Ranpak Corp.

Patent Trials and Appeals Board

Dec 10, 2021

2021002587 (P.T.A.B. Dec. 10, 2021)

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.
15/604,982 05/25/2017 Robert C. Cheich RANPP0402USE 2683
23908 7590 12/10/2021
RENNER OTTO BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE
NINETEENTH FLOOR
CLEVELAND, OH 44115
EXAMINER
JALLOW, EYAMINDAE CHOSSAN
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
12/10/2021 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):
ipdocket@rennerotto.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT C. CHEICH, DAVID V. MURPHY,
STEVEN M. TONEFF, MAURICE JOZEF PAULUS ANTHONIUS
SAVELBERG, RAYMOND PAULUS HUBERTUS NOLLÉ, and
PEDRO ERIK WILLEM WINKENS

____________

Appeal 2021-002587
Application 15/604,982
Technology Center 3700
____________

Before STEFAN STAICOVICI, JILL D. HILL, and CARL M. DeFRANCO,
Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE.
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision in the Final Office Action (dated Feb. 6, 2020, hereinafter “Final

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Ranpak Corp. is identified as the real party in interest in
Appellant’s Appeal Brief (filed Sept. 8, 2020, hereinafter “Appeal Br.”).
Appeal Br. 2.
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Application 15/604,982

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Act.”) rejecting claims 23–32.2 We have jurisdiction over this appeal under
35 U.S.C. § 6(b).

SUMMARY OF DECISION
We REVERSE.

INVENTION
Appellant’s invention is directed to “a wrappable dunnage product”
including “multiple plies of sheet stock material connected together.” Spec.
2, l. 26, Spec. 3, ll. 27–28.
Claim 23, the sole independent claim, is representative of the claimed
invention and reads as follows:
23. A dunnage product comprising:
a first sheet that is longitudinally crumpled with
substantially parallel laterally-extending folds spaced at an
irregular pitch;
a second sheet that is connected face-to-face to the first
sheet to hold the first sheet in its crumpled state;
wherein the resulting dunnage product has a width
dimension parallel to the folds, a length dimension transverse
the folds, and a thickness dimension transverse the width
dimension and the length dimension, and the width dimension
is greater than the thickness dimension, and the first sheet and
the second sheet have substantially coextensive length and
width dimensions;
wherein the first sheet is connected to the second sheet at
regular intervals such that the length of the first sheet between
connection points is irregular due to the irregular pitch of the
folds in the first sheet.

Appeal Br. 12 (Claims App.)

2 Claims 1–22 are canceled. Appeal Br. 12 (Claims App.).
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REJECTIONS
I. The Examiner rejects claims 23, 24, and 30 under 35 U.S.C.
§ 102(b) as being anticipated by Vesamaa.3
II. The Examiner rejects claims 25–29 under 35 U.S.C. § 103(a) as
being unpatentable over Vesamaa and Fisher.4
III. The Examiner rejects claim 31 under 35 U.S.C. § 103(a) as
being unpatentable over Vesamaa and Parker.5
IV. The Examiner rejects claim 32 under 35 U.S.C. § 103(a) as
being unpatentable over Vesamaa and Cheich.6

ANALYSIS
Rejection I
The Examiner finds that Vesamaa discloses all the limitations of
independent claim 23 including “a first sheet (2) that is longitudinally
crumpled with substantially parallel laterally-extending folds spaced at an
irregular pitch.” Final Act. 2 (citing Vesamaa, Figs. 1, 3) (emphasis
omitted).
Appellant argues “that what Vesamaa discloses is a sheet that is
longitudinally folded with substantially parallel laterally-extending folds
with a regular spacing, or pitch, and therefore cannot anticipate claim 23.”
Appeal Br. 9 (emphasis omitted).

3 Vesamaa, US 5,558,923, issued Sept. 24, 1996.
4 Fisher et al., US 2003/0139772 Al, published July 24, 2003. We consider
the Examiner’s reference to “Simmons” to be a typographical error.
5 Parker, US 5,712,020, issued Jan. 27, 1998.
6 Cheich et al., US 2008/0153685 Al, published June 26, 2008.
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The Examiner responds that Vesamaa’s “Figs. 1 and 3 explicitly
depict an irregular pitch in web 2.” Examiner’s Answer (dated Jan. 4, 2021,
hereinafter “Ans.”) 3. We reproduce below the Examiner’s annotated Figure
3 of Vesamaa:

The Examiner’s annotated Figure 3 of Vesamaa illustrates “same length
arrows [that] only fit into the first crest, not the second.” Id. (emphasis
omitted). In addition, the Examiner “asserts that Fig. 3 of Vesamaa depicts
the addition of a pleat (12), which alters the pitch of the second peak.”
Advisory Action (dated Apr. 6, 2020, hereinafter “Advisory Act.”) 2. The
Examiner further finds that “[a]fter formation of the allegedly regular
creases in the Vesamaa reference, the material properties of the kraft paper
. . . would not retain uniformity throughout,” that is, would “allow the shape
of the dunnage to be altered.” Ans. 3, 4 (citing Vesamaa, col. 3, ll. 22–24,
Figs. 1, 3).
As correctly pointed out by Appellant, Vesamaa’s Figures 1 and 3 are
schematic, and, as such, are not drawn to scale. See Reply Brief (filed Mar.
4, 2021, hereinafter “Reply Br.”) 1; see also Hockerson-Halbertstadt, Inc. v.
Avia Group Int'l, 222 F.3d 951,956 (Fed. Cir. 2000) (patent drawings not
designated as being drawn to scale cannot be relied upon to define precise
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proportions of elements if the specification is completely silent on the issue).
Accordingly, while we do not necessarily agree with Appellant that
Vesamaa discloses a sheet that is longitudinally folded with substantially
parallel laterally-extending folds with a regular spacing, nonetheless, the
Examiner’s determination that the folds of Vesamaa’s sheet 2 illustrated in
Figure 3 are spaced at an “irregular pitch” requires speculation on the
Examiner’s part. Patentability determinations “should be based on evidence
rather than on mere speculation or conjecture.” Alza Corp. v. Mylan
Laboratories, Inc., 464 F.3d 1286, 1290 (Fed. Cir. 2006). We further agree
with Appellant that even though Vesamaa discloses pleats 12, nonetheless,
such “pleats are still formed by the embossing process, forming the same
pleats and folds in a regularly-spaced manner.” Appeal Br. 10 (citing
Vesamaa, Fig. 9).
Furthermore, we appreciate that Vesamaa discloses the use of “kraft
paper.” See Vesamaa, col. 3, l. 23. However, Appellant is correct that
Vesamaa “says nothing about whether the kraft paper holds the regular
creases.” Reply Br. 2. Moreover, we agree with Appellant that Vesamaa
specifically discloses shaping rolls 16, 17 as forming pleats 4 in web 2 “by
permanent deformation” such that web 2 will “retain its embossed
configuration.” Id (citing Vesamaa, col. 8, ll. 35–40) (emphasis omitted).
Hence, the Examiner’s position that “the material properties of the kraft
paper allow the shape of the dunnage to be altered” likewise requires
speculation on the Examiner’s part. See Ans. 4.
In conclusion, for the foregoing reasons, we do not sustain the
rejection under 35 U.S.C. § 102(b) of claims 23, 24, and 30 as anticipated by
Vesamaa.
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Rejections II–IV
The Examiner does not contend that either Fisher, Parker, or Cheich
cure the deficiency of Vesamaa discussed supra. See Final Act. 3–7.
Therefore, for the same reasons discussed above, we also do not sustain the
rejections under 35 U.S.C. § 103(a) of claims 25–29 as unpatentable over
Vesamaa and Fisher; of claim 31 as unpatentable over Vesamaa and Parker;
and of claim 32 as unpatentable over Vesamaa and Cheich.

DECISION SUMMARY

Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
23, 24, 30 102(b) Vesamaa 23, 24, 30
25–29 103(a) Vesamaa, Fisher 25–29
31 103(a) Vesamaa, Parker 31
32 103(a) Vesamaa, Cheich 32
Overall
outcome
23–32

REVERSED