Ex Parte Stolmeier et al

Patent Trial and Appeal Board

Mar 26, 2013

11443914 (P.T.A.B. Mar. 26, 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.
11/443,914 05/31/2006 Robert C. Stolmeier 121981-00220 4322
51468 7590 03/27/2013
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
245 Park Avenue
NEW YORK, NY 10167
EXAMINER
SHAAWAT, MUSSA A
ART UNIT PAPER NUMBER
3683
MAIL DATE DELIVERY MODE
03/27/2013 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 ROBERT C. STOLMEIER
and
ROBERT E. HOGAN
____________

Appeal 2011-000715
Application 11/443,914
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and
JOSEPH A. FISCHETTI, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000715
Application 11/443,914

2

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1 to 20. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.
Claim 1 is illustrative:
1. A reclosable package for foodstuffs or industrial or
similar items comprising:
opposed front and rear panels of polymeric material
joined together to form an interior and a mouth communicating
with the interior;
a zipper configured to open and close the mouth, the
zipper including first and second interlocking profiles and a
slider which, when moved in a first direction, separates the first
and second interlocking profiles to open the mouth, and, when
moved in a second direction, interlocks the first and second
interlocking profiles to close the mouth; and
the slider including a data storage device.

Appellants appeal the following rejection:
1. Claims 1 to 20 under 35 U.S.C. § 102(b) as anticipated by Sugata (US
2008/0252461 A1; pub. Oct. 16, 2008).

ISSUE
The issue is whether Sugata discloses opposed front and rear panels of
polymeric material joined together to form an interior.

FACTUAL FINDINGS
Sugata discloses a prior art polymer material and identification
method in which one or two or more elements or its compound are contained

Appeal 2011-000715
Application 11/443,914

3

in a polymer material of an identification object as information presenting
material. Para. [0022].
Sugata also discloses and depicts in Figures 16 to 18 a bag as an
article having opposed front and rear panels. The bag includes a slide
fastener 1 attached thereto and a tag 53 equipped with a second
identification medium.
Sugata does not disclose that the opposed front and rear panels are of
polymeric material joined together to form an interior.

ANALYSIS
The Appellants argue that Sugata does not disclose opposed front and
rear panels of polymeric material joined together to form an interior. We
agree.
While Sugata does disclose opposed front and rear panels, there is no
disclosure that these panels are of polymeric material. The only disclosure
in Sugata related to polymeric material relates to a discussion of a prior art
method in which an identification object is comprised of polymer material.
The Examiner rejects the claims as anticipated by Sugata’s description, not
as an obvious variant of Sugata.
The way in which the elements are arranged or combined in the
claim must itself be disclosed, either expressly or inherently, in
an anticipatory reference. . . . For a claim to be anticipated,
each claim element must be disclosed, either expressly or
inherently, in a single prior art reference, and the claimed
arrangement or combination of those elements must also be
disclosed, either expressly or inherently, in that same prior art
reference.

Appeal 2011-000715
Application 11/443,914

4

Therasense, Inc. v Becton, Dickinson and Co., 593 F.3d 1325, 1332 (Fed.
Cir. 2010).
In view of the foregoing, we will not sustain the rejection of the
Examiner because all of the claims on appeal require front and rear panels of
polymeric material joined together to form an interior

DECISION
The decision of the Examiner is reversed.

REVERSED

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