Ex Parte Town

Board of Patent Appeals and Interferences

Jan 3, 2012

10193558 (B.P.A.I. Jan. 3, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TROY TOWN
____________

Appeal 2009-013490
Application 10/193,558
Technology Center 3700
____________

Before PHILLIP J. KAUFFMAN, GAY ANN SPAHN, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Troy Town (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 19, 21, and 22. Appellant cancelled claims 1,
4, and 10. Pursuant to an “Order Remanding to Examiner” mailed June 22,
2009, the Examiner cancelled claims 2, 3, 5-9, 11-18, and 20. We have
jurisdiction under 35 U.S.C. § 6(b).1

The Invention
Claim 19, reproduced below, is representative of the subject matter on
appeal.
19. The combination of containment bag and a dumpster
container, said dumpster container having a closed bottom wall
and a connecting sidewall, said connecting sidewall forming an
open top opposite said closed bottom, said containment bag
having a floor portion and a wall portion, said floor and said
wall portions forming an interior; said containment bag further
having an open top portion substantially aligned with said
dumpster container open top; said floor and said wall portion
having at least two layers, a first layer constructed of non-
woven material, and a second layer constructed of woven

1 In the Office Action mailed January 12, 2005, the Examiner finally
rejected claims 2, 3, 5-9, and 11-23. Appellant appeals only the Examiner’s
final rejections of claims 19, 21, and 22 under 35 U.S.C. § 112, second
paragraph, as indefinite, and claims 21 and 22 under 35 U.S.C.
§ 103(a) as unpatentable over Beale, LaFleur ʼ824, and LaFleur ʼ887. See
App. Br. 1, 2, 3. The Examiner’s cancellation of claims 2, 3, 5-9, 11-18, and
20 leaves claim 23 as pending and finally rejected, but not appealed. Thus,
we do not have jurisdiction over claim 23, and the Office Action, mailed
January 12, 2005 and finally rejecting claim 23, serves as the final agency
action on that claim since no further action with respect to claim 23 is
possible at this time. The Examiner should cancel claim 23 by Examiner’s
Amendment pursuant to the Manual of Patent Examining Procedure (MPEP)
§ 1215.03.
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material; said containment bag further having a first flap and a
second flap, said first flap adapted to substantially cover said
open top portion and having a first closing means to maintain
said first flap in a covering relationship with said open top
portion, said second flap adapted to substantially cover said
open top portion and having a second closing means to
maintain said second flap in a covering relationship with said
open top portion, said open top portion being separately
coverable by each of said first flap and said second flap; said
first flap formed from said non-woven materials, said second
flap formed from said woven materials.

App. Br. 11.

The Rejections
The following Examiner’s rejections are before us for review.
(1) Claims 19, 21 and 22 are rejected under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and
distinctly claim the subject matter which Appellant regards as the
invention. Ans. 4.
(2) Claims 21 and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Beale (US 6,079,934, iss. Jun. 27, 2000), LaFleur
ʼ824 (US 4,817,824, iss. Apr. 4, 1989), LaFleur ʼ887 (US 5,664,887,
iss. Sep. 9, 1997), Narahara (US 6,250,488 B1, iss. Jun. 26, 2001),
and Bonerb (US 6,186,713 B1, iss. Feb. 13, 2001). Ans. 4-5.

The Examiner also made the following rejection.
(3) Claim 19 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Beale, LaFleur ʼ824, and LaFleur ʼ887. Final Rej. 4.

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Appellant identifies only rejections (1) and (2) supra as the
“GROUNDS OF REJECTION TOBE REVIEWED ON APPEAL.” App.
Br. 3. Further, Appellant only presents arguments of error directed to
rejections (1) and (2) supra. See App. Br. 3-9. The Examiner indicated that
rejection (3) supra has not been withdrawn. Ans. 6. As Appellant does not
address rejection (3), Appellant has waived any argument of error, and we
summarily sustain the rejection of claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Beale, LaFleur ʼ824, and LaFleur ʼ887. See In re Berger,
279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err
in sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the
applicant failed to contest the rejection on appeal).

SUMMARY OF DECISION
We AFFIRM.

OPINION
Indefiniteness under 35 U.S.C. § 112, second paragraph
Claim 19 is directed to the combination of a containment bag and a
dumpster container. App. Br. 11. A closed bottom wall of the dumpster
container is introduced in line 2 of claim 19 and “said closed bottom” is
referred to in line 3 of claim 19. Id.
The Examiner finds the recitation of “said closed bottom” in line 3 of
claim 19 to be indefinite for lack of antecedent basis. Ans. 4.
Appellant concedes that claim 19 contains an incorrect reference to “a
closed bottom,” instead of “a closed bottom wall.” App. Br. 3.
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We are mindful that a claim is not per se indefinite due to a lack of
antecedent basis; however, in this case Appellant also fails to present any
argument against the rejection. See App. Br. 3-4, Reply Br. 1-2.
In view of Appellant’s concession and lack of argument, we sustain
the Examiner’s rejection of claims 19, 21 and 22 under 35 U.S.C. § 112,
second paragraph, as being indefinite.

Obviousness based on Beale,
LaFleur ʼ824, LaFleur ʼ887, Narahara, and Bonerb

Claim 21 depends on independent claim 19 and recites that “said first
closing means includes a zipper.” App. Br. 11. Claim 22 depends on
independent claim 19 and recites that “said second closing means includes a
zipper.” Id.
The Examiner finds that the combination of Beale, LaFleur ʼ824, and
LaFleur ʼ887 fails to disclose a first closing means including a zipper and a
second closing means including a zipper; however, Narahara and Bonerb
“teach zipper closures for flaps on bags.” Ans. 4-5. The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
“to add the zipper closures or replace the existing closures with the zipper
closures [of Narahara and Bonerb] as motivated by the quick, easy handling,
leak tight and positive reinforcement/feedback characteristics that zipper
closures provide.” Ans. 5.
Appellant contends that the Beale device is for close containment of
bulk cargo 51 no matter what the load height of the materials of the bulk
cargo 51. App. Br. 6. Appellant also contends that adding or replacing the
existing closures of Beale with the zipper closures of Narahara and Bonerb
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would not provide for the close closure desired by Beale because a zipper
closure included in Beale’s containment bag would allow for interior space
between the closed top of the bag and the loaded bulk materials in the bag
and this space would promote settling and sagging of the bag’s contents.
App. Br. 6-7. In other words, Appellant argues that the inclusion of a zipper
as taught by Narahara and Bonerb in the containment bag of the combination
of Beale, LaFleur ʼ824, and LaFleur ʼ887 would make the containment bag
unsuitable for its intended purpose of closely containing bulk cargo. Id.
The Examiner responds by alleging that: (1) “[a]n air tight zipper
closure could still allow any excess air to be expelled by burping before
closure”; (2) the flexible bag material would allow any excess material on
the sides to be folded on the top covering layer of the bag; (3) settling and
sagging of the bag and its contents would not be problematic when Beale’s
bag is supported by rigid outer structures of rigid cages and containers that
provide shape defining support; and (4) modifying Beale’s bag with a zipper
would not prevent stacking of the bags. Ans. 8
We agree with Appellant. Appellant refers to columns 41-43 of Beale
for a description of a closing operation of the flaps 107 of the inner and outer
three dimensional enclosures 171, 172 in order to secure tight containment
of the bulk cargo 51within the container 63. App. Br. 5. During Beale’s
closing operation, each flap 107 is drawn across the top and tied to the
opposite wall using ties 187 and loops 188. Upon completion of the folding
and tying off of the flaps 107, the load of bulk cargo 51 is tightly constrained
within the container 63. See Beale, col. 42, ll. 61-66 and col. 43, ll. 17-67.
Modifying Beale’s container 63 to have the zippers of Narahara and Bonerb
in addition to Beale’s ties and loops as suggested by the Examiner would be
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redundant, and modifying Beale’s container 63 to have the zippers of
Narahara and Bonerb in place of Beale’s ties 187 and loops 188 as suggested
by the Examiner would not allow for the tight containment of the bulk cargo
51 as intended by Beale.
Moreover, in response to the Examiner’s statements concerning
expelling excess air from the enclosure by burping and folding of any excess
material on the sides onto the top covering layer of the bag, we note that this
might possibly reduce or do away with any interior air space between the
flaps 107 and the bulk cargo 51, but still would not ensure the tight
containment desired by Beale. With respect to the Examiner’s comments
concerning providing shape defining support for the container 63, we note
that the loading frame 59 is only used for loading the bulk cargo 51 into the
container 63 and for folding and tying off of the flaps 107, but would not be
a protection against settling and sagging of the bulk cargo 51 in the container
63 during transport or storage. Additionally, while the sides of the gondola
car 53, shown in Beale’s Figures 1A and 1B, might provide support against
settling and sagging of the bulk cargo 51 in the container 63 during
transport, the gondola car 53 would not provide support from settling or
sagging of the bulk cargo 51 in the container 63 when the container 63
reaches its destination and is stacked. See Beale, col. 20, ll. 1-6 and 42-47.
In view of the foregoing, we do not sustain the Examiner’s rejection
of claims 21 and 22 under 35 U.S.C. § 103(a) as unpatentable over Beale,
LaFleur ʼ824, LaFleur ʼ887, Narahara, and Bonerb.

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DECISION
We affirm the Examiner’s rejection of claims 19, 21, and 22 under 35
U.S.C. § 112, second paragraph.
We reverse the Examiner’s decision to reject claims 21 and 22 under
35 U.S.C. § 103(a) as unpatentable over Beale, LaFleur ʼ824, LaFleur ʼ887,
Narahara, and Bonerb.
We summarily affirm the Examiner’s rejection of claim 19 under 35
U.S.C. § 103(a) as unpatentable over Beale, LaFleur ʼ824, and LaFleur ʼ887.
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)(1)(iv) (2007).

AFFIRMED

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