Ex Parte White et al

Patent Trials and Appeals Board

Sep 21, 2018

13404272 - (D) (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/404,272 02/24/2012
22222 7590 09/25/2018
GEORGE R CORRIGAN
CORRIGAN LAW OFFICE
2168 COLLADAY POINT DRIVE
STOUGHTON, WI 53589
FIRST NAMED INVENTOR
Christopher L. White
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CMD 241 5515
EXAMINER
MADISON, XAVIER A
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
09/25/2018 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 CHRISTOPHER L. WHITE,
GREGORY T. PRELLWITZ, TIMOTHY J. RYMER, and
CURT A. FRIEVALT
Appeal2018-000822
Application 13/404,272
Technology Center 3700
Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
FRANCES L. IPPOLITO, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Christopher L. White et al. (Appellants) 1 appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 1, 2, 4---6, 8-14, and
16-21 under 35 U.S.C. § 103(a) as unpatentable over Haverfield et al.
(US 6,602,174 Bl, iss. Aug. 5, 2003, hereinafter "Haverfield") and Bett
(US 5,733,411, iss. Mar. 31, 1998). We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 Appellants identify CMD Corporation as the real party in interest. Br. 3.
Appeal2018-000822
Application 13/404,272
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is representative of the claimed subject
matter. 2
1. A bag machine for creating bags from a web, comprising an
input section and a sealing section, where the web moves in a
downstream direction from the input section to the sealing
section, and wherein the sealing section includes a rotary
ultrasonic sealer having a rotating anvil and a rotating horn,
disposed to seal at least a portion of the web to itself, creating a
seal that at least partially forms a bag, wherein the anvil has a
sealing pattern that includes micro grooves thereon.
THE ISSUE
The issue raised in this appeal is whether the patterns taught by Bett
on the rotary ultrasonic anvil comprise "micro grooves" as recited in claim
I. See Br. 9-11; Final Act. 3; Ans. 2-3.
DISCUSSION
Appellants group claims 1, 2, 4---6, 8-14, and 16-21 together in
contesting the rejection. See Br. 9-11. We decide the appeal on the basis of
claim 1, and claims 2, 4--6, 8-14, and 16-21 stand or fall with claim 1. See
37 C.F.R. § 4I.37(c)(l)(iv) (permitting the Board to select a single claim to
2 Subsequent to the Final Action ( dated Sept. 6, 2016), Appellants attempted
to amend independent claims 1 and 16 to specify that the micro grooves
"hav[e] a depth of no more than 0.0005 inches." See Amendment dated
February 6, 2017 (hereinafter "Amendment"). However, the Examiner did
not enter the Amendment because the Examiner determined it raised "new
issues that would require further consideration and/ or search." See Advisory
Act. ( dated Mar. 24, 2017).
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Application 13/404,272
decide the appeal as to a single ground of rejection of a group of claims
argued together).
The Examiner finds that Haverfield discloses a machine for creating
bags from a web, comprising all of the limitations of claim 1, except that
Haverfield's sealing section (static heat sealing mechanism 40) does not
include a rotary ultrasonic sealer comprising a rotating horn and a rotating
anvil, wherein the anvil has a sealing pattern that includes micro grooves
thereon. See Final Act. 2-3; see Haverfield, col. 3, 11. 24--41; Figs. 1, 2. The
Examiner finds that Bett discloses such a sealing section, and determines
that it would have been obvious to a skilled artisan to replace Haverfield' s
sealing section (static heat sealing mechanism 40) with a sealing section
including a rotary ultrasonic sealer as taught by Bett, in order to "allow the
web to advance through the sealing station at a relatively constant speed
while ultrasonic energy is applied to respective surfaces." Final Act. 3; see
Bett, col. 6, 11. 5-30; Fig. 1.
Appellants do not contest the Examiner's determination that it would
have been obvious to replace Haverfield's static heat sealing mechanism
with the ultrasonic sealer taught by Bett, including rotating anvil roll 10 and
rotary ultrasonic horn 22. See Br. 9-11. Rather, Appellants argue that the
applied prior art does not teach "an ultrasonic sealer hav[ing] a sealing
pattern that includes microgrooves." Id. at 9. Appellants also argue that
"[u]sing microgrooves unexpectedly provides the advantages of both
continuous and intermittent patterns" and that "[ m ]icrogrooves unexpectedly
provide strong, consistent seals with a wide operating window." Id. ( citing
Spec. ,r,r 34, 3 8).
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Application 13/404,272
The only structural difference Appellants identify between the
claimed "micro grooves" and the pattern of Bett is the depth of the grooves.
See id. at 10. In particular, Appellants submit that the micro grooves
described in their Specification "are very shallow, such as about 0.0005
inches, and may be so shallow they are visible to the naked eye, and may be
less deep than the thickness of the film." Id. (citing Spec. ,r 38). Appellants
point out that Bett teaches a pattern with a height difference "DR" between
the elevated and non-elevated regions of between 0.01 inches and 0.20
inches, which Appellants submit "is much greater height than a microgroove
(on the order of 0.0005 inches)." Id.
In response, the Examiner points out that "Appellants' [S]pecification
describes and defines 'Micro grooving includes making a pattern that may
be very shallow such as .0005", maybe less or maybe more." Ans. 2. The
Examiner maintains that the patterns on the outer radial surface of Bett' s
anvil "are interpreted to be equivalent to Appellants['] described
'microgrooves' with respect to Appellants['] Detail Description" because
Bett's disclosure of "a range of depth of 'approximately 0.01 inch to
approximately 0.20 inch' ... reasonably falls within the range defined as
'maybe more' set forth by the descriptive definition of [Appellants'
Specification]. Id. at 2-3.
Appellants' Specification describes "[ m ]icro grooving" as follows:
Micro grooving could have the performance of a solid seal but
with a larger operating window and increased power supply
stability, simulating the interrupted pattern. Micro grooving
includes making a pattern that may be very shallow such as
.0005", maybe less or maybe more. The micro grooving may
be so shallow that it may not be visible to the naked eye. This
may consist of a groove or any pattern in the sealing surface.
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Application 13/404,272
The micro pattern may be less than the depth of the film
thickness.
Spec. ,r 38 ( emphasis added).
Thus, Appellants' Specification does not define "micro grooves" as
having a depth on the order of 0.0005 inches, as Appellants' argument
suggests. Although the definition of "[m]icro grooving" set forth in the
Specification includes patterns having a depth of 0.0005 inches as falling
within the scope of "micro grooves," the definition also encompasses depths
that are more than 0.0005 inches, without specified limits. Further,
Appellants do not direct our attention to any evidence in the record before us
establishing that the term "micro grooves" has a well understood meaning in
the art. Thus, the Examiner did not err in construing the term "micro
grooves," consistent with Appellants' Specification, in claim 1 as
encompassing patterns such as those taught by Bett, comprising lands 44
fabricated by cutting away material to reach base surface 45, wherein the
difference "DR" between the radius at the lands and the radius at the base
surface is "approximately 0.01 inch to approximately 0.20 inches." See,
e.g., Bett, col. 7, 11. 28-30, 46-49; col. 9, 11. 23-28, 58-60; col. 11, 11. 11-13.
Appellants also argue that "[t]here is no suggestion in the prior art that
using a smaller "DR" height [than the "DR" height taught by Bett] would
provide the unexpected benefit of a wider operating window and more
consistent and stronger seals." Br. 11. This argument is unavailing because
Appellants' Specification does not describe this as a required feature of
"micro grooves." Rather, the Specification merely discloses that"[ m ]icro
grooving could have the performance of a solid seal but with a larger
operating window and increased power supply stability, simulating the
interrupted pattern." Spec. ,r 3 8 ( emphasis added). Moreover, Appellants do
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Application 13/404,272
not present any evidence establishing that micro grooving produces
unexpected results, much less that any such unexpected results are attributed
to a depth materially smaller than what is taught in Bett. See In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (Arguments and conclusions
unsupported by factual evidence carry no evidentiary weight.).
For the above reasons, Appellants do not apprise us of error in the
rejection of claim 1. Accordingly, we sustain the rejection of claim 1, as
well as claims 2, 4--6, 8-14, and 16-21, which fall with claim 1, as
unpatentable over Haverfield and Bett.
DECISION
The Examiner's decision rejecting claims 1, 2, 4--6, 8-14, and 16-21
is AFFIRMED.
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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