Ex Parte Ausnit

Patent Trial and Appeal BoardDec 18, 2017

13306093 (P.T.A.B. Dec. 18, 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. 121981-00378 7407 EXAMINER PATHAK, PRAACHI M. ART UNIT PAPER NUMBER 3721 MAIL DATE DELIVERY MODE 13/306,093 11/29/2011 Steven Ausnit 51468 7590 12/18/2017 McCarter & English LLP ACCOUNT: ILLINOIS TOOL WORKS INC. 825 Eighth Avenue 31st Floor NEW YORK, NY 10019 12/18/2017 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 STEVEN AUSNIT Appeal 2016-004187 Application 13/306,093 Technology Center 3700 Before MICHAEL L. HOELTER, JILL D. HILL, and PAUL J. KORNICZKY, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from the Examiner’s final rejection of claims 1, 2, 5—9, 28—35, and 37—39, which constitute all the claims pending in this application. Claims 3 and 4 have been canceled while claims 10—27 and 36 have been withdrawn. See Claims Appendix; Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The disclosed subject matter “pertains to a container or carton with a semi-rigid or rigid box section with a reclosure header from flexible web Appeal 2016-004187 Application 13/306,093 reclosure material and an unfolded box blank that has top and side panels and bottom flaps to form the box bottom.” Spec. 12. Method claim 1 is the sole independent claim, is illustrative of the claims on appeal, and is reproduced below. 1. A method of manufacturing a container with a rigid or semi-rigid box section and a flexible reclosure, comprising the steps of: providing a series of rigid or semi-rigid unfolded flat box sections, each of the box sections being capable of being folded thereby forming a plurality of panels around a storage volume; providing a length of web reclosure material, wherein the web reclosure material is interlocking; attaching the length of web reclosure material to the flat unfolded box section; wherein the flat box section includes a cut-out section; and wherein the step of attaching the length of web reclosure material to the fiat unfolded box section covers the cut-out section of the box section. REFERENCES RELIED ON BY THE EXAMINER Malcolm US 3,902,652 Sept. 2, 1975 Peppiatt US 5,160,308 Nov. 3, 1992 Yeager US 2005/0282695 A1 Dec. 22, 2005 THE REJECTIONS ON APPEAL Claims 1, 2, 5—7, and 39 are rejected under 35 U.S.C. § 102(b) as anticipated by Peppiatt. Claims 8, 9, 28, 30, 31, 34, and 37 rejected under 35 U.S.C. § 103(a) as unpatentable over Peppiatt and Yeager. Claims 29, 32, 33, 35, and 38 rejected under 35 U.S.C. § 103(a) as unpatentable over Peppiatt, Yeager, and Malcolm. 2 Appeal 2016-004187 Application 13/306,093 ANALYSIS The rejection of claims 1, 2, 5—7, and 39 as anticipated by Peppiatt Appellant argues claims 1, 2, 5—7, and 39 together. Br. 5—6. We select independent method claim 1 for review with the remaining claims standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner correlates the recited “web reclosure material” to Peppiatt’s item 2. Final Act 4 (“providing a length of web reclosure material (2)”). The Examiner further identifies where spout 11, made of this reclosure material 2, “can be tucked into a fold at one end of the gusset: Figs. 10,11.” Final Act. 4 (referencing Peppiatt 3:53—57). Appellant “respectfully but forcefully traverse[s] the Office Action’s assertion that the spout 11 of the Peppiatt reference is in any way the claimed ‘web reclosure material.’” Br. 5. Appellant does not explain why this is the case, only that it is. Nevertheless, as indicated above, the Examiner identifies Peppiatt’s material 2 as the web reclosure material, not spout 11 that is made from material 2 (Peppiatt 3:39-45). See Final Act. 4. Accordingly, because Appellant does not explain how material 2 cannot “in any way” correlate to the claimed “web reclosure material,” we are not persuaded by Appellant’s contention. Appellant also disagrees that Peppiatt’s “web reclosure material is interlocking” as recited in claim 1. However, as the Examiner indicated above, Peppiatt clearly explains that when spout 11 (made from material 2) is not in use, “the extended length of outlet spout 11 permits it to be tucked into a fold at one end of the gusset, as shown in Fig. 6.” Peppiatt 3:54—57; see also Final Act. 4. Appellant does not explain how tucking the spout into a fold cannot, as per the Examiner, be “interpreted as a projection 3 Appeal 2016-004187 Application 13/306,093 interlocking with a recess.” Ans. 2—3. Additionally, Appellant does not provide a definition of “interlocking” that would preclude the Examiner from interpreting Peppiatt’s folded and tucked spout as being interlocked. We, thus, disagree with Appellant’s characterization that the Examiner’s understanding of Peppiatt amounts to a “leap of reasoning in the Office Action [that] undermines the entire rejection.” Br. 5. Appellant also addresses the claim limitation of “providing a series of rigid or semi-rigid unfolded flat box sections.” Br. 5. Appellant addresses Peppiatt’s “sheet of flexible material (element 1 in Figure 1),” stating that there “is no disclosure in the Peppiatt reference of a semi-rigid material or a flat folded box section.” Br. 5. Regarding the latter reference to “a flat folded box section,” the Examiner referenced Peppiatt Figure 1 (Final Act. 4) and Appellant is not persuasive that “unfolded flat box sections” as recited are not illustrated therein. See, e.g. Peppiatt items 5—7 and fold line 4. Regarding the semi-rigid nature of such sections, Peppiatt teaches that upon filling, “the bag 10 may assume a roughly hexahedral shape.” Peppiatt 3:46-47. Such a hexahedral shape that is formed upon filling is depicted in Peppiatt’s Figures 6—9. See also Peppiatt 2:27—34. The relatively right- angle comers depicted in these drawings is noticed, as is the lack of any outward bulging or distortion of any of Peppiatt’s sides. Instead, such comers and sides are illustrated in a manner indicative of constmction employing “rigid or semi-rigid” sections as recited. In other words, and in view of these figures, Appellant does not explain how Peppiatt fails to disclose the limitation of “rigid or semi-rigid” sections. See also Ans. 2 (defining a semi-rigid material). Accordingly, Appellant’s contentions are not persuasive of Examiner error. 4 Appeal 2016-004187 Application 13/306,093 Appellant further contends, “there are no sections in the Peppiatt reference but rather a continuous flexible sheet with perforations.” Br. 5. Appellant’s contention is not persuasive in view of sections 5—7 depicted in Figure 1 of Peppiatt. See also Final Act. 4; Ans. 3. Appellant also contends, “the Peppiatt reference apparently discloses imaginary lines rather than score lines” (Br. 5) but claim 1 does not include a limitation reciting “score lines.” See also Ans. 3 (“it is noted that the features upon which Appellant relies (i.e., score lines) are not recited in the rejected claims(s)”). Accordingly, and based on the record presented, we are not persuaded of Examiner error. We sustain the Examiner’s rejection of claims 1, 2, 5—7, and 39 as being anticipated by Peppiatt. The rejection of (a) claims 8, 9, 28, 30, 31, 34, and 37 as unpatentable over Peppiatt and Yeager; and (b) claims 29, 32, 33, 35, and 38 as unpatentable over Peppiatt, Yeager, and Malcolm Appellant does not present additional arguments regarding the Examiner’s additional reliance upon Yeager and/or Malcolm. Br. 6—7. Instead, Appellant contends that these additional references do “nothing to resolve the differences” between Peppiatt and parent claim 1 discussed above. Br. 6—7. Accordingly, we are not persuaded of Examiner error and, as such, we sustain the Examiner’s rejections of claims 8, 9, 28—35, 37, and 38. DECISION The Examiner’s prior art rejections of claims 1, 2, 5—9, 28—35, and 37—39 are affirmed. 5 Appeal 2016-004187 Application 13/306,093 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 6