Ex Parte Moore et al

Patent Trial and Appeal Board

Sep 19, 2017

13784415 (P.T.A.B. Sep. 19, 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.
13/784,415 03/04/2013 Kevin D. Moore ITW-22565-A 9674
45482 7590 09/19/2017
PAULEY ERICKSON & KOTTIS
2800 W. HIGGINS ROAD
SUITE 365
HOFFMAN ESTATES, IL 60169
EXAMINER
HARMON, CHRISTOPHER R
ART UNIT PAPER NUMBER
3649
MAIL DATE DELIVERY MODE
09/19/2017 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 KEVIN D. MOORE and
CHRISTOPHER J. SAMARAS
____________________

Appeal 2016-001459
Application 13/784,415
Technology Center 3600
____________________

Before: LINDA E. HORNER, ERIC C. JESCHKE, 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 1–5 and 7–12. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

CLAIMED SUBJECT MATTER
The claims are directed to a packaging machine for placing flexible
carrier stock on a plurality of containers, such as to create a “six-pack” of
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cans. Claims 1, 5, and 9 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A machine for packaging a plurality of containers into
packages using flexible carrier stock, the machine comprising:
a feed drum to feed the flexible carrier stock;
a jaw drum to draw the flexible carrier stock from the feed
drum and apply the flexible carrier stock to the plurality of
containers;
a plurality of first removable jaws connected around a
circumference of the jaw drum wherein the flexible carrier stock
is fed around the jaw drum so that the first removable jaws each
grip the flexible carrier stock through a container receiving
aperture, the plurality of first removable jaws exchangeable with
a plurality of second removable jaws on the jaw drum, the second
removable jaws having a different jaw height than the first
removable jaws, wherein the first removable jaws correspond
with a first plurality of containers having a first pitch and the
second removable jaws correspond with a second plurality of
containers having a second pitch, so that following exchange of
the second removable jaws for the first removable jaws, the jaw
drum and the flexible carrier stock properly engages the second
plurality of containers having a larger diameter than the first
plurality of containers and a resulting longer distance between
centers of adjacent containers.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Grevich
Summey
Moore
Hamer
Wang
US 4,305,240
US 5,546,993
US 6,588,173 B1
US 6,928,794 B2
US 7,032,479 B1
Dec. 15, 1981
Aug. 20, 1996
July 8, 2003
Aug. 16, 2005
Apr. 25, 2006
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REJECTIONS
Claims 1–3 and 9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Moore and Hamer.
Claims 1–3 and 9 are also rejected under 35 U.S.C. § 103(a) as being
unpatentable over Moore and Grevich.
Claims 4 and 10 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Moore, Hamer or Grevich, and Wang.
Claims 5, 7, 8, 11, and 12 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Moore, Summey, and Hamer.

OPINION
Claims 1 and 9 – Moore and Hamer
Appellants argue the rejections of claims 1 and 9 together. We select
independent claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). We
address claims 2 and 3 separately, infra.
The Examiner finds that Moore teaches all of the features of claim 1,
except “exchanging jaw pairings with jaws having different ‘jaw height.’”
Final Act. 2. The Examiner also finds that Moore teaches that “various
components [] are convertible or exchangeable to permit machine 10 to
address a wide range of packaging requirements.” Id. (quoting Moore, col.
4:2–4). Similarly, the Examiner finds that “Hamer teaches exchangeable
jaws of different dimensions (heat sealing or otherwise) mounted on a rotary
system to accommodate processing of different packages.” Id. at 6.
The Examiner determines that “[o]ne of ordinary skill in the art could
easily look to a different solution such as that taught by Hamer for the same
problem in the invention to Moore[,] i[.]e.[,] handling of different sized
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packagings and incorporate the teachings therein.” Id. Thus, the Examiner
further determines “[i]t would have been obvious to one of ordinary skill in
the art at the time of the invention to include exchangeable jaws of differing
jaw heights as taught by Hamer in the invention to Moore et al. to provide a
system capable of handling containers of different dimensions.” Id. at 3.
Finally, the Examiner determines that “[m]odif[]ying the jaw drum of
Moore by including an interchangeable system in order to vary the height
and/or spacing is considered within the skill of one of ordinary skill in the
art,” and that “[t]he jaw height dimension might be differently configured
for a plurality of foreseeable objectives including package dimension, heat
transfer properties, accommodating cutoff tooling; etc.” Id. at 6.
Appellants argue that the jaws in Hamer “are heat sealing jaws” and
thus both differ from and are used for a different purpose than the claimed
invention. Appeal Br. 8, 10. Appellants further argue that the jaws do not
have different jaw heights and that “different sized” is not the same as
“different height.” Id. at 8–9.
Appellants’ arguments are against the references individually, where
the rejection is based on the combination of Moore and Hamer. One cannot
show nonobviousness by attacking references individually where the
rejections are based on combinations 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”); see
also In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
In particular, Appellants’ arguments focus on specific embodiments of
Hamer, rather than the more general teachings of Hamer relied on by the
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Examiner, as well as what would have been obvious to one of ordinary skill
in the art, in view of those teachings. Arguments presented in an appeal
must address the grounds of rejection set forth by the Examiner. 37 C.F.R.
§ 41.37(c)(1)(iv).
Hamer specifically teaches that “[p]roviding individually removable
jaws also allows for quick changeover to accommodate different size
pouches or to change the geometry of the transverse seal.” Hamer col. 3:32–
34. Accordingly, the Examiner determined that Hamer teaches
“exchangeable jaws of different dimensions . . . mounted on a rotary system
to accommodate processing of different packages” and that it would have
been obvious to one of ordinary skill in the art, and within his/her skill to
modify Moore to incorporate these teachings. Final Act. 6. Appellants’
arguments do not address these general teachings of Hamer, nor do they
inform us of error in the findings or determinations of the Examiner.

Claims 1 and 9 – Moore and Grevich
Appellants argue the rejections of claims 1 and 9 together. We select
independent claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). We
address claims 2 and 3 separately, infra.
Instead of relying on Hamer, in the second ground of rejection the
Examiner finds that Grevich teaches “a sealing jaw drum 17 utilizing
rotatable opposing sealing jaws 18 for producing seals at differing pitches
and accommodating smaller/larger products between by adjusting the jaw
height with respect to the central axis of rotation;” Final Act. 3–4. Thus, the
Examiner finds that “modifying jaw tooling defined by differing jaw
positioning at particular heights (relative to a rotational drum center) are
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known for accommodating packaging dimensions of various sizes.” Ans. 7;
see also Final Act. 7 (Examiner providing similar reasoning).
Appellants argue that the jaws in Grevich are “heat sealing heads” and
thus both differ from and are used for a different purpose than the claimed
invention. Appeal Br. 11–12. Appellants further argue that Grevich’s
teaching of “changing the radial distance of the sealing heads from an axis of
the rotor” is not the same as claimed invention. Id. Appellants also argue
that the heat sealing heads are not removable. Id.
Similar to the arguments previously discussed, Appellants’ arguments
are directed to Grevich individually, and do not address the combined
teachings of the references. For example, the Examiner finds that Moore
teaches removable jaws (Final Act. 3; Ans. 5), but relies on the combination
of Moore and Grevich to teach the full extent of the claimed jaws (Final Act.
3–4). Appellants’ arguments do not address this combination. For these
reasons we are not informed of error in the Examiner’s rejection.

Claim 2
Claim 2 depends from claim 1 and adds, inter alia, “a plurality of
pairs of locating pins positioned [for] . . . removably receiving a first
removable jaw of the plurality of first removable jaws.” The Examiner
determines that “Moore seems to show a similar construction” though it is
unclear whether Moore uses pins, but it is “an obvious design choice to
utilize pins for attachment” of the jaws. Final Act. 3 (citing Moore, Figs. 3,
5).
Appellants argue that Moore does not teach removable pins that are
used in combination with replaceable jaws of different heights as required by
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claim 2. Appeal Br. 11. As noted above, the Examiner does not rely on
Moore for teachings pins, but rather determines that the use of pins is an
obvious matter of design choice. Thus, we are not informed of error in the
Examiner’s rejections of claim 2.

Claim 3
Claim 3 depends from claim 2 and adds “a pair of slots formed in the
first removable jaws for engaging the pair of locating pins.” The Examiner
determines that “a slot is a well known structure for accepting a mounting
pin and also would have been an obvious construction element for attaching
the jaw body to the rotary structure of the drum.” Final Act. 3.
Appellants argue that this is error as “[h]oles and slots are used for
different functions, and one of ordinary skill would not consider these two
structures simply interchangeable for each other.” Appeal Br. 11.
Appellants do not further explain what these different functions are or why
they would render holes and slots non-interchangeable. Further, Appellants’
statement is 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.”). Thus, Appellants’ argument does
not inform us or error in the Examiner’s rejections.

Claims 4 and 10
Appellants argue the rejection of claims 4 and 10 together. We select
independent claim 4 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 4 depends from claim 1 and adds “a retaining pin biasing the
first removable jaws into position on the jaw drum,” which the Examiner
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finds is taught by Wang. Final Act. 4. The Examiner also determines that it
would have been obvious to combine Wang’s teaching with Moore “for easy
removal/disconnect of the jaw structures from the rotary drum.” Id.
Appellants argue that the combination lacks a “sufficient rationale.”
Appeal Br. 13. In so arguing, Appellants do not actually address the
rationale provided by the Examiner, but merely state that “the Wang Patent
is directed to a small, hand tool, and not a large commercial packaging
machine.” Id. Appellants do not explain how this undermines the
Examiner’s rationale, or how it would influence what one of ordinary skill in
the art would have found obvious. Thus, we are not informed of error in the
Examiner’s rejection.

Claim 5
Independent claim 5 includes limitations similar to claim 1, but also
includes “a speed sensor connected with respect to the dancer arm for
controlling a speed of the pinch roller based upon a speed of the jaw drum,”
which the Examiner finds is taught by Summey. Final Act. 5. The
Examiner determines that “[i]t would have been obvious . . . to utilize the
speed control system as taught by Summey . . . in the modified invention to
Moore et al. for tension control of the web by monitoring and controlling the
speed.” Id.
Appellants argue that independent claim 5 is allowable for reasons
similar to claim 1 and discussed above. Appeal Br. 13. Appellants then
state that in the invention “[t]he jaw drum changes speed upon the change in
jaw height” and argue that “[t]he Summey Patent does not disclose a sensor
for changing the speed of a second roller in response to a change in size of a
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first roller.” Id. at 14. However, the argued change in size of the first roller
is not claimed and therefore cannot distinguish the prior art. Thus, we are
not informed of error in the Examiner’s rejection.

Claims 7, 8, and 11
Appellants argue that the Summey patent does not overcome the
deficiencies identified in the rejection of claim 1. Appeal Br. 13–14. Thus,
claims 7, 8 and 11 fall with claim 1 for the reasons discussed above.

Claim 12
Claim 12 ultimately depends from claim 9 and adds, inter alia, “the
speed sensor automatically adjusting the speed of the pinch roller based on a
desired application speed.” Similar to claim 5, the Examiner relies on the
combination of Moore and Summey to teach the limitations of claim 12.
Final Act. 4–5.
Appellants argue that “[t]he Summey Patent does not disclose or
suggest, alone or in the purported combination, controlling speed changes
resulting from a change in roller diameter, such as resulting from the change
of jaw height of the jaw drum.” Appeal Br. 15.
However, Appellants’ argument is not commensurate in scope with
the claim, which merely requires a “desired application speed.” Thus, we
are not informed of error in the Examiner’s rejection.

DECISION
The Examiner’s rejections of claims 1–5 and 7–12 are affirmed.
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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)(1)(iv).

AFFIRMED