James C. Pawloski

Patent Trials and Appeals Board

Oct 29, 2019

12950350 - (D) (P.T.A.B. Oct. 29, 2019)

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.
12/950,350 11/19/2010 James C. Pawloski J-5474B 7595
28165 7590 10/29/2019
S.C. JOHNSON & SON, INC.
1525 HOWE STREET
RACINE, WI 53403-2236
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
10/29/2019 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):
F074168@scj.com
mjzolnow@scj.com
selechne@scj.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES C. PAWLOSKI

Appeal 2018-001956
Application 12/950,350
Technology Center 3700
____________

Before PHILIP J. HOFFMANN, KENNETH G. SCHOPFER,
AMEE A. SHAH, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 4–17, and 19–22. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as S. C. Johnson
& Son. Appeal Br. 2.
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Application 12/950,350

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BACKGROUND
The Specification discloses that “[t]he present disclosure relates to
closure mechanisms for reclosable pouches, and more particularly, to such
closure mechanisms that create a desirable sound for the user during
closure.” Spec. ¶ 2.

CLAIMS
Claims 1, 11, and 16 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A closure mechanism for a reclosable bag comprising:
an elongated groove profile having two arms which form
a general U-shape to define an opening to a channel; and
an elongated rib profile opposing the groove profile,
wherein a plurality of first segments of the rib profile alternate
with a plurality of second segments of the rib profile to create
structural discontinuities along a length thereof,
wherein the elongated rib profile defines a stem extending
from a base,
wherein the plurality of first segments define a first
enlarged head portion extending from the stem, and the plurality
of second segments define a second enlarged head portion
extending from the stem,
wherein the stem is substantially unchanged between the
first and second segments,
wherein the first enlarged head portion has larger cross-
sections in height and width than the second enlarged head
portion, and
wherein the groove and the rib profiles form a first zipper
such that when engaging the groove and rib profiles to close the
zipper, an audible clicking sound of at least 50 dB on average is
created.
Appeal Br. 10.
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Application 12/950,350

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REJECTIONS
1. The Examiner rejects claims 1, 2, 4–8, 11–17, 19, 21, and 22 under
35 U.S.C. § 103(a) as unpatentable over Dais2 in view of Cisek.3
2. The Examiner rejects claims 9, 10, and 20 under 35 U.S.C. § 103(a) as
unpatentable over Dais in view of Cisek and Pawloski.4
3. The Examiner rejects claims 1, 4–9, 11–17, and 19 on the ground of
nonstatutory double patenting as unpatentable over U.S. Patent No.
9,327,875 B2 in view of Dais.
DISCUSSION
Rejection 1
With respect to the rejection over Dais in view of Cisek, Appellant
groups all claims together. See Appeal Br. 5–9. We select claim 1 as
representative of this group of claims, and claims 2, 4–8, 11–17, 19, 21,
and 22 will stand or fall with claim 1. See 37 C.F.R. 41.37(c)(1)(iv).
With respect to claim 1, the Examiner finds that Dais teaches a
closure mechanism as required by claim 1, except that Dais does not teach a
single embodiment with the rib profile claimed, and that Dais does not
expressly teach the claimed decibel level for the clicking sound. Final
Act. 2–6. The Examiner determines that the rib profile claimed would have
been an obvious variant of the embodiments disclosed in Dais. Id. at 6–8.
Regarding the claimed decibel of level, the Examiner relies on teachings
from Cisek and determines that the claimed level would be a matter of
routine optimization. Id. at 6–7.

2 Dais et al., US 5,140,727, iss. Aug. 25, 1992.
3 Cisek, US 2004/0261229 A1, pub. Dec. 30, 2004.
4 Pawloski, US 2004/0234172 A1, pub. Nov. 25, 2004.
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As discussed below, Appellant raises arguments only regarding the
Examiner’s determination that the claimed rib profile would have been
obvious in view of the various embodiments disclosed in Dais. See Appeal
Br. 7–8. We agree with and adopt the Examiner findings and conclusions
regarding this aspect of the rejection. See Final Act. 3–5; see also Ans. 4–
20. We are not persuaded of error by Appellant’s arguments.
Appellant argues that
Dais fairly teaches or suggests that modifications in which the
first and second head portions vary in both cross-sectional height
and width from one another are only achieved by varying the size
of the two profiles as a whole, i.e., by requiring similar
modifications to the stem. Such modifications, however, conflict
with Applicant’s claim recitations that the stems remain
substantially unchanged.
Appeal Br. 8. In support, Appellant asserts that no individual embodiment
in Dais teaches or suggests the actual limitations of the claims. Id.at 7.
Appellant asserts that the embodiments described in Dais “directly refute the
Examiner’s contention to ‘merely’ vary the size and shape of the enlarged
head portions in the first and second segments, since they completely
eliminate one of the claimed head portions altogether.” Id. Appellant also
asserts that the embodiments disclosed in Figures 4 and 8 of Dais
“specifically refute the suggestion to modify the cross-sectional height, and
Fig[ure] 8 further refutes the suggestion to modify the cross-sectional
width.” Id. at 8. Further, Appellant asserts that Dais distinguishes the
embodiment depicted in Figures 23 and 24 from the remaining embodiments
disclosed by stating that the other embodiments are unconventional or
unusual, and thus, Appellant argues that the embodiment of these figures
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cannot be considered equivalent to the other embodiments disclosed.
Appeal Br. 8.
We are not persuaded by any of these contentions. We agree with the
Examiner that given the variety of embodiments disclosed in Dais and
Dais’s teachings regarding how the embodiments produce the desired sound
when closing the zipper enclosure, one of ordinary skill in the art would
have found the claimed rib profile to be an obvious variant of the profiles
disclosed in Dais. Dais discloses “a zipper for a reclosable thermoplastic
bag that closes with a vibratory or bumpy feel and/or produces an audible
clicking sound along its length when being closed.” Dais col. 1, ll. 32–35.
Dais discloses that the audible sound is caused “when the zipper profiles are
interlocked in the presence of an intermittent discontinuity in structure along
portions of either or both of the rib or groove profiles.” Id. at col. 8, ll. 15–
25. To create such discontinuities, Dais discloses a variety of rib profiles.
For example, Dais discloses profiles including stem portions that do not vary
along the length of the rib but include intermittent changes in the shape of
heads on the stem portions (Figures 8 and 10) or the alternating presence and
absence of such head portions (Figures 2 and 6 or Figures 4 and 7). Dais
also discloses an example in which the rib profile changes such that it
includes alternating portions of larger and smaller head and stem sizes
(Figures 23 and 24). In each of these embodiments, Dais indicates that it is
the structural discontinuities in the rib structures that create the desired
audible clicking sound. See, e.g., id. at col. 4, ll. 11–15; col. 5, ll. 1–3;
col. 6, ll. 24–28; col. 8, ll. 15–25.
Thus, Dais discloses embodiments in which the stem size remains the
same and the shape or presence of the head portion on the rib is changed.
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Application 12/950,350

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These embodiments include a reduction in portions, or the entirety, of the
cross-sectional height and width of the head. Dais also discloses an
embodiment in which both the stem and head size of the rib change such that
the rib includes sections having a head size with large cross-sections in
height and width. Regardless of the rib profile, Dais discloses that the
discontinuities in the rib structure create the audible clicking sound when
closing the zipper enclosure. Based on this disclosure, and in the absence of
any showing of criticality of the specific rib profile claimed, we agree with
the Examiner that varying the size and shape of the rib head portions while
keeping the stem portions the same, as claimed, would have been obvious
and not patentably distinct from the various embodiments of Dais.
To the extent Appellant argues that no particular embodiment in Dais
“fairly teaches or suggests” the modification proposed, we are not persuaded
because we agree with the Examiner that one of ordinary skill in the art
would have found the claimed configuration obvious based on the entirety of
the reference, which indicates that such a claimed configuration would not
produce a different result than the embodiments already provided for in
Dais. See Final Act. 5. Further, we see no indication of any disclosure in
Dais that “specifically refutes” any portion of the Examiner’s findings or
conclusion, i.e., we are not persuaded that Dais specifically refutes any
suggestion to modify the cross-sectional height or width of the rib head.
Rather, Dais suggests the opposite where Dais discloses eliminating the rib
head entirely, reducing portions of the cross-sectional measurements of the
head, or where the rib head and stem are both reduced.
Finally, we are not persuaded to the extent Appellant indicates that the
embodiment disclosed in Figures 23 and 24 of Dais is incompatible with
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other embodiments. Dais discloses that portions of the rib profile in the
embodiment of Figures 23 and 24 are “conventionally-sized” and that this
embodiment includes “more conventional cross-sectional configurations.”
See Dais col. 5, ll. 54–68. However, we see no indication that the relevant
teachings from this embodiment are not compatible with any other
embodiment. As noted above, Dais makes clear that it is the discontinuities
in the shape of the rib that creates the desired sound when the zipper is
closed, such discontinuities exist in each of the embodiments discussed, and
one of ordinary skill would have found the claimed discontinuity in rib
structure to be an obvious variant of the embodiments disclosed by Dais.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 1. Accordingly, we sustain the rejection of this claim. We also
sustain the rejection of claims 2, 4–8, 11–17, 19, 21, and 22, which fall with
claim 1.
Rejections 2 and 3
Appellant relies on the same arguments addressed above with respect
to the remaining rejections. See, e.g., Appeal Br. 9. As discussed above, we
find Appellant’s arguments unpersuasive, and thus, for the reasons discussed
above, we also sustain these rejections.

CONCLUSION
We AFFIRM the rejections of claims 1, 2, 4–17, and 19–22.
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).

Appeal 2018-001956
Application 12/950,350

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In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1, 2, 4–8, 11–
17, 19, 21, 22
103(a) Dias, Cisek 1, 2, 4–8,
11–17, 19,
21, 22

9, 10, 20 103(a) Cisek, Pawloski 9, 10, 20
1, 4–9, 11–
17, 19
Obviousness-type
double patenting/
US 9,327,875 B2,
Dais
1, 4–9, 11–
17, 19

Overall
Outcome
1, 2, 4–17,
19–22

AFFIRMED