Ex Parte Kujat

Patent Trial and Appeal Board

Oct 30, 2017

12602225 (P.T.A.B. Oct. 30, 2017)

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.
12/602,225 09/28/2010 Marcus Kujat 24608 3510
535 7590
KF ROSS PC
311 E York St
Savannah, GA 31401-3814
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
11/01/2017 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):
savannah@kfrpc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARCUS KUJAT1
Appeal 2016-007138
Application 12/602,225
Technology Center 3700
Before DANIEL S. SONG, KEN B. BARRETT, and
ARTHUR M. PESLAK, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) the Examiner’s final
rejection of claims 3—7, 9-12, 14, 15, and 19—21, claims 1, 2, 8, 13, and 16—
18 having been canceled (App. Br. 2). We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
1 Referred to as “Appellant” herein. The real party in interest is Nordenia
Deutschland Halle GmbH (Appeal Brief (hereinafter “App. Br.”) 1).
Appeal 2016-007138
Application 12/602,225
The claimed invention is directed to a sheet-material packing bag
(Abstract). The sole independent claim 15 reads as follows (App. Br. 36,
Claims App’x, emphasis added):
15. A bag comprising:
generally congruent front and back panels of plastic film
having upper and lower edges and a pair of side edges extending
vertically between the upper and lower edges;
first and second side gussets of plastic film each extending
between one of the side edges of one of the panels and the
respective side edge of the other panel and forming folds with
the side edges, the first gusset being movable between a folded-
in position tucked between the panels and a folded-out position
projecting out from between the panels, the front panel, the back
panel, and the side gussets being formed by folding of an at least
two-layer film to provide at inner surfaces of the panels and
gussets a first layer of a weldable plastic and at outer surfaces of
the panels and gussets a second layer of a nonweldable material;
an upper weld extending full width along the upper edges
between the side edges and sealing together the upper edges;
respective longitudinal reinforcement welds that extend
along the side edges and folds from the lower edges to the upper
weld;
a reclosable fastener comprising a pair of matable strips
secured to the inner surfaces of the panels and of the first side
gusset, connecting in a closed position the first side gusset with
the front and back panels, and extending horizontally below the
upper weld from the side edges of the first side gusset, the
longitudinal welds extending continuously between the upper
and lower edges except on the side edges of the first side gusset
at the reclosable fastener,
notches formed at the side edge in the folds and in the
longitudinal reinforcement welds of the first side gusset between
the reclosable fastener and the upper weld;
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Appeal 2016-007138
Application 12/602,225
a tear line formed in the front and back panels extending
from the notches between the reclosable fastener and the upper
weld for defining and facilitating removal of a part of the front
and back panels and first gusset above the fastener at the first
gusset, whereby when the part is removed and the fastener is
closed an interior of the bag is sealed and when the part is
removed and the fastener is opened the first gusset can be moved
from the folded-in to the folded-out position in which it forms a
spout and fluent contents of the bag can be poured out of the
spout; and
a handle secured to the second gusset below the slide
fastener[2] between the longitudinal reinforcement welds of the
second gusset and above the lower edges.
The Examiner rejects various claims under 35 U.S.C. § 103(a) as
follows:
1. Claims 5, 10-12, 14, 15, and 21 as unpatentable over Healy et
al. (US 6,352,365 Bl; Mar. 5, 2005 ) in view of Yeager (US 2007/0086683
Al; Apr. 19, 2007), Imer (US 5,547,284; Aug. 20, 1996), Manning et al.
(US 2008/0233252 Al; Sept. 25, 2008), and McKenna et al. (US
2008/0010945 Al; Jan. 17, 2008).
2. Claim 9 as unpatentable over Healy in view of Yeager,
Manning, Imer, McKenna, Lang et al. (US 5,169,696; Dec. 8, 1992), Tallier
(US 2008/0135428 Al; Jun. 12, 2008) and Gehrke et al. (US 5,874,155; Feb.
23, 1999).
2 We note that the recitation “the slide fastener” lacks proper antecedent
basis. This error should be corrected in any further prosecution of the
present application.
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Appeal 2016-007138
Application 12/602,225
3. Claims 33, 4, 7, 10-12, 14, 15, and 19 as unpatentable over
Healy in view of Yeager, Manning, Imer, Braithwaite (US 3,208,492; Feb.
21, 1962) or Seabold (US 5,186,542; Feb. 16, 1993), and McKenna.
4. Claim 5 as unpatentable over Healy in view of Yeager,
Manning, Imer, Braithwaite, McKenna, and Seabold.
5. Claim 6 as unpatentable over Healy in view of Yeager,
Manning, Imer, Braithwaite, Seabold, McKenna, and LaBras et al. (US
6,598,784 B2; Jul. 29, 2003).
6. Claim 9 as unpatentable over Healy in view of Yeager,
Manning, Imer, Braithwaite or Seabold, and McKenna, Lang et al., Tallier,
and Gehrke et al.
7. Claim 20 as unpatentable over Healy in view of Yeager,
Manning, Imer, Braithwaite or Seabold, and McKenna and Suoss et al. (US
4,905,888; Mar. 6, 1990).
ANALYSIS
Rejection 1
The Examiner rejects independent claim 15 as unpatentable over
Healy in view of Yeager, Imer, Manning, and McKenna (Final Office
Action (hereinafter “Final Act.”) 3). The Examiner finds that Healy
discloses a bag having a spout, but fails to disclose various features of the
bag as recited in independent claim 15 (Final Act. 3 4). The Examiner
relies on Yeager for disclosing a gusseted bag having a reclosable fastener
3 Claim 3 depends from claim 1, which has been canceled. This deficiency
should be corrected in any further prosecution of the present application.
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Appeal 2016-007138
Application 12/602,225
that comprises a pair of matable strips, and for disclosing longitudinal
reinforcement welds except at the reclosable fastener (Final Act. 4—5). The
Examiner concludes that it would have been obvious to provide such
features on the bag of Healy to “rigidify and stabilize the bag and its
contents in a free-standing orientation,” and “to provide the bag with a
resealable pour spout.” (Final Act. 5).
In addition to Healy and Yeager, in concluding that claim 15 would
have been obvious to one of ordinary skill in the art, the Examiner also relies
on: Imer for disclosing a gusseted bag having the recited two-layer film
construction (Final Act. 6); Manning for disclosing a tear line with a notch
(Final Act. 7); and McKenna for disclosing a gusseted bag having a handle
secured centrally to a second side gusset (Final Act. 7—8).
The Appellant proffers various arguments in asserting patentability of
claim 15, including arguments based on the lack of various recited features
in each of the prior art references, and the number of references relied upon
by the Examiner (see generally, App. Br. 13—16; Reply Br. 2). These
arguments are unpersuasive for the reasons set forth by the Examiner (see
generally, Ans. 3—9).
However, as noted above, in rejecting claim 15, the Examiner finds
that Yeager discloses a gusseted bag having longitudinal reinforcement
welds except at the reclosable fastener (Final Act. 4—5; see also Ans. 5).
The Appellant disputes this finding and argues that in Yeager,
edge seams 44 stop well above and well below the fastener strip
30. There is no suggestion that the welds 44 should run along
the edge folds “except” at the side [sic, slide] fastener. Here the
welds 44 are kept far from the area of the strip 30 and tear line
25.
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Appeal 2016-007138
Application 12/602,225
(App. Br. 13).
We agree with the Appellant and find that Yeager does not disclose
“longitudinal welds extending continuously between the upper and lower
edges except on the side edges of the first side gusset at the reclosable
fastener” as required by claim 15. The Examiner is correct that Yeager
“expressly discloses that comer seals 44 do not extend the full length of the
package.” (Ans. 5; see also Yeager, Fig. 11). However, the comer seals of
Yeager (corresponding to the recited longitudinal reinforcement welds)
extend from the lower edge of the bag and terminate well before the
reclosable fastener (see Yeager, Fig. 11). Indeed, Yeager discloses that
preferably,
each comer seam 44 is spaced below the fastener elements 32
of the fastener strip by a distance which generally corresponds
to the distance between each comer seal 44 and the fold of the
respective gusset 16, i.e., the folded width of the gusset. This
facilitates the pour spout fully opening.
(Yeager 150; see also Yeager 148).
This disclosure of Yeager, in conjunction with Figure 11 thereof,
establishes by preponderance of the evidence that Yeager fails to disclose
“longitudinal welds extending continuously between the upper and lower
edges except on the side edges of the first side gusset at the reclosable
fastener” as recited in claim 15 (emphasis added).
Therefore, because we disagree with the Examiner’s finding with
respect to Yeager, we reverse this rejection relative to claim 15, and claims
5, 10—12, 14, and 21 that ultimately depend from claim 15.
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Appeal 2016-007138
Application 12/602,225
Rejections 2—5
Each of these rejections are also based on the combination of Healy in
view of Yeager, and presents the same issue with regard to the disclosure of
Yeager that is addressed supra relative to Rejection 1. Accordingly,
Rejections 2—5 are reversed for the same reason as Rejection 1.
CONCLUSION
The Examiner’s rejections of claims 3—7, 9-12, 14, 15, and 19-21 are
REVERSED.
REVERSED
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