Pouch Pac Innovations, LLC

Patent Trials and Appeals BoardOct 26, 2021

2021002541 (P.T.A.B. Oct. 26, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/864,216 09/24/2015 R. Charles Murray PPI-33802/08 205528-491 5216 25006 7590 10/26/2021 DINSMORE & SHOHL LLP 900 WILSHIRE DRIVE SUITE 300 TROY, MI 48084 EXAMINER PERREAULT, ANDREW D ART UNIT PAPER NUMBER 3735 NOTIFICATION DATE DELIVERY MODE 10/26/2021 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): MichiganPatTM@dinsmore.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte R. CHARLES MURRAY Appeal 2021-002541 Application 14/864,216 Technology Center 3700 ____________ Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and KENNETH G. SCHOPFER, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–15. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Pouch Pac Innovations, LLC. Appeal Br. 2. Appeal 2021-002541 Application 14/864,216 2 BACKGROUND The Specification describes embodiments of “a pouch,” and more specifically, a “container for packaging a product of natural materials.” Spec. ¶ 2. CLAIMS Claims 1 and 9 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A flexible pouch comprising: a first panel and a second panel; and a first compartment and a second compartment formed between the first panel and the second panel, a barrier seal is positioned between the first and second panels, the barrier seal fixedly separates the first compartment from the second compartment, the first compartment having at least one sidewall formed from the first panel and the second panel along a peripheral edge, the first and the second panel of the first compartment being opaque to prevent visibility of contents within the first compartment. Appeal Br. 34. REJECTIONS 1. The Examiner rejects claims 1–5 under 35 U.S.C. § 103 as unpatentable over VanLoocke2 in view of First.3 2. The Examiner rejects claims 6–15 under 35 U.S.C. § 103 as unpatentable over VanLoocke in view of First and Murray.4 2 VanLoocke et al., US 2008/0240628 A1, pub. Oct. 2, 2008. 3 First et al., US 2011/0243482 A1, pub. Oct. 6, 2011. 4 Murray, US 2014/0367295 A1, pub. Dec. 18, 2014. Appeal 2021-002541 Application 14/864,216 3 DISCUSSION Claims 1 and 3–15 With respect to independent claim 1, the Examiner finds that VanLoocke discloses a flexible pouch with a first panel, a second panel, a first compartment, a second compartment, and a barrier seal 16, as claimed, except that VanLoocke does not disclose that the panels of the first compartment are opaque. Final Act. 3 (citing VanLoocke Figs. 1–17). Regarding the opacity of the first compartment, the Examiner relies on First and determines that it would have been obvious to modify VanLoocke in view of First “in order to hide intended contents in one area while revealing another in another area.” Id. (citing First ¶ 24). Regarding VanLoocke’s seal 16, the Examiner finds that VanLoocke discloses that there is “a necessary peel strength required to destroy the heat seal 16” and that “for particular users, such as a child, . . . the barrier seal would remain permanently sealed for that user, though not actually required by the claims.” Id. As discussed below, we are not persuaded of error in the Examiner’s findings and conclusion with respect to the rejection of claim 1. VanLoocke discloses “[a] reclosable, multi-compartment package and, in particular, a dual compartment package with frangible seals separating the package into at least two compartments for separately storing different moisture level foodstuffs.” VanLoocke ¶ 1. VanLoocke discloses a package 10 with seals 22 and 24 along three sides, a reclosable structure on a fourth side, and “[t]emporary or frangible seals 16 and 18 [that] are located at an interior region of the package 10 between an inner side of opposing walls 12 and 14 of the package 10.” Id. ¶ 32. VanLoocke further discloses Appeal 2021-002541 Application 14/864,216 4 that the frangible seals define compartments within the package and are “used for separating foodstuffs, and typically for separating foodstuffs having different moisture level requirements until the package 10 is to be opened.” Id. VanLoocke also discloses that four parameters can be varied to obtain a desired opening condition for the frangible seals: seal time, pressure, temperature, and “a pattern that may be on the surface of the sealing bars.” Id. ¶ 38. The Specification describes a pouch that may be separated into a first compartment 102 and a second compartment 104 “by means of a seal 126 . . . [that] acts as a barrier between the first compartment 102 and the second compartment 104. The seal 126 may be formed by heat seal and/or compression between the panels 105, 106.” Spec. ¶ 15. The Specification further describes the seal 126 by indicating that the panels 105 and 106 have an “inner layer of S-LLDPE [that] melts to form an adhesive for bonding the panels of the pouch together and to seal the fitment or closures in place.” Id. ¶ 16. Appellant argues that the Examiner incorrectly finds that VanLoocke discloses a barrier seal. Appeal Br. 21. More specifically, Appellant argues that VanLoocke’s seal is a frangible seal that is intended to be separated, i.e., is not permanent, and that one of ordinary “skill in the art would not consider a frangible seal as a barrier seal regardless of the user.” Id. at 22– 25. Appellant further asserts that the claimed barrier seal should be equated to a permanent seal separating the first compartment and the second compartment. Id. at 25 (relying on the Declaration of R. Charles Murray, dated December 10, 2019 (“Murray Declaration”)). We are not persuaded. Appeal 2021-002541 Application 14/864,216 5 We agree with the Examiner that the claim limitation “barrier seal” is reasonably interpreted to be broader than Appellant’s proposed construction equating it to a permanent seal. Notably, we do not see any indication in the Specification that the seal 126 is permanent. Rather, as quoted above, the Specification describes only that the seal “acts as a barrier” between the compartments, may be formed by heat seal and compression, and is formed when layers of the panels are melted to adhere them together. Further, we are not persuaded by the Murray Declaration that the claimed “barrier seal” should be construed more narrowly. Initially, we note that this declaration is provided by the Appellant himself, i.e., a person with a vested interest in the outcome of the application. Further, although the Declaration states that a barrier seal is a permanent seal, beyond this statement by itself, the Declaration does not provide evidence that one of ordinary skill would understand the claimed barrier seal to be a permanent seal. See Murray Dec. ¶ 8. On this point, the Declaration states: To form a permanent bond, or barrier seal, separating the first compartment from the second compartment, the S-LLPD inner layer of the present application is fully melted at a temperature of 150 F with a sealing time of 0.02 seconds to 1 second to form and [sic] adhesive the [sic] bond separating the first compartment from the second compartment. Id. Yet, no evidence or citation is provided showing that the present application requires that the seal 126 is formed in this manner. Rather, as quoted above, the Specification describes only that the inner S-LLDPE layer “melts to form an adhesive for bonding the panels of the pouch.” Spec. ¶ 16. The Murray Declaration also states that a frangible seal may be formed by melting an S-LLDPE inner layer, albeit at a different temperature and for a different amount of time. Murray Decl. ¶ 9. Thus, to the extent the Appeal 2021-002541 Application 14/864,216 6 Specification describes forming the seal 126, i.e. by melting the S-LLDPE layer, the Specification does not provide an indication that the seal is made by either process described in the Murray Declaration, i.e., there is no indication that the seal is formed by a process that would create a barrier seal or a frangible seal. Based on the foregoing, we determine that the broadest reasonable interpretation of the claim, consistent with the Specification, requires a seal that acts as a barrier between the two compartments. Given this broadest reasonable interpretation of the claim, we agree with the Examiner’s finding that VanLoocke discloses a barrier seal as claimed. See Final Act. 3. Claim 1 further requires that “the barrier fixedly separates the first compartment from the second compartment.” Appeal Br. 34. Appellant further argues that the Examiner does not address this requirement. Reply Br. 6–7. Appellant argues that it should be interpreted according to the definition of fixed, which is “not subject to change or fluctuation.” Reply Br. 7 (citing Merriam Webster). We are not persuaded of error. Here, we note that the Specification does not provide specific guidance as to how this claim language should be interpreted because the Specification does not appear to use the term “fixedly.” However, as quoted above, the Specification describes that the seal is formed by adhering the inner layers of the panels together. Spec. ¶ 16. Given this description, we determine that the broadest reasonable interpretation of the term “fixedly” requires that the panels are adhered or fastened together to form the seal and does not require that seal be permanent. Consistent with this interpretation, VanLoocke’s seal is created by adhering the layers of the pouch together such that a specific peal Appeal 2021-002541 Application 14/864,216 7 strength is required to destroy the seal. VanLoocke ¶ 38. Thus, to the extent the claim requires that the barrier seal fixedly separates, the Examiner’s findings address this limitation and show that VanLoocke discloses a seal as claimed. Based on the foregoing, we are not persuaded of error in the rejection of claim 1. With respect to independent claim 9, Appellant relies on the same arguments and the Examiner relies on the same relevant findings as those discussed above. Thus, for the reasons discussed, we are also not persuaded of error in the rejection of claim 9. Further, Appellant does not raise separate arguments regarding the rejections of dependent claims 3–8 and 10–15. Accordingly, we sustain the rejection of claims 1 and 3–15 for the reasons discussed. Claim 2 Claim 2 depends from claim 1 and requires that “the first compartment and the second compartment are secured by a child proof lock.” Appeal Br. 34. The Examiner finds that “VanLoocke discloses a child proof lock (26 with seal being resealable in paragraph 31).” Final Act. 3. Further, the Examiner clarifies that the rejection relies on element 26 with element 28 in VanLoocke and that this mechanism is “fully capable of preventing a child from opening such as a young child not yet possessing the dexterity to grip multiple elements in order to grasp a slide and open the lock.” Ans. 8. Additionally, the Examiner finds that VanLoocke discloses a feature 38 that must be removed in order to freely access the slider and zipper. Ans. 9. However, we agree with Appellant that “VanLoocke is silent as to” this claim requirement and that VanLoocke does not teach or suggest a child Appeal 2021-002541 Application 14/864,216 8 proof lock as claimed. Appeal Br. 31–32. To the extent the Examiner finds that VanLoocke’s slider or other components would prevent a child not yet possessing the dexterity to use such a component from opening the bag, the Examiner is relying on an unreasonably broad interpretation of the claim. The Examiner’s interpretation essentially reads the phrase “child proof” out of the claim because there is some age under which any closure would not be useable by a child. We interpret this claim to require a lock that is designed to prevent accessibility by children, which is consistent with its plain meaning and the Specification. See, e.g., Spec. ¶ 14 (describing “a locking mechanism 110 to prevent children from accessing the contents of the first compartment and the second compartment.”). Because the Examiner has not explained how VanLoocke teaches or suggests such a locking mechanism, we do not sustain the rejection of claim 2. CONCLUSION We AFFIRM the rejections of claims 1 and 3–15. We REVERSE the rejection of claim 2. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–5 103 VanLoocke, First 1, 3–5 2 6–15 103 VanLoocke, First, Murray 6–15 Overall Outcome 1, 3–15 2 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136 (a). See 37 C.F.R. § 1.136 (a)(l)(iv). Appeal 2021-002541 Application 14/864,216 9 AFFIRMED IN PART