14742166 - (D) (P.T.A.B. Sep. 2, 2020)

Pouch Pac Innovations, LLC

Patent Trials and Appeals BoardSep 2, 2020

14742166 - (D) (P.T.A.B. Sep. 2, 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. 14/742,166 06/17/2015 R. Charles Murray PPI-35002/08 205528-510 7743 25006 7590 09/02/2020 DINSMORE & SHOHL LLP 900 WILSHIRE DRIVE SUITE 300 TROY, MI 48084 EXAMINER ATTEL, NINA KAY ART UNIT PAPER NUMBER 3734 NOTIFICATION DATE DELIVERY MODE 09/02/2020 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): MichiganPatTM@dinsmore.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte R. CHARLES MURRAY Appeal 2019-003281 Application 14/742,166 Technology Center 3700 Before STEFAN STAICOVICI, ANNETTE R. REIMERS, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 4, 5, 7–13, and 21. An oral hearing was held on July 29, 2020. A transcript of that hearing (“Tr.”) is included in the record. 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(a). Appellant identifies the real party in interest as Pouch Pac Innovations, LLC. Appeal Br. 2. Appeal 2019-003281 Application 14/742,166 2 CLAIMED SUBJECT MATTER The claims are directed to a flexible pouch. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A flexible pouch adapted to stand unsupported, the pouch having a product storage area for containing a carbonated beverage, the flexible pouch comprising: a pair of walls sealed together at a top edge seal and a pair of side edge seals; a one way pressure relief valve mounted in the top portion of one of the pair of walls, the pressure relief value adapted to permit gas produced by the beverage to flow only out of the product storage area; and a U-shaped seal formed in the pair of walls positioned between the pair of side edge seals, the U-shaped seal having a curved portion extending between a pair of spaced apart portions, each of the pair of the spaced apart portions having an end spaced apart from the top edge seal, the pressure relief valve positioned between the pair of spaced apart portions, the U-shaped seal positioned adjacent the top seal so as to block product in the product storage area from interfering with operation of the pressure relief valve and permit gas to flow through gaps formed between the top edge seal and U-shaped seal. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Anderson US 2006/0131328 A1 June 22, 2006 Murray US 2007/0217717 A1 Sept. 20, 2007 Reilly US 2011/0103716 A1 May 5, 2011 Kuribayashi2 JP 08198274 A Aug. 8, 1996 2 An English language machine translation is provided by the Examiner. Appeal 2019-003281 Application 14/742,166 3 REJECTIONS Claims 1, 2, 4, 5, 7–9, 13, and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Anderson, Reilly, and Kuribayashi. Claims 10–12 are rejected under 35 U.S.C. § 103 as being unpatentable over Anderson, Reilly, Kuribayashi, and Murray. OPINION Appellant argues claims 1, 2, 4, 5, 7–9, 13, and 21 as a group. Appeal Br. 4–6. We select claim 1 as representative. Claims 2, 4, 5, 7–9, 13, and 21 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Claims 10–12 ultimately depend from claim 1. Appellant does not present separate argument for those claims. Initially, we note that arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv); In re Jung, 637 F.3d 1356, 1365–66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075–76 (BPAI 2010 (precedential)). As explained below, we have enough of the Examiner’s findings and rationale unrebutted to warrant affirmance on that basis alone. The Examiner finds that Anderson teaches the majority of features recited in claim 1, but does not teach its “flexible pouch being adapted to stand unsupported.” Non-Final Act. 2–3. The Examiner finds that Reilly teaches this feature and reasons that “it would have been obvious . . . to have modified Anderson by configuring the pouch with a gusseted bottom, as taught by Reilly, in order to form a pouch that is adapted to stand upright.” Id. at 3. Appellant acknowledges that “Reilly discloses a stand up pouch,” but contends that Reilly’s pouch is “for transportation of carry out food from a restaurant” and does not include other features of the claim, such as a one way valve. Appeal Br. 5. Appellant’s contentions are not persuasive Appeal 2019-003281 Application 14/742,166 4 because they do not address the Examiner’s findings or rationale for modifying Anderson’s teachings based on those from Reilly. Moreover, Appellant acknowledged at oral hearing that the “stand unsupported” feature recited in the preamble is not even a structural limitation of claim 1. See Tr. 5:18–6:21. The Examiner finds that Anderson does not teach the specific U- shaped seal arrangement including the positioning recited in claim 1. Non- Final Act. 3–4. The Examiner finds that Kuribayashi teaches the U-shaped seal features missing from Anderson. Id. at 4. The Examiner reasons that it would have been obvious . . . to have modified Anderson by replacing the U-Shaped seal with the U-Shaped seal as taught by Kuribayashi, such that the U-shaped seal is additionally positioned between the pair of sealed edges and configured with a curved portion extending between a pair of spaced apart portions, and such that the U-shaped seal is configured to permit gas to flow through gaps formed between the top edge seal and each of the spaced apart portions of the U-shaped seal, as the substitution of one known evacuation mechanism for an alternative known evacuation mechanism to achieve the equivalent and predictable results. Id. at 4–5. The Examiner also provides an alternate basis for modifying Anderson’s seal, explaining that “changing the shape of a seal around a pressure relief valve in order to create a functionally equivalent barrier and fluid pathway would have been obvious.” Id. at 5 (citing In re Dailey, 357 F.2d 669 (CCPA 1966)). A change in shape is obvious as a matter of design choice where an appellant does not show the shape was significant or beyond what was obvious to perform the same function. In re Dailey, 357 F.2d at 672–73. Notably, Appellant does not address this alternate rationale provided by the Appeal 2019-003281 Application 14/742,166 5 Examiner, leaving this portion of the rejection unrebutted. For this reason alone, we are not apprised of error in the Examiner’s reasoning to modify Anderson’s seal in the manner proposed to meet the U-shaped seal arrangement and location recited in claim 1. Appellant’s Specification makes clear that no particular significance is attached to the U-shape, and that “barrier seal 45 could take different shapes,” such as “a simple line shape covering a minimal area, . . . generally V-shaped or C-shaped, . . . a 3 sided box, or any other shape[] known to those skilled in the art that would assist in keeping product away from the valve 40.” Spec. ¶ 16. There is no dispute that Anderson’s seal would assist in keeping product away from its valve. Appellant fails to apprise us of any persuasive reason as to why the proposed modification to Anderson’s seal is anything more than design choice. See, e.g., Tr. 8:23–10:9 (acknowledging that the Appeal Brief did not address the design choice rationale). Moreover, we are not apprised of error in the Examiner’s findings regarding Kurabayashi or the reasons to modify Anderson’s teachings based on those of Kurabayashi. Rather than addressing the actual findings or rationale relied on by the Examiner, Appellant’s contentions address the location of Kuribayashi’s valve and the substitution of that valve including its location in Anderson’s pouch, which is not the basis for the Examiner’s rejection. Appeal Br. 4–5. To the extent Appellant also disputes whether Reilly or Kuribayashi is analogous art, those contentions, too, are unpersuasive. See Appeal Br. 5 (never mentioning the analogous art test, but alleging that none “of the references directed to the problem solved by Appellant’s invention”). We see no dispute that the cited references are in the same field of endeavor as Appeal 2019-003281 Application 14/742,166 6 Appellant’s invention. Indeed, there is no dispute that each of the cited references relates to flexible packaging with valves. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 5, 7–9, 13, 21 103 Anderson, Reilly, Kuribayashi 1, 2, 4, 5, 7–9, 13, 21 10–12 103 Anderson, Reilly, Kuribayashi, Murray 10–12 Overall Outcome 1, 2, 4, 5, 7–13, 21 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