Crosstex International, Inc.

Patent Trials and Appeals Board

Jun 16, 2021

2020000103 (P.T.A.B. Jun. 16, 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.
14/554,928 11/26/2014 Andrew G. Whitehead 1652-61 1098
109802 7590 06/16/2021
Sorell, Lenna & Schmidt, LLP
99 Smithtown Bypass, 2nd Floor
Hauppauge, NY 11788
EXAMINER
YOO, REGINA M
ART UNIT PAPER NUMBER
1799
NOTIFICATION DATE DELIVERY MODE
06/16/2021 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):
npinou@slsllp.com
smoon@slsllp.com
wschmidt@slsllp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW G. WHITEHEAD, MITCHELL V. STEINBERG, and
CHARLES A. HUGHES
Appeal 2020-000103
Application 14/554,928
Technology Center 1700
Before JEFFREY B. ROBERTSON, DONNA M. PRAISS, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL

Appeal 2020-000103
Application 14/554,928
2
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 14–19, and 21–23. See Non-Final
Action entered March 8, 2018 (“Non-Final Act.”) 3, 9, 17.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A sterilization package comprising:
a first package layer;
a second package layer having a top surface coupled to the
first package layer with a perimeter seal extending around a
portion of the sterilization package to define a pouch having a
proximal end and a distal end, the pouch including a sealable
opening at the proximal end;
a first sterilization indicium disposed on the second
package layer exterior of the pouch and proximate a distal end of
the second package layer, the first sterilization indicium disposed
on the top surface of the second package layer;
a second sterilization indicium disposed on the second
package layer interior of the pouch and proximate the distal end
of the pouch, the second sterilization indicium disposed on the
top surface of the second package layer, the first sterilization
indicium and the second sterilization indicium being both
disposed on the same top surface of the second package layer;

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 Crosstex
International, Inc. Appeal Br. 2.
2 The record shows that at least Non-Final Rejections of July 13, 2016 and
April 28, 2017 as well as Final Rejections of January 19, 2017 and October
23, 2017 have been issued.
Appeal 2020-000103
Application 14/554,928
3
a bar spaced apart from and proximate to the second
sterilization indicium; and
wherein the first and second sterilization indicia are
multiparameter sterilization indicia configured to be responsive
to a sterilization process such that the first and second
sterilization indicia undergo a visual change to a desired ending
color when the package is subjected to complete multi-parameter
sterilization conditions, wherein the first package layer covers
the first sterilization indicium and the second sterilization
indicium.
Claims Appendix (Appeal Br. Appendix 1) (emphasis added).
REFERENCES
The prior art references relied upon by the Examiner are:
Name Reference Date
Augurt US 3,991,881 Nov. 16, 1976
Lewis US 4,091,921 May 30, 1978
Hirsch US 4,358,015 Nov. 9, 1982
Wittrock US 5,344,017 Sept. 6, 1994

REJECTION
The Examiner maintains the following rejections:
Claims Rejected 35 U.S.C. § Reference(s)/Basis
1–7 103 Augurt, Wittrock
14–19, 21, 23 103 Augurt, Wittrock, Hirsch
22, 23 103 Augurt, Wittrock, Hirsch, Lewis

OPINION
Claim 1
In rejecting claim 1, the Examiner acknowledges that Augurt does not
disclose “the first sterilization indicium and the second sterilization indicium
Appeal 2020-000103
Application 14/554,928
4
being both disposed on the same top surface of the second package layer”
but finds that it was known “to provide a sterilization indicator between a
first and a second package layer.” Non-Final Act. 6. As support, the
Examiner finds that Wittrock teaches a package having one sterilization
indicium disposed on a surface of a layer of a prior art sterilization package.
Id.
Appellant submits a Declaration from Mr. Andrew G. Whitehead,
who is one of the named inventors. The Declaration states: “Augurt has the
indicia 17 and 18 on a substrate layer 19 on the back of the pouch, and the
indicia 17` and 18` on a substrate layer 20 in the front of the pouch.” Decl. ¶
14. The declarant concludes that “both sets of indicia are not placed on the
same surface layer[.] Id. ¶ 13. In response to paragraph 14 of the
Declaration, the Examiner states: “both sets of the indicia are located on a
same substrate but on opposite surfaces as Augurt clearly teaches . . . that the
indicia 17 and 18 are on the surface 19 of substrate 11 and the indicia 17`
and 18` on the surface 13 of substrate 11.” Ans. 23.
Consistent with the Examiner’s findings that the prior art indicators 17
and 17` (or 18 and 18`) are disposed “on opposite surfaces” (id.), Augurt
states: “One member 17, 18 of each respective pair of indicators is located
on the surface 19 of substrate 11, and each corresponding member 17`, 18`
of the pair is located on the surface 13 of substrate 11.” Augurt 2:58–62. The
record therefore does not show the first and second sterilization indicia
“being both disposed on the same top surface of the second package layer”
as required by claim 1. See Non-Final Act. 5 (finding that the first and
second sterilization indicia are 17 and 17` or 18 and 18`).
Based on the record before us, the Examiner has not set forth a factual
basis that is sufficient to support a conclusion of obviousness of the
Appeal 2020-000103
Application 14/554,928
5
Appellant’s claimed structure. See In re Warner, 379 F.2d 1011, 1017
(CCPA 1967) (“A rejection based on section 103 clearly must rest on a
factual basis, and these facts must be interpreted without hindsight
reconstruction of the invention from the prior art”). Accordingly, we reverse
the rejection of claim 1. The rejection of claims dependent from claim 1 is
reversed for the same reason. The rejection of independent claim 14 (and its
dependent claims) is reversed as well for the same reason.
CONCLUSION
The Examiner’s rejections are reversed.
More specifically,
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7 103 Augurt, Wittrock 1–7
14–19, 21,
23
103 Augurt, Wittrock,
Hirsch
14–19, 21,
23
22, 23 103 Augurt, Wittrock,
Hirsch, Lewis
22, 23
Overall
Outcome
1–7, 14–19,
21–23

REVERSED