Ex Parte Weaver et al

Patent Trial and Appeal BoardJun 7, 2016

13163897 (P.T.A.B. Jun. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/163,897 06/20/2011 45482 7590 06/08/2016 PAULEY ERICKSON & KOTTIS 2800 W. HIGGINS ROAD SUITE 365 HOFFMAN ESTATES, IL 60169 FIRST NAMED INVENTOR William N. Weaver 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. ITW-15027.71 1743 EXAMINER BUI,LUANKIM ART UNIT PAPER NUMBER 3728 MAILDATE DELIVERY MODE 06/08/2016 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 WILLIAM N. WEA VER, JASON R. MOREAU, and ROBERT OLSEN Appeal2014-005268 Application 13/163, 897 Technology Center 3700 Before EDWARD A. BROWN, GEORGE R. HOSKINS, and BRANDON J. WARNER, Administrative Patent Judges. HOSKINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE William N. Weaver et al. ("Appellants") 1 appeal under 35 U.S.C. Â§ 134 from the Examiner's final decision rejecting claims 1, 3, 6-10, 13, 14, and 17-20 in this application. Claims 2, 4, 5, 11, 12, 15, and 16 have been cancelled. Br. 2 & Claims App. The Board has jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 The Appeal Brief identifies Illinois Tool Works Inc. as the real party in interest. Br. 2. Appeal2014-005268 Application 13/163,897 CLAIMED SUBJECT MATTER Claims 1, 9, and 14 are independent. Claim 1 illustrates the claimed subject matter on appeal: 1. A flexible carrier for carrying a plurality of generally cylindrical containers, comprising a flexible sheet of polymer material and a plurality of container receiving apertures formed in the flexible sheet, each container receiving aperture for receiving a container, the flexible carrier comprising: an array of the container receiving apertures arranged in transverse pairs extending across the flexible sheet wherein each container receiving aperture is substantially rectangular and includes an aperture perimeter that increases more than 50% within a continuous extrusion of the polymer material following application to the container and, after recovery, provides a snug fit around the container, wherein a distance between each container receiving aperture in a transverse pair is greater than half the width of each container receiving aperture, and wherein the container receiving apertures each include a longitudinal axis that extends longitudinally across the flexible sheet and wherein the container receiving apertures are arranged in transverse pairs across the flexible sheet and container receiving apertures in outer transverse pairs of container receiving apertures are longer across the longitudinal axis than container receiving apertures in inner transverse pairs of container receiving apertures, the container receiving apertures including a straight perimeter section extending longitudinally along outer edges of each container receiving aperture; and wherein the entire flexible sheet is the continuous extrusion of the polymer material. Br. 16-17 (Claims App.). 2 Appeal2014-005268 Application 13/163,897 REJECTIONS ON APPEAL 2 Claims 1, 3, 6-10, 13, 14, and 17-20 stand rejected as an obviousness-type double patenting over claims 1-15 of US 7,510,074 B2 and over claims 1-18 of US 7,963,391 B2. Claims 1, 6, 9, 13, 14, and 17 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Weaver '423 (US 2002/0011423 Al, pub. Jan. 31, 2002) and Weaver '893 (US 6,122,893, iss. Sept. 26, 2000). Claims 3 and 10 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Weaver '423, Weaver '893, and Marco (US 5,806,667, iss. Sept. 15, 1998). ANALYSIS A. Double Patenting Appellants do not address the double patenting rejections in the Appeal Brief. See; e.g.; Br. 7 ("Grounds of Rejection to be Reviewed on Appeal"). We, therefore, summarily sustain the double patenting rejections of claims 1, 3, 6-10, 13, 14, and 17-20. SeeMPEP Â§ 1215.03 ("An appellant may, of course, choose not to present arguments or rely upon particular evidence as to certain claim rejections; however, such arguments and evidence are waived for purposes of the appeal and the Board may summarily sustain any grounds of rejections not argued."). 2 The Final Office Action included claim 2 as a rejected claim. Final Act. 2, 5. The Examiner then entered an After-Final Amendment submitted by Appellants, amending claim 1 to incorporate the limitations of claim 2, and cancelling claim 2. Amendment After Final Rejection (July 12, 2013); Adv. Act. (July 25, 2013), Item #7. 3 Appeal2014-005268 Application 13/163,897 B. Unpatentability based on Weaver ;423 and Weaver ;893 In opposition to the rejection of claims 1, 6, 9, 13, 14, and 17 as unpatentable over Weaver '423 and Weaver '893, Appellants argue for the patentability of claims 1, 9, and 14 together as a first group. Br. 7-10. Appellants also argue for the patentability of claims 1, 9, and 1 7 together as a second group. Id. at 10-11. Appellants moreover argue for the patentability of claims 1, 6, 9, 13, 14, and 17 together as a third group. Id. at 11-12. We select claim 1, which is included in all three groups, to decide the appeal of the rejection over Weaver '423 and Weaver '893, with the other claims standing or falling with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2015). The arguments presented by Appellants for all three groups are directed to limitations found in claim 1. Appellants argue the Examiner errs in finding Weaver '423 discloses, as recited in claim 1, "a flexible sheet of polymer material ... wherein the entire flexible sheet is [a] continuous extrusion of the polymer material." Br. 7-10. According to Appellants, Weaver '423 instead discloses carrier device 10 including two different polymer materials, plastic 20 and resilient polymer 40, which are coextruded or welded together. Id. at 8-9 (citing Weaver '423 i-f 36). Appellants contend paragraph 38 of Weaver '423 is a "side note" that "does not provide or suggest Appellants' sheet." Id. at 9. Further according to Appellants, the various device 10 geometries shown in the drawings of Weaver '423 "would be for the two-material sheet," and the Examiner errs in presuming these geometries would remain the same if device 10 were made fully from resilient polymer 40. Id. at 9-10. We are not persuaded of Examiner error in finding Weaver '423 discloses a flexible sheet of polymer material, wherein the entire flexible 4 Appeal2014-005268 Application 13/163,897 sheet is a continuous extrusion of the polymer material. Final Act. 2; Ans. 3. The Examiner cites paragraph 38 of Weaver '423 as disclosing carrier device 10 "may be constructed entirely from" resilient polymer 40. Final Act. 2. That finding is supported by a preponderance of evidence. Paragraph 38 of Weaver '423 states: "Although carrier 10 may be constructed entirely from a material having a lower modulus such as resilient polymer 40, the cost of such carrier 10 is prohibitive for extensive commercial use." Weaver '423 i-f 38. This is a clear disclosure that carrier device 10, as illustrated (for example) in Figure 2 of Weaver '423, may be constructed entirely from resilient polymer 40, without the use of plastic 20. Such a construction would satisfy the requirement of claim 1 for a flexible sheet of polymer material that is a continuous extrusion of the polymer material. Moreover, we do not agree with Appellants' implicit construction that claim 1 requires the sheet to be made of only one polymer material. Claim 1 pertinently recites a "sheet of polymer material" that is a "continuous extrusion of the polymer material." That language encompasses different polymer materials being part of the continuous extrusion to form the sheet. Weaver '423 discloses such a sheet in Figure 2, in which plastic 20 and resilient polymer 40 are co-extruded. Weaver '423 i-f 36. Appellants admit plastic 20 is a polymer. Br. 8-9. Thus, the polymer construction of Weaver '423 discloses the claimed sheet of polymer material that is a continuous extrusion of the polymer material. Appellants also argue the Examiner errs in finding Weaver '423 discloses, as recited in claim 1, "outer transverse pairs of container receiving apertures" that "are longer across the longitudinal axis than container 5 Appeal2014-005268 Application 13/163,897 receiving apertures in inner transverse pairs. " 3 Br. 10-11. Appellants contend each and every figure of Weaver '423 shows apertures 25 having identical widths across the longitudinal axis. Id. at 10. Appellants further assert nothing in paragraph 54 of Weaver '423 discloses outer aperture pairs having longer widths than inner aperture pairs, and instead paragraph 54 discloses only that the inner pairs "may have a 'smaller size."' Id. at 10-11. We are not persuaded of Examiner error in finding paragraph 54 of Weaver '423 suggests outer transverse pairs of apertures being longer across the longitudinal axis than inner transverse pairs of apertures. Final Act. 3 (discussing claim 2, see footnote 2 supra); Ans. 3--4. Paragraph 54 of Weaver '423 states: "Apertures 25 in a center portion of multi-packaging device 10 may require a smaller size than apertures in an outer portion of multi-packaging device 10 to minimize 'puckering."' Weaver '423 i-f 54 (emphasis added). The Examiner determines this disclosure "indicates" apertures 25 in an inner transverse pair "are shorter" than outer transverse aperture pairs. Ans. 4. For example, in looking at Figure 2 of Weaver '423, the longitudinally extending portions 20 are much longer than the transversely extending portions 40 for each aperture 25. Given those relative dimensions, a person of ordinary skill in the art, seeking to implement the suggestion in Weaver '423 for the inner aperture pairs to be smaller in size than the outer aperture pairs, would naturally shorten the longitudinally extending portions 20 of the inner pair, or lengthen the 3 An example of such a configuration is shown in Appellants' Figure 7, in which outer transverse pairs 50 of apertures 25 are longer across the longitudinal axis than inner transverse pair 60 of apertures 25. Spec. 9: 1-11. 6 Appeal2014-005268 Application 13/163,897 longitudinally extending portions 20 of the outer pair, to achieve that disclosed goal. Appellants further argue the arrangement of claim 1 "is not merely an obvious design choice," because it provides several advantages set forth in the Specification. Br. 11-12; see Spec. 2:20-3:7, 4:21-28. Appellants contend that "[b ]y improving the geometry of the carrier as claimed, the invention includes material that approaches yield while maintaining a tight engagement with each respective container." Br. 12. Appellants further urge "the numerous individual physical characteristics within the wide body of art cited by the Examiner" would not have been obvious to combine. Id. We are not persuaded of Examiner error in determining claim 1 would have been obvious over Weaver '423 and Weaver '893. Final Act. 2-3. The Examiner finds Weaver '423 discloses each and every claim limitation, except for "an aperture perimeter that increases more than 50%" when applied to a container, and for "a distance between each container receiving aperture in a transverse pair is greater than half the width of each container receiving aperture." Id. The Examiner determines the former would have been obvious from Weaver '423 's disclosure of aperture perimeters stretching at least 50%. Id. (citing Weaver '423 i-f 54). The Examiner further determines the latter would have been obvious from Weaver '893 Figure 4 showing flexible carrier 10 comprising a distance between apertures 20 in a transverse pair being greater than half the width of the apertures, "to prevent the containers from contacting each other." Id. at 3. The conclusory nature of Appellants' argument in rebuttal fails to apprise us of error in these determinations. 7 Appeal2014-005268 Application 13/163,897 For the foregoing reasons, we sustain the rejection of claims 1, 6, 9, 13, 14, and 17 as unpatentable over Weaver '423 and Weaver '893. C. Unpatentability based on Weaver '423, Weaver '893, and Marco In opposition to the rejection of claims 3 and 10 as unpatentable over Weaver '423, Weaver '893, and Marco, Appellants argue for patentability of both claims together as a group. Br. 12-14. We select claim 3 to decide the appeal of this rejection, with claim 10 standing or falling with claim 3. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2015). Appellants argue the Examiner errs in finding Marco discloses, as recited in claim 3, "an arcuate perimeter section extending transversely along outer edges of each outer transverse pair of container receiving apertures." Br. 12-14. According to Appellants, Figure 4 of Marco shows the outer edges of the outer apertures "include straight sections and not the arcuate perimeter sections" of claim 3. Id. at 13 (providing annotations to Figure 4 of Marco identifying "straight outer edge[ s ]"). Appellants contrast Figure 4 of Marco with their own Figure 9, showing outer edges having an arcuate perimeter section 85. Id. at 13-14; Spec. 9:12-21. We are not persuaded of Examiner error in finding Figure 4 of Marco discloses an arcuate perimeter section extending transversely along outer edges of end apertures 46. Final Act. 4; Ans. 4--5. In particular, the Examiner provides annotations to Figure 4 of Marco identifying the claimed arcuate perimeter sections. Ans. 5. The competing annotations to Figure 4 establish that the outer edges of Marco's end apertures 46 contain both a straight perimeter section, and an arcuate perimeter section. Claim 3 requires an arcuate perimeter section extends transversely along the outer edge, but does not require the entire transverse outer edge to be arcuate. 8 Appeal2014-005268 Application 13/163,897 Therefore, the arcuate perimeter sections identified by the Examiner in Marco Figure 4 meet the requirement of claim 3. For the foregoing reasons, we sustain the rejection of claims 3 and 10 as unpatentable over Weaver '423, Weaver '893, and Marco. DECISION The Examiner's decision to reject claims 1, 3, 6-10, 13, 14, and 17- 20 is affirmed. No time period for taking any subsequent action in connection with this appeal maybe extended, under 37 C.F.R. Â§ 1.136(a)(l)(iv). AFFIRMED 9