Ex Parte Plourde et al

Patent Trial and Appeal BoardMay 21, 2013

11416050 (P.T.A.B. May. 21, 2013)

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. 11/416,050 05/02/2006 Eric P. Plourde 121981-00215 6691 51468 7590 05/21/2013 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 05/21/2013 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 ERIC P. PLOURDE and JOHN H. SCHNEIDER ____________________ Appeal 2011-003441 Application 11/416,050 Technology Center 3700 ____________________ Before: MICHAEL C. ASTORINO, BENJAMIN D. M. WOOD, and ADAM V. FLOYD, Administrative Patent Judges. WOOD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-003441 Application 11/416,050 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-4, 6, and 8-18. Claims 5 and 7 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION The claims are directed to a sculpted header seal for reclosable bags. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A reclosable bag, comprising: a first web panel sealed to a second web panel; a zipper, operated by a slider, sealed to said first web panel and said second web panel along seal lines; a portion of said first web panel and said second web panel extending over said zipper thereby forming a header over said zipper; said header including a header seal between a portion of said first web panel and a portion of said second web panel, the header seal including an upper edge; a hang aperture extending through and being completely surrounded by said header seal; wherein side edges of said header seal extend from a top edge of said first and second web panels to upwardly adjacent from said zipper; and wherein a lower edge of said header seal includes an upwardly extending arcuate portion above said slider and below the upper edge thereby defining an unsealed area, the unsealed area thereby stabilizing a position of said slider below said header seal and between said first and second web panels prior to removal of said header from the bag. REFERENCES Kinigakis US 6,616,333 B2 Sep. 9, 2003 Ishizaki EP 0 941 937 A1 Sep. 15, 1999 Appeal 2011-003441 Application 11/416,050 3 REJECTION Claims 1-4, 6, and 8-18 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kinigakis and Ishizaki. Ans. 3-4. ANALYSIS Appellants argue all of the claims together except for claim 14. Br. 5- 6. We select claim 1 as representative of claims 2-4, 6, 8-13 and 15-18, and address claim 14 separately. Claim 1 Independent claim 1 calls for a header seal with a lower edge that includes an upwardly extending arcuate portion above the zipper slider and below the header seal upper edge. Br. 7. The Examiner found that Kinigakis discloses the claimed device except for a lower edge of the header seal including an upwardly extending portion above the slider, which the Examiner found in Ishizaki. Ans. 4 (citing Kinigakis, fig. 19, Ishizaki, fig. 11). The Examiner then determined that [i]t would have been obvious to one having ordinary skill in the art at the time the invention was made to provide the header seal of [Kinigakis] with an upwardly extending portion above the slider, as suggested by Ishizaki, in order to stabilize a position of the slider below the header seal prior to removal of the header from the bag. Id. Acknowledging that Ishizaki’s upwardly extending portion is not arcuate in shape, the Examiner determined the shape to be “an obvious matter of design choice,” because “[a] change in form or shape is generally recognized as being within the level or ordinary skill in the art, absent any showing of unexpected results.” Id. Appellants argue that “the upwardly extending arcuate portion of Ishizaki is above the upper edge of the header seal,” and thus does not Appeal 2011-003441 Application 11/416,050 4 conform to the claim requirement that the upwardly extending arcuate portion be “below the upper edge” of the header seal. Br. 5-6. But as the Examiner pointed out, Ishizaki’s Figure 11 depicts the header being sealed along sides 9b and 9c, and side 9b is above the upwardly extending unsealed portion. Ans. 5; see also Ishizaki, para. [0045]. We therefore agree with the Examiner that the unsealed portion of the header is below the upper edge of the header seal, as claim 1 requires. Claim 14 Appellants next argue that “neither the Kinigakis reference nor the Ishizaki reference discloses anything regarding the arcuate character of the lower seal edge recited in Claim 14.” Br. 6.1 However, as the Examiner reasoned, limitations as to shape generally do not patentably distinguish a claim absent evidence showing that the particular shape produces unexpected results. See In re Daily, 357 F.2d 669 (CCPA 1966) (holding that configuration of claimed disposable plastic nursing container was matter of design choice that a person of ordinary skill would have found obvious absent persuasive evidence that the particular configuration was significant). Appellants have not provided evidence or persuasive argument demonstrating that the arcuate-shaped lower edge achieves unexpected results or is otherwise significant. DECISION For the above reasons, the Examiner’s rejection of claims 1-4, 6, and 8-18 is affirmed. 1 Appellants framed this argument with respect to claim 14 (Br. 6), but all of the claims require that at least a portion of the header seal lower edge be arcuate. See Br. 7-11. Appeal 2011-003441 Application 11/416,050 5 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls