Ex Parte Zoss

Patent Trial and Appeal Board

Apr 29, 2013

11381547 (P.T.A.B. Apr. 29, 2013)

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withdrawn.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

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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)).
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Application 11/381,547

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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

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