Patrick G. Lennon

Patent Trials and Appeals Board

Jan 17, 2020

14925833 - (D) (P.T.A.B. Jan. 17, 2020)

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.
14/925,833 10/28/2015 Patrick G. Lennon E4919-00281 1482
8933 7590 01/17/2020
DUANE MORRIS LLP - Philadelphia
IP DEPARTMENT
30 SOUTH 17TH STREET
PHILADELPHIA, PA 19103-4196
EXAMINER
LEE, DANIEL H.
ART UNIT PAPER NUMBER
1746
MAIL DATE DELIVERY MODE
01/17/2020 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PATRICK G. LENNON

Appeal 2019-002685
Application 14/925,833
Technology Center 1700
____________

Before JEFFREY T. SMITH, JEFFREY B. ROBERTSON, and
N. WHITNEY WILSON, Administrative Patent Judges.

SMITH Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6 and 8–11. 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 Coating
Excellence International, LLC. Appeal Br. 1.
Appeal 2019-002685
Application 14/925,833

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STATEMENT OF THE CASE
Appellant’s invention relates generally to adhesives applied to a
substrate material and includes the addition of an antiblock agent applied
over the top of a hot melt or other adhesive applied to a substrate material,
such as woven polypropylene structures, polylaminates, etc., for the purpose
of eliminating the tackiness of the adhesive resulting in elimination of
double bag feeds during the process of filling bags that have adhesives
applied to them. (Spec. ¶¶ 3, 4. 15)
Claim 1 illustrates the subject matter on appeal and is reproduced
below:
1. In the manufacture of a polymeric woven bag for bulk
packaging of granular or finely ground materials, comprising: a
polymeric outer layer; an inner polymeric woven bag layer
laminated to or adhesively adhered to the outer layer; a first
panel and a second panel and an open end of the bag to be
pinched closed between the first panel and the second panel
after filling the bag with contents; a heat activated first adhesive
layer on a portion of the first panel to form an adhesive-to
adhesive seal by contact with a heat activated second adhesive
layer on a portion of the second panel, wherein the first
adhesive layer and the second adhesive layer have respective
heat activation temperatures below the softening point
temperature of the polymeric material, and wherein the first
adhesive layer and the second adhesive layer are dried and
impervious to water and are separate from each other to open
the bag end for filling with contents, and wherein after filling
the bag with contents the first adhesive layer and the second
adhesive layer are activatable to adhesive states to form the
adhesive-to-adhesive seal by an application of heat at a
temperature below the softening point temperature of the
polymeric material;
a method for reducing the tackiness of adhesives applied
to the polymeric woven bag during manufacture and
eliminating double bag feeds during filling of the bags, while
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allowing reactivation of the adhesives to form adhesive-to-
adhesive bonds of a bag closure system once a pinch end of the
bag is folded and sealed on itself, comprising applying an anti
block agent over the adhesives applied to the polymeric woven
bag, wherein said antiblock agent is a food grade starch powder,
and wherein the polymeric woven bag is a polywoven pinch
bag.

Appeal Br. 6, Claims Appendix.

The following rejection is presented for our review:2
Claims 1–6 and 8–11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Jansen (US 2013/0047555 A1, published Feb. 28, 2013)
in view of McBride et al. (US 5,217,803, issued June 8, 1993).
OPINION3
Upon consideration of the evidence of record and each of Appellant’s
contentions as set forth in the Appeal Brief, as well as the Reply Brief, we
determine that Appellant has not demonstrated reversible error in the
Examiner’s rejections of claims 1–6 and 8–11. In re Jung, 637 F.3d 1356,
1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of
requiring Appellant(s) to identify the alleged error in the Examiner’s
rejection). We have reviewed each of Appellant’s arguments for
patentability. We sustain the rejections of these claims generally for the

2 The complete statement of the rejection on appeal appears in the Final
Office Action. (Final Act. 2–4.)
3 We limit our discussion to the independent claim 1 as argued by Appellant.
37 C.F.R. § 41.37(c)(1)(iv). Claims 2–6 and 8–11 stand or fall with
independent claim 1.

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Application 14/925,833

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reasons expressed by the Examiner in the Final Office Action and the
Answer. (Ans. 3–6; Final Act. 2–4.) We add the following primarily for
emphasis.

The Examiner rejected claims 1–6 and 8–11 as obvious over the
combination of Jansen and McBride. The Examiner finds Jansen discloses a
method of making a bag wherein a first layer of heat activated adhesive
material is on a portion of a bag to form an adhesive-to-adhesive seal by
contact with a second layer of heat activated adhesive material on a portion
of the bag second panel as required by the independent claim 1. (Final Act.
2.) The Examiner determines Jansen does not teach applying an antiblock
agent over the adhesive portion of the polymeric woven bag as required by
the independent claim 1. (Final Act. 3.) The Examiner finds McBride
teaches antiblocking agents act to prevent film layers from sticking to one
another. (Final Act. 3.) The Examiner determines it would have been
obvious to apply antiblocking agents, e.g., starch powder, to the adhesive of
Jansen to reduce blocking between film layers. (Final Act. 3.)
Appellant argues Jansen does not teach applying an antiblock agent
over the adhesive applied to the polymeric woven bag and McBride teaches
applying antiblocking agents to prevent film layers from sticking to one
another. (Appeal Br. 4.) Appellant further argues a person of ordinary skill
in the art would not look to the teachings of McBride to suggest applying
antiblocking agents to the adhesive portion of the bag described by Jansen
because McBride relates to disposable absorbent articles. (Appeal Br. 4.)

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It has been established that the predictable use of known prior art
elements performing the same functions they have been known to perform is
normally obvious, and the combination of familiar elements is likely to be
obvious when it does no more than yield predictable results. KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also KSR, 550 U.S. at 418
(“the [obviousness] analysis need not seek out precise teachings directed to
the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.”). See also In re Fritch, 972 F.2d 1260, 1264–65
(Fed. Cir. 1992) (a reference stands for all of the specific teachings thereof
as well as the inferences one of ordinary skill in the art would have
reasonably been expected to draw therefrom).

Appellant’s argument that a person of ordinary skill in the art would
not have looked to the teachings of McBride are without persuasive merit.
Appellant’s argument is essentially that McBride is nonanalogous art.
Whether a prior art reference is analogous is a question of fact. See In re
Clay, 966 F.2d 656, 658 (Fed. Cir. 1992). The determination that a
reference is from non-analogous art is two-fold. First we must determine if
the reference is within the field of the inventor’s endeavor. If the reference
is not within the field of the inventor’s endeavor, we determine whether the
reference is reasonably pertinent to the particular problems with which the
inventor was involved. See In re GPAC Inc., 57 F.3d 1573, 1577 (Fed. Cir.
1995). In the present case, we agree with Appellant that McBride is not
directed to bags useful for bulk packaging. (Appeal Br. 5.) However,
McBride is concerned with the application of antiblocking agents to prevent
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Application 14/925,833

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adjacent polymeric layers from sticking to one another. (McBride 7, ll. 52–
64.) Consequently, McBride is reasonably pertinent to the problem
addressed by the present invention which is the sticking together of adjacent
layers.

Appellant does not dispute the Examiner’s finding that McBride
describes the application of starch antiblocking agents to substrates to
prevent adjacent layers from sticking to one another. (Final Act. 3.)
Appellant has not disputed the Examiner’s finding that Jansen describes a
method of making a bag having the heat activated adhesive layers required
by the claimed invention. A person of ordinary skill in the art would have
recognized that the application of a heat activated adhesive to bag substrates
could have created conditions wherein the adjacent substance would stick to
one another. A person of ordinary skill in the art would have recognized that
the heat activated adhesive layer of Jansen would achieve complete adhesive
force only after the application of heat. Consequently, a person of ordinary
skill in the art would have looked to prevent adjacent heat activatable layers
from sticking to one another until the appropriate time. As such, a person of
ordinary skill in the art would have looked to relevant prior art, such as
McBride, which provides solutions to the issue of adjacent polymeric
substrates sticking to one another. Appellant has not provided a technical
explanation why the solution provided by McBride for preventing adjacent
polymeric layers from sticking to one another would have been unsuitable
for the invention of Jansen.
It has been established that obviousness does not require absolute
predictability of success; all that is required is a reasonable expectation of
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Application 14/925,833

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success. In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009). Furthermore,
inasmuch as the application of starch anti-blocking agents was known to
persons of ordinary skill in the art to prevent adjacent polymeric layers from
sticking to one another, it is incumbent upon Appellant to establish that the
present inventors had to resort to more than routine experimentation to
determine if the known anti-blocking agents would have been effective to
prevent adjacent polymeric layers containing an heat activated adhesive
from sticking to one another, particularly in light of the teachings of the
references cited by the Examiner. However, no such evidence is of record.
Thus, Appellant has not shown reversible error in the Examiner’s
obviousness determination of claims 1–6 and 8–11. See KSR, 550 U.S. at
417 (the predictable use of known prior art elements or steps performing the
same functions they have been known to perform is normally obvious; the
combination of familiar elements/steps is likely to be obvious when it does
no more than yield predictable results); see also In re Merck & Co., Inc., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references.”) and In re Sneed, 710 F.2d 1544,
1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of the
references be physically combinable to render obvious the invention under
review.”).

CONCLUSION
In summary:
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Application 14/925,833

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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–6, 8–11 103 Jansen, McBride 1–6, 8–11

TIME PERIOD FOR RESPONSE
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)(1)(iv).

AFFIRMED