Ex Parte Howell et al

Patent Trial and Appeal Board

Feb 28, 2018

14293340 (P.T.A.B. Feb. 28, 2018)

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.
121981-00456 1021
EXAMINER
MCNURLEN, SCOTT THOMAS
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
14/293,340 06/02/2014 Clifton HOWELL
51468 7590 02/28/2018
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
825 Eighth Avenue
31st Floor
NEW YORK, NY 10019
02/28/2018 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 CLIFTON HOWELL, DAVID WALLACE,
KENNY MCCRACKEN, ROBERT HOGAN, KEVIN OWEN,
STEVEN OLECHOWSKI, ERIC PLOURDE,
DAVID ANZINI, STEVEN AUSNIT, and
RUSTY KOENIGKRAMER
Appeal 2017-008863
Application 14/293,340
Technology Center 3700
Before: LINDA E. HORNER, MICHELLE R. OSINSKI, and
BRENT M. DOUGAL, Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 2, 4—31, 33, 34, 36-42, and 44-46. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
Appeal 2017-008863
Application 14/293,340
CLAIMED SUBJECT MATTER
The claims are directed to a package with a rigid or semi-rigid
container forming the bottom and a polymer reclosable header forming the
top. For example, the package could be an open top cardboard box with a
resealable plastic bag having an open bottom secured to the open top of the
cardboard box to thereby provide access to the insides of the package.
Claims 1 and 30 are independent. Claim 1, reproduced below, is illustrative
of the claimed subject matter:
1. A package including:
a container portion formed from a rigid or semi-rigid
material, the container portion including first and second
gusseted sides, a front panel, a rear panel, a folded bottom and an
open top;
a header fastened to an upper portion of the container
portion, thereby covering the open top of the container portion
and providing a closed package for contents therewithin, wherein
a lower portion of the container portion is free of fastening to the
header, the header being formed of first and second walls of
polymeric material and including a zipper for access
therethrough, the first wall attached to the front panel and a front
portion of the first and second gusseted sides and the second wall
attached to the rear panel and a rear portion of the first and second
gusseted sides, the header having a length greater than one half
of a circumference of the container portion, the circumference
formed by the front and rear panels and the first and second
gusseted sides, the header being folded across a top of the rigid
or semi-rigid container portion, first and second ends of the
header being releasably attached to the respective first and
second gusseted sides of the rigid or semi-rigid container portion;
the zipper being chosen from the group consisting of a
flanged zipper free of sliders, a flanged zipper with a slider, a
flanged zipper with opening lips, a flanged tamper-resistant
zipper, a tamper-evident zipper, a string zipper, a double zipper,
a multiple track zipper, a zipper with a tear line, a zipper with
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Appeal 2017-008863
Application 14/293,340
flanges connected above the locking elements, a zipper with
flanges connected below the locking elements, a leak-resistant
zipper, a zipper with a peel seal, a hinged zipper, a zipper with
spot seals, a zipper with eyemarks, a partly sealed zipper, a zipper
with shape-retaining characteristics, a pinch grip pull zipper,
zipper tape, a perforated cap zipper tape, a zipper with a
weakened line of resistance, a zipper with a wedge, a zipper with
a stabilizing post, a zipper with guide ribs, a zipper with a
compression post, and a laminated zipper tape with a tear bead.
REFERENCES
The evidence relied on by the Examiner is:
Brooks US 2,434,756 Jan. 20, 1948
Strouse US 3,396,899 Aug. 13, 1968
Strand US 6,360,513 B1 Mar. 26, 2002
Bois US 6,609,827 B2 Aug. 26, 2003
Huffman US 6,688,515 B1 Feb. 10, 2004
Wang US 6,840,436 B2 Jan. 11,2005
Wright US 6,863,754 B2 Mar. 8, 2005
Bein US 7,160,029 B2 Jan. 9, 2007
Holmes US 2003/0111521 A1 June 19, 2003
Ichikawa US 2004/0101216 A1 May 27, 2004
Olin US 2005/0036720 A1 Feb. 17, 2005
Plourde US 2007/0258666 A1 Nov. 8, 2007
Wine US 2009/0142006 A1 June 4, 2009
REJECTIONS
Claims 1, 2, 5, 8—11, and 24 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Huffman, Bein, Holmes, and Ichikawa.
Claims 4, 6, 7, 12—23, 25—31, 33, 34, 36-42, and 44-46 are also
rejected under 35 U.S.C. § 103(a) as being unpatentable over Huffman,
Bein, Holmes, Ichikawa, and further in view of:
Claims 4, 6, 7, 18—20, 28, 30, 31, 33, 34, and 36-40 — Strand;
Claims 12, 17, and 27 — Olin;
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Application 14/293,340
Claim 13 — Brooks;
Claims 14 and 15 — Strouse;
Claim 16 —Wang;
Claims 21 and 22 — Wright and Bois;
Claim 23 — Wright;
Claims 25 and 26 — Plourde;
Claim 29 — Wine;
Claim 41 — Strand and Brooks;
Claim 42 — Strand and Strouse;
Claim 44 — Strand and Wang;
Claim 45 — Strand and Plourde; and
Claim 46 — Strand and Wright.
OPINION
Appellants argue the rejection of claims 1, 2, 5, 8—11, and 24 together.
We select independent claim 1 as representative. See 37 C.F.R. § 41.37(c)
(l)(iv). Appellants repeat these same arguments for the patentability of
claims 4, 6, 7, 18—20, 28, 30, 31, 33, 34, and 36-40. Appellants also rely on
these arguments for the patentability of claims 12—17, 21—23, 25—27, 29, 41,
42, and 44-46, primarily based on their dependency from claim 1 or 30.
Thus, all of the pending claims stand or fall with claim 1.
The Examiner determines that the subject matter of claim 1 would
have been obvious in view of the teachings of Huffman, Bein, Holmes, and
Ichikawa. Final Act. 2—3; see also Adv. Act. 2. Certain of the Examiner’s
findings and determinations relevant to Appellants’ arguments are outlined
below.
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Application 14/293,340
The Examiner finds that Huffman teaches a rigid or semi-rigid
container that is reclosable. Final Act. 2. The Examiner finds that “Holmes
discloses a similar container, including gusseted sidewalls.” Id. The
Examiner finds that “Bein discloses [a package with] a container portion
with an open top (Fig. 9b), a header (14) fastened to an upper portion of the
container portion,” where the header is polymeric and includes a zipper to
provide access to the package. Id. The Examiner finds that “Ichikawa
discloses a similar zippered closure, including the header being folded and
releasably attached to the sides of the structure.” Id. at 3. The Examiner
also finds that “when Ichikawa is added to the combination, the walls [of the
header] are positioned on the panels/sides as claimed,” and that “[u]sing
Ichikawa’s two-walled sealing construction in Bein’s header yields the
claimed two-walled header secured to the sides of the box as claimed.” Adv.
Act. 2.
Appellants argue that the cited prior art does not teach or suggest “the
header being formed of first and second walls of polymeric material. . . the
first wall attached to the front panel and a front portion of the first and
second gusseted sides and the second wall attached to the rear panel and a
rear portion of the first and second gusseted sides,” as required by claim 1.
Br. 8.
As noted above, the Examiner relies on a combination of at least Bein
and Ichikawa to teach a header being configured as required by claim 1 and
as highlighted by Appellants. See, e.g., Final Act. 2—3, Adv. Act. 2.
Appellants first state that Huffman does not disclose a header. Br. 8.
As the Examiner does not rely on Huffman to disclose a header, this
argument does not inform us of error in the Examiner’s rejection.
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Application 14/293,340
Appellants then seek to distinguish Figure 9b of Bein, which they
argue shows “each side of the container portion has a corresponding sheet in
the header. There are no sheets of the header that are attached to ‘the front
panel and a front portion and the first and second gusseted sides’.” Id. As
noted above, the Examiner’s rejection relies on the combination of Bein and
Ichikawa to teach a header having this configuration. See Adv. Act. 2.
Appellants’ arguments are against Bein individually, where the rejection is
based on the combination of Bein and Ichikawa. One cannot show
nonobviousness by attacking references individually where the rejections are
based on a combination of references. See In re Keller, 642 F.2d 413, 425
(CCPA 1981) (citations omitted) (explaining that obviousness must be
considered in light of “what the combined teachings of the references would
have suggested to those of ordinary skill in the art”). For this reason, we are
not informed of error in the Examiner’s rejection.
Appellants also seek to distinguish Ichikawa, arguing that “[wjhile the
Ichikawa reference discloses a two-sheet structure for sleeve 60, this
structure is not a header, but rather a full envelope.” Br. 8. The Examiner’s
rejection expressly acknowledges the bag-like package in Ichikawa but
clarifies that “[i]n the combination (i.e. with the header (Bien) [sic] instead
of the entire bag-like package in Ichikawa), the first and second ends of the
header would be releasably attached to the first and second gusseted sides of
the container (see Ichikawa Fig. 6 and Bein Fig. 9b).” Final Act. 3. The
Examiner relies primarily on Ichikawa for the teaching of folding the top of
the bag as shown in Ichikawa Figure 6, and as a result further relies on
Ichikawa’s teachings of the structure of top of the bag in order to fold the top
as taught to modify the teachings of Bein’s header. Id.', see also Adv. Act.
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2} Appellants’ arguments do not address this combination, as proposed by
the Examiner. As discussed above, one cannot show nonobviousness by
attacking references individually where the rejections are based on a
combination of references.
Appellants also argue that “the embodiment disclosed in Figure 9b of
the Bein reference would be very hard to mass produce” and that Ichikawa’s
“full envelope configuration would likewise be very difficult to mass
produce.” Br. at 8, 9. Not only are these arguments focused on the
references individually, but Appellants’ statements are also merely attorney
argument, with no supporting evidence. See In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of
evidence.”).
For all of the reasons discussed above, Appellants’ arguments do not
inform us of error in the Examiner’s rejection.
DECISION
The Examiner’s rejection of claims 1, 2, 4—31, 33, 34, 36-42, and 44—
46 are 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
1 The Examiner’s position is consistent with Appellants’ own conclusion
that “it is difficult to see how the package [using only Bein’s header] could
be folded flat, the header attached, and then unfolded to an open
configuration,” thus necessitating modification in view of Ichikawa’s
teachings. Br. 8.
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