Scott HUFFER et al.

Patent Trials and Appeals Board

Aug 4, 2020

13584931 - (D) (P.T.A.B. Aug. 4, 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.
13/584,931 08/14/2012 Scott W. HUFFER 29958/09048 6963
27530 7590 08/04/2020
Nelson Mullins Riley & Scarborough LLP
IP Department
One Wells Fargo Center
301 South College Street, 23rd Floor
Charlotte, NC 28202
EXAMINER
STINSON, CHELSEA E.
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
08/04/2020 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):
ip@nelsonmullins.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SCOTT W. HUFFER and JACOB DONALD PRUE BRANYON

Appeal 2020-001295
Application 13/584,9311
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, SHEILA F. McSHANE, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant2 appeals from the
Examiner’s decision to reject claims 1–4, 7, 9, 10, 21, 27, 28, 31, and 32.3
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 This application includes a previous decision from this Board, Appeal
2017-006558, mailed March 8, 2018.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
“Sonoco Development, Inc.” Appeal Br. 1.
3 Claims 5, 6, 8, 11, 12, 19, 20, and 22 are withdrawn. Final Act. 2.
Claims 13–18, 23–26, 29, and 30 are cancelled. Id.
Appeal 2020-001295
Application 13/584,931

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STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellant states that invention “relates to a method of
manipulating thermoplastic film to create integrated features and particularly
relates to a method of manufacturing a packaging bag that is reclosable after
initial opening.” Spec. ¶ 1.
Claims 1 and 27 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter.
1. A method comprising:
layering multiple sections of thermoplastic film, wherein
said multiple sections are continuous and integral parts of said
film, to form a first multi-layer portion;
using a first heated shaping die to heat and apply pressure
to said multiple sections of said first multi-layer portion to
transform said first multi-layer portion into a unitary first
thicker portion of said film and simultaneously shape the
unitary first thicker portion into a first closure strip.

Rejections
Claims 1–4, 7, 9, 10, 27, 28, 31, and 32 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Forman (US 2001/0010253 A1, pub. Aug. 2,
2001).
Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Forman in view of Dais et al. (US 5,405,561, iss. Apr. 11, 1995) (“Dias”).

ANALYSIS
Claim 1 recites a method that includes “using a first heated shaping
die to heat and apply pressure to said multiple sections of said first multi-
layer portion to transform said first multi-layer portion into a unitary first
Appeal 2020-001295
Application 13/584,931

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thicker portion of said film and simultaneously shape the unitary first thicker
portion into a first closure strip.” Appeal Br. 7 (emphasis added). Claim 27
includes a similar method step. See id. at 9–10.
The Examiner finds that the claimed “first heated shaping die” reads
on lower heater block 57 of Forman’s closure former 70 and the claimed
“first multi-layer portion” reads on outer female section 22A of Forman’s
resealable package locking closure 22. Final Act. 2 (citing Forman ¶¶ 51,
62, Figs. 6, 9); see Forman ¶¶ 49, 60. The Examiner also finds that the
claimed “unitary first thicker portion” reads on resealable package locking
closure 22. Final Act. 3 (citing Forman Fig. 9).
The Appellant argues, Forman fails to disclose that “forming device
70 transforms a first multi-layer portion into a unitary first thicker portion of
said film.” Appeal Br. 4 (citing Forman ¶ 62). The Appellant contends that
“the Examiner is making an assumption which is not disclosed in the
reference.” Id. at 4–5. The Appellant’s argument is persuasive.
Forman’s resealable package locking closure 22 includes outer female
section 22A and inner male section 22B, where each section has multiple
thermally fused layers. Forman ¶¶ 51–52, Figs. 2, 3, 3A. Figure 2, for
example, shows outer female section 22A having three thermally fused
layers 23A, 23B, 23C. Id. ¶ 51. Closure 22 is formed at closure forming
device 70. See id. ¶¶ 59–62; Figs. 6, 9.
As shown in Forman’s Figure 6, closure former 70 is positioned away
from fanfolding device 29. At fanfolding device 29, film 25 is reversely
folded multiple times to create layers that are edge heat sealed into strips 30.
See id. ¶¶ 54–56, Figs. 6–8F. The layers of heat seal strip 30 are unsecured
between edge seals 53. Id. ¶ 56, Fig. 8F. Closure former 70, includes
Appeal 2020-001295
Application 13/584,931

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various dies, heaters, forming plates, and vacuum ports to transform heat
seal strip 30 –– disposed in two layers, one above the other –– into
resealable package locking closure 22 having outer female section 22A and
inner male section 22B. Forman ¶¶ 51, 60–62, Figs. 2, 6, 9.
As pointed out by the Appellants, there is no indication that the layers
of outer female section 22A, i.e., layers 23A, 23B, 23C, are a unitary thicker
portion as compared to the layers of heat seal strip 30, which are unsecured
between edge seals 53. Appeal Br. 4; Reply Br. 2–3. Stated otherwise,
when heat and pressure are applied by Forman’s closure former 70 to the
layers of heat seal strip 30, the layers do not change into unitary first thicker
portion. See Reply Br. 4–6.
Further, we note that the Examiner finds that the claimed “unitary first
thicker portion” reads on resealable package locking closure 22. Final
Act. 2–3. Consequently, it appears that the Examiner may be taking the
position that the claimed “unitary thicker portion” corresponds to resealable
package locking closure 22’s outer female section 22A and the inner male
section 22B together. See Ans. 8 (“Forman also discloses that the
conglomeration step occurs at 57 and 70 in Fig. 9 since the interlocking
closure is subsequently formed in this step.”) (citing Forman ¶ 56)4.
We find it difficult to understand the how the finding that the “unitary
first thicker portion” reads on Forman’s resealable package locking
closure 22, which includes a male part and a female part, is consistent with
the Examiner’s earlier finding that “first multi-layer portion” reads on the

4 The Examiner cites to Forman’s paragraph 565, which is a typographical
error. Ans. 8. In context of page 8 of the Answer, we understand the
citation to be Forman’s paragraph 56.
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Application 13/584,931

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layers of outer female section 22A, i.e., layers 23A–C. As discussed above,
layers 23A, 23B, 23C do not become a unitary first thicker portion by being
reformed into a shape that interlocks with inner male section 22B.
Moreover, an interlocking structure that is separable does not correspond
with the broadest reasonable understanding of the claim term “unitary first
thicker portion,” when read in light of the Specification as interpreted by one
of ordinary skill in the art. See Reply Br. 4–5; Spec. ¶¶ 33, 35–37, Figs. 1–
11.
Further, the Examiner fails to rely on Dais in any manner that would
remedy the deficiency in the Examiner’s rejection as discussed above. Thus,
we do not sustain the Examiner’s rejections of independent claims 1 and 27
and dependent claims 2–4, 7, 9, 10, 21, 28, 31, and 32.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § References/Basis  Affirmed Reversed
1–4, 7, 9,
10, 27, 28,
31, 32
102(b) Forman

1–4, 7, 9,
10, 27, 28,
31, 32
21 103(a) Forman, Dais 21
Overall
Outcome
1–4, 7, 9,
10, 21, 27,
28, 31, 32

REVERSED