Ex Parte Dais et al

Patent Trials and Appeals BoardMar 26, 2019

12146015 - (D) (P.T.A.B. Mar. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/146,015 06/25/2008 28165 7590 03/28/2019 S.C. JOHNSON & SON, INC. 1525 HOWE STREET RACINE, WI 53403-2236 FIRST NAMED INVENTOR Brian C. Dais 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 ATTORNEY DOCKET NO. CONFIRMATION NO. J-4932 4315 EXAMINER THEIS, MATTHEW T ART UNIT PAPER NUMBER 3734 NOTIFICATION DATE DELIVERY MODE 03/28/2019 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): F074168@scj.com selechne@scj.com mjzolnow@scj.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN C. DAIS, JOSE PORCHIA, and BRENT G. ANDERSON 1 Appeal2017-008348 Application 12/146,015 Technology Center 3700 Before MICHAEL L. HOELTER, MICHAEL J. FITZPATRICK, and JEREMY M. PLENZLER, 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. Â§ 134(a), from the Examiner's final rejection of claims 8-10, 12-20, 23-26, and 28-35. App. Br. 1, 5. Appellant's counsel presented oral argument on March 14, 2019. We have jurisdiction under 35 U.S.C. Â§ 6(b). For the reasons explained below, we do not find error in the Examiner's rejections of these claims. Accordingly, we AFFIRM the Examiner's rejections. 1 "The real party in interest is S.C. Johnson & Son, Inc., the Assignee." App. Br. 3. We thus proceed on the basis that, for purposes of this appeal, S.C. Johnson & Son, Inc. is the "Appellant." Appeal2017-008348 Application 12/146,015 CLAIMED SUBJECT MATTER The disclosed subject matter "relates generally to a resealable closure mechanism." Spec. ,r 4. Apparatus claims 8 and 15 are independent. Claim 8 is representative of the claims on appeal and is reproduced below. 8. A resealable vacuum-tight closure mechanism consisting essentially of: (A) a first base; (B) a first interlocking profile depending from the first base; ( C) a first contact surface provided on the first interlocking profile; (D) a second interlocking profile depending from the first base; (E) a second contact surface provided on the second interlocking profile; (F) a first sealing member extending from the first base and having a first length, the first sealing member being positioned between and spaced from the first and second interlocking profiles, such that the first sealing member is spaced from the first interlocking profile by a first separation distance to create a space between the first sealing member and the first interlocking profile, the first sealing member comprising an extended region that extends from the first base and a protruding end comprising a protruding end sealing surface disposed along the majority thereof; (G) a second base; (H) a third interlocking profile depending from the second base, the third interlocking profile being configured to occlude and to deocclude with the first interlocking profile; (I) a third contact surface provided on the third interlocking profile and configured to engage with the first contact surface provided on the first interlocking profile; ( J) a fourth interlocking profile depending from the second base, the fourth interlocking profile being configured to occlude and to deocclude with the second interlocking profile; 2 Appeal2017-008348 Application 12/146,015 (K) a fourth contact surface provided on the fourth interlocking profile and configured to engage with the second contact surface provided on the second interlocking profile; (L) a second sealing member extending from the second base and having a second length, the second sealing member being positioned between and spaced from the third and fourth interlocking profiles, such that the second sealing member is spaced from the fourth interlocking profile by a second separation distance to create a space between the second sealing member and the fourth interlocking profile, the second sealing member comprising a grooved member that has a grooved member sealing surface disposed thereon, such that the grooved member sealing surface is complementary to and sealingly engages the protruding end sealing surface, by surrounding at least a majority of the protruding end sealing surface and forming a gastight seal therebetween, wherein: (a) a first maximum occlusion distance is measured between the first and second bases, when the first and second bases are farthest apart from each other and (i) the first and third interlocking profiles are in an occluded state, (ii) the first and third contact surfaces are engaged, and (iii) the first and second sealing members are sealingly engaged, and (b) a second maximum occlusion distance is measured between the first and second bases, when the first and second bases are farthest apart from each another and (i) the second and fourth interlocking profiles are in an occluded state, (ii) the second and fourth contact surfaces are engaged, and (iii) the first and second sealing members are sealingly engaged, such that a sum of the first length of the first sealing member and the second length of the second sealing member is greater than or about equal to the greater of the first and second maximum occlusion distances; (M) a first sealing reservoir protrusion extending from the first base, the first sealing reservoir protrusion being positioned in the space between the first sealing member and the first interlocking profile, such that the first sealing reservoir protrusion is spaced from the first and second sealing members, the first interlocking profile, and the second base, and the first sealing reservoir protrusion being of a size and shape to form a 3 Appeal2017-008348 Application 12/146,015 seal between the first and third interlocking profiles within the space between the first sealing member and the first interlocking profile, the size and shape of the first sealing reservoir protrusion relating to the first separation distance of the first sealing member from the first interlocking profile; and (N) a second sealing reservoir protrusion extending from the second base, the second sealing reservoir protrusion being positioned in the space between the second sealing member and the fourth interlocking profile, such that the second sealing reservoir protrusion is spaced from the first and second sealing members, the fourth interlocking profile, and the first base, and the second sealing reservoir protrusion being of a size and shape to form a seal between the second and fourth interlocking profiles within the space between the second sealing member and the fourth interlocking profile, the size and shape of the second sealing reservoir protrusion relating to the second separation distance of the second sealing member from the fourth interlocking profile. REFERENCES Staller US 3,440,696 Tilman US 5,558,439 (hereinafter Tilman '439) Kapperman et al. US 6,004,032 Malin US 6,167,597 B 1 Ausnit US 6,185,796 Bl Pawloski US 2004/0234172 Al Piechocki et al. US 2005/0141786 Al Tilman et al. US 2006/0048483 Al (hereinafter Tilman '483) THE REJECTIONS ON APPEAL April 29, 1969 Sept. 24, 1996 Dec. 21, 1999 Jan.2,2001 Feb. 13,2001 Nov. 25, 2004 June 30, 2005 Mar. 9, 2006 Claims 8-10, 15, 19, 20, 23-26, 28-30, 32, 33, and 35 are rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Malin, Tilman '439, Piechocki, and Pawloski. 4 Appeal2017-008348 Application 12/146,015 Claim 12 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Malin, Tilman '439, Piechocki, Pawloski, and Ausnit. Claim 13 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Malin, Tilman '439, Piechocki, Pawloski, and Kapperman. Claim 14 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Tilman '439 and Ausnit. 2 Claims 16-18 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Malin, Tilman '439, Piechocki, Pawloski, and Tilman '483. Claims 31 and 34 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Malin, Tilman '439, Piechocki, Pawloski, and Staller. ANALYSIS The rejection of claims 8-10, 15, 19, 20, 23-26, 28-30, 32, 33, and 35 as unpatentable over Malin, Tilman '439, Piechocki, and Pawloski Appellant argues independent claims 8 and 15 together. See App. Br. 16-34. Appellant does not present separate arguments regarding dependent claims 9, 10, 19, 20, 23-26, 28-30, 32, 33, or 35. See App. Br. 34. Accordingly, we select claim 8 for review, with claims 9, 10, 15, 19, 20, 23- 26, 28-30, 32, 33, and 35 standing or falling with claim 8. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). 2 Claim 14 includes the limitation, "providing the reclosable vacuum-tight closure mechanism of claim 8 in an occluded state at a top end of the pouch." We thus understand this limitation to include the limitations of claim 8. We also understand this rejection of claim 14 to, likewise, include the rejection of claim 8. Appellant also understands this rejection of claim 14 to include the rejection of claim 8. See App. Br. 12, 35. 5 Appeal2017-008348 Application 12/146,015 Claim 8 includes limitations directed to "a first sealing member" and "a second sealing member." The Examiner relies on high compression members 60 and 62 of Malin as teaching these limitations. See Final Act. 2- 3 (referencing Malin Fig. 2D). Figure 2D of Malin is an "alternate embodiment" of the "first embodiment" disclosed in Figure 1. Malin 3 :40- 44. Appellant acknowledges the Examiner's reliance on items 60 and 62 of Malin, but contends that Malin also requires the inclusion of compression members 28 and 30, as depicted in Figure 1, which the Examiner neither referenced nor relied upon. See App. Br. 22, 32. In fact, Malin specifically states: It should be noted that the present invention is not limited to the number and configuration of high compression members shown in FIG. 1. Any number and any configuration of high compression members may be used to practice the present invention. Examples of other profiles in accordance with the present invention are shown in FIG. 2. Malin 5: 3-8. Consequently, Appellant's assertions that the "high compression members of Malin must include," or "the zipper structure of Malin is intended to include" members 28 and 30 ( depicted in Figure 1) is contrary to the above express teachings of Malin as well as the Examiner's stated rejection. See App. Br. 22-24; see also Reply Br. 7-9, 11; Final Act. 2-3. The Examiner also references Figure 2G of Malin which specifically lacks members 28 and 30 but which still "demonstrates the ability to only have 'high compression members' [e.g., 60, 62] located between interlocking members (82)." Ans. 17-18; see also Final Act. 7. Accordingly, we are not persuaded the Examiner erred in relying on Malin' s members 60 and 62 for 6 Appeal2017-008348 Application 12/146,015 such limitations, or that members 28 and 30 must also be included or were intended to be included. See supra. Appellant additionally contends that the Examiner is replacing Malin's compression members 60, 62 for members 42 of Piechocki. See App. Br. 25, 32. We find no evidence that the Examiner is replacing Malin's members for Piechocki's members. Instead, the Examiner finds that Piechocki, likewise, discloses first and second sealing members and that, when Piechocki is in the occluded state, "the sealing surfaces create a gastight seal, specifically noting Figure 2" and their engagement with one another. Final Act. 6; see also Piechocki ,r 29. This is consistent with Malin's disclosure of member 60 mating with complementary member 62 "during sealing." Malin 5:25-27. However, to be clear, the Examiner relies on Piechocki for disclosing "a sealing member with an arcuate protruding end" (Malin's members are "triangular shaped"). Final Act. 6; Malin 5:24, Fig. 2D. The Examiner concludes that it would have been obvious to modify Malin "to create a sealing barrier ... as shown by Piechocki." Final Act. 7; see also Ans. 18. Thus, the Examiner is not replacing the entirety of Malin's sealing members with Piechocki's sealing members as Appellant contends. Further, the Examiner does not raise that issue and is silent on that point. See App. Br. 25-27; see also Reply Br. 12-13. Appellant also addresses the teachings of Tilman '439. See App. Br. 27-31. Appellant understands that the Examiner relied on Tilman '439 for teaching "the ability to have [] sealing reservoir protrusions." Final Act. 5 (referencing Tilman '439 "Fig. 2, Item 40"); App. Br. 27. However, Appellant contends that wedges 40 "cannot be equated to the sealing reservoir protrusions(s) of Appellant's invention" because wedges 40 "are of 7 Appeal2017-008348 Application 12/146,015 a different size and shape for a different function." App. Br. 27-28; see also id. at 33. Claim 8 specifies that the function of each "sealing reservoir protrusion" ( claim 8 recites "first" and "second" such protrusions), is to be "of a size and shape to form a seal." Similar to this claimed sealing function, Tilman '439 expressly states that "wedges 40 serves to caulk the spaces between the crushed male and female profiles." Tilman '439 3:49- 51; see also Ans. 18. Appellant does not explain how caulking the spaces between complementary profiles fails to "form a seal" as recited. Further, claim 8 is silent regarding any particular "size and shape" needed to accomplish this task. Nevertheless, the Examiner states that it would have been obvious "to properly size the sealing reservoir protrusion with relation to all other parts of the closure device." 3 Final Act. 7; see also Ans. 19. In short, Appellant does not explain how Tilman '439's wedges 40 are not of a "size and shape to form a seal" as recited. Appellant further contends that there was "No Reason" to reconstruct Appellant's invention and that, instead, such reconstruction was accomplished "by selectively picking and choosing various elements from the prior art." App. Br. 31; see also Reply Br. 5, 14. Appellant likens this to "hindsight reconstruction of Appellant's invention." App. Br. 31; see also Reply Br. 6, 14. 3 The Examiner concludes that it would have been obvious "to take the device of Malin in view of Tilman ['439] and size the sealing reservoir protrusion" accordingly "since such a modification would have involved a mere change in the size of a component." Final Act. 7-8. 8 Appeal2017-008348 Application 12/146,015 As noted above, the Examiner provided reasons for combining Malin with both Tilman '439 and Piechocki. See supra. Regarding Pawloski, the Examiner relies on this reference for teaching "the ability to allow profiles to extend from different bases while still maintaining the function of sealing a reclosable pouch (Figs. 5 and 5A, Item 268b )." Final Act. 6. The Examiner concludes that "it would be obvious to use the teaching of Pawloski and allow one of the reservoir protrusions to extend from the second base in order to allow for caulking." Final Act. 7. The Examiner thus disagrees that "the rejection attempts to reconstruct the invention using impermissible hindsight reasoning." Ans. 19. Accordingly, Appellant is not persuasive that the Examiner's reasons to combine the teachings of Malin, Tilman '439, Piechocki, and Pawloski are faulty or in error. Appellant additionally addresses the claimed transitional phrase "consisting essentially of," contending the Examiner rendered it "to be equivalent to a recitation of 'comprising."' Reply Br. 6; see also Ans. 17. Appellant references MPEP Â§ 2111.03, which states that if an applicant contends that additional features in the cited art are excluded by this transitional phrase, then applicant "has the burden of showing" this. Reply Br. 6. In that regard, Appellant contends that the combination of Malin, Tilman '439, Piechocki, and Pawloski "would include additional components or elements that would materially change the characteristics of the closure mechanism of Appellant's invention." Reply Br. 7. Specifically, and with respect to Malin, Appellant argues that relying on its teachings would require inclusion of additional structure that is prohibited by the claim (i.e., members 28, 30) despite the Examiner's reference to Malin Figure 2G which lacks such additional members (and 9 Appeal2017-008348 Application 12/146,015 Appellant does not dispute that the structure of Figure 2G is functionable ). See Reply Br. 7-9; Final Act. 7; Ans. 18; see also Malin 5:3-8. Appellant likewise argues that Tilman '439 would also require additional structure that is prohibited by the claim, contending that Tilman '439's wedges 40 "work in conjunction with" this additional structure. Reply Br. 10, 13; see also App. Br. 29. Appellant does not explain how Tilman '439's teaching of wedges 40 serving "to caulk the spaces," (Tilman '439 3:49-51) is an incorrect reading of Tilman '439. Nor does Appellant explain how the Examiner's statement that it would have been obvious to change the size of these wedges "so long as it can form the caulking and sealing function suggested by Tilman" (Final Act. 7; see also Ans. 18-20) is likewise improper or incorrect. Appellant instead argues that the Examiner should have incorporated additional structure into the rejection, and by doing so, such additional structure would have rendered the Examiner's modification of Malin "unsatisfactory for its intended purpose." Reply Br. 6, 11, 14; App. Br. 24, 30. Regarding Piechocki, Appellant repeats the above arguments that the Examiner "attempts to replace" Malin's members with Piechocki's members. Reply Br. 12-13. We are not persuaded of Examiner error by any of these arguments for the reasons previously expressed. In summation, we are not persuaded the Examiner failed to provide articulated reasoning with rational underpinning to combine these references, or that the Examiner's rejection was gleaned only from Appellant's disclosure, which is indicative of impermissible hindsight reconstruction. We sustain the Examiner's rejection of claims 8-10, 15, 19, 20, 23-26, 28-30, 32, 33, and 35 as unpatentable over Malin, Tilman '439, Piechocki, and Pawloski. 10 Appeal2017-008348 Application 12/146,015 The Examiner's rejections of claims 12-14, 16-18, 31, and 34 Appellant contends that the Examiner's reliance on additional art (i.e., Ausnit, Kapperman, Tilman '483, and Staller) "Does Not Cure" the deficiencies in Malin, Tilman '439, Piechocki, and Pawloski noted above. App. Br. 34; see also id. at 35. We are not persuaded that the combination of Malin, Tilman '439, Piechocki, and Pawloski requires curing in view of our analysis. Accordingly, based on the record presented, we sustain the Examiner's rejection of claims 12-14, 16-18, 31, and 34 in view of the art cited. DECISION The Examiner's rejections of claims 8-10, 12-20, 23-26, and 28-35 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l ). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 11