Ex Parte Orsini et al

Patent Trial and Appeal Board

Sep 25, 2018

13796428 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/796,428 03/12/2013
28236 7590 09/27/2018
Sealed Air Corporation
Patent Department
2415 Cascade Pointe Boulevard
Charlotte, NC 28208
FIRST NAMED INVENTOR
Thomas Orsini III
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.
D-44757 7709
EXAMINER
IMAM, TANZIM
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
09/27/2018 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):
patents@sealedair.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS ORSINI III, RUSSELL CHRISTMAN, and
TODD BROWN
Appeal 2018-001121
Application 13/796,428
Technology Center 3700
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Sealed Air Corporation (US) ("Appellant") 1 appeals under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 1-18, 21, and 22,
which are all the pending claims. See Appeal Br. 9. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Sealed Air Corporation (US) is the applicant, as provided in 37 C.F.R.
§ 1.46, and is identified as the real party in interest. Appeal Br. 2.
Appeal 2018-001121
Application 13/796,428
CLAIMED SUBJECT MATTER
Appellant's disclosed invention relates to "[m]achines used to wrap
and seal articles and packages in thermoplastic film." Spec. 1. Claims 1
and 6 are independent. Claim 1, reproduced below, is illustrative of the
subject matter on appeal.
1. A side sealing machine for sealing a film, comprising:
a sealing device comprising:
an upper portion for attachment to a sealing
machine;
a hollow tube through at least a portion of said
sealing device, said hollow tube located below said upper
portion; and
a lower portion located below said hollow tube,
said lower portion having a blunt edge for contacting,
heating, cutting and sealing said film; and
a heating element disposed in said hollow tube;
wherein the sealing device is arranged to cross a plane of
the film so that a portion of the sealing device is disposed
beneath the plane of the film while other portions of the sealing
device are disposed above the plane of the film.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
DeFriese
Sorenson
James
Meyer2
us 6,027,596
US 6,526,728 Bl
US 2006/0107622 Al
DE 196 04 904 Al
Feb.22,2000
Mar. 4, 2003
May 25, 2006
Aug. 14, 1997
2 Reference citations are to an English-language translation of Meyer
made of record with the Final Office Action dated March 31, 2016.
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Application 13/796,428
REJECTIONS
The following rejections are before us for review:
I. Claims 1-3, 5-17, 21, and 22 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over DeFriese, Meyer, and
Sorensen. Final Act. 2-10.
II. Claims 4 and 18 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over DeFriese, Meyer, Sorensen, and James.
Id. at 10-12.
III. Claims 1-18, 21, and 22 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over DeFriese, Meyer, and
James. Id. at 12-20.
ANALYSIS
Rejection I- Claims 1-3, 5-17, 21, and 22 as unpatentable over
DeFriese, Meyer, and Sorensen
In contesting Rejection I, Appellant presents arguments for
independent claim 1 (see Appeal Br. 13-15), and relies on the same
arguments for independent claim 6 (see id. at 16-17) and dependent
claims 2, 3, 5, 7-17, 21, and 22 (see id. at 17). We select claim 1 as
representative of the issues that Appellant presents in the appeal of this
rejection, and claims 2, 3, 5-17, 21, and 22 stand or fall therewith. See
37 C.F.R. § 4I.37(c)(l)(iv).
In Rejection I of claim 1, the Examiner found that DeFriese discloses,
in relevant part, "a sealing device (50 in Figure 3; 134 and 132 collectively
in Figure 6) comprising: ... [a] lower portion having an edge for contacting,
heating, cutting and sealing said film (Col. 5 lines 45-50)." Final Act. 2-3.
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Application 13/796,428
The Examiner acknowledged that DeFriese fails to disclose that the sealing
device has a blunt edge, but found that Meyer discloses "a sealing device (2
in Figure 2) comprising a lower portion (6 in Figure 2) having a round blunt
edge (8 in Figures 2 and 3) for contacting, heating, cutting, and sealing a
film (9 in Figure 2)." Id. (citing Meyer, col. 1, 11. 33--43; col. 2, 11. 25-31).
The Examiner concluded that, given the teachings of the prior art, it would
have been obvious to modify DeFriese's sealing device to have a blunt edge
"because doing so would result in a clean, regular, and exact weld seam over
the length of the sealing device which contacts the film, and a perfect cutting
of the film." Id.
The Examiner also acknowledged that DeFriese fails to disclose that
"the sealing device is arranged to cross a plane of the film so that a portion
of the sealing device is disposed beneath the plane of the film while other
portions of the sealing device are disposed above the plane of the film." Id.
However, the Examiner found that Sorensen discloses a sealing machine
having such a feature. See id. at 3--4 ( citing Sorensen, Figs. 1, 2A, 13;
col. 7, 11. 56-59; col. 9, 11. 58---64); see also Ans. 3 (explaining that Sorenson
discloses "the concept of providing a sealing device which crosses a plane of
a film to cut and seal the film" ( emphasis omitted)). The Examiner
concluded that, given the teachings of the prior art, it would have been
obvious to further modify DeFriese such that
the sealing device (50 / 134 and 132 collectively of DeFriese as
modified in view of Meyer) is arranged to cross a plane of the
film (98 of DeFriese) so that a portion of the sealing device ...
is disposed beneath the plane of the film ... while other portions
of the sealing device are disposed above the plane of the film, as
taught by Sorenson, in order to achieve the predictable result of
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Application 13/796,428
being able to contact, heat, cut, and side-seal the film using the
sealing device.
Final Act. 4 (citing KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,417 (2007)).
The Examiner clarifies in the Answer that
the sealing device (50 / 134 and 132 collectively of DeFriese as
modified in view of Meyer) ... alone can cut and seal the film
because the sealing device of DeFriese in view of Meyer can be
heated to a high temperature in a manner similar to the manner
in which the hot wire 40 of Sorenson can be heated to a high
temperature.
Ans. 2 ( emphasis omitted).
Appellant argues that, although "Sorenson does teach hot wire 40 that
extends across a film," the reference "does not teach or suggest that a seal
plate (e.g., DeFriese's seal plate 74) or a welding roller (e.g., M[e]yer's
welding roller 3) could be used at the orientation of the hot wire 40."
Appeal Br. 14. Appellant asserts that "the operation of DeFriese's heated
blade 50 requires the seal plate 74 to back the film and the operation of
Meyer's welding [beam] 2 requires the welding roller 3 to back the film"
(Reply Br. 4), and "[t]here is no teaching or suggestion in any way that the
heated blade 50 could cut and seal film without seal plate 7 4 or that the
welding beam 2 could cut and seal film without the welding roller 3" (id.
at 3). We are not persuaded by this argument.
Appellant does not persuasively refute the Examiner's position that
DeFriese's sealing device (heated blade 50), as modified to have Meyer's
blunt edge and Sorensen's film plane-crossing arrangement, would alone be
capable of cutting and sealing film. See Ans. 2. Although DeFriese
discloses using seal plate 74 with heated blade 50 (see DeFriese, col. 6,
11. 50-55), and Meyer discloses using welding roller 3 with heated welding
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Application 13/796,428
beam 2 (see Meyer 4 ), Appellant does not point to, nor do we discern, any
disclosure in the references that seal plate 74 or welding roller 3 would be
required for the heated blade 50 or welding beam 2, respectively, to cut and
seal film.
We are also unpersuaded by Appellant's assertion that "the Examiner
has not established that one of ordinary skill in the art would have a
reasonable expectation of success of using DeFriese' s heated blade 50
and/or Meyer's welding [beam] 2 alone to cut and seal film." Reply Br. 3.
According to Appellant, "remov[ing] the seal plate 74 and the welding
roller 3-as the Examiner did in the Answer-alters the principle operation
of the sealing systems in DeFriese and Meyer." Id. at 4. This argument is
unpersuasive.
Appellant has not presented any objective evidence to support the
assertion that one of ordinary skill in the art would have no reasonable
expectation of success in combining the teachings of DeFriese, Meyer, and
Sorensen, as proposed by the Examiner, to cut and seal film. We note that
an attorney's arguments in a brief cannot take the place of evidence. See In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Moreover, we are not
convinced that omitting DeFriese's seal plate 74 or Meyer's welding roller 3
would change the principle by which either sealing device operates. Instead,
the sealing devices of DeFriese and Meyer would still operate by using
heated elements placed in contact with a thermoplastic film to cut and seal
the film. 3
3 DeFriese discloses that, "[a]s the film is being pulled and tracked
through the system the heated blade cuts an excess film portion and melts
the two free edges of the center fold plastic film together, thereby creating a
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After careful consideration of the evidence of record, Appellant's
arguments do not apprise us of error in the Examiner's determination that
the subject matter of claim 1 would have been obvious. Accordingly, we
sustain the rejection of claim 1, and of claims 2, 3, 5-17, 21, and 22 falling
therewith, under 35 U.S.C. § 103(a) as being unpatentable over DeFriese,
Meyer, and Sorensen.
Rejection II- Claims 4 and 18 as unpatentable over
DeFriese, Meyer, Sorensen, and James
With respect to Rejection II of claims 4 and 18, Appellant relies on
the arguments presented with respect to Rejection I of base claims 1 and 6.
See Appeal Br. 17. For the same reasons that Appellant's arguments do not
apprise us of error in the rejection of claims 1 and 6, these arguments
likewise do not apprise us of error in the rejection of claims 4 and 18 under
35 U.S.C. § 103(a) as being unpatentable over DeFriese, Meyer, Sorensen,
and James, which we sustain.
Rejection III- Claims 1-18, 21, and 22 as unpatentable over
DeFriese, Meyer, and James
In Rejection III of independent claim 1, the Examiner relied on the
same proposed combination of DeFriese and Meyer set forth in Rejection I
of independent claim 1, discussed supra. Compare Final Act. 12-14, with
id. at 2-3. The Examiner relied on James for disclosing that "it was known
to provide a side sealing machine (10 in Figure 1) with a sealing device (28
side seal." DeFriese, col. 2, 11. 60-63. Meyer discloses cutting and welding
plastic film using a heated welding beam 2. See Meyer 1, 4.
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Application 13/796,428
in Figure 1, analogous to sealing device 50 / 134 and 132 collectively of
DeFriese) arranged to cross a plane of a film ( 42 in Figure 1) to be side-
sealed." Id. at 13. The Examiner concluded that, given the teachings of the
prior art, it would have been obvious to arrange the sealing device of
DeFriese and Meyer combined to cross the plane of the film "in order to
achieve the predictable result of being able to contact, heat, cut, and side-
seal the film using the sealing device." Id.
In contesting this rejection of claim 1, Appellant relies on the same
substantive arguments set forth with respect to Rejection I of claim 1,
discussed supra. See Appeal Br. 14--15 (asserting that "there is no teaching
or suggesti[on] that M[e]yer's welding beam 2 alone could cut or seal film,"
and "it would not be apparent to one of ordinary skill in the art that using
M[e]yer's welding beam 2 in place of James's heater 28 would cut and seal
the film properly without Meyer's welding roller 3"); Reply Br. 5---6
( asserting "that the Examiner has not established that one of ordinary skill in
the art would have a reasonable expectation of success of using DeFriese' s
heated blade 50 and/or Meyer's welding [beam] 2 alone to cut and seal
film," "[t]here is no teaching or suggestion in any way that the heated
blade 50 could cut and seal film without seal plate 7 4 or that the welding
beam 2 could cut and seal film without the welding roller 3," and that the
proposed modification "would alter the principle operation of DeFriese and
Meyer"). For the same reasons that these arguments do not apprise us of
error in Rejection I of claim 1, these arguments likewise do not apprise us of
error in Rejection III of claim 1.
With respect to Rejection III of dependent claims 2-5 and 21, as well
as independent claim 6 and its dependent claims 7-18 and 22, Appellant
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Application 13/796,428
relies on the same arguments presented regarding claim 1. See Appeal
Br. 16-17. For the same reasons that Appellant's arguments do not apprise
us of error in Rejection III of claim 1, these arguments likewise do not
apprise us of error in Rejection III of claims 2-18, 21, and 22.
Accordingly, for the foregoing reasons, we sustain the rejection of
claims 1-18, 21, and 22 under 35 U.S.C. § 103(a) as being unpatentable over
DeFriese, Meyer, and James.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-3, 5-17, 21,
and 22 under 35 U.S.C. § 103(a) as being unpatentable over DeFriese,
Meyer, and Sorensen.
We AFFIRM the Examiner's decision rejecting claims 4 and 18 under
35 U.S.C. § 103(a) as being unpatentable over DeFriese, Meyer, Sorensen,
and James.
We AFFIRM the Examiner's decision rejecting claims 1-18, 21, and
22 under 35 U.S.C. § 103(a) as being unpatentable over DeFriese, Meyer,
and James.
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
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