Ex Parte Weagant et al

Patent Trial and Appeal BoardMar 28, 2018

12765438 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121765,438 04/22/2010 23377 7590 03/30/2018 BAKER & HOSTETLER LLP CIRA CENTRE 12TH FLOOR 2929 ARCH STREET PHILADELPHIA, PA 19104-2891 FIRST NAMED INVENTOR Simon Weagant 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. LB0015USNA/092456.0001 l l 9400 EXAMINER GERRITY, STEPHEN FRANCIS ART UNIT PAPER NUMBER 3721 NOTIFICATION DATE DELIVERY MODE 03/30/2018 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): eofficemonitor@bakerlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SIMON WEAGANT, JASON G. PETERSON, and JAMES W. SADLER1 Appeal 2016-006430 Application 12/765,438 Technology Center 3700 Before JOHN C. KERINS, BRANDON J. WARNER, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Simon Weagant et al. (Appellants) seek our review under 35 U.S.C. Â§ 134(a) of the Examiner's decision rejecting claims 1, 4--9, 11, and 35. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We REVERSE. 1 The Appeal Brief lists Liqui-Box Corp. as the real party in interest. Appeal Br. 1. Appeal 2016-006430 Application 12/765,438 THE CLAIMED SUBJECT MATTER The claimed invention is directed to a process for forming and filling flexible liquid-packaging pouches. Spec. 1: 14--15. Claim 1 is illustrative of the claims on appeal and is reproduced below with emphasis added. 1. A process for forming a pouch with improved fill accuracy, said process comprising the steps of: (A) providing a continuous tube of flexible and sealable film; (B) supplying the continuous tube with a predetermined flow-rate of flowable material fed from an external balance tank; wherein said balance tank comprises an inlet for said flowable material, at least one outlet for said flowable material, and at least one stand-pipe within said balance tank and over said at least one outlet, wherein said standpipe is flowably attached to said at least one outlet, such that the inside of said balance tank is at a steady state and localized disturbances are reduced and wherein said balance tank feeds at least one continuous flexible tube and wherein the height of said stand-pipe, measured as a percentage of the level of said flowable material in said balance tank is in the range from about 1 % to about 99%. Appeal Br. 11 (Claims App.). REFERENCES RELIED ON BY THE EXAMINER de la Poype Toraason Falkner us 3,886,714 us 5,176,174 us 6,074,562 June 3, 1975 Jan. 5, 1993 June 13, 2000 THE REJECTIONS ON APPEAL (I) Claims 1, 4, 5, 7, 8, 11, and 35 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over de la Poype and Toraason. 2 Appeal 2016-006430 Application 12/765,438 (II) Claims 6 and 9 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over de la Poype, Toraason, and Falkner. ANALYSIS Re} ection (I) The Examiner finds that de la Poype discloses many of the method steps recited in claim 1, but does not disclose the recited stand-pipe and its associated function. Final Act. 3. Nonetheless, the Examiner finds that Toraason discloses, in the relevant art, a stand-pipe disposed within a tank that satisfies the functions associated with the stand-pipe as set forth in the method of claim 1. Id. at 3--4. The Examiner reasons that it would have been obvious to implement the stand-pipe disclosed by Toraason in the method taught by de la Poype "in order to avoid disturbances (swirling) at the outlet from the tank." Id. at 4. Appellants contend that neither de la Poype nor Toraason recognizes the problem addressed by the method of claim 1. See Appeal Br. 5, 7. Appellants further contend that Toraason is not directed to filling pouches, rather, it is concerned with reducing the abruptness at which fuel flow stops when a fuel level in a tank decreases. Reply Br. 3--4, 7. Expanding on this point, Appellants contend that, given the function of the stand-pipe taught by Toraason, the Examiner's reasoning for modifying de la Poype to include a stand-pipe is based on impermissible hindsight. Id. at 7. In this regard, Appellants assert that T oraason does not teach or suggest reducing turbulence at a tank outlet, and, thus, there is no reason to implement the stand-pipe of Toraason in the tank (and method) of de la Poype. Id. at 7-8. 3 Appeal 2016-006430 Application 12/765,438 Addressing the issue of the function of Toraason's stand-pipe, the Examiner states, "[t]he structure of Toraason's dispensing tank discloses the same type of stand[ -]pipe at the outlet from the tank and it is for use in the same manner as appellant claims, i.e. to ensure that the inside of the tank is at a steady state and localized disturbances are reduced and wherein the tank feeds liquid therefrom." Ans. 9. The Examiner's finding that Toraason's stand-pipe is used in the same manner as Appellants' is not supported by a preponderance of the evidence. Rather, as Appellants point out (Reply Br. 3--4, 7), the purpose of Toraason's stand-pipe is to gradually reduce the delivery rate of fluid as a fluid level decreases (see Toraason, 1: 16-64). The Examiner does not identify, and we do not find, a teaching in Toraason regarding reducing turbulence or "localized disturbances." As the finding that Toraason's stand-pipe would reduce localized disturbances in the tank is the basis of the Examiner's reasoning for modifying de la Poype (Final Act. 4 ), we agree with Appellants (Reply Br. 7) that the Examiner's proposed combination of de la Poype and Toraason is based on impermissible hindsight. Accordingly, we do not sustain the rejection of claim 1, and claims 4, 5, 7, 8, 11, and 35 depending therefrom, as unpatentable over de la Poype and Toraason. Re} ection (II) The Examiner does not rely on Falkner in any way that would remedy the deficiency in Rejection (I). See Final Act. 6. Accordingly, we do not sustain the rejection of claims 6 and 9 as unpatentable over de la Poype, Toraason, and Falkner. 4 Appeal 2016-006430 Application 12/765,438 DECISION We reverse the Examiner's decision to reject claims 1, 4--9, 11, and 35. REVERSED 5