Ex Parte Langseder et al

Patent Trial and Appeal Board

Sep 4, 2018

11457859 (P.T.A.B. Sep. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/457,859 07/17/2006
27614 7590 09/04/2018
MCCARTER & ENGLISH, LLP NEW ARK
FOUR GATEWAY CENTER
100 MULBERRY STREET
NEW ARK, NJ 07102
FIRST NAMED INVENTOR
Neal E. Langseder
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.
123034-00003 7887
EXAMINER
LEWIS, JUSTIN V
ART UNIT PAPER NUMBER
3638
MAIL DATE DELIVERY MODE
09/04/2018 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 NEALE. LANGSEDER and EDWARD WIEGAND 1
Appeal 2017-011434
Application 11/457 ,859
Technology Center 3600
Before EDWARD A. BROWN, JAMES P. CALVE, and
GEORGE R. HOSKINS, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeals under 35 U.S.C. § 134(a) from the Office Action
rejecting claims 1--4 and 11-18. Appeal Br. 5. Claims 5-10 are cancelled.
Id. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 CCL Label, Inc. is identified as the real party in interest. Appeal Br. 2.
Appeal 2017-011434
Application 11/457 ,859
CLAIMED SUBJECT MATTER
Claims 1 and 3 are independent with claim 1 reproduced below.
1. A method for producing a squeeze tube with maximal
surface area labeling comprising:
(a) pretreating a preformed tube with flame, plasma, or
corona to obtain a dyne level of at least 3 8;
(b) adhering a label to the preformed tube with a solvent,
emulsion, or hot-melt adhesive, wherein substantially all of a
label surface is adhered to and covers the surface of the
preformed tube as well as extending into and including at least
a portion of a seal, with a peel strength adhesive value between
the label and the preformed tube in the range of 800 to 2500
grams/inch at 12 inches/minute pull speed, and wherein the
label is not a component of the preformed tube material; and
( c) sealing through one end of the preformed tube and
label adhered to said preformed tube at the seal by heating only
an internal surface of the tube before applying sealing pressure
so that a squeeze tube is sealed, wherein the label encompasses
at least a portion of the seal of the squeeze tube thereby
producing a squeeze tube with maximal surface area labeling.
REJECTIONS
Claims 1, 2, 11, and 13 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Levy (US 1,432,400, iss. Oct. 17, 1922), Knoerzer
(US 2004/0017075 Al, pub. Jan. 29, 2004), Instance (US 5,944,357, iss.
Aug. 31, 1999), Kelch (US 6,127,032, iss. Oct. 3, 2000), and Ouellette
(US 4,351,692, iss. Sept. 28, 1982).
Claims 3, 4, 12, and 18 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Levy, Instance, and Ouellette.
Claim 14 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Levy, Knoerzer, Instance, Kelch, Ouellette, and Brandt (US 5,366,251, iss.
Nov. 22, 1994).
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Appeal 2017-011434
Application 11/457 ,859
Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Levy, Instance, Ouellette, and Brandt.
Claims 16 and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Levy, Knoerzer, Instance, Kelch, Ouellette, and Monia
(US 4,006,275, iss. Feb. 1, 1977).
ANALYSIS
Claims 1, 2, 11, and 13
Rejected Over Levy, Knoerzer, Instance, Kelch, and Ouellette
The Examiner finds that Levy discloses a method for producing a
squeeze tube with maximal surface area labeling, as recited in claim 1, by
adhering a label to a preformed tube so substantially all of a label surface is
adhered to and covers the surface of the tube and extends into and includes a
portion of a seal. Non-Final Act. 3. The Examiner interprets "adhere" as "to
hold fast or stick by or as ifby gluing, suction, grasping or fusing." Ans.
12. The Examiner finds that Figure 3 of Levy shows "substantially all of
said label (b) grasps, and is therefore 'adhered' to, and covers the surface of
the squeeze-tube" so a skilled artisan "would infer that the label (b) of fig. 2,
which tapers downward to a lowermost 'point' covers the distal bottom end
of the tube (a), and when secured via the clip/fastener (d), becomes part of
the assembly's 'seal' area." Id. The Examiner finds that clip/fastener (d) is
a "seal" when it closes the tube and holds trade dress model (b) in place. Id.
Appellants argue that Levy does not disclose the step of adhering a
label to a tube so substantially all of a surface of the label is adhered to the
tube, or the tube is sealed. Appeal Br. 11-12. Appellants argue that Levy
discloses an empty collapsible tube around which a paper "mockup" of a
proposed trade dress is wrapped and then clipped at one end. Id. at 11.
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Appeal 2017-011434
Application 11/457 ,859
The Examiner's finding that Levy teaches "adhering a label to the
preformed tube" is based on an unreasonably broad interpretation of the term
"adhering" in light of the Specification and claim language. Claim 1
requires that "substantially all of a label surface is adhered to and covers the
surface of the preformed tube." Appeal Br. 25 (Claims App.). Claim 1 also
recites that the label is adhered with a solvent, emulsion, or hot-melt
adhesive with a peel strength adhesive value between the label and the
preformed tube, i.e., between their surfaces, in the range of 800 to 2500
grams/inch at 12 inches/minute pull speed. Id.
The Specification discloses that the invention maximizes the labeled
surface area of a squeeze tube "by extending the label into the sealed area of
the squeeze tube." Spec. 3:10-12. The label is adhered to the tube so that it
"does not dart or flag and does not delaminate from the tube." Id. at 3: 12-
15. Appellants distinguish their method from the prior art, which did not
label a squeeze tube in the seal area because damage to the label, ink, or
surface coating can occur during sealing such that "the label coating or ink
may lose adhesion to the tube and separate due to the heat." Id. at 2:4--9.
The Specification discloses solvent-type, emulsion-type, and hot-melt label
adhesives that can be used in the claimed method "so long as the adhesive
selected can withstand the heat and pressure of end sealing." Id. at 4:20-33.
Thus, the Specification discloses "adhering a label" as requiring a surface of
the label to attach permanently to the surface of a squeeze tube.
Levy does not disclose the use of an adhesive to attach or adhere trade
dress sheet "b" to collapsible tube "a." Instead, Levy teaches that an "empty
collapsible tube a is wrapped with a sheet b of paper or light flexible
material" on which the trade dress appears. Levy 1 :56-65 (emphasis added).
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Application 11/457 ,859
Thus, the Examiner's finding that "substantially all of said label (b)
grasps, and is therefore 'adhered' to, and covers the surface of the squeeze-
tube (a)" (Ans. 12) is not supported by preponderance of evidence. Even if
the bottom edge of label b is secured to the bottom seal of empty tube a "by
means of the clip or fastener d" (Levy, 1 :71-73; Ans. 12, 13), that fact does
not establish how "substantially all of a label surface" of sheet b "is adhered
to ... the surface of the preformed tube" (collapsible tube a) of Levy. We
agree with the Examiner that Figure 3 shows label sheet b covering tube a.
However, this coverage does not establish that substantially all of the surface
of sheet bis adhered to the surface of tube a as claimed. Nor does Figure 3
support a finding that label b "grasps the contours of the squeeze-tube (a)"
so that it adheres to tube a. Ans. 12. Instead, Levy discloses that
a plain tube (or other container) is wrapped or jacketed with
paper having the color that is intended ... for the trade-dress;
and, on this jacket or paper-wrapping, there is sketched and
laid out the trade-dress that is proposed that the container shall
bear; the package is then closed.
Levy 1:28-36 (emphasis added). As a result, the Examiner's determination
that it would have been obvious to use a hot-melt adhesive to attach Levy's
label to tube a "[g]iven that Levy concerns a label (b) to be attached to a
container" (Non-Final Act. 4) is not supported by a factual underpinning.
The rationale of using such an adhesive "to yield a resultant strong bond
between the Levy tube container and the label" (id.) is based on a faulty
finding that Levy adheres label sheet b to trade dress tube a and desires a
permanent bond. See In re Biedermann, 733 F.3d 329, 335 (Fed. Cir. 2013)
("The articulated reasoning and factual underpinnings of an examiner's
rejection are, thus, essential elements of any stated ground of rejection").
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Appeal 2017-011434
Application 11/457 ,859
Instead, Levy discloses that after tube a is wrapped with a sheet and
closed at the bottom with a clip or fastener d, trade-dress model B "is now
ready for submission to the prospective customer, who can gather therefrom
an accurate impression or idea of the attractiveness of the finished containers
dressed in accordance with the model B." Levy, 1:71-79. Thus, we are not
persuaded that a skilled artisan would have been motivated to use a hot-melt
adhesive of Instance to provide a strong bond between the surfaces of label b
and trade dress tube a in Levy as the Examiner reasons. Non-Final Act. 4.
Nor are we persuaded that Levy's use of a clip or fastener d to close the tube
bottom after the tube is wrapped in trade dress label a (Levy, 1 :71-73)
suggests the desirability of adhering substantially all of the label surface to
the tube surface with a hot-melt adhesive of Instance or any other adhesive.
Ans. 14. Thus, we do not sustain the rejection of claim 1 and its dependent
claims 2, 11, and 13.
Claims 3, 4, 12, and 18
Rejected Over Levy, Instance, and Ouellette
Independent claim 3 also recites a method that comprises "adhering a
label to a tube film with a solvent, emulsion, or hot-melt adhesive, wherein
substantially all of a label surface is adhered to and covers the surface of the
tube film." Appeal Br. 26. The Examiner relies on Levy to teach the step of
adhering substantially all of a label surface to a tube surface as for claim 1.
Non-Final Act. 7. The Examiner relies on Instance to teach the use of a hot-
melt adhesive to attach a label to a container as for claim 1. Id.
As discussed above for claim 1, Levy fails to disclose "substantially
all of a label surface is adhered to and covers the surface of the tube film" as
recited in claim 3. See Appeal Br. 20; Ans. 22 (claim 3 falls with claim 1).
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Application 11/457 ,859
We also agree with Appellants that Instance does not remedy this
deficiency in Levy. Id. at 21. Instance uses hot-melt adhesive 60 to attach
folded leaflets 2 to support pieces 18 of a multilaminar label. Appeal Br. 16;
Instance, 2:52-62, 3:27-59, 4:16-26. Instance does not adhere a label to a
squeeze tube or other container using a hot-melt adhesive so substantially all
of the label surface is adhered to the surface of the tube as claimed. Id. The
Examiner's reason for using a hot-melt adhesive to attach Levy's label b to
Levy's tube a is based on the same faulty underpinning as for claim 1 above,
i.e., that label bis adhered to tube a. See Final Act. 7; Ans. 22. Thus, we do
not sustain the rejection of claim 3 or its dependent claims 4, 12, and 18.
Dependent Claims 14-17
Appellants argue that claims 14--1 7 are patentable based on their
dependence from independent claims 1 or 3, and neither Brandt nor Monia
cures the deficiencies of the rejections of independent claims 1 and 3. See
Appeal Br. 21-23. We agree. See Ans. 26 (claims 14--17 stand or fall with
their respective independent claims). Thus, we do not sustain the rejections
of claims 14--17.
DECISION
We reverse the rejections of claims 1--4 and 11-18.
REVERSED
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