Ex parte Goodman et al.

Board of Patent Appeals and Interferences

Mar 31, 1998

08500421 (B.P.A.I. Mar. 31, 1998)

Application for patent filed July 10, 1995.1
1
Paper No. 10
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte FRANK C. GOODMAN,
ROBERT T. SEELEY AND
ROBERT J. DEMPSEY
______________
Appeal No. 96-4102
Application 08/500,4211
_______________
ON BRIEF
_______________
Before ABRAMS, PATE, and McQUADE, Administrative Patent Judges.
PATE, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 4 and 5
and the examiner’s refusal to allow claim 6, amended after final
rejection. Claims 4, 5, and 6 are the only claims remaining in
the application.
Appeal No. 96-4102
Application 08/500,421
We have interpreted the claim expression “non-tearable” found in 2
line 2 of claim 4 on appeal as directed to a tear-resistant material.
2
The claimed invention is directed to a tear-open container
formed of tear-resistant material. The ends of the container
have heat-sealed joints with at least one heat-sealed joint
having an elongated tear-propagating slit formed therein.
Claim 4, reproduced below is further illustrative of the
claimed subject matter.
4. A tear-open bag for containing a flowable material, said
bag being formed with a non-tearable heat-sealable synthetic
resin, said bag comprising opposite end portions at least one of
which is closed by means of an expanded planer [sic, planar] heat
seal joint, said bag being formed with angled corners at opposite
sides of said heat seal joint, and an elongated tear-propagating
slit extending through said heat seal joint and not extending to
the edges of the bag, said slit being wholly contained within
said heat seal joint, and said slit being oriented relative to
one of said corners so as to be operable, when manually stressed,
to propagate a tear line in the bag which is oblique relative to
said one corner so that said one corner can be manually torn away
from the remainder of the bag and thereby form a pouring spout in
the bag. 2
The reference cited by the examiner as evidence of
anticipation and obviousness is:
Arcudi 3,809,220 May 7, 1974
The following rejections are on appeal:
Claim 4 has been rejected under 35 U.S.C. 102(b) as being
clearly anticipated by Arcudi.
Appeal No. 96-4102
Application 08/500,421
3
Claims 5 and 6 have been rejected under 35 U.S.C. § 103 as
unpatentable over Arcudi.
The appellants have stated that the claims are separately
argued and do not stand or fall together and have provided
arguments directed to the patentability of each claim on appeal.
Therefore, the claims on appeal do not stand or fall together.
OPINION
Rather than reiterate the arguments of the appellants and
the examiner, reference is made to the appropriate sections of
the appeal brief and the examiner’s answer for the full details
thereof.
We have carefully reviewed the rejections on appeal in light
of the arguments of the appellants and the examiner. As a result
of this review, it is our determination that the Arcudi reference
clearly anticipates the subject matter of claim 4 on appeal.
Therefore, the rejection of this claim will be sustained. On the
other hand, Arcudi does not provide evidence that the claimed
subject matter of claims 5 and 6 would have been prima facie
obvious to one of ordinary skill at the time the invention was
made. Therefore, the rejection of claims 5 and 6 is not
sustained. Our reasons follow.
Appeal No. 96-4102
Application 08/500,421
4
It is the examiner’s finding of fact, and we concur, that
Figure 10 of Arcudi shows a tear-openable package 80. The
package 80 can contain a flowable material such as a powder.
See column 5, line 12. The package is formed of a tear-resistant
material (column 1, line 53) of heat-sealable synthetic resin
formed from two sheets of plastic film heat-sealed around the
edge 83 for forming the compartment 84 to house the material or
drug to be dispensed. See column 4, lines 49 ff. As shown in
Figure 10, the package or container 80 has four right angle
corners. A slit 17 is cut through the plastic film at an oblique
angle to one of the corners, as depicted in Figure 14, so that
the lower right-hand corner of Figure 10 may be manually torn
away from the remainder of the package thereby forming a pouring
opening in the container by which any powder therein might be
removed. As stated above, we concur in the examiner’s findings
of fact and with the examiner’s ultimate finding that Arcudi
clearly anticipates the subject matter of claim 4.
Appellants argue, on page 7 of the brief, that Arcudi is not
a bag. Appellants continue the argument by relating how the
present specification discloses how appellants make a bag from a
tube-like web of tear-resistant synthetic resin. We are in
Appeal No. 96-4102
Application 08/500,421
5
agreement with the examiner that it is the claims that define the
invention rather than the unclaimed description from appellants’
specification.
Appellants also argue that Arcudi does not teach an
elongated tear-propagating slit that does not extend to the edge
of the bag. Here again, we agree with the examiner that Figures
10 and 11 clearly show the slit 17 of Arcudi not extending to the
edge of the container or package. We note that if a user of
appellants’ package folded the heat-sealed seam through the slit,
then the slit could be said to extend to the edge of the package
just as Arcudi’s does. Appellants further argue that Arcudi does
not tear off a corner. We disagree. If the container or package
of Figure 10 is torn open as specified by Arcudi, the lower right
hand corner, as shown in Figure 10, is torn off. Finally, we are
in agreement with the examiner that to the extent the appellants’
package forms a pouring spout, Arcudi’s does also.
Turning to the rejection of claims 5 and 6 under 35 U.S.C.
§ 103, we are of the view that the Arcudi reference does not
provide evidence sufficient to have rendered the subject matter
prima facie obvious to one of ordinary skill in the art. The
Arcudi reference is not concerned with chlorine-stable synthetic
resins and indeed does not disclose such. While the examiner has
Appeal No. 96-4102
Application 08/500,421
6
stated that it would have been obvious as within the general
skill of the worker to select a known material on the basis of
its suitability for the intended use, the examiner has not shown
that the chlorine-stable synthetic resin is indeed well known for
the intended use claimed by appellants. The examiner has simply
provided no evidence with respect to chlorine-stable synthetic
resin in a tear-openable container for flowable materials.
Therefore, the rejection of claims 5 and 6 is reversed.
SUMMARY
The rejection of claim 4 under 35 U.S.C. § 102 has been
affirmed. The rejection of claims 5 and 6 under 35 U.S.C. § 103
has been reversed. The examiner’s rejections are affirmed-in-
part.
Appeal No. 96-4102
Application 08/500,421
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
WILLIAM F. PATE, III ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JOHN P. McQUADE )
Administrative Patent Judge )

Appeal No. 96-4102
Application 08/500,421
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William A. Simons
Wiggin & Dana
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