Ex Parte Wolters et al

Patent Trial and Appeal Board

Jul 19, 2018

13503157 (P.T.A.B. Jul. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/503, 157 06/29/2012 Michael Wolters
96039 7590 07/23/2018
Meunier Carlin & Curfman LLC
999 Peachtree Street NE
Suite 1300
Atlanta, GA 30309
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.
10278-003US 1 4106
EXAMINER
JACOBSON, MICHELE LYNN
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
07/23/2018 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):
docketing@mcciplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL WOLTERS and DIRK SCHIBULL
Appeal2017-008823
Application 13/503,157
Technology Center 1700
Before JEFFREY T. SMITH, DONNA M. PRAISS, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 5-15, 17, 18, and 23. 1 We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 The real party in interest is identified as SIG Technology AG. Appeal
Brief of February 6, 2017 ("App. Br."), at 3. In this Opinion, we also refer
to the Final Office Action of August 3, 2016 ("Final Act."), the Examiner's
Answer of March 28, 2017 ("Ans."), and the Reply Brief of May 30, 2017
("Reply Br.").
Appeal2017-008823
Application 13/503,157
CLAIMED SUBJECT MATTER
The claims are directed to a method for the production of autoclaved
food in a receptacle formed from a laminate comprising a colored cross-
linked outer polymer layer obtained in a gravure printing process. Spec.
3:5-14. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A process for the preparation of a closed container, which
separates an internal space filled with food stuff from an
environment, from at least one sheet-like composite, which has
at least one edge, comprising the steps:
(a) providing a sheet-like composite comprising
( a 1) an outer cross-linked plastic colour layer
comprising a colour agent, wherein the plastic colour layer
comprises a poly-addition product;
(a2) a carrier layer; and
(a3) a thermoplastic plastic layer;
(b) forming the sheet[-]like composite to obtain an open
container, wherein the plastic colour layer faces onto the
environment and the thermoplastic plastic layer faces onto the
internal space;
( c) filling the open container with a food stuff;
( d) closing the open container to obtain the closed, filled
container; and
( e) preserving the food stuff in the closed, filled container
in a pressure chamber under a chamber pressure of more than 1
bar at a temperature in a range from more than 100 to 1 40°C in
the presence of steam,
wherein the outer cross-linked plastic colour layer is an
outermost plastic colour layer,
wherein the closed, filled container has between 6 and 16
edges,
wherein the composite is obtainable by a series of steps
comprising:
providing a pre-composite with a surface comprising the
carrier layer;
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Application 13/503,157
applying a liquid colour layer precursor solution onto the
surface; and
curing the liquid colour layer precursor into the plastic
layer colour layer, wherein the liquid colour layer precursor
solution comprises:
(FLI) a di- or polyalcohol,
(FL2) a di- or polyisocyanates,
(FL3) a colour agent,
(FL4) 20 to 90 % by weight, relative to the liquid colour
layer precursor solution, of a solvent, and
(FL5) optionally additives which differ from FLI to FL4,
and
wherein a polyurethane is formed on the surface of the
pre-composite by poly-addition of the di- or polyalcohol (FLI)
and the di- or polyisocyanates (FL2).
App. Br. 18-19 (Claims App.) (emphasis added).
REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal are:
Wood
Kaas
Yamaguchi
Mathew
us 5,165,799
US 2007 /0292567 Al
US 2008/0124006 Al
US 2010/0279041 Al
Nov. 24, 1992
Dec. 20, 2007
May 29, 2008
Nov. 4, 2010
Zeno W. Wicks, Jr., Urethane Coatings, ENCYCLOPEDIA OF POLYMER SCIENCE &
TECHNOLOGY, 1-19 (2007) ("Wicks").
REJECTIONS
Claims 1, 5-6, 9-10, 12, 14--15, 17, and 23 are rejected under pre-
AIA 35 U.S.C. § I03(a) as being unpatentable over Kaas in view of Mathew,
Wood, and Yamaguchi. Final Act. 2-3.
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Application 13/503,157
Claim 23 is also rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Kaas in view of Mathew, Wood, Yamaguchi, and Wicks. 2
Final Act. 13-14.
OPINION
After having considered the evidence presented in this Appeal and
each of Appellants' contentions, we are not persuaded that Appellants
identify reversible error, and we affirm the Examiner's section 103(a)
rejections for the reasons expressed in the Final Office Action and the
Examiner's Answer. We add the following primarily for emphasis.
In rejecting claim 1, the Examiner finds that Kaas describes a process
to prepare a closed food container performing steps (a) through (d) as recited
in claim 1. Final Act. 3--4. Appellants do not dispute this finding. App. Br.
11-12. The Examiner finds that the process in Kaas may be carried out in a
temperature range of 240° F to 275° F and that the food package
manufacturing process in Mathew may be carried out in a pressure range of
3 to 5 bars. Final Act. 4, 5. Appellants do not dispute these prior art
teachings. App. Br. 11-12. Based on the undisputed prior art teachings, the
Examiner determines that a skilled artisan would have understood that the
process in Kaas may be conducted in the pressure range taught in Mathew,
thereby meeting the limitations of step ( e) recited in claim 1. Final Act. 8.
Appellants, however, argue that a skilled artisan would not have
combined Kaas with Mathew because combining the solvent-based ink in
2 Claims 7, 8, 11, 13, and 18 are rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Kaas, Mathew, Wood, Yamaguchi, and
additional references. Final Act. 10, 11, 13; App. Br. 9. These claims are
not argued separately. See App. Br. 11.
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Application 13/503,157
Mathew with the process in Kaas would decrease the retort stability of the
product containers leading to a lack of reasonable expectation of success.
App. Br. 12-14. 3
Appellants' arguments, not commensurate in scope with claim 1, do
not identify reversible error. Claim 1, a process claim, does not recite any
particular retort stability or other parameters of the end product. Kaas
undisputedly describes a composition having ink coating 1108A, thereby
meeting the process step (a) of "providing a sheet-like composite comprising
(al) an outer cross-linked plastic colour layer comprising a colour agent" as
recited in claim 1. Compare Final Act. 3 (citing Kaas ,r,r 152, 199, Fig.
I IA), with App. Br. 12-14, Reply Br. 2-5.
To the extent that Appellants' arguments regarding the particular type
of ink are directed to the recited composite4 that is "obtainable by a series of
steps," Appellants do not structurally distinguish the prior art composite in
Kaas or Mathew from the recited composite. See In re Thorpe, 777 F .2d
695, 697 (Fed. Cir. 1985) (even though product-by-process claims are
limited by and defined by the process, patentable distinction is based on the
product itself).
For the same reason, Appellants' argument that the examples in
Mathew do not describe the composition "obtainable" by the recited
components and process steps (App. Br. 12) does not identify reversible
3 Appellants present arguments solely for independent claims 1 and 23 as a
group for this rejection. App. Br. 11. Consistent with the provisions of 37
C.F.R. § 4I.37(c)(l)(iv) (2013), the remaining claims stand or fall with
claim 1.
4 The recited "wherein the composite is obtainable" lacks antecedent basis,
but we interpret the phrase to mean, "wherein the sheet-like composite is
obtainable .... "
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Application 13/503,157
error for failure to provide structural distinction over the prior art. Because
the prior art undisputedly describes process steps (a) through (e) and because
Appellants do not argue that the Examiner reversibly erred in combining the
references to meet the temperature and pressure requirements of step ( e) as
recited in claim 1, a preponderance of the evidence supports the Examiner's
prima facie case of obviousness of the process claim. See Final Act. 3-7;
Ans. 14--20.
In rebuttal, Appellants proffer certain evidence purported to show
unexpected results over the closest prior art. App. Br. 14--16 (referring to
Declaration by Dirk Schibull of April 15, 2016 ("Deel.")). The Declaration
compares adhesive strength and cross-cut value for three samples identified
as "Siegwerk NC133-1," "Siegwerk UR 22," and "Siegwerk PV86." Deel.
,r 8. The Examiner finds, among other flaws, that the Declaration fails to
provide sufficient information regarding the chemical composition of the
inventive or comparative examples to assess whether the differences in test
results are based on the recited process steps. Ans. 22-23. Appellants do
not point to the Declaration or evidence elsewhere in the record to show that
it is the recited process steps (a) through ( e) that produced the purported
unexpected results. See App. Br. 15-16. No reversible error has been
identified in the Examiner's fact finding against any unexpected results.
DECISION
The Examiner's rejections of claims 1, 5-15, 17, 18, and 23 are
affirmed.
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Application 13/503,157
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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