Ex Parte Tseng et al

Patent Trial and Appeal Board

Dec 14, 2017

13243410 (P.T.A.B. Dec. 14, 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.
13/243,410 09/23/2011 Ben Tseng IGP 1893 7722
321 7590 12/18/2017
SFNNTOFR POWFR N T T P EXAMINER
100 NORTH BROADWAY ATTEL, NINA KAY
17TH FLOOR
ST LOUIS, MO 63102 ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
12/18/2017 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):
uspatents @ senniger.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BEN TSENG, TER-HAI LIN, JOE WANG, and
JERRY HSU
Appeal 2016-007806
Application 13/243,410
Technology Center 3700
Before MICHELLE R. OSINSKI, JEFFREY A. STEPHENS, and
ERIC C. JESCHKE, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ben Tseng et al. (Appellants)1 appeal under 35 U.S.C. § 134 from the
Examiner’s Final Rejection of claims 1-3, 6-10, and 12-20, which are all of
the pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as Inteplast Group, Ltd.
Appeal Br. 2.
Appeal 2016-007806
Application 13/243,410
THE CLAIMED SUBJECT MATTER
Claims 1 and 10 are independent. Claim 1, reproduced below with
disputed limitations emphasized, is illustrative of the claimed subject matter
on appeal.
1. A plastic bag comprising:
a first panel having a bottom edge, first and second side
edges, and a top edge;
a second panel having a bottom edge, first and second side
edges, and a top edge, the Erst and second panels being joined to
each other along the respecti ve bottom edges and first and second
side edges to define a bag interior, the first and second panels
defining an opening between the respective top edges permitting
access to the bag interior;
a resealahle sealing structure extending continuously
s.-’ o -J
between the first and second side edges of at least one of the
panels generally adjacent to the top edges of the panels, the
resealahle sealing structure being configured to repeatedly and
nondestructively seal the first and second panels together to
prevent access to the bag interior; and
a secondary sealing structure comprising a pair of
metallocene linear low-density polyethylene clingfilm strips, the
secondary' sealing structure extending continuously between the
first and second side edges of both of the panels at a location
closer to the bottom edge than the resealable sealing structure,
the secondary sealing structure being spaced from the resealable
sealing structure a distance less than a distance between the
secondary sealing structure and the bottom edges of the first and
second panels, the secondary7 sealing structure being configured
to selectively seal the first and second panels together to prevent
access to die bag interior, the secondary sealing structure being
constructed to configure itself in a default dosed position such
that the secondary sealing structure seais the first and second
panels together to prevent access to the bag interior unless a user
holds the first and second panels apart.
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Application 13/243,410
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Adamko
Pawloski
Borchardt
McMahon
Steele
Zimmerman
US 5,948,517
US 2004/0234172 A1
US 2005/0235468 A1
US 2005/0244083 A1
US 2008/0279485 A1
US 2010/0205909 A1
Sept. 7, 1999
Nov. 25, 2004
Oct. 27, 2005
Nov. 3, 2005
Nov. 13, 2008
Aug. 19,2010
THE REJECTIONS
I. Claims 1-3 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over McMahon, Steele, and Adamko. Final Act. 2-8.
II. Claims 1-3, 9, 10, and 16-20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Zimmerman, Steele, and Adamko. Id. at 9-15.
III. Claims 6-8 and 12-15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over McMahon or Zimmerman, Steele, Adamko, and
Borchardt. Id. at 15-19.
IV. Claims 9 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over McMahon, Steele, Adamko, and Pawloski. Id. at
19-20.
V. Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over McMahon, Steele, Adamko, and Zimmerman. Id.
at 20-21.
OPINION
Rejection I
The Examiner finds that McMahon teaches most of the limitations of
independent claim 1, including, inter alia, a “secondary sealing structure
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[82, 84], . . comprising] a pair of flexible webs which ... are comprised of
strips of cling film typically made from a material which adheres to itself
and other non-adherent surfaces.” Final Act. 3 (citing McMahon 59).
The Examiner finds that McMahon’ disclosure of “cling film strips
. . . itself is sufficient to suggest that the material is capable of functioning as
claimed so as to provide ... a default closed position.” Ans. 4 (citing
McMahon ^ 59, 70-72). The Examiner further finds that McMahon
teaches that the cling films can be made of webs of linear low-density
polyethylene coated or blended with a tackifier. Final Act. 21 (citing
McMahon ]fl[ 59-62, 70, 72); see also Ans. 4 (stating McMahon “form[s]
tacky cling film strips”). In light of this teaching in McMahon, along with
Appellants’ disclosure in the Specification of a tacky cling film, the
Examiner determines that “one of ordinary skill would have expected the
films disclosed by McMahon to have a natural tendency to be drawn or
attracted towards one another when proximately positioned and therefore,
. . . the cling films disclosed by McMahon are concluded to be capable of
configuring themselves in a default closed position.” Final Act. 22. The
Examiner finds that “[tjhere is no apparent or obvious functional difference
between the cling film presently disclosed by [Appellants] and the cling film
disclosed by McMahon.” Id. (emphasis omitted).
Appellants’ Specification teaches that a cling film made of linear low-
density polyethylene/ethylene vinyl acetate, formulated without a slip
additive, results in a “tacky” cling film strip (Spec. ^ 16) and then states that
“[b]ecause of the tackiness of the cling film strips . . . they will engage each
other even without pressure applied by the user” and have a “default closed
position” {Id. ^[ 17). In view of Appellants’ Specification suggesting a
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Application 13/243,410
correlation between the tackiness of the cling film strips and the cling film
strips being constructed so as to engage each other even without pressure
from a user (i.e., being constructed to configure itself in a default closed
position) (Spec. 16-17), we agree with the Examiner’s finding that
McMahon’s cling films, being tacky, are constructed to configure
themselves in a default closed position. Final Act. 22.2
The Examiner finds that McMahon’s “cling film strips are comprised
of linear low-density polyethylene coated or blended with a tackifier.” Id. at
4 (citing McMahon ^ 72). The Examiner acknowledges that McMahon fails
to teach metallocene linear low-density polyethylene (“mLLDPE”) cling
film strips. Id. The Examiner finds that “Adamko teaches that cling films
are known to comprise a linear low-density polyethylene and further teaches
that linear low-density polyethylene is preferably polymerized with
metallocene as metallocene polymers are known in the prior art to be tacky,
blocky and self-adherent.” Id. (citing Adamko, 1:54-59, 2:27-36, 3:54-65).
2 We note that in connection with this rejection we do not rely on the
Examiner’s additional finding that “as cling films have been shown in the
prior art by Steele to have high surface energy or static charge properties
which tend to draw, attract and cling opposing films together, the cling films
which form the secondary sealing structure as disclosed by McMahon are
concluded to further be constructed to configure themselves in a default
closed position.” Final Act. 3-4 (citing Steele ^ 89). We further note that in
connection with this rejection we do not rely on the Examiner’s conclusion
that “it would have been obvious to modify the bag of McMahon by
specifically forming the pair of cling strips of a material having a high
surface energy or static charge as taught by Steele such that the cling strips
which form the secondary sealing structure are constructed to configure
themselves in a default closed position.” Id. at 4. Accordingly, we do not
address these positions by the Examiner, or Appellants’ arguments in
response thereto, in connection with Rejection I.
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The Examiner concludes that it would have been obvious to modify
McMahon’s cling strips to comprise mLLDPE “in order to ensure that the
cling film strips have tacky and self-adherent properties ... as it has been
held to be within the general skill of a worker in the art to select a known
material on the basis of its suitability for the intended use as a matter of
obvious design choice.” Id. at 4-5 (citing In re Leshin, 227 F.2d 197 (CCPA
I960)). The Examiner notes that “Adamko discloses that tacky and sealing
engageable films are known to comprise a LLDPE preferably polymerized
with metallocene as metallocene polymers are known in the prior art to be
tacky, blocky and self-adherent.” Ans. 9-10 (citing Adamko, 1:54-59,
2:27-36, 3:54-65). The Examiner determines that “there is sufficient
teaching and suggestion in the prior art references to support the conclusion
that the films disclosed by McMahon and Adamko would function
equivalently to provide a . . . default closed position.” Id.
Appellants argue that “McMahon does not. . . disclose or suggest that
the flexible webs 82, 84 . . . configure themselves in a default closed
position.” Appeal Br. 7. Rather, Appellants assert, “McMahon expressly
discloses that ‘[ijnitially the webs 82 and 84 of cling film are separated.’”
Id. at 9 (quoting McMahon 71). Moreover, Appellants assert if “cling film
webs 82, 84 [were] defaulted to a closed position, it would be impossible to
remove air enclosed between the webs 82, 84 and zipper 92 using the
vacuum system.” Id.
Although features of an apparatus may be recited either structurally or
functionally, claims directed to an apparatus must be distinguished from the
prior art in terms of structure rather than function. See In re Schreiber, 128
F.3d 1473, 1477-78 (Fed. Cir. 1997); see also Hewlett-Packard Co. v.
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Application 13/243,410
Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990) (“[AJpparatus
claims cover what a device is, not what a device does”). Therefore, the
apparatus of the prior art meets the recited functionally defined limitation
(i.e., the secondary sealing structure being constructed to configure itself in a
default closed position such that the secondary seal structure seals the first
and second panels together to prevent access to the bag interior unless a user
holds the first and second panels apart) if it is capable of the recited function.
The prior art reference need not envision the device actually being used to
perform the claimed function. See Schreiber, 128F.3dat 1477 (“Although
Schreiber is correct that [the prior art] Harz does not address the use of the
disclosed structure to dispense popcorn, the absence of a disclosure relating
to function does not defeat the Board’s finding of anticipation.”).
“[CJhoosing to define an element functionally, i.e., by what it does, carries
with it a risk.” Id. at 1478. This risk is that Appellants may bear the burden
to prove that the prior art does not possess the functional characteristic.
Appellants’ argument that McMahon’s default position is separated is
not evidence or persuasive technical reasoning as to why McMahon’s cling
film strips are incapable of the claimed function of configuring themselves
in a default closed position, at least when they are in sufficient proximity to
each other and there is no force holding them apart. As explained by the
Examiner, “to a certain degree (i.e., if held far enough apart or if held apart
by force), there is no cling film that can be positioned in a default closed
position.” Final Act. 22. As to the ability to remove air when in a default
closed position, the Examiner responds that “the interior volume is capable
of being evacuated regardless of the positon of the webs and regardless of
the type of material of the cling films forming the webs.” Ans. 8. The
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Examiner maintains that the basic purpose of the vacuum bag would not be
undermined. Id.
Appellants additionally argue that “McMahon specifies that it is only
after a vacuum creates a differential pressure between the interior volume 58
and atmosphere that the seals are drawn together.” Reply Br. 2 (citing
McMahon ^ 71). According to Appellants, “[ujnder default conditions in
which there is no pressure differential between the interior volume 58 and
atmosphere, [McMahon’s] webs are separated; and under non-default
conditions in which there is a differential pressure across the webs due to a
vacuum in the interior volume, the webs are drawn into contact.” Id.
Appellants, thus, argue that “upon completion of [a sequence of operations
consisting of opening, filling, and closing a bag], the interior volume would
be at equilibrium with atmospheric pressure,” not a “pressurized interior
volume” {id.), such that the webs in McMahon would be separated in default
conditions.
Again, Appellants’ argument that McMahon’s default position is open
does not provide evidence or persuasive technical reasoning as to why
McMahon’s cling film strips are incapable of the claimed function of
configuring themselves in a default closed position at least when they are in
sufficient proximity to each other and there is no force holding them apart.
The Examiner finds that “the cling film strips are initially separated because
of pressure inside the interior volume (58) pushing them apart” (Ans. 4) and
that “the initial separation of the cling film strips is dependent on the
pressure inside the interior volume” {id. at 5). The Examiner maintains that
“one of ordinary skill would have expected the cling film strips disclosed by
McMahon to have a tendency to be drawn/attracted towards one another
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Application 13/243,410
absent excess pressure inside the interior volume.” Id. at 5. McMahon
specifically teaches that a user is inserting an article to be stored into the
interior volume of the bag, which would necessitate the webs being
sufficiently separated to allow entry of the article into the bag. Under
conditions in which the webs are in closer proximity, Appellants have not
persuasively explained why McMahon’s cling film strips would be incapable
of configuring themselves in a default position.
Appellants also argue that “types of cling film hav[ing] much lower
surface energies . . . rely on other properties such as tackiness to create
cling.” Reply Br. 3. According to Appellants, “[tjhese tacky materials
remain closed after being forced together but do not substantially attract one
another over space because of their low surface energy.” Id. The Examiner
responds that “[t]he present invention provides no disclosure of any type of
surface energy (i.e., low or high)” and “there is no evidence to support that
the type of surface energy of a cling film is critical.” Ans. 3. We agree with
the Examiner in that Appellants’ Specification clearly suggests that,
“[bjecause of the tackiness of the cling film strips 40, 42, they will engage
each other even without pressure applied by the user” such that “the bag 10
will be closed by the cling film strips 40, 42 . . . unless a user selectively
chooses to hold the bag open” (Spec. ^ 17), rather than any particular type of
surface energy being required to achieve a default closed position.
Appellants bear the burden to show that McMahon’s cling film strips do not
inherently possess the functionally defined limitations of the claimed
apparatus (Schreiber, 128 F.3d at 1478), and Appellants’ contentions are
attorney’s argument, not persuasive evidence, that McMahon’s cling film
strips are incapable of performing the functionally defined limitation. See In
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re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (An attorney’s argument in a
brief cannot take the place of evidence.)
For the foregoing reasons, we do not find that the Examiner erred in
concluding that the subject matter of independent claim 1 is unpatentable as
obvious over McMahon, Steele, and Adamko.3 We sustain the rejection of
independent claim 1. We also sustain the rejection of claims 2 and 3, which
depend therefrom, and independent claim 10, which recites similar language
as independent claim 1, because Appellants rely on the same arguments and
reasoning we found unpersuasive in connection with independent claim 1.
See Appeal Br. 12.
Rejection II
Claims 1-3, 9, 10, and 16-20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Zimmerman, Steele, and Adamko. Final Act. 9-15.
The Examiner finds that Zimmerman teaches most of the limitations of
independent claim 1, including, inter alia, “a secondary sealing structure
(182, 184). . . being configured to selectively seal the first and second
panels together to prevent access to the bag interior.” Id. at 9 (citing
Zimmerman 24-34, Figs. 1-3). The Examiner finds Zimmerman’s
secondary sealing structure “comprises a pair of light tack adhesive peel
seals.” Id. at 10. The Examiner acknowledges that Zimmerman “fails to
specifically teach the secondary sealing structure comprising a pair of
[mLLDPE] cling film strips, wherein the cling film strips are constructed to
configure itself in a default closed position.” Id. at 9-10.
3 Although we rely principally on McMahon and Adamko, we note that in
affirming a multiple reference rejection under 35 U.S.C. § 103, the Board
may rely on fewer than all of the references relied on by the Examiner in an
obviousness rationale. In re Bush, 296 F.2d 491, 496 (CCPA 1966).
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The Examiner finds that Steele “teaches that as an alternative to
adhesives, it is known in the prior art to form the pair of barrier films of a
material having a high surface energy or static charge, such that the barrier
films have a tendency to adhere and/or cling to themselves or other objects.”
Id. at 10 (citing Steele ^ 89). The Examiner further finds that “Adamko
teaches that cling films are known to comprise a linear low-density
polyethylene and further teaches that linear low-density polyethylene is
preferably polymerized with metallocene as metallocene polymers are
known in the prior art to be tacky, blocky and self-adherent.” Id. (citing
Adamko, 1:54-59, 2:27-36, 3:54-65).
The Examiner concludes that:
as cling films having a high surface energy or static charge
properties which tend to draw, attract and cling opposing films
together have been shown in the prior art to be a known
alternative to adhesive films, it would have been obvious to . . .
modify the bag [of] Zimmerman by specifically forming the
secondary sealing structure of a pair of cling film strips
comprising a material having a high surface energy or static
charge as taught by Steele such that [the] secondary sealing
structure is constructed to configure itself in a default closed
position .... Further, it would have been obvious to specifically
form the secondary sealing structure of a material comprising
[mLLDPE] as taught by Adamko in order to ensure that the cling
film strips have tacky and self-adherent properties ... as it has
been held to be within the general skill of a worker in the art to
select a known material on the basis of its suitability for the
intended use as a matter of obvious design choice.
Id. at 10-11 (citing In re Leshin, 227 F.2d 197 (CCPA I960)).
Appellants argue that “the Examiner has not reasonably articulated
how the proposed combination would function or why one skilled in the art
would have reasonable expectations of success in combining the references
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as suggested.” Appeal Br. 13. More particularly, Appellants take the
position that the combination of Steele with the primary reference achieves a
default closed position “through use of a high surface energy material as
shown by Steele,” whereas “mLLDPE, such as the species of material
disclosed in Adamko, has low surface energy and static charge.” Id. at 10.
Appellants assert that “the difference between low surface energy and high
surface energy material directly affects the function of the materials in this
context.” Id. Appellants argue that:
the Examiner provides no articulated reasoning to show that
mLLDPE material would function like the high surface energy
material described in Steele to orient the sealing webs [of the
primary reference] to draw themselves together when positioned
proximally to each other. Furthermore, . . . one skilled in the art
would not have a reasonable expectation from the cited
references that the proposed substitution of low surface energy
mLLDPE would successfully produce a bag that configures the
cling film strips to draw themselves together. To support aprima
facie case based on the cited references requires ... an
explanation of why one skilled in the art would expect low
surface energy mLLDPE to perform the same as the high surface
energy film of Steele, when Steele states that it is the high surface
energy of the material that causes its film strips to draw
themselves together.
Id. at 10-11.
We have considered these arguments, but find them unavailing. The
Examiner has adequately explained why one of ordinary skill in the art
would be led to form modified Zimmerman’s cling film strips from
mLLDPE—namely, to provide cling film strips that have tacky and self­
adherent properties. Final Act. 10-11. As explained above in connection
with Rejection I, tacky and self-adherent cling film strips are structurally
indistinguishable from the claimed secondary sealing structure constructed
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to configure itself in a default closed position, as evidenced by the statement
in the Specification that the cling film strips will engage each other even
without pressure applied “[bjecause of the tackiness of the cling film strips.”
Spec. 17. Accordingly, we are not persuaded that forming modified
Zimmerman’s cling film strips of Adamko’s mLLDPE material would cause
the cling film strips to fail to be constructed to configure themselves in a
default closed position, or otherwise fail to perform the same as Steele’s
material that has “a tendency to adhere and/or cling to [itself].” Steele ^ 89.
Steele itself expressly recognizes the suitability of adhesives in place of its
high surface energy material in other embodiments. Id. Accordingly, we are
not persuaded that the Examiner has failed to articulate reasoning having
rational underpinnings to explain why and how one of ordinary skill in the
art would combine the references to achieve the claimed subject matter.
Appellants also argue that “any substitution of the low surface energy
mLLDPE material of Adamko would contradict the principle of operation by
which the proposed combination of references achieves the default sealed
position” because the Examiner “relies solely on Steele to explain the
principle of operation by which cling film strips are drawn into default
sealing engagement.” Appeal Br. 13. The “principle of operation” referred
to by Appellants relates to the “basic principles” under which the prior art
device was designed to operate. In re Ratti, 270 F.2d 810, 813 (CCPA
1959) (“This suggested combination of references would require a
substantial reconstruction and redesign of the elements shown in [the
primary reference] as well as a change in the basic principles under which
the [primary reference] construction was designed to operate.”) (emphasis
added). Under Ratti, “a change in the basic principles” refers to change that
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is fundamental in scope so as to relate to scientific or technical principles
under which the invention is designed to operate. Here, making modified
Zimmerman’s cling film strips out of a tacky and self-adherent material does
not affect the overall principle of operation of sealing the opposing panels of
a plastic bag, nor configuring the cling strips in a default position to prevent
access unless a user holds the first and second panels apart, as explained in
more detail above.
For the foregoing reasons, we determine that the Examiner did not err
in concluding that the subject matter of independent claims 1 and 10 is
unpatentable over Zimmerman, Steele, and Adamko. We sustain the
rejection of claims 1 and 10 as unpatentable over Zimmerman, Steele, and
Adamko. We also sustain the rejection of claims 2, 3, 9, and 16-20, which
depend therefrom, and for which Appellants rely on the same arguments we
found unpersuasive in connection with the independent claims. Appeal Br.
13.
Rejections III, IV, and V
Claims 6-8 and 12-15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over McMahon or Zimmerman, Steele, Adamko, and
Borchardt. Final Act. 15-19. Claims 9 and 16 stand rejected under 35
U.S.C. § 103(a) as unpatentable over McMahon, Steele, Adamko, and
Pawloski. Id. at 19-20. Claims 17 and 18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over McMahon, Steele, Adamko, and Zimmerman.
Id. at 20-21. Appellants’ arguments in support of the patentability of claims
6-9 and 12-18 solely relate to the perceived deficiencies of McMahon or
Zimmerman, Steele, and Adamko. Appeal Br. 14-15. Because we have
found no such deficiencies, we also sustain the rejections, under 35 U.S.C.
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§ 103(a), of: claims 6-8 and 12-15 as unpatentable over McMahon or
Zimmerman, Steele, Adamko, and Borchardt; claims 9 and 16 as
unpatentable over McMahon, Steele, Adamko, and Zimmerman, and claims
17 and 18 as unpatentable over McMahon, Steele, Adamko, and
Zimmerman.
DECISION
The Examiner’s decision to reject claims 1-3 and 10 under
35 U.S.C. § 103(a) as unpatentable over McMahon, Steele, and Adamko is
affirmed.
The Examiner’s decision to reject claims 1-3, 9, 10, and 16-20 under
35 U.S.C. § 103(a) as unpatentable over Zimmerman, Steele, and Adamko is
affirmed.
The Examiner’s decision to reject claims 6-8 and 12-15 under
35 U.S.C. § 103(a) as unpatentable over McMahon or Zimmerman, Steele,
Adamko, and Borchardt is affirmed.
The Examiner’s decision to reject claims 9 and 16 under 35 U.S.C.
§ 103(a) as unpatentable over McMahon, Steele, Adamko, and Pawloski is
affirmed.
The Examiner’s decision to reject claims 17 and 18 under 35 U.S.C.
§ 103(a) as unpatentable over McMahon, Steele, Adamko, and Zimmerman
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)(l)(iv).
AFFIRMED
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