CRYOVAC, INC.

Patent Trials and Appeals Board

Jun 23, 2021

2020006630 (P.T.A.B. Jun. 23, 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.
14/783,816 10/09/2015 Riccardo Palumbo D-44843-01 8036
28236 7590 06/23/2021
Sealed Air Corporation
Patent Department
2415 Cascade Pointe Boulevard
Charlotte, NC 28208
EXAMINER
FRY, PATRICK B
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
06/23/2021 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):
patents@sealedair.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICCARDO PALUMBO

____________

Appeal 2020-006630
Application 14/783,816
Technology Center 3700
____________

Before EDWARD A. BROWN, MICHAEL J. FITZPATRICK,
MICHAEL L. WOODS, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1, 7–10, 14–24, 26, 28, and 42–51. Final
Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies Cryovac, LLC, as the real party in interest and further
states that “Cryovac, LLC is a subsidiary of Sealed Air Corporation (US),
which is a subsidiary of Sealed Air Corporation.” Appeal Br. 2.
Appeal 2020-006630
Application 14/783,816

2
STATEMENT OF THE CASE
The Specification
Appellant’s disclosure “relates to an apparatus and to a process for
packaging of a product.” Spec. 1.
The Claims
Claims 1, 7–10, 14–24, 26, 28, and 42–51 are rejected. Final Act. 1.
Claims 2–6, 11–13, 25, 27, and 29–41 are cancelled. Id. at 2. Claim 1 is
illustrative of the subject matter and reproduced below.
1. An apparatus for packaging a product arranged on
a support, said apparatus comprising:
a packaging assembly including:
a lower tool configured to hold one or more
supports and the product arranged thereon, and
an upper tool facing the lower tool and configured
to hold one or more film sheets, the upper and lower
tools configured to cooperate to define a packaging
chamber therebetween;
wherein said packaging assembly is movable between a
first operating condition, where the upper and lower tools are
spaced apart so that said packaging chamber is open to receive
one or more film sheets and one or more supports, and a second
operating condition, where the upper and lower tools engage to
close said packaging chamber;
a film supplying assembly configured to supply a
continuous film outside of the packaging chamber, wherein the
continuous film is a flexible film having a layer of a polymer
component;
a film cutting assembly located outside of the packaging
chamber, wherein the film cutting assembly is configured to cut
film sheets of prefixed length from said continuous film outside
of the packaging chamber;
Appeal 2020-006630
Application 14/783,816

3
at least one transfer device configured to position the cut
film sheets inside the packaging chamber, said transfer device
including:
a backing structure having a holding surface
adapted to receive the one or more cut film sheets from
the cutting assembly, and
a transfer actuator configured to engage the
backing structure, wherein the transfer device is movable
between a first actuated position, where the backing
structure is positioned outside the packaging chamber at
the cutting assembly to receive the one or more cut film
sheets, and a second actuated position, where the backing
structure is positioned inside said packaging chamber to
place at least one film sheet above one or more supports
held on the lower tool; and
a control unit coupled to the packaging assembly and
configured to cause:
activation of the packaging assembly to move
between the first and second operating conditions;
activation of the film cutting assembly to cut film
sheets from the continuous film into the cut film sheets
outside the packaging chamber;
activation of the transfer device to move between
the first and second actuated positions; and
synchronization of movements of the transfer
device between the first and second actuated positions
and the packaging system between the first and second
operating conditions to seal a film sheet to a support
within the packaging chamber.
Appeal Br. 24–25.
Appeal 2020-006630
Application 14/783,816

4
The Examiner’s Rejections
The Examiner’s rejections, all pursuant to 35 U.S.C. § 103, are:
1. claims 1, 7–10, 14, 17, 18, and 43–46 as unpatentable over
Ramsey,2 Enock,3 and Lancaster4 (Final Act. 3);
2. claims 1, 14, 15, 17, 18, 24, and 44–47 as unpatentable over
Fang,5 Enock, and Lancaster (id. at 13);
3. claim 16 as unpatentable over Fang, Enock, Lancaster, and
DesLauriers6 (id. at 19);
4. claims 19–23 as unpatentable over Fang, Enock, Lancaster, and
Ingemann7 (id. at 20);
5. claim 26 as unpatentable over Fang, Enock, Lancaster, Kubis,8
and Luc9 (id. at 22);
6. claims 28 and 42 as unpatentable over Fang, Enock, Lancaster,
and Gilmore10 (id. at 24);
7. claims 48, 49, and 51 as unpatentable over Fang, Enock,
Lancaster, DesLauriers, and Ingemann (id. at 25); and
8. claim 50 as unpatentable over Fang, Enock, Lancaster,
DesLauriers, Ingemann, and Wilhelm11 (id. at 26).

2 US 4,030,388, issued June 21, 1977 (“Ramsey”).
3 US 2,025,812, issued Dec. 31, 1935 (“Enock”).
4 US 5,454,214, issued Oct. 3, 1995 (“Lancaster”).
5 EP 0,469,296 A1, published Feb. 5, 1992 (“Fang”).
6 US 2012/0031798 A1, published Feb. 9, 2012 (“DesLauriers”).
7 US 4,982,555, issued Jan. 8, 1991 (“Ingemann”).
8 US 4,909,022, issued Mar. 20, 1990 (“Kubis”).
9 US 2012/0031798 A1, published Feb. 9, 2012 (“DesLauriers”).
10 US 7,409,812 B2, issued Aug. 12, 2008 (“Gilmore”).
11 US 5,943,844, issued Aug. 31, 1999 (“Wilhelm”).
Appeal 2020-006630
Application 14/783,816

5
DISCUSSION
Rejection 1
Ramsey “is directed to the severing of thermoplastic film in the
making of a vacuum skin-package.” Ramsey 1:6–8. The Examiner found
that Ramsey discloses substantially all of the subject matter of claim 1
except that it “does not disclose the transfer device positioning the cut film
sheets inside the packaging chamber and does not explicitly disclose a
controls device.” Final Act. 3–4 (citing Ramsey 3:30–35, 4:25–32, 4:42–45,
7:3–6, 61–68, 8:5–9, Figs. 1–5, 8–16). Enock “relates to a method of and
apparatus for capping or applying capsules to bottles more particularly to
such as have a bead round the outer edge of the mouth.” Enock 1:1–4. The
Examiner found that Enock discloses the transfer device limitation, albeit
one that is configured to position cut bottle cap blanks (as opposed to cut
film sheets) inside the packaging chamber. Id. at 4–5 (citing Enock 1:35–41,
1:55–60, Figs. 1–2). The Examiner concluded:
It would have been obvious to the person of ordinary
skill in the art, before the effective filing date of the applicant’s
claimed invention, to have modified the apparatus of Ramsey
by having the cutting assembly cut the film prior to transferring
the cut film sheet to the packaging assembly as taught by Enock
since such a modification would allow the cutting assembly to
cut the next film sheet while the packaging assembly is applying
the prior film sheet to the support.
Final Act. 5 (emphasis added; no citation provided).
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). The Examiner has not
met that burden here. More specifically, the reasoning offered by the
Appeal 2020-006630
Application 14/783,816

6
Examiner for modifying Ramsey in view Enock is not supported by any
evidence of record.
Enock discloses cutting, from a strip of material that is unwound from
a reel, a “blank cap piece,” which subsequent to being cut is “still
approximately flat,” transferring the individual blank cap piece to a position
“below the capping head and above the bottle mouth,” and then “crimping of
the cap piece to the bottle.” Enock 1:35–2:9. Enock does not teach or
suggest that its invention provides the benefit identified by the Examiner for
why a person of ordinary skill in the art purportedly would have modified
Ramsey in view of Enock, i.e., to “allow the cutting assembly to cut the next
film sheet while the packaging assembly is applying the prior film sheet to
the support.” Final Act. 5; see generally Enock. Presumably, Enock cuts a
blank cap piece prior to applying it to a bottle because Enock’s application
method (crimping) necessitates the blank cap piece being separated from its
source strip of material in order to be crimped downward around the mouth
of the bottle. See Appeal Br. 19 (“Appellant submits that one of ordinary
skill in the art would understand that Enock’s crimpable bottle cap blank is
not a flexible film material because a flexible film material cannot be
crimped over the mouth of a bottle.”).
It is true that the motivating benefit for modifying or combining the
prior art may come from outside the references, and, thus, Enock need not
provide the motivating benefit. See In re Dembiczak, 175 F.3d 994, 999
(Fed. Cir. 1999) (“We have noted that evidence of a suggestion, teaching, or
motivation to combine may flow from the prior art references themselves,
the knowledge of one of ordinary skill in the art, or, in some cases, from the
nature of the problem to be solved.”). Nor is the use of a prior art reference
Appeal 2020-006630
Application 14/783,816

7
limited to the problem(s) with which that reference is concerned. In re
Lemelson, 397 F.2d 1006, 1009 (CCPA 1968) (“The use of patents as
references is not limited to what the patentees describe as their own
inventions or to the problems with which they are concerned. They are part
of the literature of the art, relevant for all they contain.”). However, Enock
does not teach the person of ordinary skill in the art that having “the cutting
assembly . . . cut the next film sheet while the packaging assembly is
applying the prior film sheet to the support” (Final Act. 5 (emphasis added))
is advantageous or suggest that it would provide a benefit in the system of
Ramsey. Through use of the word “while,” the Examiner implies an
efficiency gain to the proposed modification, but Ramsey is equally capable
of performing simultaneous cutting and application steps. In Ramsey,
however, it is the next film sheet that is applied to the support while the
previously applied film sheet is being cut.
In sum, the Examiner has not shown adequately why a person of
ordinary skill in the art would have modified Ramsey’s vacuum skin-
package manufacturing process in view of Enock’s bottle capping process.
As such, a prima facie case of obviousness has not been established.
Accordingly, we reverse the rejection of claim 1, as well as that of claims 7–
10, 14, 17–18, and 43–46, which ultimately depend from claim 1.
Rejections 2–8
In each of these additional rejections, the Examiner proposes that a
person of ordinary skill in the art would have modified Fang in view of
Enock (among other prior art). Final Act. 13–27. Fang “relates to induction
sealing assemblies, and more particularly, to an induction sealing assembly
for sealing round, oval and rectangular containers using precut or roll stock
Appeal 2020-006630
Application 14/783,816

8
membrane for the container lids.” Fang 1:3–7. The Examiner found that
Fang discloses substantially all of the subject matter of claim 1 except that it
“not disclose at least one transfer device, and a control unit.” Final Act. 13–
14 (citing Fang 1:8–13, 1:30–43, 2:12–15, 2:49–51, Figs. 6–8). For the
former feature, the Examiner again relies on Enock. Final Act. 14. And as
the Examiner concluded with respect to the Ramsey-based rejection, the
Examiner similarly determined:
It would have been obvious to the person of ordinary
skill in the art, before the effective filing date of the applicant’s
claimed invention, to have modified the apparatus of Fang by
incorporating the transfer device and have the cutting assembly
cut the film prior to transferring the cut film sheet to the
packaging assembly as taught by Enock since such a
modification would allow the cutting assembly to cut the next
film sheet while the packaging assembly is applying the prior
film sheet to the support.
Id. (emphasis added). This is the same reasoning the Examiner proffered for
why a person of ordinary skill in the art would have modified Ramsey in
view of Enock. It is inadequate here as well. In fact, it lacks rational
underpinnings given that Fang already teaches sealing a container with a
“precut membrane” that has already been cut from a roll of membrane stock,
as the Examiner found. Fang 2:43–57; Final Act. 14 (“Fang disclose[s] the
membrane is fed from a roll of membrane to a cutter and the precut
membrane (55) is fed into position adjacent . . . inside the packaging
chamber.”).
In sum, the Examiner has not shown adequately why a person of
ordinary skill in the art would have modified Fang’s induction sealing
assembly process in view of Enock’s bottle capping process. As such, a
Appeal 2020-006630
Application 14/783,816

9
prima facie case of obviousness has not been established. Accordingly, we
reverse Rejections 2–8.
SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/ Basis Affirmed Reversed
1, 7–10,
14, 17, 18,
43–46
103 Ramsey, Enock,
Lancaster
1, 7–10,
14, 17, 18,
43–46
1, 14, 15,
17, 18, 24,
44–47
103 Fang, Enock,
Lancaster
1, 14, 15,
17, 18, 24,
44–47
16 103 Fang, Enock,
Lancaster,
DesLauriers
16
19–23 103 Fang, Enock,
Lancaster,
Ingemann
19–23
26 103 Fang, Enock,
Lancaster, Kubis,
Luc
26
28, 42 103 Fang, Enock,
Lancaster, Gilmore
28, 42
48, 49, 51 103 Fang, Enock,
Lancaster,
DesLauriers,
Ingemann
48, 49, 51
50 103 Fang, Enock,
Lancaster,
DesLauriers,
Ingemann,
Wilhelm
50
Overall
outcome
1, 7–10,
14–24, 26,
28, 42–51
REVERSED