Ex Parte Anzini et al

Patent Trial and Appeal BoardAug 25, 2017

13734346 (P.T.A.B. Aug. 25, 2017)

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. 121981-00420 6937 EXAMINER BATTISTI, DEREK J ART UNIT PAPER NUMBER 3782 MAIL DATE DELIVERY MODE 13/734,346 01/04/2013 David ANZINI 51468 7590 08/28/2017 McCarter & English LLP ACCOUNT: ILLINOIS TOOL WORKS INC. 245 Park Avenue NEW YORK, NY 10167 08/28/2017 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID ANZINI and ERIC PLOURDE Appeal 2016-000694 Application 13/734,3461 Technology Center 3700 Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and ROBERT J. SILVERMAN, Administrative Patent Judges. SILVERMAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’ decision rejecting claims 1, 5—12, and 16—21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 The Appellants identify Illinois Tool Works Inc. as the real party in interest. Appeal Br. 2. Appeal 2016-000694 Application 13/734,346 ILLUSTRATIVE CLAIM 1. A polymeric bag or container, including: a front wall and a rear wall, sealed together at edges thereof thereby forming a mouth; a reclosure extending around the mouth, thereby making the mouth reclosable; a semi-rigid element extending around and attached to the mouth with a sufficient modulus for the mouth of the bag to maintain an open position after being placed in an open position; wherein the semi-rigid element is made of polyethylene, including at least a portion of high density polyethylene, and has undergone steps of extruding and stretching; and wherein the step of stretching increases the modulus of the semi-rigid element in order for the semi-rigid element to maintain a bent or folded position of the mouth. REJECTIONS I. Claims 1, 5—8, 10—12, 16—19, and 21 are rejected under pre- AIA 35 U.S.C. § 102(b) as anticipated by Cook et al. (US 5,174,658, iss. Dec. 29, 1992) (“Cook”). II. Claims 9 and 20 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Cook and Kohl et al. (US 6,827,491 B2, iss. Dec. 7, 2004) (“Kohl”). FINDINGS OF FACT We rely upon and adopt the Examiner’s findings stated in the Final Office Action at pages 2—6 and the Answer at pages 2—3, except as stated otherwise in the Analysis below. Additional findings of fact may appear in the Analysis below. 2 Appeal 2016-000694 Application 13/734,346 ANALYSIS The Appellants argue independent claims 1 and 12 together. See Appeal Br. 5. Claim 1 is selected for analysis herein, in accord with 37C.F.R. §41.37(c)(l)(iv). The Appellants argue that independent claim 1 was rejected erroneously because Cook fails to disclose: a semi-rigid element. . . with a sufficient modulus for the mouth of the bag to maintain an open position after being placed in an open position; wherein the semi-rigid element. . . has undergone [a] step[ ] of stretching; and wherein the step of stretching increases the modulus of the semi-rigid element in order for the semi-rigid element to maintain a bent or folded position of the mouth. See Appeal Br. 5. According to the Appellants, Cook discloses a “stay” that has a memory, causing it to “spring back to its original shape.” Id. (citing Cook, col. 4,11. 22—282). By contrast, the Appellants argue that the claimed “semi rigid element takes a dead-fold and tends to stay the shape into which it is formed rather than springing back to an original shape such as disclosed in the Cook reference.” Id. The Appellants’ argument is not persuasive of error, because the Appellants misinterpret the relevant claim language. As the Examiner explains, the identified language of claim 1 does not require the “semi-rigid element” to remain in the shape into which it has been positioned, rather 2 The Appellants may have intended to cite Cook’s column 5, lines 22—28, which more closely aligns with the Appeal Brief’s characterization of the reference. 3 Appeal 2016-000694 Application 13/734,346 than springing back into an original shape. Answer 3. Although the Specification refers to “creating a high modulus semi-rigid element 10 to a degree necessary to maintain an open (or closed) position of the bag 100 as shown in Figure 5B” (Spec. 118), the language of claim 1 is not so narrow. Rather, the claimed “rigid element” need have only a “sufficient modulus for the mouth of the bag to maintain an open position after being placed in an open position,” “in order for the semi-rigid element to maintain a bent or folded position of the mouth.” See Answer 3. The claim language does not preclude the recited “semi-rigid element” from being biased in the “open position” (or the “bent or folded position”) — such that, like Cook’s embodiment, it springs back or “returns to its original unstressed configuration.” Id. (quoting Cook, col. 5,11. 22—28). Claim 1 merely requires the “semi-rigid element” to “maintain” the “open position”/“bent or folded position” “after being placed in” such position — regardless of whether or not the “semi-rigid element” might be so biased. Therefore, Cook meets the identified claim limitation. Accordingly, we sustain the rejection of independent claims 1 and 12 — as well as claims 5—8, 10, 11, 16—19, and 21 depending therefrom (whether directly or indirectly) — under pre-AIA 35 U.S.C. § 102(b). In addition, the Appellants relying upon the same arguments presented for claims 1 and 12, we sustain the rejection of claims 9 and 20 under pre-AIA 35 U.S.C. § 103(a). DECISION We AFFIRM the Examiner’s decision rejecting claims 1, 5—8, 10—12, 16-19, and 21 under pre-AIA 35 U.S.C. § 102(b). 4 Appeal 2016-000694 Application 13/734,346 We AFFIRM the Examiner’s decision rejecting claims 9 and 20 under pre-AIA 35 U.S.C. § 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 5