Ex Parte Selle et al

Patent Trial and Appeal Board

Aug 22, 2017

12145913 (P.T.A.B. Aug. 22, 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.
12/145,913 06/25/2008 Paul A. Selle CMD 235A 4150
22222 7590 08/24/2017
GEORGE R CORRIGAN
CORRIGAN LAW OFFICE
2168 COLLADAY POINT DRIVE
STOUGHTON, WI53589
EXAMINER
HARMON, CHRISTOPHER R
ART UNIT PAPER NUMBER
3649
NOTIFICATION DATE DELIVERY MODE
08/24/2017 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):
george.corrigan@corrigan.pro
gcorrigan@new.rr.com
kari.brekke@corrigan.pro
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL A. SELLE and GREGORY T. PRELLWITZ
Appeal 2016-006611
Application 12/145,9131
Technology Center 3700
Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and
MICHAEL C. ASTORINO, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants appeal under 35U.S.C. § 134 from the Examiner’s
decision rejecting claims 34—37 and 39. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellants, “[t]he real party in interest in this appeal is
CMD Corporation.” Br. 3.
Appeal 2016-006611
Application 12/145,913
STATEMENT OF THE CASE
Subject Matter of the Appellants ’ Invention
The Appellants’ “invention relates generally to the art of bag making”
and “specifically, it relates to bag making machines and a bag making
method that create bags from a film or web and form seals and perforations
or a line of weakness separating adjoining bags made from the web.” Spec.,
para. 1.
Claim 34, the sole independent claim, is representative of the subject
matter on appeal and reproduced below.
34. An attachment for a sealer for a rotary bag machine
comprising a cap, a release layer for mounting over the cap, and
a heating wire stitched into the release layer and into the cap,
wherein the cap includes a sealing area and a perforating area.
Rejection
Claims 34—37 and 39 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bohn et al. (US 6,648,044 B2, iss. Nov. 18, 2003;
hereinafter “Bohn”) and Buob (US 3,586,821, iss. June 21, 1971).
ANALYSIS
Independent Claim 34 and Dependent Claims 35 and 36
Independent claim 34 recites “[a]n attachment for a sealer for a rotary
bag machine,” and requires three structures: a cap; a release layer; and a
heating wire (Br., Claims App.).
The Examiner finds that Bohn’s perforation insert 204 for
sealbar/perforation assembly 132 of bag manufacturing apparatus 100 is an
attachment for a sealer of a rotary bag machine. Final Act. 2; see Bohn,
Figs. 1—3, col. 3,11. 22—26, col. 4,11. 9—10. The Examiner finds that
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Application 12/145,913
perforating surface 204a corresponds with the claimed cap and a coating
placed on perforating surface 204a (e.g., “a Teflon layer”) corresponds with
the claimed release layer. Final Act. 2; see Bohn, Figs. 4a, 4b, col. 4,1. 57 —
col. 5,11. 45. Cf Spec., para. 113 (describing “[rjelease material may
include: Teflon® tape”).
The Appellants argue, unpersuasively, that the prior art does not
teach, “a heating wire stitched into the release layer and into the cap,” as
recited in independent claim 34 (Br., Claims App.). See Br. 9.
The Examiner finds that Bohn lacks, but Buob discloses a heating
wire (i.e., resistance wire) 6. Final Act. 2; see Buob, Fig. 2, col. 2,11. 19-31.
Boub’s wire 6 passes through perforations (i.e., holes) 4 in sealing bar 2.
Buob, Fig. 2. The Examiner finds that Boub’s wire 6 is stitched through
holes 4 of sealing bar 2. Ans. 5; see Final Act. 2. The Examiner finds that
Boub’s sealing bar 2 may include multiple materials. Ans. 5. Indeed, Buob
discloses that sealing bar 2 may include an insulating material mounted or
cemented to a rigid backing member. Buob, col. 2,11. 19—25. More
specifically, Buob discloses that the insulating material may be a laminated
fabric and the rigid backing member may be a metal bar or plate. Buob,
col. 2,11. 19—25. The Examiner finds that modifying Bohn’s perforating
surface 204a (cap) and Telefon layer (release layer) with Buob’s teaching of
a wire stitched through multiple materials results in “a heating wire stitched
into the release layer and into the cap,” as recited in claim 34. See Ans. 4—6,
Final Act. 2—3. The Examiner’s findings are supported adequately. See
Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988).
The Appellants assert, unpersuasively, that Buob’s wire goes over a
single structure, i.e., Buob’s sealing bar 2. See Br. 9-10. As discussed
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Application 12/145,913
above, Buob discloses that sealing bar 2 may include multiple materials and
as such, multiple structures. Buob, col. 2,11. 19—25. Additionally, we note
the Examiner finds that “the insulating material of Buob is a release layer for
mounting over a cap structure (metal bar or plate).” Ans. 5. This additional
finding further supports the application of Buob’s teaching of a stitched
heating wire to Bohn’s perforating surface 204a (cap) and Telefon layer
(release layer).
The Appellants assert, unpersuasively, that Buob does not disclose “a
release layer for mounting over the cap,” as recited in claim 34. See Br. 10.
As discussed above, the Examiner relies on Bohn to disclose the claimed
“release layer” and “cap.” Final Act. 2; Ans. 4, 6. And, Bohn discloses
using a Telefon layer over perforating surface 204a, which corresponds to “a
release layer for mounting over the cap,” as recited in claim 34.
Thus, we sustain the Examiner’s rejection of claim 34 as unpatentable
over Bohn and Buob. The Appellants do not argue separately for the
rejection of claims 35 and 36. As such, for the same reasons discussed
above, we likewise sustain the rejection of claims 35 and 36 as unpatentable
over Bohn and Buob.
Dependent Claim 3 7
The Examiner finds Buob teaches the recitation of claim 37, “wherein
the heating wire is raised in a draw tape area relative to the remainder of the
sealing area” (Br., Claims App.). See Final Act. 3 (citing Buob, Fig. 4),
Ans. 6—7.
The Appellants argue, unpersuasively, that Buob’s Figure 4 lacks a
draw tape area. See Br. 11. The Appellants assert that Buob’s “flexed
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Application 12/145,913
sealing bar 22 is used for sealing packages with soft or flexible contents”
and “[i]t has nothing to do with a drawtape region.” See Br. 11. (citing
Buob, col. 2,11. 45^49).
As pointed out by the Examiner, the claimed term “draw tape area”
does not connote any particular structure rather the term connotes a
functional limitation. See Ans. 6—7. A patent applicant is free to recite
features of an apparatus either structurally or functionally. See In re
Swinehart, 439 F.2d 210, 212 (CCPA 1971) (“[T]here is nothing
intrinsically wrong with [defining something by what it does rather than
what it is] in drafting patent claims.”). “Yet, choosing to define an element
functionally, i.e., by what it does, carries with it a risk.” In re Schreiber, 128
F.3d 1473, 1478 (Fed. Cir. 1997). As stated in Swinehart, 439 F.2d at 213:
[W]here the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent characteristic
of the prior art, it possesses the authority to require the applicant
to prove that the subject matter shown to be in the prior art does
not possess the characteristic relied on.
In the Appellants’ Specification, the term “draw tape area” (i.e., “draw
tape region”) relates to a separate heat zone of an insert. See generally
Spec., para. 112 (stating, with added emphasis, “[ajnother embodiment of
the invention includes an insert 2600, shown in Figure 26, and includes a
separate heat zone 2601, such as for heating a hem or draw tape region.”).
However, the term “draw tape area” without reference to a separate heat
zone of an insert refers simply to a region for draw tape.
In light of this, we note the Examiner finds that “Buob depicts a
convex shaped sealing device in [FJigure 4 which is considered to have
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Application 12/145,913
portions including the heating wire 6 ‘raised in a draw tape area relative to
the remainder of the sealing area.’” Ans. 7. In other words, the Examiner
finds that wire 6 is raised relative to the surface of convex sealing bar 22 and
a portion of the convex sealing bar 22 can be used in a region for draw tape.
The Appellants do not explain, using evidence or technical reasoning, why
the Examiner’s finding lacks adequate support.
Thus, we sustain the Examiner’s rejection of claim 37 as unpatentable
over Bohn and Buob.
Dependent Claim 39
The Examiner finds Buob teaches the recitation of claim 39, “wherein
there are a plurality of holes in the cap and the heating wire is mounted in
and between the plurality of holes” (Br., Claims App.). Ans. 7 (citing Buob,
Fig. 2, col. 2,11. 19-31).
The Appellants argue, unpersuasively, “Buob shows mounting in a
hole and under item 2,” but “does not show mounting in and between the
holes.” Br. 12. Put simply, the Appellants do not explain, using evidence or
technical reasoning, why wire 6 is mounted in holes 4, but not in between
holes 4.
Further, and in response to the Appellants’ argument, we offer the
following to explain by example why the Appellants’ argument is
unpersuasive. Appellants’ argument acknowledges that Buob shows wire 6
mounted in hole 4. See Br. 12. Figure 2 depicts sealing bar 2 having four
holes. Accordingly, the Appellants acknowledge that wire 6 is mounted in
each of the four holes. For the purposes of this example only, we
characterize the four holes as two outer holes and two inner holes. In view
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of this characterization, Figure 2 depicts wire 6 mounted in the two outer
holes and in between the two outer holes at the two inner holes. As such,
Buob teaches the recitation of claim 39, “wherein there are a plurality of
holes in the cap and the heating wire is mounted in and between the plurality
of holes.”
Thus, we sustain the Examiner’s rejection of claim 39 as unpatentable
over Bohn and Buob.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 34—37 and 39.
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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