Ex Parte Wihlborg

Board of Patent Appeals and Interferences

Mar 30, 2012

11020607 (B.P.A.I. Mar. 30, 2012)

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.
11/020,607 12/23/2004 Lars Wihlborg 769-359 8366
51468 7590 03/30/2012
DAY PITNEY LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
7 TIMES SQUARE
NEW YORK, NY 10036-7311
EXAMINER
BRITTAIN, JAMES R
ART UNIT PAPER NUMBER
3677
MAIL DATE DELIVERY MODE
03/30/2012 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 LARS WIHLBORG

Appeal 2010-002906
Application 11/020,607
Technology Center 3600
____________________

Before STEFAN STAICOVICI, KEN B. BARRETT, and
EDWARD A. BROWN, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-002906
Application 11/020,607

2
STATEMENT OF THE CASE
Lars Wihlborg (Appellant) appeals under 35 U.S.C. § 134(a) from the
Examiner's decision rejecting claims 1-4, 6-9, 15, and 16. (App. Br. 2).
Claims 5, 10-14, and 17 were canceled. (Id.). We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We REVERSE.

THE INVENTION
The invention is directed to a sleeve cover for a slider used for
applications in which high pressure is applied to a reclosable bag that
includes a zipper and slider. (Spec. 1). Independent claim 1, reproduced
below, is illustrative of the appealed subject matter.
1. A sleeve cover for a zipper slider
which includes a top wall around side walls
surrounding the slider and an inwardly
flanged bottom surface around the ends of
the side walls, said sleeve cover being made
of a material to fill interstices formed on the
zipper slider and between the zipper slider
and zipper elements when subjected to high
pressure pasteurization, thereby preventing
bag film from entering the interstices.
Independent claim 6 is directed to the combination of a
zipper slider and sleeve cover, wherein the sleeve cover has the
same features as recited in claim 1.

Appeal 2010-002906
Application 11/020,607

3
THE REJECTIONS
The following rejections are before us on appeal for review.
1. Claims 1-4, 6-9, 15, and 16 are rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite.
2. Claims 1, 2, 6 and 7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Turvey (US 2004/0187274 A1, published Sep. 30, 2004)
and Aoshima (US 2003/0000051 A1, published Jan. 2, 2003).
3. Claims 4 and 9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Turvey, Aoshima, and Shrader (US 7,004,629 B2, issued
Feb. 28, 2006).
4. Claims 3 and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Turvey, Aoshima, Shrader, and Stolmeier (US 5,871,281,
issued Feb. 16, 1999).
5. Claims 15 and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Turvey, Aoshima, and Baker (US 2005/0251974 A1,
published Nov. 17, 2005).

ANALYSIS
Claims 1-4, 6-9, 15, and 16 – 35 U.S.C. § 112, second paragraph
The Examiner found that it is unclear whether claims 1 and 6 are
directed to a cover (claim 1) or slider combined with a cover (claim 6)
usable in a high pressure pasteurization environment, or to a method of
testing the properties of the cover. (Ans. 3). The Examiner found that the
limitation "made of a material to fill interstices . . . when subjected to high
pressure pressurization, thereby preventing bag film from entering the
Appeal 2010-002906
Application 11/020,607

4
interstices" renders the claims indefinite. (Id. at 8). Specifically, the
Examiner found that because the claims neither recite (1) the specific size of
the "interstices" nor (2) the range of pressures and times required to fill the
"interstices," it is not clear under what conditions the interstices are filled.
(Ans. 3-5, 9-10).
Appellant contends that claims 1 and 6 are drawn to a "sleeve cover
for a slider zipper" and a "combination of a zipper slider and sleeve cover."
(App. Br. 5). Appellant also contends that the size of the recited
"interstices" is dependent upon the structure of the zipper slider and zipper
elements, and that the recitation "preventing bag film from entering the
interstices" defines the required flexibility for the "sleeve cover." (Id.).
The Examiner appears to require that the claims specify exactly the
size of the interstices and the process parameters of high pressure
pasteurization (i.e., pressure, time). However, by not specifying the size of
the interstices and the process parameters of high pressure pasteurization, the
claim is merely broad, not ambiguous. See In re Johnson, 558 F.2d 1008,
1016 n.17 (CCPA 1977) (breadth is not indefiniteness). That is to say, it is
clear what type of material the claims require (to fill interstices formed on
the zipper slider and between the zipper slider and zipper elements when
subjected to high pressure pasteurization); no further details are necessary to
know the metes and bounds of the claims.
Figure 2 of Appellant's application shows a cover 10 including an
upper surface 12, side surfaces 16, and lower inwardly flanged surfaces 28,
30 placed on a zipper slider 100, which slides along profiles 202, 204 of
zipper 200. (See Spec. 3, ll. 14-19). Appellant's Specification describes that
lower inwardly flanged surfaces 28, 30 are formed on side surfaces 14, 16 to
Appeal 2010-002906
Application 11/020,607

5
fill interstices between slider 100 and profiles 202, 204, and that interstices
are formed on the slider 100. (See Spec. 3, ll. 4-7, 17-19). Appellant's
Specification also describes (See Spec. 2, ll. 9-12):
During high pressure pasteurization, the film is
pressed against the sleeve cover thereby changing
form or shape. The sleeve cover fills in the
interstices between the slider and the zipper
profile, and additionally any interstices in the
slider, to prevent the film from being pushed into
these interstices and thereby deformed or ruptured.
We find that one of ordinary skill in the art would have interpreted
claims 1 and 6, when read in light of the Specification, as being directed to a
sleeve cover for a zipper slider, and the combination of a zipper slider and
sleeve cover, respectively, made from a material that is capable of filling the
interstices when subject to high pressure pasteurization. Merely that a claim
is broad does not mean that it is necessarily indefinite. See In re Johnson,
558 F.2d at 1016 n.17; In re Miller, 441 F.2d 689, 693 (CCPA 1971); In re
Gardner, 427 F.2d 786, 788 (CCPA 1970). In other words, in view of the
Specification, we find the meaning of claims 1 and 6 to be definite, and
hence the language of claims 1 and 6 to be in compliance with 35 U.S.C.
§ 112, second paragraph. See Orthokinetics, Inc. v. Safety Travel Chairs,
Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986). Thus, we do not sustain the
rejection of claims 1 and 6, and dependent claims 2-4, 7-9, 15, and 16.

Claims 1, 2, 6, and 7 – Obviousness – Turvey and Aoshima
The Examiner found that Turvey discloses a sleeve cover (holding
device 20) for a zipper slider that is flexible and can be made of various
materials, i.e., polyester, metals or foams. (Ans. 5-6, citing Turvey paras.
[0031], [0042]). The Examiner found that Turvey's sleeve cover differs
Appeal 2010-002906
Application 11/020,607

6
from the claimed sleeve cover in that Turvey does not describe that the
materials can withstand autoclaving with high pressure. (Id. at 6). The
Examiner found Aoshima discloses making slide fastener components from
flexible materials that can withstand autoclaving with high pressure. (Id.,
citing Aoshima paras. [0005], [0011], [0016]). The Examiner determined
that it would have been obvious to modify Turvey's device by making it
from Aoshima's materials to be able to resist the high humidity, temperature
and pressure of an autoclaving environment. (Ans. 6). The Examiner also
determined that the teachings of Turvey and Aoshima show that subjecting a
resilient sleeve cover to a very high pressure would "inherently" fill small
gaps in the zipper slider and between the zipper slider and zipper element.
(Id. at 12).
Appellant contends that Turvey's device is made from a rigid material
(App. Br. 6), and Aoshima discloses making the fastener element resistant to
high temperatures of autoclaving, not to high pressure pasteurization. (Id.).
Appellant contends that there is no reason to combine the references. (Id.).
Appellant's arguments are persuasive.
Claims 1 and 6 recite "said sleeve cover being made of a material to
fill interstices formed on the zipper slider and between the zipper slider and
zipper elements when subjected to high pressure pasteurization, thereby
preventing bag film from entering the interstices." (Emphasis added). The
Examiner did not identify any disclosure in Turvey that the holding device is
subjected to high pressure conditions. Aoshima discloses fastener products
made of synthetic resin materials that are "excellent in durability against wet
heat and capable of maintaining the stable state of engagement without
producing deterioration of strength even when repeatedly left under a high-
Appeal 2010-002906
Application 11/020,607

7
temperature and high-humidity atmosphere." (Aoshima para. [0002])
(emphasis added). Accordingly, we understand that Aoshima's materials are
stable when subjected to autoclaving. The Examiner did not identify any
disclosure in Aoshima that the synthetic resin materials are subjected to high
pressure pasteurization,1 much less provide any basis in fact that if Turvey's
sleeve cover were made from a resin material taught by Aoshima, the
material would necessarily change form or shape sufficiently to "fill
interstices formed on the zipper slider and between the zipper slider and
zipper elements when subjected to high pressure pasteurization, thereby
preventing bag film from entering the interstices," as called for in claims 1
and 6. As such, because the Examiner has not shown that the combination
of Turvey and Aoshima must necessarily meet the claim limitations for the
material of the sleeve cover, the Examiner did not establish inherency of the
claimed sleeve cover. See In re Robertson, 169 F.3d 743, 745 (Fed. Cir.
1999) ("Inherency, however, may not be established by probabilities or
possibilities. The mere fact that a certain thing may result from a given set
of circumstances is not sufficient."). Hence, we do not sustain the rejection
of claims 1, 2, 6, and 7, as unpatentable over Turvey and Aoshima.

Claims 4 and 9 – Obviousness – Turvey, Aoshima, and Shrader
Claims 4 and 9 depend from claims 1 and 6, respectively. The
Examiner's reliance on Shrader for the rejection of claims 4 and 9 (Ans. 6-7)
does not cure the Examiner's reliance on Turvey and Aoshima with respect

1 Appellant's Specification describes a high pressure pasteurization process
in which a pressure of approximately 36,000 pounds per square inch is
applied for a few minutes. (Spec. 1, ll. 13-16).
Appeal 2010-002906
Application 11/020,607

8
to claims 1 and 6, as discussed supra. Hence, we do not sustain the rejection
of claims 4 and 9 as unpatentable over Turvey, Aoshima, and Shrader.

Claims 3 and 8 – Obviousness – Turvey, Aoshima, Shrader, and Stolmeier
Claims 3 and 8 depend from claims 1 and 6, respectively. The
Examiner's reliance on Shrader and Stolmeier for the rejection of claims 3
and 8 (Ans. 7) does not cure the deficiencies of the Examiner's reliance on
Turvey and Aoshima with respect to claims 1 and 6, as discussed supra.
Hence, we do not sustain the rejection of claims 3 and 8 as unpatentable over
Turvey, Aoshima, Shrader, and Stolmeier.

Claims 15 and 16 – Obviousness – Turvey, Aoshima, and Baker
Claims 15 and 16 depend from claims 1 and 6, respectively. The
Examiner relied on Baker for disclosure of the use of silicone in a cover
(zipper pull) of a slide fastener (zipper assembly). (Ans. 8, citing Baker
paras. [0024]-[0026]). Moreover, the Examiner stated that "[i]t is agreed
that the Baker reference isn't used to address the independent claims and
therefore that these claims stand or fall with claims 1 and 6." (Ans. 14).
Hence, the Examiner's application of Baker does not remedy the deficiencies
of the combined teachings of Turvey and Aoshima. Thus, we are
constrained to reverse the rejection of claims 15 and 16 as unpatentable over
Turvey, Aoshima, and Baker.

Appeal 2010-002906
Application 11/020,607

9
DECISION
The Examiner's decision rejecting claims 1-4, 6-9, 15, and 16 is
REVERSED.

REVERSED

mls