of the appealed claims. Ans. 4-5. Appellant’s arguments focus on an alleged lack of any disclosure in Franko of the claim limitation calling for the top ply of the label, beyond the location where the top ply is severed, to be entirely removed from the label leaving only the base ply between the severed location and the opposite edge of the base ply. App. Br. 15-16; Reply Br. 5-7. More specifically, Appellant argues that Figure 7 of Franko, which illustrates an embodiment in which a top ply 416 is severed by a tear strip 430, shows that a portion of the top ply 416, namely segment 432 which is positioned beyond the severed location, is not removed from the label. App. Br. 16; Reply Br. 6-7. In response, the Examiner takes the position that claim 1 “requires only that a portion designated as a ‘top ply’ be severed and peeled away from the assembly.” Ans. 10. The Examiner also maintains that claims 11 and 12 of Franko establish that a free end of top ply 416 is to be released. Id. The Examiner explains that when the top ply is severed and peeled away, only the base ply 410 is left between the location where the top ply was severed and the right edge (in Figure 7) of the label Appeal 2012-002086 Application 11/858,718 4 assembly. Id. The Examiner further states that Appellant does not cite to any explicit basis for believing that segment 432 is intended to function as part of a portion designated as a top ply in Franko, and that “Franko clearly provides separate designations for segment 432 and top ply 416.” Id. As to this last point, we agree with Appellant that paragraph [0053] of Franko, when considered in conjunction with Figure 7, can only reasonably be interpreted as meaning that segment 432 is part of the top or upper ply 416 which is not removed after the top ply is severed by tear strip 430. Reply Br. 7. As such, it is error on the Examiner’s part to regard segment 432 as not forming a part of the top ply. The Examiner’s other contentions alternatively attempt to equate peeling back the top ply of Franko to leave only the base ply, to the claim language calling for the top ply to be removed from the label. The Examiner explains that the peeling back of the top ply “ ‘entirely remove[s]’ [the top ply] from its overlying relationship with base ply 410.” Ans. 11. However, the claims do not call for a removal of the top ply from an “overlying relationship” with the base ply. Independent claims 1 and 10 instead require that the portion of the top ply that extends beyond the location where the top ply is severed, be “entirely removed from the label.” App. Br., Claims Appendix (emphasis added). The “label,” according to the claims, includes a base ply, a top ply, a hinge and a release-reseal system, each connecting the base ply with the top ply. As such, the mere peeling back of the top ply does not constitute removing it from the label. We thus disagree with the Examiner’s position that “claim 1 contains no limitations requiring the top ply to be removed from the label such that it no longer forms a part of the Appeal 2012-002086 Application 11/858,718 5 label structure,” in that removal of the top ply from the label as claimed will have that exact result. See Ans. 11. The preponderance of the evidence does not support the Examiner’s finding that the appealed claims are anticipated by Franko. The rejection of claims 1, 2 and 4-17 is not sustained. DECISION The rejection of claims 1, 2 and 4-17 as being anticipated by Franko is reversed. REVERSED llw