Ex Parte Hansen

Board of Patent Appeals and Interferences

Jan 31, 2012

10582869 (B.P.A.I. Jan. 31, 2012)

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.
10/582,869 06/14/2006 Bernd Hansen 51336 5951
1609 7590 02/01/2012
ROYLANCE, ABRAMS, BERDO & GOODMAN, L.L.P.
1300 19TH STREET, N.W.
SUITE 600
WASHINGTON,, DC 20036
EXAMINER
TRUONG, THANH K
ART UNIT PAPER NUMBER
3721
MAIL DATE DELIVERY MODE
02/01/2012 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 BERND HANSEN
____________

Appeal 2009-013993
Application 10/582,869
Technology Center 3700
____________

Before STEVEN D.A. McCARTHY, STEFAN STAICOVICI, and
KEN B. BARRETT, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-013993
Application 10/582,869

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STATEMENT OF THE CASE
Bernd Hansen (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision to reject under 35 U.S.C. § 112, second paragraph,
claim 14, as being indefinite; under 35 U.S.C. § 102(b) claims 12-14 and 17-
25 as anticipated by Hansen (DE 100 63 282 C2, published Jul. 4, 2002)1
and claims 12-14, 17, 20 and 22-25 as anticipated by Furui Koichi (JP S60-
49919 A, published Mar. 19, 1985); and under 35 U.S.C. § 103(a) claims 15,
16 and 26 as unpatentable over Hansen and Zelina (US 2002/0159915 A1,
published Oct. 31, 2002). Claims 1-11 have been canceled. We have
jurisdiction over this appeal under 35 U.S.C. § 6.

THE INVENTION
The Appellant’s invention relates to a method and a device for
producing and filling containers. Spec. 1, ll. 2 and 10 and fig. 1a-1c.
Claims 12 and 24 are representative of the claimed invention and read
as follows:
12. A method of producing and filling containers, comprising
the steps of:
extruding a tube of softened plastic material into an open
mold;
closing the tube at a projecting end thereof by closing the
mold to form a bottom of a container;
separating the tube above the mold by a separating
element to form a filler opening;

1 Appellant acknowledges the Examiner’s use of Hansen (US 2004/0065983
A1, published Apr. 8, 2004) as the English translation for Hansen (DE 100
63 282 C2). App. Br. 5. See also Ans. 3. As such, throughout this appeal,
when we cite to Hansen, we shall be referring to Hansen (US 2004/0065983
A1).
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Application 10/582,869

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moving the mold with the tube having the filler opening
in the mold into a filling position;
after the tube is formed into the container by generating a
pressure gradient acting on the tube in the mold to expand the
tube, filling the container through the filler opening;
sealing the filler opening;
covering the filler opening by a sterile barrier at least
from a formation time for the filler opening to filling of the
tube; and
conveying at least one sterile medium in a direction of
the filler opening from the sterile barrier by a media delivery
device.

24. A device for producing and filling containers,
comprising:
at least one mold having mold parts movable between
open and closed positions;
an extruder for extruding at least one tube of softened
plastic material in said mold with said mold parts in said open
positions;
welding edges on said mold parts for welding a
projecting end of the tube to form a container bottom;
a pressure gradient generator acting on and expanding the
tube in said mold;
a movable separating element for forming a filler
opening by separating the tube, said separating element being
movable above the mold between a retracted position and an
operating position;
a filling device in a sterile filling space;
a displacement device moving said mold between an
extrusion position below said extruder and a filling position
below said filling device in said sterile filling space;
a sterile barrier covering the filler opening of the tube in
said mold from formation thereof to filling of the tube in said
sterile filling space; and
a media deliverer, coupled to said sterile barrier, for
conveying sterile medium in a direction of the filler opening.

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SUMMARY OF DECISION
We REVERSE.

OPINION
The § 112, second paragraph, rejection
Dependent claim 14 requires that the sterile medium is conveyed at
“a specified over-pressure” in the direction of the filler opening. App. Br.,
Claims Appendix. The Examiner takes the position that the phrase “a
specified over-pressure” is vague and indefinite. Ans 3. According to the
Examiner, it is unclear as to what pressure “a specified over-pressure” is
referring. Id.
It is well established that the test for definiteness under 35 U.S.C.
§ 112, second paragraph, is whether “those skilled in the art would
understand what is claimed when the claim is read in light of the
specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d
1565, 1576 (Fed. Cir. 1986) (citations omitted). In this case, Appellant’s
Specification discloses that conveyance of sterile medium 34 to the cover
plate 30 and through media exit points 38 in the direction of fill opening 18
is effected by “excess or overpressure, i.e., a pressure greater than ambient
air pressure.” Spec. 6, ll. 6-8. See also App. Br. 4. As such, we find that a
person of ordinary skill in the art would understand that “a specified over-
pressure” means “a predetermined pressure greater than ambient air
pressure.” As such, we conclude that the claim language, when read in light
of the Specification, is not indefinite. Accordingly, claim 14 is not indefinite
under 35 U.S.C. § 112, second paragraph. Hence, the rejection of dependent
claim 14 cannot be sustained.

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The anticipation rejection based upon Hansen
Independent claim 12 requires the method step of “conveying at least
one sterile medium in a direction of the filler opening from the sterile barrier
by a media delivery device.” Similarly, independent claim 24 requires a
media deliverer, coupled to a sterile barrier, “for conveying sterile medium
in a direction of the filler opening.” App. Br., Claims Appendix. The
Examiner found that (1) heated plate 23 (sterile barrier) of Hansen covers
filler openings 15 of softened plastic material tubes 3; and (2) heated plate
23 (sterile barrier) of Hansen heats the surrounding air, wherein the
surrounding heated air constitutes the claimed sterile medium. Ans. 4.
According to the Examiner, since heated plate 23 (sterile barrier) of Hansen
is heated to a “germ-killing” temperature, the air surrounding heated plate 23
(sterile barrier) is also being heated. Ans. 8. As such, the Examiner
concludes that because the heat source is ongoing (continuously), the
surrounding air (sterile medium) is also being heated continuously (i.e.,
convection/radiation heat transfer. Therefore, according to the Examiner,
the heated air (sterile medium) surrounding heated plate 23 (sterile barrier)
of Hansen is also expanding continuously, hence propagating to
continuously replace the surrounding cool air and cover the area surrounding
mold 6, and thus protecting (sterilizing) fill openings (15) of softened plastic
material tubes 3. Ans. 8-9.
As such, based on our understanding, the Examiner appears to take
the position that the heated air surrounding heated plate 23 (sterile barrier) of
Hansen constitutes a sterile medium that circulates between the heated plate
23 and fill openings 15 of tubes 3. In other words, we understand the
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Examiner’s position to mean that heated plate 23 and fill openings 15 of
tubes 3 are spaced apart (i.e., not touching) so as to allow for air to circulate
and be heated to a “germ-killing” temperature .
While Appellant agrees that heated air may be generated by heated
plate 23, Appellant argues that the heated air is not necessarily delivered in
the direction of fill openings 15. App. Br. 7. Reply Br. 3.
We agree. In this case, we find that Hansen teaches a heated plate 23
having a heated cutting edge 21 positioned on its front edge, wherein heated
plate 23 covers (i.e., serves as a sterile barrier to) fill openings 15 of tubes 3
as the openings 15 in the tubes 3 are being formed. See Hansen, paras.
[0019-0020]. Hansen further teaches that fill openings 15 are formed in the
process of severance of extruded tubes 3 by cutting edge 21 of heated plate
(sterile barrier) 23. See Hansen, para. [0022]. Severance of extruded tubes
3 by cutting edge 21 of heated plate (sterile barrier) 23 is indicative of direct
contact between heated plate 23 (sterile barrier) and the fill openings 15 of
the extruded tubes 3. In other words, heated plate 23 (sterile barrier) not
only covers fill openings 15, but is also in direct contact (touching) with fill
openings 15. Hence, in contrast to the Examiner’s position, we do not find
that heated plate 23 and fill openings 15 of tubes 3 are spaced apart. As
such, heated air (sterile medium) surrounding heated plate 23 (sterile barrier)
will not circulate between heated plate 23 (sterile barrier) and fill openings
15 of tubes 3, as the Examiner contends. Therefore, the Examiner’s finding
that the heated air surrounding heated plate 23 of Hansen constitutes the
claimed sterile medium is mere speculation and conjecture based on an
unfounded assumption that heated plate 23 and fill openings 15 of tubes 3
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are spaced apart (i.e., not touching) so as to allow for air to circulate and be
heated to a “germ-killing” temperature.
Accordingly, Hansen does not teach all the limitations of independent
claims 12 and 24 or their respective dependent claims 13, 14, 17-23 and 25.
Therefore, the rejection of claims 12-14 and 17-25 under 35 U.S.C.
§ 102(b) as anticipated by Hansen cannot be sustained.

The anticipation rejection based upon Furui Koichi
Independent claim 12 requires the method step of “covering the filler
opening by a sterile barrier at least from a formation time for the filler
opening to filling of the tube.” Similarly, independent claim 24 requires “a
sterile barrier covering the filler opening of the tube in said mold from
formation thereof to filling of the tube in said sterile filling space.” App.
Br., Claims Appendix.
The Examiner takes the position that Furui Koichi teaches that sterile
chamber 12 (barrier) covers the filler opening of tube 6 from the time of the
filler openings’ formation to filling of tube 6. Ans. 7. See also Furui
Koichi, figs. 2 and 3(a)-(c). Appellant argues that sterile chamber 12
(barrier) of Furui Koichi does not cover the filler opening of tube 6 from its
formation to filling of tube 6, as required by independent claims 12 and 24.
App. Br. 12-14. See also Reply Br. 4.
In this case, like Appellant, we find that tube 6 of Furui Koichi is cut
(via cutter 9) forming the filling opening before being positioned under
molding and filling device 2. See Furui Koichi, figs. 1(a) and 1(b). During
movement from extrusion device 1 to molding and filling device 2, the
filling opening of tube 6 is not covered by sterile chamber 12. See Furui
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Koichi, figs. 1(a) and 1(b). As such, we agree with Appellant that the filling
opening of tube 6 is “exposed to contamination before being covered by the
sterile chamber 12.” Reply Br. 4.
Hence, we find that Furui Koichi fails to teach a sterile barrier
covering the filling opening of the tube from formation thereof to filling of
the tube, as required by independent claims 12 and 24. Accordingly, for the
foregoing reasons, the rejection of independent claims 12 and 24, and their
dependent claims, 13, 14, 17, 20, 22, 23 and 25, under 35 U.S.C. § 102(b) as
anticipated by Furui Koichi is not sustained.

The obviousness rejection based upon Hansen and Zelina
The addition of Zelina does not remedy the deficiencies of Hansen as
described above. As such, the rejection under 35 U.S.C. § 103(a) of claims
15, 16 and 26 as unpatentable over Hansen and Zelina likewise cannot be
sustained.

DECISION
The decision of the Examiner to reject claims 12-26 is reversed.

REVERSED

JRG