Sonoco Development, Inc.

Patent Trials and Appeals Board

Apr 23, 2020

14928489 - (D) (P.T.A.B. Apr. 23, 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.
14/928,489 10/30/2015 Scott Huntington Hartley 29958/09088 8998
27530 7590 04/23/2020
Nelson Mullins Riley & Scarborough LLP
IP Department
One Wells Fargo Center
301 South College Street, 23rd Floor
Charlotte, NC 28202
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
04/23/2020 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 HUNTINGTON HARTLEY

Appeal 2019-005936
Application 14/928,489
Technology Center 3700
____________

Before JENNIFER D. BAHR, JOHN C. KERINS, and
MICHAEL L. WOODS, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1, 2, 7, 10, 12, 14–17, and 21–26.1 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Sonoco Development, Inc., as the real
party in interest. Appeal Br. 1.
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Application 14/928,489

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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a package defining a compartment for
storing contents. Claim 1 is illustrative, and is reproduced below:
1. A package defining a compartment for storing contents,
the package comprising:
a first panel and a second panel defining first and second side
edges,
wherein the first panel is peripherally sealed to the second panel
via first and second longitudinal seals formed along adjoining
first and second side edges to define the compartment
therebetween, and
wherein at least one of the first or second panel comprises a
laminate structure including:
a first film layer defining a first surface, adjacent the
compartment, and a second surface opposite the first surface,
wherein the first layer includes a predefined cut through the first
and second surfaces;
a second film layer laminated to the second surface of the first
layer, wherein the second layer comprises an integrated pull strip
that is defined on at least two sides by a continuous line of
weakness formed through a portion, but not through the entire
thickness, of the second layer and generally comprises an
elongated shape,
wherein the pull strip comprises an end defined via a continuous
cut line formed through the entire thickness of the second layer,
wherein the end is disposed within the second longitudinal seal,
wherein the pull strip overlies the predefined cut and is
configured to be separated from a remainder of the second layer
by a user,
wherein the predefined cut defines a first edge and a second edge
adjacent the first edge, and wherein separation of the pull strip
from the package serves to expose the predefined cut and allows
the first and second edges to be moved apart to provide access to
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the compartment and the contents stored therein via the
predefined cut,
wherein the second layer is laminated to the second surface of
the first layer via an adhesive, wherein the adhesive is pattern
applied, and
wherein the pull strip is defined in an adhesive-free region of the
laminate.

THE REJECTIONS
The Examiner rejects:
(i) claims 1, 2, 7, 10, 12, 14–17, 21, 22, 25, and 26 under 35 U.S.C.
§ 103 as being unpatentable over Huffer (US 2011/0038569 A1, published
Feb. 17, 2011) in view of Goepfert (US 2005/0109652 A1, published May
26, 2005) and Veternik (US 2011/0204056 A1, published Aug. 25, 2011);
(ii) claim 23 under 35 U.S.C. § 103 as being unpatentable over Huffer
in view of Goepfert, Veternik, and Abe (US 2005/0078890 A1, published
Apr. 14, 2005); and
(iii) claim 24 under 35 U.S.C. § 103 as being unpatentable over
Huffer in view of Goepfert, Veternik, and Clune (US 6,991,375 B2, issued
Jan. 31, 2006).
Withdrawn by the Examiner on appeal are rejections of claims 3, 4,
and 27 under various provisions of 35 U.S.C. § 112. Answer 2–3. As noted
in the Answer, claims 3, 4, and 27 were proposed to be canceled in a
Response After Final Action, dated May 1, 2018, with the Response being
entered as detailed in an Advisory Action dated July 11, 2018.2 Id. at 3.

2 Appellant filed its Appeal Brief on June 18, 2018, prior to the issuance of
the July 11, 2018, Advisory Action. Appellant included argument directed
to a rejection of claim 27 under § 112 as failing to comply with the written
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ANALYSIS
Claims 1, 2, 7, 10, 12, 14–17, 21, 22, 25, and 26--35 U.S.C. § 103--
Huffer/Goepfert/Veternik
Appellant argues the claims as a group, presenting arguments
collectively directed to independent claims 1, 10, and 15, and presenting no
separate arguments for any of the dependent claims subject to this rejection.
Appeal Br. 6 (“The cited references fail to teach at least the following
claimed elements, each of which is set forth in the independent claims.”)
(emphasis omitted). We take claim 1 as representative of the group, and
claims 2, 7, 10, 12, 14–17, 21, 22, 25, and 26 stand or fall with claim 1.
The rejection of claim 1 is based principally on the teachings of
Huffer, which, according to the Examiner, discloses most of the limitations
in claim 1. Final Act. 5–6. The Examiner finds that Huffer lacks a teaching
of a pull strip positioned in an adhesive-free region of a laminate making up
a first or second panel; and lacks a teaching that first and second panels are
peripherally sealed to each other via first and second longitudinal seals, with
the end of the pull strip being a continuous cut line disposed within the
second longitudinal seal. Id. at 6–7.
In Huffer, the region underlying pull strip 136 in Figures 6 and 7
thereof is not adhesive-free, and instead employs a non-permanent pressure-
sensitive adhesive 152 underlying the peel strip. Huffer ¶ 41. Huffer, being

description requirement. Appeal Br. 12–13. Since Appellant did not,
subsequent to the Response After Final Action dated May 1, 2018, seek to
rescind the request therein to cancel claim 27, we understand Appellant's
Appeal Brief arguments directed to claim 27 to nave been contingent, in the
event that the Response After Final Action were not entered.
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concerned with providing means for resealing a package, recognizes that
pressure sensitive adhesive 152 can “become fouled by bits of the contents”
being removed from the package, once opened, reducing its tackiness.
Huffer ¶ 44. In this Figure 6/7 embodiment cited by the Examiner, Huffer
does not rely on pressure sensitive adhesive 152 as a resealing surface, and
instead provides a separate pull strip with an underlying adhesive to provide
the resealing surface. Huffer ¶¶ 41–44.
Noting the recognized drawback of having contents of the package
stick to adhesive surrounding a predefined cut during dispensing, the
Examiner cites to Goepfert as disclosing a package having pull strip 24 with
the area underlying pull strip 24 being an adhesive-free region. Final Act. 6.
The Examiner concludes that it would have been obvious to modify Huffer
such that pull strip 136 overlies an adhesive-free region of the laminate, in
order to “allow for optimum dispensing, such as by preventing contents of
the package from sticking to the adhesive during dispensing.” Final Act. 7.
The Examiner cites to Veternik as disclosing a package similar to that
of Huffer, in which first and second panels define first and second edges,
with the panels being peripherally sealed to one another, and having a pull
strip with an end being a continuous cut line disposed within a second
longitudinal seal. Final Act. 7. The Examiner concludes that it would have
been obvious, in view of these teachings in Veternik, to have modified
Huffer by peripherally sealing its first and second panels via first and second
longitudinal seals, and configuring the end of the pull strip to be disposed
within the second longitudinal seal, in order to provide a package structure
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that preserves package integrity and preserves the hermetic seal of the
packaging. Id. at 8.
First and Second Side Panels, First and Second Side Edges
Appellant first argues that none of the references teaches a package
having a first panel and second panel defining first and second side edges,
averring that both Huffer and Veternik disclose tubular packaging structures.
Appeal Br. 6. The Examiner replies that the formed package in Huffer has a
first panel defining a front wall of the package extending between opposing
left and right edges and between top and bottom edges, and a second panel
defining a back wall of the package extending in the same manner. Ans. 3–
4. The Examiner also points out that Veternik discloses package 700 in
Figures 20–24 having top wall 802 and bottom wall 804 extending between
opposing left and right side edges 706 and between opposing top and bottom
edges. Id. at 4.
The Examiner has the better positon here. Appellant does not explain
how or why claim 1 should be interpreted such that the finished package in
Huffer is structurally distinguishable from the claimed first and second
panels. We also note that Huffer, in an embodiment not relied on by the
Examiner in that it does not employ a pull strip, discloses a package having
first and second panels joined by top and bottom seals, and two side seals.
Huffer, Figs. 10–13, ¶ 45. Huffer, noting that the embodiment in Figure 1
relied on by the Examiner is “illustrative,” also advises that “[t]he particular
converting process and equipment used for making the package is not
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important to the present invention, as the invention has broad applicability.”
Huffer ¶ 29.
First and Second Longitudinal Seals, End of Pull Strip in Second Seal
Appellant next argues that none of the cited references discloses that a
first panel is sealed to a second panel via first and second longitudinal seals
formed along adjoining side edges, as claimed. Appeal Br. 6–8. Appellant
points out that the Examiner’s position is that Huffer fails to teach this
limitation.3 Appellant additionally argues that, according to paragraph 2 in
Veternik, the packaging structure therein is a continuous tube packaging
structure using one single panel, the longitudinal edges of which are sealed
together to form only a single fin seal. Id. at 7–8. Appellant reproduces
Figure 1 of Veternik in arguing that the packaging has only one longitudinal
seal 14, whereas claim 1 requires two. Id. at 7.
The Examiner points out that the rejection does not rely on the
Veternik embodiment illustrated in Figure 1 thereof, but instead relies on the
embodiment shown in Figures 20–24 and discussed at paragraphs 72–80.
Ans. 4–5. The Examiner thus finds Appellant’s argument to not be
responsive to the rejection as presented. Id. at 5. We agree.
Appellant’s Reply Brief reiterates the arguments alleging that
Veternik discloses only a single fin seal as its longitudinal seal, and
maintains that “[t]he longitudinal edge of Veternik is defined by its
longitudinal axis.” Reply Br. 2 (citing Veternik ¶ 48) (emphasis omitted).
Appellant avers that “[t]he longitudinal axis of the tube shown in Figs. 20–
24 of Veternik is not the axis of the end seals 704/706,” and that “Veternik

3 As discussed above, Huffer does appear to teach this limitation, albeit in an
embodiment (Figures 10–13) not relied on by the Examiner in the rejection.
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repeatedly refers to element 704 . . . as the end seal, which would be
perpendicular to the longitudinal axis of the tubular structure.” Id.
Appellant thus posits that the end seals in Veternik are not longitudinal in
nature, and do not meet the claim limitations requiring longitudinal seals.
Id. at 3.
Appellant’s insistence that the embodiment in Figures 20–24 of
Veternik necessarily involves a “tube” or a “tubular structure” is not well
founded. Veternik makes no mention that the package in this embodiment is
formed from a tube and makes no mention of the presence of a fin seal, such
that it might be inferred that the package is formed from a tube. Veternik
does mention that package 700 that is the subject of Figures 20–24 can be
formed as part of a continuous vertical or horizontal form, fill, and seal
process, and made from a single web of material, which is suggestive that a
fin seal would be present on the package. However, Veternik discloses as
well, in paragraph 48 cited by Appellant as evidencing the tubular nature of
the packaging, that the packaging may be made in a discontinuous process,
“[f]or example, preformed pouches could be produced that can be filled
from an open end, which can then be sealed.” Such pouches would
seemingly not employ a single fin seal to seal the edges of a single web of
material to form a tube.
Appellant also does not address the Examiner’s position that the term
“longitudinal” generally relates to length, and that, in both Appellant’s
invention and in Veternik, the longitudinal seals are characterized by
extending in a direction perpendicular to the pull strip. Ans. 5. We infer
from this that the Examiner considers the pull strip to be in a width direction
of the package, which we find to be reasonable, and thus the
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perpendicularly-oriented seals would be in a length, or longitudinal
direction. In this regard, Appellant’s Specification informs that “although
the terms ‘upper,’ ‘lower,’ ‘left,’ ‘right,’ ‘front,’ ‘rear,’ ‘top,’ and ‘bottom’
may be used in the description herein to refer to certain parts of the depicted
package, such terms are used for ease of explanation only and are not
absolute,” and that “the depicted package, for example, may be flipped over,
turned around, etc.” Spec. ¶ 26. In a similar vein, “longitudinal” and
“length” need not necessarily be taken relative to a pair of sides having the
greatest dimension, but rather may relate to package orientation, as the
Examiner’s position indicates.
Appellant’s arguments thus fail to apprise us of error in this aspect of
the rejection.
It is also worthwhile noting again that Huffer includes an embodiment
(Figures 10–13) that employs first and second longitudinal seals arranged
perpendicularly to a tear strip, and that appears to be suitable for use with a
pull strip as disclosed in either Figures 5 and 6 of Huffer, or in Figures 20–
24 of Veternik. Abe, cited in the rejection of dependent claim 23, also
discloses packaging having two longitudinal seals 9-2 extending
perpendicularly to a direction across which the package is to be opened, with
a tear-starting tab portion 12 disposed within one of the longitudinal seals.
Abe, Figs. 2–4, 6; ¶¶ 44–45.
Pull Strip Defined in Adhesive-Free Region
Appellant argues that “[t]he Examiner provided no support for how
element 24 of Goepfert is interpreted as a pull strip based on the claims,”
and affirmatively asserts that “Goepfert does not teach a pull strip as such is
claimed, or a pull strip at all.” Appeal Br. 11. Appellant additionally
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maintains that one of ordinary skill in the art would not have looked to
Goepfert for modification of the Huffer pull strip “because Goepfert doesn’t
teach a pull strip.” Id. at 12. Appellant also asserts that the Examiner
admits that Goepfert does not teach a pull strip. Id. at 11. Appellant
reiterates certain of these arguments at pages 3 and 4 of the Reply Brief.
As to the assertion that the Examiner admits that Goepfert lacks a
pull strip, the Examiner does no such thing. The Examiner acknowledges
that Goepfert was not cited as teaching a pull strip having every claimed
structural feature, and correctly notes that, in the context of the overall
rejection, in which Huffer is relied on as meeting those limitations, Goepfert
need not teach every claimed feature in order to qualify as prior art citable in
a § 103 rejection. See Ans. 6. The Examiner accurately, and more than
adequately, explains how the Goepfert package is constructed, and how
element 24 is pulled to separate two portions of second layer 14 of a
laminate along a line of weakness, to expose an underlying predefined cut 13
in first layer 12, much in the same manner as the pull strip in Huffer
operates.
As such, although we do not find error in the Examiner’s
characterization of Goepfert as disclosing a pull strip, even if we did, we
view the proposed modification of Huffer in view of Goepfert to be well-
articulated and supported by rational underpinnings. With regard to
Appellant’s insistence that the references are not properly combinable due
solely to the alleged lack of disclosure in Goepfert of a pull strip closely
resembling the one in Huffer and the one claimed, we note that “[a] person
of ordinary skill is also a person of ordinary creativity, not an automaton.”
KSR Int’l. Co. v. Teleflex lnc., 550 U.S. 398, 421 (2007).
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Appellant does not otherwise take issue with the Examiner’s finding
that Goepfert discloses an adhesive-free region, nor with the reason
articulated by the Examiner in concluding that it would have been obvious to
modify Huffer to include an adhesive-free region where the Huffer pull strip
is defined. Accordingly, we are not apprised of error in the rejection on this
front.
The rejection of claim 1 as being unpatentable over Huffer, Goepfert,
and Veternik is sustained. Claims 2, 7, 10, 12, 14–17, 21, 22, 25, and 26 fall
with claim 1.

Claim 23--35 U.S.C. § 103--Huffer/Goepfert/Veternik/Abe
Appellant presents no arguments separately traversing this rejection.
We therefore assume that Appellant relies on the arguments directed to
claim 1 for claim 23 as well. For the reasons stated in the foregoing section,
we sustain this rejection of claim 23.

Claim 24--35 U.S.C. § 103--Huffer/Goepfert/Veternik/Clune
Appellant presents no arguments separately traversing this rejection.
We therefore assume that Appellant relies on the arguments directed to
claim 1 for claim 24 as well. For the reasons stated in the foregoing section,
we sustain this rejection of claim 24.

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DECISION
The rejection of claims 1, 2, 7, 10, 12, 14–17, 21, 22, 25, and 26 under
35 U.S.C. § 103 as being unpatentable over Huffer, Goepfert, and Veternik
is affirmed.
The rejection of claim 23 under 35 U.S.C. § 103 as being unpatentable
over Huffer, Goepfert, Veternik, and Abe is affirmed.
The rejection of claim 24 under 35 U.S.C. § 103 as being unpatentable
over Huffer, Goepfert, Veternik, and Clune is affirmed.

CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 2, 7, 10,
12, 14–17,
21, 22, 25,
26
103 Huffer, Goepfert, Veternik 1, 2, 7, 10,
12, 14–17,
21, 22, 25,
26

23 103 Huffer, Goepfert, Veternik,
Abe
23
24 103 Huffer, Goepfert, Veternik,
Clune
24
Overall
Outcome

1, 2, 7, 10,
12, 14–17,
21–26

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED