Ex Parte Howell et al

Patent Trial and Appeal BoardMar 28, 2018

12922547 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/922,547 08/09/2011 51468 7590 03/28/2018 McCarter & English LLP ACCOUNT: ILLINOIS TOOL WORKS INC. 825 Eighth A venue 31st Floor NEW YORK, NY 10019 FIRST NAMED INVENTOR Clifton Howell 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. 121981-00306 1316 EXAMINER HARMON, CHRISTOPHER R ART UNIT PAPER NUMBER 3649 MAILDATE DELIVERY MODE 03/28/2018 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 CLIFTON HOWELL, DAVID WALLACE, KENNY MCCRACKEN, KEVIN OWEN, ERIC PLOURDE, DAVID ANZINI, and STEVEN AUSNIT Appeal2017-003796 Application 12/922,547 Technology Center 3600 Before: LINDA E. HORNER, MICHELLE R. OSINSKI, and BRENT M. DOUGAL, Administrative Patent Judges. DOUGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 appeal under 35 U.S.C. Â§ 134 from a final rejection of claims 19, 21-30, 52, and 54---60. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. 1 Appellant identifies the Real Party in Interest as Illinois Tool Works Inc. Appeal Br. 2. Appeal2017-003796 Application 12/922,547 CLAIMED SUBJECT MATTER The claims are directed to methods of filling packages, where each package has a rigid or semi-rigid container forming the bottom and a reclosable flexible polymeric header at the top. For example, the package could be an open top cardboard box with a resealable plastic bag having an open bottom secured to the open top of the cardboard box to thereby provide access to the insides of the carton. Claims 19, 26, and 52 are independent. Claims 19 and 26, reproduced below, are illustrative of the claimed subject matter: 19. A method for filling a sequence of packages, each package including a rigid or semi-rigid container portion and a reclosable flexible polymeric header, including the steps of: providing a sequence of inverted packages, with the rigid or semi-rigid container portion in in [sic] a flat folded configuration and the reclosable flexible polymeric header in a lower position and the bottom of the rigid or semi-rigid container portion in an upper position; for each inverted package, performing the following sequential steps: opening the rigid or semi-rigid container portion of the sequence of inverted packages in the flat folded configuration, including the reclosable flexible polymeric header, in an inverted configuration thereby creating a volume for contents therein; folding the flexible header across a top of the inverted rigid or semi-rigid container portion and releasably attaching ends of the flexible header to sides of the inverted rigid or semi- rigid container portion; inserting contents through an open bottom of the inverted rigid or semi-rigid container portion while the reclosable flexible polymeric header is maintained in a lower position below the open bottom of the rigid or semi-rigid container portion; 2 Appeal2017-003796 Application 12/922,547 closing the bottom of the inverted rigid or semi-rigid container portion thereby forming a seal while the reclosable flexible polymeric header is maintained in a lower position below the bottom of the rigid or semi-rigid container portion. 26. A method for filling a sequence of packages, each package including a rigid or semi-rigid container portion and a reclosable flexible polymeric header, including the steps of; providing a sequence of packages, with the rigid or semi- rigid container portion in in [sic] a flat folded configuration; for each package, performing the following sequential steps: opening the rigid or semi-rigid container portion from the flat, folded configuration, with the reclosable flexible polymeric header attached thereto, thereby creating a volume for contents therein; closing the bottom of the rigid or semi-rigid container portion thereby forming a seal; inserting contents through an opening between the rigid or semi-rigid container portion and the reclosable flexible polymeric header; sealing the opening between the rigid or semi-rigid container portion and the reclosable flexible polymeric header; and after the step of sealing the opening, folding the flexible header across a top of the rigid or semi-rigid container portion and releasably attaching ends of the flexible header to sides of the rigid or semi-rigid container portion. 3 Appeal2017-003796 Application 12/922,547 EVIDENCE The evidence relied upon by the Examiner is: Whiteside us 4,495,209 Calvert us 6,047,883 Huffman US 6,688,515 Bl Buchman US 7,748,200 B2 Belko2 US 2011/0017812 Al REJECTIONS Jan.22, 1985 Apr. 11, 2000 Feb. 10,2004 July 6, 2010 Jan. 27, 2011 I. Claims 19, 52 and 54---60 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Belko, Whiteside, and Calvert. II. Claims 19 and 21-25 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Belko, Whiteside, and Huffman. III. Claim 26 is rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Belko, Buchman, and Calvert. IV. Claims 26-30 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Belko, Buchman, and Huffman. OPINION Rejection I The Examiner finds that the method of filling the bag-on-container of Belko teaches the majority of the method steps of claim 19. Final Act. 2. The Examiner finds that Whiteside teaches, inter alia, filling a container in an inverted position, and determines that in view of these teachings "[i]t 2 In the Final Office Action, the Examiner also refers to Belko' s incorporation by reference of the hermetically sealed bottom sections described in McLaren (US 4,185,765, issued January 29, 1980). Final Act. 2, 4 (citing Belko i-f 59). 4 Appeal2017-003796 Application 12/922,547 would have been obvious ... to invert the package of Belko ... as an alternate manufacturing process design for filling and subsequent closing and sealing of the bottom of the package." Id. at 2-3. The Examiner finds that Calvert "teach[ es] forming a reclosable fitment including a tamper evident fin top portion 16 comprising reclosable fasteners 50, 52 positioned for releasable attachment for fin portion 20 to end panel/sides of container 6." Id. at 2. The Examiner then determines that it "would have been obvious ... to fold [Belko's] flexible header portion across the top of the container portion[] and releasably attach ends thereof to the container sides, as claimed and taught by Calvert et al., in order to secure the flexible header portion for shipping." Id. at 3. Appellants argue that independent claims 19 and 52 are allowable over Calvert because Calvert's paperboard structure is "a completely different structure" than what is claimed and is therefore "irrelevant." Appeal Br. 8; see also id. at 8-9. It is further argued that Calvert does not suggest folding a header "while the container is inverted." Id. Moving on to Whiteside and Belko, Appellants admit that Whiteside teaches "an inverted configuration," but argue that Whiteside does not disclose or suggest folding a flexible header and that Belko does not disclose the inverted configuration or filling the container from the bottom. Id. at 9. Though Appellants address all three references in the rejection of claims 19 and 52, they focus on parts of the references not relied on in the rejection. For example, neither Belko nor Calvert is relied on to teach steps of the manufacturing method in an inverted configuration. As another example, Appellants argue that Calvert's paperboard structure is irrelevant to the claimed invention, but the rejection does not rely on Calvert's 5 Appeal2017-003796 Application 12/922,547 paperboard structure. Thus, Appellants' arguments to this effect are not addressed to the rejection at hand. Arguments presented in an appeal must address the grounds of rejection set forth by the Examiner. 37 C.F.R. Â§ 41.37(c)(l)(iv). Further, Appellant's arguments are against Belko, Whiteside, and Calvert individually, where the rejection is based on their combination. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted) (explaining that obviousness must be considered in light of "what the combined teachings of the references would have suggested to those of ordinary skill in the art"). Specific to claim 52, Appellants also argue that Belko does not teach or suggest "'attaching the web material, with the reclosure material attached thereto, to the top of the rigid or semi-rigid container portions thereby forming a reclosable flexible polymeric header'." Appeal Br. 9. Appellants argue that this is because Belko teaches a single step where the reclosure material 48, 50 is attached to the web material 44, 46 simultaneously with attaching the web material to the rigid or semi-rigid container portions. Id. (citing Belko i-f 28). The Examiner responds that Belko paragraphs 77, 78 and 82 teach that it was known to attach the reclosure material 48, 50 to the web material and then attach the web material to the rigid container material. Ans. 7-8. We note in particular, that Belko paragraph 82 states a bag-in-container type assembly may be made by first securing bag member 14 that preferably include[ s] a closure means thereon, such as a zipper type closure, to the interior surface of a 6 Appeal2017-003796 Application 12/922,547 box blank and then applying glue to the side seams of the box blank to retain bag member 14 within container member 12. Belko ,-r 82. We further note, that though paragraph 78 and Figure 6 appear to primarily show and describe an embodiment where heat sealing is used to simultaneously seal both the reclosure material 46, 50 to the web material 44, 46 and the web material to the box blank 52, the same paragraph also includes an expansive view of how the heat sealing can be performed. Id. at i-f 78, Fig. 6. This includes teaching that "[h ]eat sealing may be performed in one step or a plurality of steps." Id. This together with the teachings of paragraph 82 supports the Examiner's position that it was known to attach reclosure material to the web material and then attach the web material to the container material. For these reasons, we are not informed of error in Rejection I. Rejection II Rejection II is similar to Rejection I, with the main difference being that the Examiner relies on Huffman rather than Calvert to teach "folding a fin seal against the bottom" of the container. Final Act. 3--4. The Examiner finds that "[i]t would have been obvious ... to fold and seal fin portions as claimed as taught by Huffman et al. in the modified invention to Belko et al. in order to secure portions as desired." Id. Appellants essentially argue that this rejection suffers from the same failings as Rejection I and that Huffman does not overcome the deficiencies previously identified. Appeal Br. 10. Thus, we are not informed of error in Rejection II for similar reasons discussed with reference to Rejection I. 7 Appeal2017-003796 Application 12/922,547 Rejections III & IV Claim 26 is similar to claim 19 in some respects, but rather than requiring "inserting contents through an open bottom of the inverted rigid or semi-rigid container portion," claim 26 requires "inserting contents through an opening between the rigid or semi-rigid container portion and the reclosable flexible polymeric header." The Examiner finds that Buchman "teaches sealing a reclosable polymeric header 46 to a front panel portion 14; filling contents 113 via hopper 116 directed between the header 46 and rear panel 12 of the container 10 and subsequently sealing the opening therebetween to form a closed package." Final Act. 4. The Examiner determines that "[i]t would have been obvious ... to provide a reclosable header in an open configuration for filling and closing thereafter as taught by Buchman in the invention to Belko et al. in order to maintain a proper seal between reclosable portions." Id. Appellants argue that "Belko and Buchman ... describe the insertion of material between two flexible polymeric elements" and thus they do not "disclose or suggest the insertion of material between a flexible header and a rigid or semi-rigid container portion, as recited in Claim 26." Appeal Br. 10. This argument ignores the teachings of Buchman. Buchman teaches that when a web material with a previously attached reclosure material or zipper is attached to a container, in this case a bag, one side is attached, the bag is then filled and then the second side is attached. Buchman Abstract, Figs. 1, 2, 11 & 12; see also Final Act. 4, Ans. 8-9. This supports the Examiner's finding that applying the teachings of Buchman to Belko' s container would render obvious the step of "inserting contents 8 Appeal2017-003796 Application 12/922,547 through an opening between the rigid or semi-rigid container portion and the reclosable flexible polymeric header." Final Act. 4. Appellants do not identify where Buchman focuses on filling the container "between two flexible polymeric elements," and we see none. Appeal Br. 10. "A person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). We agree with the Examiner that such a person of ordinary skill would find obvious the applicability of Buchman's filling technique to Belko's container. For these reasons, Appellants' arguments do not inform us of error in the Examiner's rejections. DECISION The Examiner's rejections of claims 19, 21-30, 52, and 54---60 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). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 9