12366149 (P.T.A.B. Mar. 22, 2013)

Ex Parte Perini

Patent Trial and Appeal BoardMar 22, 2013

12366149 (P.T.A.B. Mar. 22, 2013)

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. 12/366,149 02/05/2009 Fabio Perini 73261 7286 23872 7590 03/25/2013 MCGLEW & TUTTLE, PC P.O. BOX 9227 SCARBOROUGH STATION SCARBOROUGH, NY 10510-9227 EXAMINER TAWFIK, SAMEH ART UNIT PAPER NUMBER 3721 MAIL DATE DELIVERY MODE 03/25/2013 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 FABIO PERINI ________________ Appeal 2011-005497 Application 12/366,149 Technology Center 3700 ________________ Before LINDA E. HORNER, STEVEN D.A. McCARTHY, and ANNETTE R. REIMERS, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE 1 The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s 2 decision rejecting claims 1-10, 21 and 22. The Examiner rejects claims 1-5, 3 9, 21 and 22 under 35 U.S.C. § 102(b) as being anticipated by Drummond 4 (US 5,556,365, issued Sep. 17, 1996); and claims 6-8 and 10 under 35 5 U.S.C. § 103(a) as being unpatentable over Drummond. The Examiner has 6 1 The Appellant is the real party in interest. Appeal 2011-005497 Application 12/366,149 2 withdrawn claims 11-16 and 20 from consideration. Claims 17-19 are 1 cancelled. Counsel for the Appellant presented oral argument on March 7, 2 2013. We have jurisdiction under 35 U.S.C. § 6(b). 3 We REVERSE. 4 Claims 1 is the sole independent claim on appeal: 5 1. A method for producing a tube using 6 a plurality of ribbons and a spindle, the method 7 comprising the steps of: 8 winding a first ribbon of the plurality of 9 ribbons on the spindle to form a tube; 10 winding a second ribbon of the plurality of 11 ribbons on a radial outside of the first ribbon 12 which forms the tube; 13 fastening the second ribbon to the radial 14 outside of the first ribbon one of during or after 15 said winding of the second ribbon on top of the 16 first ribbon 17 determining a tube cut position on the tube 18 where the tube will be cut, with the second ribbon 19 being cut at the tube cut position; 20 determining a ribbon cut position on the 21 second ribbon before the second ribbon is wound 22 on top of the first ribbon, the ribbon cut position 23 being arranged at the tube cut position when the 24 second ribbon is wound on the first ribbon to form 25 the tube; 26 applying an adhesive to the second ribbon at 27 the ribbon cut position before the second ribbon is 28 wound on top of the first ribbon, said applying of 29 the adhesive is performed on a side of the second 30 ribbon which will be facing radially inward on the 31 tube, said applying of the adhesive being 32 supplemental to said fastening of the second 33 ribbon to the first ribbon. 34 Appeal 2011-005497 Application 12/366,149 3 FINDINGS OF FACT 1 Drummond describes an easy-open container 10 including a generally 2 cylindrical body portion 12. (Drummond, col. 3, ll. 58-62 and figs. 1, 3 and 3 4.) The generally cylindrical body portion 12, in turn, includes a paperboard 4 bodywall layer 17; a flexible barrier liner layer 22 inside the paperboard 5 bodywall layer 17; and flexible label layer 25 outside the paperboard 6 bodywall layer 17. (Drummond, col. 3, ll. 63-65; col. 4, ll. 21-23 and 47-7 51.) Each of the three layers 17, 22 and 25 is formed from spirally-wound 8 material in strip form. (Id.) The bodywall layer 17 has longitudinal edge 9 portions 17a lying adjacent each other and defining an easy-open spiral seam 10 20 extending between the opposed ends of the bodywall 17. (Drummond, 11 col. 3, l. 66 – col. 4, l. 2 and figs. 1, 3 and 4.) Drummond teaches that 12 removal of the flexible label layer 25 allows pressurized product within the 13 container 10 to expand outwardly so as to open the container along the spiral 14 seam 20. (See Drummond, col. 1, ll. 33-41.) 15 Drummond also describes a method for making the generally 16 cylindrical body portion 12. (See Drummond, fig. 6.) First, the material of 17 the flexible barrier liner layer 22 is fed in strip form to a rotating mandrel 52. 18 Next, the material of the paperboard bodywall layer 17 is fed in strip form to 19 the rotating mandrel 52 over the flexible barrier liner layer 22. (Drummond, 20 col. 7, ll. 5-16.) Before the strip material of the paperboard bodywall layer 21 17 is wound onto the mandrel 52, an adhesive applicator device 56 applies 22 permanent adhesive 23 along the upper surface of the strip material. The 23 adhesive-coated upper surface of the strip material forming the paperboard 24 bodywall layer 17 faces inwardly toward the flexible barrier liner layer 22 as 25 the strip material is wound onto the mandrel 52 so that the permanent 26 Appeal 2011-005497 Application 12/366,149 4 adhesive 23 bonds the paperboard bodywall layer 17 to the flexible barrier 1 liner layer 22. (Drummond, col. 7, ll. 47-57 and fig. 6.) 2 Finally, the material of the flexible label layer 25 is fed in strip form 3 to the rotating mandrel 52 over the paperboard bodywall layer 17. 4 (Drummond, col. 7, ll. 58-62.) Before the strip material of the flexible label 5 layer 25 is wound onto the mandrel 52, an adhesive applicator device 61 6 applies permanent adhesive 23 along a longitudinal edge portion 25a of the 7 strip material. An adhesive applicator 64 applies additional permanent 8 adhesive 23 to the strip material. Thereafter, an adhesive applicator 65 9 applies a frangible adhesive 30 near the longitudinal edge portion 25a of the 10 strip material. (Drummond, col. 7, l. 65 – col. 8, l. 2 and col. 8, ll. 9-23.) 11 Once strip material of the flexible label layer 25 is applied to the mandrel 52, 12 each of these three adhesive coatings rests on a radially outwardly-facing 13 side of the paperboard bodywall layer 17. (See Drummond, fig. 6.) 14 15 ANALYSIS 16 Independent claim 1 recites the step of “applying an adhesive to the 17 second ribbon at the ribbon cut position before the second ribbon is wound 18 on top of the first ribbon, said applying of the adhesive [being] performed on 19 a side of the second ribbon which will be facing radially inward on the tube, 20 said applying of the adhesive being supplemental to said fastening of the 21 second ribbon to the first ribbon.” The Examiner finds that the strip material 22 of the flexible barrier liner layer 22 corresponds to the first ribbon recited in 23 claim 1 and that the strip material of the paperboard bodywall layer 17 24 corresponds to the recited second ribbon. (Ans. 3.) The Examiner 25 additionally finds that Drummond “discloses the step of applying an 26 Appeal 2011-005497 Application 12/366,149 5 adhesive to the second ribbon (Fig. 6; via adhesive 56) and the step of 1 fastening the second ribbon to the first ribbon (via fastening second ribbon 2 17 to first ribbon 22).” (Ans. 5.) As the Appellant points out, however, it is 3 the permanent adhesive 23 applied by the adhesive applicator device 56 4 which fastens the second ribbon to the first ribbon. (App. Br. 2; Reply Br. 5 5.) Consequently, the Examiner has not identified a step of “applying an 6 adhesive to the second ribbon . . . supplemental to said fastening of the 7 second ribbon to the first ribbon.” 8 The Examiner has not identified any other description in Drummond 9 of “applying an adhesive to the second ribbon . . . on a side of the second 10 ribbon which will be facing radially inward on the tube.” Therefore, we do 11 not sustain the rejection of claims 1-5, 9, 21 and 22 under § 102(b) as being 12 anticipated by Drummond. Furthermore, the Examiner’s conclusion that it 13 would have been obvious “to have modified Drummond’s method by not 14 applying the adhesive [from the adhesive applicator device 56] to the middle 15 position between longitudinal edges of the ribbon” (Ans. 4) does not address 16 the deficiency in the teachings of Drummond as applied to claim 1. We do 17 not sustain the rejection of claims 6-8 and 10 under § 103(a) as being 18 unpatentable over Drummond. 19 20 DECISION 21 We REVERSE the Examiner’s decision rejecting claims 1-10, 21 and 22 22. 23 24 REVERSED 25 26 Appeal 2011-005497 Application 12/366,149 6 1 msc 2