11490699 (B.P.A.I. Jun. 17, 2009)

Ex Parte Hamilton et al

Board of Patent Appeals and InterferencesJun 17, 2009

11490699 (B.P.A.I. Jun. 17, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte PETER WORTHINGTON HAMILTON and KENNETH STEPHEN MCGUIRE ____________ Appeal 2009-003284 Application 11/490,699 Technology Center 1700 ____________ Decided:1 June 18, 2009 ____________ Before EDWARD C. KIMLIN, JEFFREY T. SMITH, and JEFFREY B. ROBERTSON, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1-20. We have 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery). Appeal 2009-003284 Application 11/490,699 jurisdiction under 35 U.S.C. § 6(b). Claim 1 is illustrative: 1. An improved storage wrap material comprising: (a) a sheet of non- porous material having a first side and a second side, said first side comprising an active side exhibiting an adhesion peel force after activation by a user which is greater than an adhesion peel force exhibited prior to activation by a user and which is sufficient to form a continuous seal against any target surface, wherein a compressive force of at least about 0.1 psi is required to activate said active side, and wherein said sheet of material is linerless, such that activation of said active side requires no removal of components of said sheet of material, said sheet of material being sufficiently flexible to conform readily to a desired surface and having sufficiently small resiliency that it does not exert undue restorative forces which would tend to cause said sheet of material to break contact with such a desired surface. In addition to the admitted prior art (APA), the Examiner relies upon the following reference as evidence of obviousness (Ans. 2): Sanders 5,344,693 Sep. 06, 1994 The instant application is directed to essentially the same subject matter as that of two related applications that are on appeal to this Board. We sustained the Examiner’s § 103 rejections over the same prior art presently applied by the Examiner in both appeals directed to storage wrap material. Both related applications are now abandoned.2 The only substantial difference in the present claims on appeal is the recitation that a compressive force is used to activate the active side of a sheet of non-porous material. In Appeal 2008-2992 a tensile force is recited for activation. 2 US 09/715,586 (Appeal No. 2008-2992) and US 09/716,740 (Appeal No. 2007-2548). 2 Appeal 2009-003284 Application 11/490,699 Appealed claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sanders in view of the Admitted Prior Art (APA). Appellants have not separately argued any particular claim on appeal. Accordingly, all the appealed claims stand or fall together with claim 1. We have thoroughly reviewed each of Appellants’ arguments for patentability. However, as in the prior appeals, we find that the Examiner’s rejection is well founded and supported by the prior art relied upon. Accordingly, we will sustain the Examiner’s rejection for essentially those reasons expressed in the Answer and for those articulated in our Decisions in the prior appeals. There is no dispute that Sanders, like Appellants, discloses a sheet of non-porous plastic material, which material comprises a first, active side comprising a pressure sensitive adhesive from which protrusions project that allow the adhesive surface to contact itself without sticking together. Also, like the claimed sheet, the active side of Sanders’ sheet exhibits an adhesion peel force after activation greater than the adhesion peel force prior to activation. As recognized by the Examiner, Sanders does not expressly disclose that the sheet material is a storage wrap. However, as acknowledged by Appellants, it was well known in the art to form storage wrap materials from thin sheets of plastic and, as articulated in our prior Decisions in the related applications, we are persuaded that one of ordinary skill in the art would have found it obvious to construct a storage wrap material from the adhesive plastic sheet of Sanders. Also, since both Appellants and Sanders are concerned with making adhesive sheet material that can be formed into a roll without sticking to itself, we concur with the Examiner that “it would have 3 Appeal 2009-003284 Application 11/490,699 been obvious to one of ordinary skill in the art of flexible film to modify the admitted conventional cling wrapper films with Sanders’ spacing means, motivated by the desire to obtain storage wrappers with an improved sealing strength upon adhesive activation” (Ans. sentence bridging 3-4). Appellants maintain that the cited prior art does not teach or suggest that “[t]he claimed structure must be activatable, must satisfy a particular peel force limitation and must satisfy a flexibility requirement” (Reply Br. 4, last para.). However, the pressure sensitive adhesive of Sanders is activatable when compressive force is applied and claim 1 on appeal, with which all the appealed claims stand or fall, does not specify a particular adhesion peel force. Moreover, we agree with the Examiner that one of ordinary skill in the art would have found it obvious to resort to nothing more than routine experimentation to determine the particular peel force and flexibility for the adhesion sheet that is suitable for a particular application. Appellants make no assertion of novelty with respect to the particular adhesive composition used. As a final point, we note that Appellants base no argument upon objective evidence of non-obviousness, such as unexpected results. In conclusion, based on the foregoing, the Examiner’s decision rejecting the appealed claims is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(v) (2008). AFFIRMED 4 Appeal 2009-003284 Application 11/490,699 ssl THE PROCTER & GAMBLE COMPANY GLOBAL LEGAL DEPARTMENT - IP SYCAMORE BUILDING - 4TH FLOOR 299 EAST SIXTH STREET CINCINNATI, OH 45202 5