Ex Parte Fell et al

Patent Trial and Appeal Board

Jan 31, 2019

12352478 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/352,478 01/12/2009
20995 7590 02/04/2019
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
FIRST NAMED INVENTOR
John Fell
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.
TLB001.004AUS 1882
EXAMINER
POON, ROBERT
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN FELL, BARRY FRIZELL,
and WOLFGANG ZIMMERER1
Appeal 2018-003 822
Application 12/352,478
Technology Center 3700
Before JOHN C. KERINS, JAMES P. CAL VE, and
FREDERICK C. LANEY, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
John Fell et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the
Examiner's decision to reject claims 1, 3-7 and 9-14. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 INNOVIA FILMS LIMITED is identified as the real party-in-interest in
the Appeal Brief. Appeal Br. 3.
Appeal2018-003822
Application 12/352,478
THE INVENTION
Appellants' invention relates to a naked collation package.
Independent claim 1 is illustrative of the claimed invention and reads as
follows:
1. A naked collation package for facilitating removal of an
individual unit from a unit row, comprising:
a plurality of individual units laid end-to-end or side-by-side to
form a unit row comprising at least one interface between a
neighbouring pair of individual units in the unit row;
the unit row being overwrapped with a sheet of polymeric film
having a length and a width;
the length of the sheet being sufficient to envelop the unit row
with sufficient overlap between a first end and a second end of
the sheet to provide an overlap region for providing a girth seal
along at least part of the length of the unit row;
the sheet being sealed to itself in that region to provide the girth
seal;
the width of the sheet being longer than the unit row to provide
an envelope seal region in at least one end of the unit row so that
the wrapped and girth-sealed sheet is able to fold over and seal
to itself at the at least one end of the unit row to provide an
envelope seal;
the sheet being folded and sealed to itself in that region to provide
the envelope seal; and
the sheet being provided along its length with a continuous line
of weakness positioned in substantial register with a continuous
length of the interface, the continuous line of weakness
comprising a longitudinal axis parallel to the continuous length
of the interface,
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Application 12/352,478
wherein the continuous line of weakness is a continuous
oscillating line of weakness which extends across the entire
length of the sheet,
wherein flexing the package in the region of the interface causes
an individual unit or group of units to be snapped off from the
remainder of the package whilst leaving the remainder of the
package substantially intact.
THE REJECTIONS
The Examiner has rejected:
(i) claims 1, 3-5 and 13 under 35 U.S.C. § 103(a) as being
unpatentable over Fabriques (DE 296 22 554 Ul, published May 22, 1997)2
in view of Suzuki (US 5,048,687, issued Sept. 17, 1991) and Vogt (US
2,752,037, issued June 26, 1956);
(ii) claim 6 under 35 U.S.C. § 103(a) as being unpatentable over
Fabriques in view of Suzuki, Vogt, and Rigby (US 4,836,438, issued June 6,
1989);
(iii) claims 7, 9-11, and 14 under 35 U.S.C. § 103(a) as being
unpatentable over Fabriques in view of Robins (US 3,047,140, issued July
31, 1962) and Vogt; and
(iv) claim 12 under 35 U.S.C. § 103(a) as being unpatentable over
Fabriques in view of Robins, Vogt, and Rigby.
2 The Applicant named in this German reference is Fabriques de Tabac
Reunies S.A. The Examiner and Appellants refer to the reference as
"Fabriques," and so do we for consistency in the record. Any citation herein
to the text of this reference is to a machine-generated English-language
translation by the European Patent Office, of record in the application file.
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Application 12/352,478
ANALYSIS
Claims 1, 3-5 and 13--Fabriques/Suzuki/Vogt
Appellants' arguments are directed generally to independent claims 1
and 13, and no separate substantive arguments are presented for dependent
claims 3-5. Because Appellants raise the same arguments for claims 1 and
13, we will take claim 1 as representative. Independent claim 13, and
dependent claims 3-5, will stand or fall with claim 1.
The Examiner relies on Fabriques as teaching most of the limitations
of claim 1, and relies on Suzuki as disclosing a packaging material of
polymeric shrink film, and on Vogt as teaching the use of oscillating lines of
weakness on a packaging material. Final Act. 3--4. The Examiner concludes
that it would have been obvious to modify the Fabriques packaging to
include the features disclosed in Suzuki and Vogt. Id. Appellants do not
take issue with the modification of Fabriques to employ a polymeric shrink
wrap material, but do take issue with the Examiner's position relative to the
alleged obviousness of employing oscillating lines of weakness, as taught by
Vogt, in place of the straight-line lines of weakness disclosed in Fabriques.
Appeal Br. 8-10; Reply Br. 2--4.
Appellants first argue that Vogt discloses using oscillating lines of
weakness across only a portion of the length of the packaging sheet, and that
Vogt teaches away from having the line of weakness extend across the entire
length, whereas claim 1 requires the oscillating line of weakness to extend
across the entire length of the sheet. Appeal Br. 8-9. Appellants thus argue
that a combination of that teaching with Fabriques would result in a
packaging having an oscillating line of weakness that does not extend across
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Application 12/352,478
the entire length of the sheet, and thus would not meet all limitations of
claim 1. Id.
The Examiner responds that Fabriques is relied on as teaching having
a line of weakness extending across the entire length of the sheet, and that
the proposed modification is to modify that line of weakness to take on an
oscillating shape instead of a straight-line shape. Ans. 10. The Examiner
also points out, in any event, that the teaching in Vogt of using an oscillating
line of weakness across less that an entire length of the packaging sheet is
essentially a teaching of one alternative, and that additional weakening can
be obtained by extending score lines to the margins of the sheet, thus
undermining any "teaching away" argument. Id. at 9 (citing Vogt, col. 3, 11.
20-25 and col. 4, 11. 12-17). After considering the evidence cited, we are
persuaded that the Examiner has the better position here.
Additionally, Appellants' argument that the structure resulting from
modifying Fabriques in view of Vogt would have a line of weakness that
does not extend across the entire length of the sheet is in the nature of
requiring a bodily incorporation of an exact structure disclosed in Vogt.
This argument fails to take into account the teachings of Fabriques and fails
to address directly the Examiner's findings regarding what the combined
teachings of the references demonstrate would have been considered to have
been obvious to a skilled artisan at the time of the invention. The argument
thus does not apprise us of error in the rejection.
Appellants additionally argue that the Fabriques reference itself
teaches away from the proposed modification from a straight-line line of
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weakness to an oscillating line of weakness. Appeal Br. 9-10; Reply Br. 2-
4. In support, Appellants cite to a portion of Fabriques that states:
Thus, because each pre-cut line 11 is located exactly opposite the
separation point between two successive packets, simply
breaking it by pushing a fingernail into the pre-cut line will not
damage the article.
Fabriques 2:10-12; see Appeal Br. 10.
Appellants maintain that a person of ordinary skill in the art would not
be motivated to modify these pre-cut straight lines to oscillating lines,
because then the line of weakness would not be arranged exactly opposite to
the separation point between two successive objects. Appeal Br. 10. The
Examiner takes the position that Fabriques is principally directed to
providing weakened lines that allow the packages to be separated into a
number of parts, each containing at least one packet, while the remainder of
the package remains intact and holding any remaining packets. Ans. 11.
The Examiner points out that using oscillating lines, as disclosed in Vogt,
achieves exactly the same function. Id.
The portion of Fabriques that Appellants cite to support this argument
does not persuasively establish that Fabriques criticizes, discredits or
otherwise discourages the use of an oscillating line of weakness of the type
disclosed in Vogt, as is required to rise to the level of a teaching away. See
In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004); In re Gurley, 27 F.3d
551, 553 (Fed. Cir. 1994). Fabriques discusses how the provision of lines of
weakness provide benefits over packaging employing tear strips or threads
previously used to separate one portion or section of a package from another,
and advises that its approach "requires no separation aid." Fabriques, 1: 17-
21, 2:8-10. Fabriques does not compare, whether favorably or not, the use
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different configurations of lines of weakness, such as oscillating ones, to
straight-line ones. The oscillating lines of weakness disclosed in Vogt allow
for the same type of separation that Fabriques teaches; both allow for
separation of one or more products from the remaining products without the
need for tear strips or other separation aids. As such, we do not agree with
Appellants that Fabriques teaches away from the modification proposed by
the Examiner.
The rejection of claim 1 is therefore sustained. Independent claim 13
and dependent claims 3-5 fall with claim 1.
Claim 6--Fabriques/Suzuki/Vogt/Rigby
Appellants rely solely on the substantive arguments raised in
connection with the rejection of claim 1, and further aver that Rigby does
not remedy the deficiency in the combination of references cited in rejecting
claim 1. Appeal Br. 10. For the reasons discussed in the preceding section,
we are not apprised of error in the rejection or of any deficiency in the
combination of the teachings of the references cited in the rejection of claim
1. The rejection of claim 6 is sustained.
Claims 7, 9-11, and 14--Fabriques/Robins/Vogt
Appellants rely solely on the substantive arguments raised in
connection with the rejection of claim 1 in challenging the rejection of these
claims. Appeal Br. 11. For the reasons discussed in the preceding section,
we are not apprised of error in that rejection. The rejection of claims 7, 9-
11, and 14 is sustained.
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Appeal2018-003822
Application 12/352,478
Claim 12--Fabriques/Robins/Vogt/Rigby
Appellants rely solely on the substantive arguments raised in
connection with the rejection of claim 1, and further aver that Rigby does
not remedy the deficiency in the combination of references cited in rejecting
claim 1. Appeal Br. 11. For the reasons discussed in the preceding section,
we are not apprised of error in the rejection or of any deficiency in the
combination of the teachings of the references cited in the rejection of claim
1. The rejection of claim 12 is sustained.
DECISION
The rejections of claims 1, 3-7 and 9-14 are affirmed.
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
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