Ex Parte Koenigkramer

Patent Trial and Appeal BoardMay 18, 2017

12686075 (P.T.A.B. May. 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. 12/686,075 01/12/2010 Rusty Koenigkramer 121981-00286 8803 51468 7590 05/18/2017 McCarter & English LLP ACCOUNT: ILLINOIS TOOL WORKS INC. 245 Park Avenue NEW YORK, NY 10167 EXAMINER PASCUA, JES F ART UNIT PAPER NUMBER 3782 MAIL DATE DELIVERY MODE 05/18/2017 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 RUSTY KOENIGKRAMER ____________ Appeal 2015-006445 Application 12/686,075 Technology Center 3700 ____________ Before LINDA E. HORNER, ANNETTE R. REIMERS, and BRENT M. DOUGAL, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Rusty Koenigkramer (Appellant)1 seeks our review under 35 U.S.C. § 134 of the Examiner’s decision, as set forth in the Final Office Action dated July 18, 2014 [hereinafter “Final Act.”], rejecting claims 1, 2, 6, 7, 10‒ 12, and 15‒21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant identifies Illinois Tool Works Inc. as the real party in interest. Appeal Brief 2 (dated December 8, 2014) [hereinafter “Br.”]. Appeal 2015-006445 Application 12/686,075 2 CLAIMED SUBJECT MATTER Appellant’s claimed subject matter relates to an “easy-open package or bag.” Spec. para. 2. Claims 1 and 10 are independent. Claim 1 is illustrative of the subject matter on appeal and is reproduced below. 1. A easy-open strip for a package, including: a first flange for connection to a first wall of a package; a second flange with a first end and a second end, the first end of the second flange being connected to the first flange by a pre-activated peel seal, and the second end of the second flange being for connection to a second wall of a package which is free of connection to the first end of the second flange, whereby a load on the first and second flanges subjects the pre-activated peel seal to a shear force. EVIDENCE The Examiner relies upon the following evidence in the Final Office Action: Rasko et al. (“Rasko”) US 5,425,825 June 20, 1995 Yeager US 5,954,433 Sept. 21, 1999 Steele US 2006/0215942 A1 Sept. 28, 2006 Koenigkramer et al. (“Koenigkramer”) US 2009/0067761 A1 Mar. 12, 2009 Appeal 2015-006445 Application 12/686,075 3 REJECTIONS The Final Office Action includes the following rejections: 1. Claims 1, 2, 7, 10, 11, 18, and 21 stand rejected under 35 U.S.C. § 102(b) as anticipated by Steele. Final Act. 2‒4. 2. Claims 6, 15‒17, and 19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Steele. Id. at 5‒6. 3. Claims 12 and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Steele and Yeager. Id. at 6‒7. 4. Claims 1, 2, 6, 7, 10, 11, 18, 19, and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Koenigkramer and Rasko. Id. at 7‒9. ANALYSIS First Ground of Rejection Appellant argues the claims subject to the first ground of rejection as a group. Br. 5. We select claim 1 as representative of the group, with claims 2, 7, 10, 11, 18, and 21 standing or falling with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). Appellant acknowledges that Steele discloses use of a “peel seal,” but argues that Steele does not anticipate claim 1 because “there is no discussion regarding a ‘pre-activated peel seal.’” Br. 5. The Examiner responds that Steele discloses a “pre-activated peel seal” because Steele describes that peelable access device 24 is formed initially as a “predetermined length” and “is attached to a web or panel prior to forming the web or panel into a final Appeal 2015-006445 Application 12/686,075 4 package.” Ans. 9 (citing Steele, paras. 45, 47‒52, 54‒56, 58, 66, 68, 70, and 71); see also Final Act. 9. We agree with the Examiner that Appellant’s Specification does not set forth a structure for a “pre-activated peel seal” that would distinguish it from the peel seal disclosed in Steele. See Spec., para. 4 (describing prior art pre-activated peel-seals are used in Zipper No. 584-001, available from Zip-Pak in Orangeburg, New York), para. 7 (mentioning incorporation of “pre-activated peel seal” but providing no description of such seal), para. 16 (“Releasable connection 48 is typically, but not limited to, a pre-activated peel seal 48 and is illustrated as such”). Figure 2 shows a peel seal 48 between first flange 30 and second flange 42, but does not disclose any structure that would distinguish it from the peel seal of Steele. The paragraphs from Steele cited by the Examiner support the Examiner’s understanding that in Steele, the peel seal is attached to the web or panel prior to forming the web or panel into the final package. Final Act. 9. Appellant does not contest the Examiner’s understanding of the manner of construction of Steele’s package. Br. 5. Further, Appellant has not provided any argument explaining specifically how the claimed “pre- activated peel seal” differs in structure from the peel seal disclosed in Steele. Id. As such, we agree with the Examiner that Steele’s peel seal anticipates the claimed “pre-activated peel seal.” Appellant further argues that Steele does not “disclose or suggest ‘whereby a load on the first and second flanges subjects the pre-activated peel seal to a shear force.’” Br. 5 (arguing that it “appears that the overall Appeal 2015-006445 Application 12/686,075 5 shape and wall structure of the Steele reference would likely reduce the criticality of the burst strength of element 24”). The Examiner responds that Steele discloses the same structure for the claimed strip and, thus, the “functional ‘whereby’ statement in the claims does not define any structure” that would distinguish the claimed invention from Steele’s strip and package. Ans. 9 (Examiner stating that Steele discloses the claimed strip for a package including a first flange (46) capable of connection to a first wall of a package, a second flange (47) with a first end and a second end, the first end of the second flange being connected to the first flange by a peel seal, and the second end of the second flange being capable of connection to a second wall of a package which is free of connection to the first end of the second flange). We agree with the Examiner’s findings that Steele discloses the structure called for in claim 1. Appellant has not explained adequately how the structure of Steele’s strip when connected to a package in the manner recited in claim 12 would operate differently under a load or how the structure of Steele’s strip otherwise differs from the strip of claim 1. As noted by the Examiner (Final Act. 9; Ans. 9‒10), Appellant’s contention that Steele’s strip would “likely reduce the criticality of the burst strength of element 24” is “unsupported opinion.” See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument cannot take the place of 2 Claim 1 is directed to a strip for a package and does not positively recite the strip connected to the package. Rather, claim 1 recites that the flanges are “for connection to” walls of a package. Br. 9 (Claims App.). Appeal 2015-006445 Application 12/686,075 6 evidence”). Appellant fails to provide any further explanation as to the basis or reasoning behind this assertion. As such, the evidence supports the Examiner’s finding that Steele’s strip anticipates the strip of claim 1. For these reasons, the Examiner’s finding of anticipation of claim 1 by Steele is supported by a preponderance of the evidence. Appellant has not demonstrated error in the rejection of claim 1. Accordingly, we sustain the rejection of claim 1, and claims 2, 7, 10, 11, 18, and 21 which fall with claim 1, under 35 U.S.C. § 102(b) as anticipated by Steele. Second and Third Grounds of Rejection Appellant relies on the same arguments presented to rebut the first ground of rejection as the basis for reversal of the claims subject to the second and third grounds of rejection. Br. 6‒7. For the same reasons discussed supra, we sustain the rejection of claims 6, 15‒17, and 19 under 35 U.S.C. § 103(a) as unpatentable over Steele and the rejection of claims 12 and 20 under 35 U.S.C. § 103(a) as unpatentable over Steele and Yeager. Fourth Ground of Rejection Appellants argue the claims subject to the fourth ground of rejection as a group. Br. 7. We select claim 1 as representative of the group, with claims 2, 6, 7, 10, 11, 18, 19, and 21 standing or falling with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). Appellant argues that because Koenigkramer “discloses one end of each flange being attached to an interlocking zipper element, . . . it cannot Appeal 2015-006445 Application 12/686,075 7 disclose ‘the first end of the second flange being connected to the first flange by a pre-activated peel seal, and the second end of the second flange being for connection to a second wall of a package.’”3 Br. 7. The Examiner responds that “Koenigkramer clearly discloses the first end of the second flange (17) being connected to a first flange (22) by a peel seal (24)” and that “Koenigkramer discloses the peel seal (24) as being pre-activated.” Ans. 10 (citing Koenigkramer, Figs. 30‒36, para. 58). We agree with the Examiner’s findings as to the scope and content of Koenigkramer. In particular, Figure 30 of Koenigkramer shows a cross- sectional view of high burst closure 11 of Figure 27. Koenigkramer, para. 83. Closure 11 includes first profile 12 and second profile 14. Id. at para. 80. First profile 12 includes first upper separating portion 17 and first flange 18, integral with each other and formed from a single sheet of polymeric web or similar material. Id. First profile 12 further includes interior flange 19 integrally formed with upper separating portion 17. Id. Second profile 14 includes second upper separating portion 21 and second flange 22. Id. First peel seal 24 is formed between the lower end of interior flange 19 and a generally central portion of second profile 14. Id. Figure 30 shows a lower end of each of first and second flanges 18, 22 sealed to the interior of respective first and second bag walls 102, 104. Id. at para. 83. Figure 31 is a cross-sectional view of the closure 11 of Figures 27 and 30 wherein second peel seal 31 is added between first and second upper 3 Appellant does not contest the Examiner’s findings as to the scope and content of Rasko or the proposed modification of Koenigkramer with Rasko. Appeal 2015-006445 Application 12/686,075 8 separating portions 17 and 21. Id. at para. 84. The upper ends 17′, 21′ of upper separating portions 17, 21 protrude from peel seal 31 to provide grips for the user to grasp and peel apart first and second peel seals 24, 31 to open closure 11. Id. There is no zipper closure in the embodiments of Figures 30 and 31. See, e.g., id. at para. 80 (distinguishing the closure of Figure 27 from “the previously disclosed zippered embodiments”). As such, Appellant’s assertion that Koenigkramer “discloses one end of each flange being attached to an interlocking zipper element” (Br. 7) is incorrect and does not demonstrate error in the Examiner’s findings as to Koenigkramer in the fourth ground of rejection. Further, we note that in the embodiment of Figure 31, which was relied on by the Examiner, second peel seal 31 is disposed at the upper ends of upper separating portions 17, 21 of flanges 18, 22, and the lower ends of flanges 18, 22 are connected to walls 102, 104, respectively. As such, contrary to Appellant’s argument (Br. 7), Koenigkramer discloses the first end 17 of the second flange 18 being connected to the first flange 22 by a pre-activated peel seal 31 and the second (lower) end of second flange 18 being for connection to a second wall (102) of a package, as called for in claim 1. Thus, we find that the Examiner’s findings as to the scope and content of Koenigkramer are supported by a preponderance of the evidence. For the foregoing reasons, we sustain the rejection of claim 1, and claims 2, 6, 7, 10, 11, 18, 19, and 21 which fall with claim 1, under 35 U.S.C. § 103(a) as unpatentable over Koenigkramer and Rasko. Appeal 2015-006445 Application 12/686,075 9 DECISION The Examiner’s decision rejecting claims 1, 2, 6, 7, 10‒12, and 15‒21 is 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED