Crosstex International, Inc.Download PDFPatent Trials and Appeals BoardJun 16, 20212020000103 (P.T.A.B. Jun. 16, 2021) Copy Citation 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 Copy with citationCopy as parenthetical citation