CRYOVAC, INC.Download PDFPatent Trials and Appeals BoardJun 23, 20212020006630 (P.T.A.B. Jun. 23, 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. 14/783,816 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 Copy with citationCopy as parenthetical citation