Ex Parte Pallotta et al

Patent Trial and Appeal Board

Jun 20, 2018

13776753 (P.T.A.B. Jun. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/776,753 02/26/2013
27752 7590 06/22/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Shawn Christopher Pallotta
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.
12365M 2048
EXAMINER
TAWFIK, SAMEH
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
06/22/2018 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHAWN CHRISTOPHER PALLOTTA,
JASON MATTHEW ORNDORFF, GA VIN JOHN BROAD,
ADAL AMINE TECLEAB,
CULLEN JOSEPH BREITHAUPT, and
JON KEVIN MCLAUGHLIN
Appeal2017-008894
Application 13/776,753
Technology Center 3700
Before: DANIEL S. SONG, CHARLES N. GREENHUT, and
LEE L. STEPINA, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
4--7, 14, and 15. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appeal2017-008894
Application 13/776,753
CLAIMED SUBJECT MATTER
The claims are directed to an apparatus for forming packages and
filling system. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
An apparatus for forming a package, said apparatus comprising:
a first infeed zone for receiving a supply of a first web of
material; and
an element having a cavity therein, said element being located
downstream of said first infeed zone, wherein a portion of said
first web of material may be temporarily deflected into said
cavity, said cavity comprising a base and a pair of side walls, said
element comprising a moving belt having a surf ace, said belt
moving in a machine direction, wherein the surface of the belt
forms said base of said cavity, said element further comprising
longitudinal side edge portions that form side walls of said
cavity, wherein said cavity is in the configuration of a continuous
machine direction-oriented trough.
REJECTIONS
Claims 1, 4--7, and 15 are rejected under 35 U.S.C. § 102(b) as being
anticipated by West (US 3,475,878, Nov. 4, 1969).
Claim 14 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over West and Canamero (US 3,673,760, July 4, 1972).
OPINION
Sole independent claim 1 defines a "machine direction" as that in
which the recited belt moves. The claim further requires that "the surface of
the belt forms [a] base of [a] cavity" and "[the] cavity is in the configuration
of a continuous machine direction-oriented trough."
2
Appeal2017-008894
Application 13/776,753
In finding claim 1 to be anticipated by West, the Examiner states, "[i]t
is clear that [West's] cavities 16 are continuous cavities in the machine
direction." Ans. 6-7. However, this is not what claim 1 recites. Absent
evidence to the contrary, a trough is generally understood to refer to a
container longer than it is wide. 1 See, e.g., Spec. 10-11; Figs. 7, 9. Thus,
whichever the Examiner intended on pages 6-7 of the Answer, neither
individual continuous, nor a continuous series of, 2 "substantially square
holes 16" (West col. 3, 1. 58) in the machine direction demonstrates the
existence of a "continuous machine direction-oriented trough" in West.
Reply. Br. 1-2.
The following statement made by the Examiner is not clear:
The office maintain [sic] that the claimed term "configuration of'
render [sic] the followed [sic] claimed limitations to be broad and
not positively cited limitations, as perform [sic] a function is not
a positive limitation but only requires the ability to so perform.
Ans. 5. As best as we can tell, the Examiner interpreted the phrase "in the
configuration of' as though it recited "configured to," followed by a
particular function, and therefore fell within the category of terms discussed
in MPEP §§ 2111.04, 2114. To the extent this is the Examiner's position, we
note that it is based on a misinterpretation claim 1. Claim 1 recites that the
cavity element is "in the configuration of' a particular structure, as opposed
to "configured to" perform a particular function. The recited structure, "a
1 See, e.g., https://www.ahdictionary.com/word/search.html?q=trough last
accessed June 13, 2018.
2 On page 6 of the Answer the Examiner appears to rely on the continuity of
the cavities themselves, while on page 7 the arrow added by the Examiner to
Figure 23 of West appears to indicate the Examiner is relying on the
continuity of the series of cavities.
3
Appeal2017-008894
Application 13/776,753
continuous machine direction-oriented trough" is therefore a required
structural characteristic of that cavity element.
The Examiner's failure to show in the prior art, or otherwise account
for the absence of, a belt cavity that is a "continuous machine direction-
oriented trough" defeats both rejections before us.
DECISION
The Examiner's rejections are reversed.
REVERSED
4