Ex Parte ZossDownload PDFPatent Trial and Appeal BoardApr 29, 201311381547 (P.T.A.B. Apr. 29, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROBERT A. ZOSS ____________ Appeal 2011-003360 Application 11/381,547 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, JOHN W. MORRISON, and HYUN J. JUNG, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1, 3, 4, 6-9, 21, 23-29, 31, and 32. Claims 2, 5, 14, 18-20, 22, and 30 are cancelled. Claims 10-13 and 15-17 are withdrawn. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. Appeal 2011-003360 Application 11/381,547 2 Rejections Claims 1, 3, 4, 6-9, 21, 23-26, 31, and 32 are rejected under 35 U.S.C. § 103(a) as unpatentable over St. Pierre (US 6,318,626 B1, iss. Nov. 20, 2001) and Olin (US 2001/0010737 A1, publ. Aug. 2, 2001). Claims 27-29 and 31 are rejected under 35 U.S.C. § 103(a) as unpatentable over St. Pierre, Olin, and Healy (US 6,352,365 B1, iss. Mar. 5, 2002). Claimed Subject Matter The claimed subject matter “relates to an easy pour bag fabricated from a flexible packaging film especially for food products.” Spec. 1: 9-10. Claim 1, the sole independent claim on appeal, is reproduced below with added emphasis, and is representative of the subject matter on appeal. 1. A bag article, comprising: a longitudinally extending body fabricated from a flexible packaging film, the body defining an upper opening and a lower opening; a lower transverse closure closing the lower opening; and an opposed upper transverse closure closing the upper opening; wherein the lower transverse closure and the upper transverse closure are each: entirely linear in a single direction in extension across the corresponding opening, arranged at an oblique angle relative to the longitudinally extending body, and parallel with respect to one another; and further wherein the upper transverse closure includes: a continuous, uninterrupted, non- reclosable seal extending across an entirety of the upper opening, and Appeal 2011-003360 Application 11/381,547 3 a pair of flaps above the continuous seal opposite the lower transverse closure, the flaps being free from one another. OPINION The Appellant persuasively contends that the combined teachings of St. Pierre and Olin do not result in entirely linear, parallel, and oblique upper and lower closures as called for in claim 1. App. Br. 7-8, Reply Br. 5-8. The Examiner has found that St. Pierre, citing to Figure 5, discloses parallel lower and upper transverse closures. Ans. 3, Fin. Rjt. 2. However, in the Advisory Action, mailed February 16, 2010, the Examiner determined that “while it could be argued that St. Pierre does disclose parallel seals . . . due to the fact each of the line segments forming the seal are parallel, and thus if you extend the seals they would never cross (as the ends are parallel), this argument is moot, as Olin is used to teach this feature.” Advisory Action 2 (emphasis added). The Examiner also found that St. Pierre does not disclose an “upper closure [that] is entirely linear in an acute oblique angle relative to the longitudinally extending body.”1 Ans. 4. The Examiner turned to Olin to remedy this deficiency with regard to claim 1. The Examiner found, among other things, that “Olin discloses a bag having an upper closure which is entirely linear in order to more easily form it using standard bag bar sealing devices.” Ans. 4. The Examiner’s findings concerning Olin are adequately supported since Olin discloses parallel upper and lower closures that extend linearly (see, e.g., Olin fig. 10a) and an upper closure that is entirely linear in an oblique angle (see, e.g., Olin figs. 9, 15). 1 The term “acute” in the Examiner’s finding appears to be directed to dependent claims 3, 4, and 7. Appeal 2011-003360 Application 11/381,547 4 The Examiner concluded, among other things, that “[i]t would have been obvious to one of ordinary skill in the art to create the top and bottom seals of St. Pierre et al. as entirely linear at an acute angle.” Ans. 4 (emphasis added). The Appellant contends that “no explanation is given as to why one of skill would have reasonably considered the asserted modifications.” App. Br. 8. In response, the Examiner reasons that one of ordinary skill in the art “would clearly recognize and apply the benefits of using conventional bar sealing means as taught by Olin to reduce the cost and simplify manufacturing [paragraph 11] over the more complicated, stepped design taught by St. Pierre.” Ans. 7 (emphasis added). The Examiner’s response does not support the Examiner’s conclusion, however, because the Examiner has not found that Olin’s sealing means would form a lower closure at an oblique angle relative to its main bag body. See Reply Br. 5. As the Appellant points out, although Olin’s upper closure is at an oblique angle, relative to its main bag body, Olin’s lower closure is perpendicular to the main body bag. See id. Accordingly, the Examiner’s reasoning does not adequately explain why the upper closure and the lower closure would be entirely linear, parallel, and oblique. Therefore, the Examiner has not adequately articulated reasoning with rational underpinning as to why one of ordinary skill in the art would have combined the teachings of St. Pierre and Olin to result in the claimed subject matter. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds [require] some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”) (cited with approval in KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)). Appeal 2011-003360 Application 11/381,547 5 Thus, the rejection of independent claim 1 and claims 3, 4, 6-9, 21, 23-26, 31, and 32, which depend thereon, as unpatentable over St. Pierre and Olin, is not sustained. The remaining rejection of claims 27-29 and 31 based on St. Pierre and Olin in combination with Healy relies on the same inadequate reasoning as discussed above. Additionally, the Examiner does not point out how the teachings of Healy might remedy the deficiency of the Examiner’s rejection of independent claim 1. Thus, the rejection of claims 27-29 and 31 as unpatentable over St. Pierre, Olin, and Healy is not sustained. DECISION We REVERSE the rejections of claims 1, 3, 4, 6-9, 21, 23-29, 31, and 32. REVERSED Klh Copy with citationCopy as parenthetical citation