Ex Parte Wegner et al

Patent Trial and Appeal BoardMar 6, 2019

13065227 (P.T.A.B. Mar. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/065,227 03/17/2011 2387 7590 03/08/2019 Olson & Cepuritis, LTD. 20 NORTH WACKER DRIVE 36THFLOOR CHICAGO, IL 60606 FIRST NAMED INVENTOR Kenneth E. Wegner 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. JLS-110 7407 EXAMINER FERRERO, EDUARDO R ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 03/08/2019 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): docket@olsonip.com firm@olsonip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KENNETH E. WEGNER, ANTHONY SIMON RICHARDS, and ANDREW J. RUSH Appeal2017-007493 Application 13/065,227 Technology Center 3700 Before MICHELLE R. OSINSKI, JEREMY M. PLENZLER, and GEORGE R. HOSKINS, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. Â§ 134(a) of the Examiner's Decision rejecting claims 15, 16, and 18. 1 We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM-IN-PART. 1 Claim 1 7 is cancelled. Appeal2017-007493 Application 13/065,227 CLAIMED SUBJECT MATTER Claim 15 is independent. Claims 16 and 18 depend from claim 15. Claim 15 is reproduced below: 15. A packaging apparatus for a flexible, tubular, compartmented package which comprises: a substantially vertical frame; a pair of driven, parallel, grooved heat sealing rolls rotatably mounted to the frame, each heat sealing roll defining at least one opposed circumferential groove and the rolls together defining at least one open passageway between respective opposed grooves; a membrane sheet supply mounted to the frame above the heat sealing rolls and positioned to feed continuously a membrane sheet between the heat sealing rolls; an outer film sheet supply mounted to the frame on each side of the membrane sheet supply and positioned to feed continuously a substantially co-extensive outer film sheet between the heat sealing rolls on each side of the membrane sheet and in a face-to-face relationship with the membrane sheet; at least one downwardly extending stationary liquid product dispensing nozzle on each side of the membrane sheet between the membrane sheet and adjacent outer film sheet; and a transverse heat sealing device having a laterally reciprocatable heat sealing head assembly and a stationary heat seal anvil mounted to the frame a predetermined distance below the heat sealing rolls and adapted to fuse together a portions of the membrane sheet and the outer film sheets contiguous therewith; and a transverse knife assembly below the transverse heat sealing device which knife assembly includes a laterally reciprocable knife and an opposed stationary anvil; said parallel, grooved sealing rolls being spaced from one another at a distance sufficient to pinch therebetween and heat- seal to one another the membrane sheet and the outer film sheet 2 Appeal2017-007493 Application 13/065,227 at pinch sites to form at least one tube having two adjacent longitudinal compartments; and said stationary liquid dispensing nozzles being positioned to dispense a liquid product into the adjacent longitudinal compartments formed by the sealing rolls. REJECTIONS 1. Claims 15 and 16 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Kopp '047 (US 3,391,047, issued July 2, 1968) and Sandolo (US 5,361,560, issued Nov. 8, 1994). 2. Claims 15 and 16 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Kopp '047, Center (US 5,235,794, issued Aug. 17, 1993), Kopp '540 (US 4,603,540, issued Aug. 5, 1986), Maloney (US 4,631,905, issued Dec. 30, 1986), Gaylor (US 5,466,474, issued Nov. 14, 1995), and Sandolo. 3. Claim 18 is rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Kopp '047, Sandolo, and Jacobson (US 3,628,306, issued Dec. 21, 1971). OPINION Claims 15 and 16-Kopp '047 /Sando lo The Examiner finds that "Kopp ['047] discloses a transverse heat sealing device adapted to fuse together portions of the membrane sheet and the outer film sheets mounted to the frame but it is not below the heating seal rolls but instead it is part of them (Figure 1, longitudinal ribs 7)." Final Act. 4. The Examiner finds that Sandolo teaches a separate transverse heat 3 Appeal2017-007493 Application 13/065,227 sealing device and transverse knife assembly2 and proposes modifying Kopp '047's arrangement to include "a combined welding and cutting device as disclosed by Sandolo and place it [below] the heating seal rolls." Id. Appellants respond, for example, that "[ c ]laims 15 and 16 call for a transverse knife assembly below the transverse heat sealing device which, in tum, is situated below the heat sealing rolls" and, specifically, a "transverse knife assembly that is an entity separate from the heat sealing rolls and is situated below the transverse heat sealing device." Appeal Br. 7. Appellants contend that "[n]either Kopp ['047] nor Sandolo teaches the claimed arrangement." Id. The Examiner explains that Sandolo's knife 33A is below its transverse heat sealing device 33B because device 33B "seals the package above and below the knife" and "the portion above the knife will be considered the 'transverse sealing device."' Ans. 7. The claims require "a transverse heat sealing device having a laterally reciprocatable heat sealing head assembly and a stationary heat seal anvil" and "a transverse knife assembly below the transverse heat sealing device." Sandolo's cutter 33A is part of its "laterally reciprocatable heat sealing head assembly." See Sandolo, 4:5-10 ("Opposite the cutter 33A is a cooperating anvil 33B to effect the sealing and severing operation as the cutter 33A is actuated. The seal is thus formed by the application of heat and pressure as the cutter is actuated . . . . "). Because Sando lo' s "transverse knife assembly" is part of its "transverse heat sealing device," it cannot be situated below the "transverse heat sealing device" as required by the claims. 2 The Examiner does not make any finding with respect to a transverse knife assembly in Kopp '047. 4 Appeal2017-007493 Application 13/065,227 Accordingly, we do not sustain the Examiner's decision to reject claims 15 and 16 as unpatentable over Kopp '047 and Sandolo. Claims 15 and 16-Kopp '047 /Center/Kopp '540/Maloney/Gaylor/Sandolo As an alternative basis to the rejection discussed above, the Examiner again finds that "Kopp ['047] discloses a transverse heat sealing device adapted to fuse together portions of the membrane sheet and the outer film sheets mounted to the frame but it is not below the heating seal rolls but instead it is part of them (Figure 1, longitudinal ribs 7)," but relies on various references, in addition to Sandolo, for the limitations missing from Kopp '047's teachings. Final Act. 5-6. Appellants do not dispute the Examiner's findings made in connection with this particular rejection. See Appeal Br. 8-10. Rather, Appellants contend that "Kopp ['047] likewise provides no motivation whatsoever to separate the unitary rotating transverse heat sealing device from the heated sealing rolls" and "Kopp ['047] provides no suggestion or motivation to one of ordinary skill to tum to the selected secondary references." Id. at 9. Those contentions are unpersuasive because there is no requirement that the references provide a suggestion or motivation for the proposed modification. The Examiner reasons that one skilled in the art would have modified Kopp '047's transverse heat sealing device to "place it [below] the heating seal rolls to be able to make packages longer than the periphery of the rolls." Final Act. 5. With respect to that particular rationale, Appellants respond that "[i]f Kopp ['047] desired, for whatever reason, to make longer sachets, all Kopp ['047] had to do is increase the diameter of the heated sealing rolls." Appeal Br. 9. Appellants contend that the "modification of Kopp ['047] as proposed by the Examiner involves substantial reconstruction of 5 Appeal2017-007493 Application 13/065,227 Kopp ['047], extra work[,] as well as increased expense for no apparent reason." Id. Those contentions are also unpersuasive. The fact that the benefit resulting from the proposed modification identified by the Examiner could be achieved in another manner does not identify error in the Examiner's rationale. Although alleging "no apparent reason" for the proposed modification, Appellants acknowledge the Examiner's rationale when arguing the diameter increase noted above. Id. Appellants additionally allege that the proposed modification to Kopp ['047]'s arrangement "is a departure from the operating principle taught," but offer no persuasive explanation identifying any meaningful departure from Kopp ['047]'s teachings. Appeal Br. 9. For at least these reasons, we are not apprised of error in the Examiner's rejection of claims 15 and 16 as unpatentable over Kopp '04 7, Center, Kopp '540, Maloney, Gaylor, and Sandolo. Claim 18-Kopp '047 /Sandolo/Jacobson Claim 18 depends from claim 15. The rejection of claim 18 relies on the Examiner's erroneous findings set forth in the rejection based on the combination of Kopp '047 and Sandolo discussed above. Final Act. 6. 3 The stated basis for the rejection of claim 18 does not cure the deficiencies in the rejection of claim 15 based on the combined teachings of Kopp '047 and Sandolo. Accordingly, we do not sustain the Examiner's decision to reject claim 18. 3 There is no rejection presented relying on the combined teachings of Kopp '047, Center, Kopp '540, Maloney, Gaylor, and Sandolo with those of Jacobson. 6 Appeal2017-007493 Application 13/065,227 DECISION We REVERSE the Examiner's decision to reject claims 15 and 16 as unpatentable over Kopp '04 7 and Sando lo. We AFFIRM the Examiner's decision to reject claims 15 and 16 as unpatentable over Kopp '047, Center, Kopp '540, Maloney, Gaylor, and Sandolo. We REVERSE the Examiner's decision to reject claim 18 as unpatentable over Kopp '047, Sandolo, and Jacobson. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART 7