Ex Parte Irvin et al

Patent Trial and Appeal Board

Oct 28, 2016

13097666 (P.T.A.B. Oct. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/097,666 04/29/2011
27091 7590 11/01/2016
RR FULLER COMPANY
Patent Department
1200 WILLOW LAKE BL VD.
P.O. BOX 64683
ST. PAUL, MN 55164-0683
FIRST NAMED INVENTOR
CYNTHIA A. IRVIN
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
AA-007-US-Ol 6983
EXAMINER
MCNURLEN, SCOTT THOMAS
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
11/01/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patent.dept@hbfuller.com
rebecca.mcelhone@hbfuller.com
julie.post@hbfuller.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CYNTHIA A. IRVIN, DENNIS A. BRADSHAW,
and ROBERT A. KASZUBOWSKI JR.
Appeal2014-009526
Application 13/097 ,666 1
Technology Center 3700
Before STEFAN STAICOVICI, WILLIAM A. CAPP, and
SEAN P. O'HANLON, Administrative Patent Judges.
ST AI CO VICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Cynthia A. Irvin et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner's final decision rejecting claims 1, 5-18, 21, 22, and 24--
32.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM-IN-PART.
According to Appellants, the real party in interest is H.B. Fuller Co.
Br. 1 (filed May 19, 2014).
2 Claims 2--4, 19, 20, and 23 are cancelled. Br., Claims App.
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Application 13/097,666
INVENTION
Appellants' invention relates to a container reinforced with an
adhesive-coated reinforcing tape or string. Spec. 4, 11. 7-9.
Claims 1, 16, 17, 22, 24, and 25 are independent. Claim 1 is
illustrative of the claimed invention and reads as follows:
1. A container comprising:
at least one panel or flap configured to at least partially
form a bottom or at least one wall of the container, wherein the
panel or flap comprises a corrugated paper board, and the panel
or flap includes an inside surface and an outside surface; and
at least one reinforcing tape or string adhesively affixed
to at least one panel or flap of the container, wherein the
reinforcing tape or string comprises an adhesive disposed on a
substrate, the reinforcing tape or string has a chord modulus of
at least 100 grams/ denier between 0% and 4 % elongation, and
the reinforcing tape or string has a width of equal to or less than
10 mm,
wherein the corrugated paper board has a flute direction,
the reinforcing tape or string has a longitudinal direction, and
the reinforcing tape or string is located so that the longitudinal
direction of the reinforcing tape or string is perpendicular to the
flute direction of the corrugated paper board, and wherein the
container has a length direction that is longer than a width
direction, and the longitudinal direction of the reinforcing tape
or string is parallel to the length direction of the packaging
container.
REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 1, 5, 8-11, 13, 15, 24, 26, 29, and
31 under 35 U.S.C. § 103(a) as being unpatentable over
Renzetti (US 7,477,150 B2, iss. Jan. 13, 2009) and Karass (EP
0 169 043 A2, pub. Jan. 22, 1986).
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Appeal2014-009526
Application 13/097,666
IL The Examiner rejected claims 6 and 7 under 35 U.S.C. § 103(a)
as being unpatentable over Renzetti, Karass, and Townsend
(US 4,911,356, iss. Mar. 27, 1990).
III. The Examiner rejected claims 12 and 14 under 35 U.S.C. §
103(a) as being unpatentable over Renzetti, Karass, and Porter
(US 6,739,232 B2, iss. May 25, 2004).
IV. The Examiner rejected claims 16, 22, and 32 under 35 U.S.C. §
103(a) as being unpatentable over Renzetti and Porter.
V. The Examiner rejected claims 17, 18, 21, 25, 27, and 30 under
35 U.S.C. § 103(a) as being unpatentable over Renzetti.
VI. The Examiner rejected claims 26 and 29 under 35 U.S.C. §
103(a) as being unpatentable over Renzetti, Karass, and Tynan
(US 2008/0085388 Al, pub. Apr. 10, 2008).
VII. The Examiner rejected claims 27, 28, and 30 under 35 U.S.C. §
103(a) as being unpatentable over Renzetti and Tynan.
ANALYSIS
Claims 1, 5-15, 17, 18, 21, 24-27, and 29-31
Each of independent claims 1, 17, 24, and 25 requires, inter alia, a
corrugated paperboard having a flute direction and a reinforcement tape
having a longitudinal direction, wherein the longitudinal direction is oriented
perpendicular to the flute direction. See Br., Claims App.
The Examiner finds that:
Renzetti discloses wherein the corrugated paper board has a
flute direction, the reinforcing tape or string has a longitudinal
direction, and the reinforcing tape or string is located so that the
longitudinal direction of the reinforcing tape or string is
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Appeal2014-009526
Application 13/097,666
perpendicular to the flute direction of the corrugated paper
board (Fig. 7).
Final Act. 2-3 (transmitted Oct. 11, 2013).
In response, Appellants argue that "Fig. 7 is 'a side sectional view of a
substrate with embedded reinforcing tape' (column 2, lines 35-37)." Br. 4.
According to Appellants, "Fig. 7, nor any other figure of Renzetti, does not
show the location or orientation of the reinforcing tape in a container." Id.
To be more exact, we note that Figure 7 of Renzetti is a cross-
sectional side-view of corrugated board substrate 40 shown in Figure 6,
where corrugated layer 48, reinforcement tape 12, and exterior liner 42 are
fed from different rollers into the same web direction and overlapped to
form the structure of Figure 7. See also Renzetti, col. 7, 11. 19-51. As all the
layers of corrugated board substrate 40 are fed into the same web direction,
and Figure 7 is a cross-sectional view of Figure 6, the flute direction of
corrugated layer 48 is in the same direction as the longitudinal direction of
reinforcement tape 12; that is, a direction perpendicular to the page.
Therefore, in contrast to the Examiner's finding, Renzetti does not
disclose that the longitudinal direction of reinforcement tape 12 is oriented
perpendicularly to the flute direction of corrugated paperboard 48, as called
for by each of independent claims 1, 17, 24, and 25. The Examiner's use of
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Application 13/097,666
the disclosure of Karass3, Townsend4, Porter5, and Tynan6, in various
combinations, does not remedy the deficiency of Renzetti as discussed
supra.
Accordingly, for the foregoing reasons, we do not sustain the
rejections under 35 U.S.C. § 103(a) of claims 1, 5, 8-11, 13, 15, 24, 26, 29,
and 31 as unpatentable over Renzetti and Karass; of claims 6 and 7 as
unpatentable over Renzetti, Karass, and Townsend; of claims 12 and 14 as
unpatentable over Renzetti, Karass, and Porter; of claims 17, 18, 21, 25, 27,
and 30 as unpatentable over Renzetti; of claims 26 and 29 as unpatentable
over Renzetti, Karass, and Tynan; and of claims 27 and 30 as unpatentable
over Renzetti and Tynan.
Claims 16, 22, 28, and 32
Appellants argue that "Renzetti do[ es] not disclose a container
wherein a reinforcing tape is located at the bottom panel of the container," as
per independent claim 16; because "Figs. 7 and 9 of Renzetti are both
3 The Examiner employs Karass to disclose a "container [that] has a
length direction that is longer than a width direction" and "[a] reinforcing
tape or string [that] has a longitudinal direction ... parallel to the length
direction of the packaging container." Final Act. 3 (citing Karass, Figs. 7,
11).
4 The Examiner uses the disclosure of Townsend to show a container
with a continuous, seamless bottom panel and four sidewalls, but no top. Id.
at 5 (citing Townsend, Fig. 10).
5 Porter is employed by the Examiner to show that Kevlar® is a liquid
crystal polymer. Id (citing Porter, col. 10, 11. 26-28).
6 Tynan is used by the Examiner to disclose a VECTRAN®
reinforcement tape, which is not an aromatic polyamide fiber. Id. at 9
(citing Tynan, paras. 6, 10, 15, 18, and 20).
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Application 13/097,666
corrugated paper board/reinforcing tape side sectional views that do not
show a container at all." Br. 9.
Although we appreciate that Figures 7 and 9 of Renzetti are side
cross-sectional views of a corrugated board substrate 40, nonetheless, we
agree with the Examiner that Renzetti discloses "extending the tape the
entire length of the container blank." Ans. 11; see also Renzetti, col. 7, 11.
19-26 ("tape 12 extends the entire length of ... corrugated board blank
46."). We thus we agree with the Examiner that the resulting container
would include reinforcement 12 at the bottom panel of the container as "any
panel of the box could serve as the 'bottom'." Ans. 11.
Appellants further argue that the Examiner's finding that the material
properties of the claimed reinforcement tape, as per independent claims 16
and 22, are result-effective variables is improper. Br. 10. According to
Appellants, "[t]here is nothing in Renzetti recognizing that chord modulus
and creep are result effective variables, particularly in the context of
minimizing or preventing sagging of a corrugated paper board bottom panel
of a container or minimizing or preventing deflection of a corrugated paper
board side wall of a container." Id.
We are not persuaded by Appellants' arguments because the
Examiner also finds that Renzetti discloses the use of Kevlar® for making
reinforcement tape 12. Final Act. 6 (citing Renzetti, col. 4, 1. 22).
Appellants' Specification also describes Kevlar® as a suitable material for
the claimed reinforcement tape. See Spec. 6, 11. 1-7. Therefore, as Renzetti
discloses the same material as described by Appellants as a suitable material
for the claimed reinforcement tape, namely, Kevlar®, the Examiner is on
solid ground to shift the burden to Appellants to prove Renzetti' s Kevlar®
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Application 13/097,666
does not possess the material properties of independent claims 16 and 22. Jn
re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) ("[W]hen the PTO shows
sound basis for believing that the products of the applicant and the prior art
are the same, the applicant has the burden of showing that they are not.").
With respect to the rejection of claim 28, Appellants rely on the
arguments presented supra in the rejection of independent claim 22 from
which claim 28 depends. See Br. 12. We are not persuaded for the same
reasons as discussed above.
In conclusion, for the foregoing reasons, we sustain the rejections
under 35 U.S.C. § 103(a) of claims 16, 22, and 32 as unpatentable over
Renzetti and Porter, and of claim 28 as unpatentable over Renzetti and
Tynan.
SUMMARY
The Examiner's decision to reject claims 1, 5-18, 21, 22, and 24--32 is
affirmed as to claims 16, 22, 28, and 32, and reversed as to claims 1, 5-15,
17, 18, 21, 24--27, and 29-31.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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