Ex Parte Vijay

Board of Patent Appeals and Interferences

Sep 23, 2010

10948441 (B.P.A.I. Sep. 23, 2010)

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.
10/948,441 09/23/2004 Chauhan Vijay 285.095 2084
47888 7590 09/24/2010
HEDMAN & COSTIGAN, P.C.
1230 AVENUE OF THE AMERICAS
7th floor
NEW YORK, NY 10020
EXAMINER
BUI, LUAN KIM
ART UNIT PAPER NUMBER
3728
MAIL DATE DELIVERY MODE
09/24/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CHAUHAN VIJAY
____________________

Appeal 2009-009422
Application 10/948,441
Technology Center 3700
____________________

Before LINDA E. HORNER, WILLIAM F. PATE, III, and
FRED A. SILVERBERG, Administrative Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009422
Application 10/948,441

2
STATEMENT OF THE CASE
Chauhan Vijay (Appellant) seeks our review under 35 U.S.C. § 134 of
the final rejection of claims 1-7. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.

THE INVENTION
Appellant’s claimed invention is directed to packages for wrapping
articles or pre-arranged groups of articles with a flexible packaging material
(Spec. 2:1-7).
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. An improved package for wrapping at least one article or
a pre arranged group of articles, said package being defined by
a formed longitudinal tube body of flexible wrapping sheet
material having a length, height and width dimension; the said
height and/or width dimension being less than the length
dimension but greater than one tenth of the length dimension, a
fin seal and two cross seals and no end seals, wherein the fin
seal is formed along the height or width dimension of the
package perpendicular to the length dimension and the cross
seals are formed along the length dimension, the cross seals
being generally perpendicular to the fin seal, with the ends of
the package being seal-free.

THE REJECTIONS
The following rejections2 by the Examiner are before us for review:

2 In any further prosecution on the application, Appellant should consider
amending the drawings to show “a tray,” as called for in claim 7 (see Spec.
10: 16-20). 37 C.F.R. § 1.83(a).
Appeal 2009-009422
Application 10/948,441

3
1. Claims 1-6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jud (US 4,658,963, issued Apr. 21, 1987) in view
of Honma (US 5,375,718, issued Dec. 27, 1994).
2. Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Jud in view of Honma, and further in view of Hobbs (US
3,650,395, issued Mar. 21, 1972).

ISSUE
The issue before us is whether the Examiner erred in concluding that
the combined teachings of Jud and Honma would have led a person having
ordinary skill in the art to two cross seals and no end seals, wherein the cross
seals are formed along the length dimension, as called for in independent
claim 1(App. Br. 4).

ANALYSIS
Claims 1-6
Appellant contends that Jud does not describe two end seals and no
side seals, as called for in independent claim 1 (App. Br. 4). Appellant
further contends that Honma does not overcome the deficiency in Jud (App.
Br. 5).
The Examiner found that Jud describes the package called for in claim
1 (Ans. 3-4). In particular, the Examiner found (1) that Jud describes
packaging material 1 for wrapping an article 5, a fin seal 2, 8, two cross
seals 5 and ends that are seal-free, and (2) that Jud appears to disclose that
the cross seals are formed along the length of the package (Ans. 3-4). In
support of the Examiner’s finding regarding location of the cross seals, the
Examiner proffered an annotated version of Figure 2 of Jud (Ans. 5).
Appeal 2009-009422
Application 10/948,441

4
Jud’s Figure 2, as annotated by the Examiner, is reproduced below:

Jud’s Figure 2, as annotated by the Examiner, includes labeling
denoting length and width dimensions, and lack of end seals.
Claim 1 calls for, inter alia, “wherein the fin seal is formed along the
height or width dimension of the package perpendicular to the length
dimension and the cross seals are formed along the length dimension, the
cross seals being generally perpendicular to the fin seal, with the ends of the
package being seal-free.”
Jud’s Figure 2 does not include labeling for the length and the width
dimensions of the package (fig. 2; see also col. 2, ll. 38-39). However, Jud
describes the longitudinal direction as being along the weakness line 3 (col.
2, ll. 51-54). Jud further describes a longitudinal fold 2 (col. 2, ll. 62-64),
and a reversed longitudinal sealing seam 8 and cross-sealing fins 9 (col. 3, ll.
11-16).
Appellant’s Specification describes that “[t]he fin seal may be a fin
seal or a simple overlap seal” and that “[r]eference in this specification to a
fin seal includes reference to an overlap seal.” (Spec. 13:15-17).
In view of Appellant’s Specification describing that reference to a fin
seal includes an overlap seal, we agree with the Examiner that Jud’s fold 2
and sealing seams 8 are fin seals.
Appeal 2009-009422
Application 10/948,441

5
The ordinary meaning of the word “longitudinal” means “of or
relating to length or the lengthwise dimension.”3 Thus, we find that Jud’s
longitudinal fold 2 and longitudinal cross-sealing seams 8, that is, the fin
seals extend along the length of the package, and not along the width of the
package.
Accordingly, we find that Jud’s cross sealing seams 9 are not formed
along the length dimension of the package and the sides are not seal free.
Therefore, Jud does not describe the seal arrangement called for in
independent claim 1.
The Examiner stated that to the degree it can be argued that Jud fails
to show cross seals formed along the length of the package, Honma
describes a fin seal 4, 5 formed along a width dimension and a cross seal
formed along a length of the package (Ans. 4). The Examiner concluded
that it would have been obvious to a person having ordinary skill in the art to
modify the cross seals of Jud so that the cross seals are along the length of
the package because the selection of the specific seal along the length or
width of the package would be an obvious matter of choice or design (Ans.
4).
Honma describes shrink wrapped packaging which we find as being
different from the packaging of Jud, and, as such, does not cure the
deficiency in Jud.
Accordingly, we do not find adequate articulated reasoning with
rational underpinning to support the Examiner’s conclusion of obviousness.
See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[R]ejections
on obviousness grounds cannot be sustained by mere conclusory statements;

3 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1996).
Appeal 2009-009422
Application 10/948,441

6
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”).
We reverse the rejection of independent claim 1 and claims 2-6, which
depend from claim 1.
Claim 7
The Examiner has not relied on Hobbs for any teaching that would
remedy the deficiency in the combined teachings of Jud and Honma (Ans.
5). Likewise, we reverse the rejection of claim 7, which depends from claim
1.

CONCLUSION
The Examiner has erred in concluding that the combined teachings of
Jud and Honma would have led a person having ordinary skill in the art to
two cross seals and no end seals, wherein the cross seals are formed along
the length dimension, as called for in independent claim 1.

DECISION
The decision of the Examiner to reject claims 1-7 is reversed.

REVERSED

mls

HEDMAN & COSTIGAN, P.C.
1230 AVENUE OF THE AMERICAS
7TH FLOOR
NEW YORK, NY 10020