Pouch Pac Innovations, LLC

Patent Trials and Appeals Board

Oct 26, 2021

2021002542 (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.
15/400,264 01/06/2017 R. Charles Murray PPI-33803/08 205528-630 5631
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 2021-002542
Application 15/400,264
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 1–20. 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.
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Application 15/400,264

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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;
a first compartment and a second compartment formed
between the first panel and the second panel, an upper seal
positioned across the top of the first panel and the second panel
above the first compartment and the second compartment, the
upper seal having two ends, the first compartment having a first
edge seal formed from the first panel and the second panel along
a first peripheral edge and a first sidewall formed by a first seam,
the first edge seal terminating below the upper seal and
outwardly of one of the ends of the upper seal forming a first
seam notch between the first peripheral edge and the upper seal,
the first compartment being opaque to as to prevent visibility of
a plurality of contents of the first compartment;
the second compartment having a second edge seal formed
from the first panel and the second panel along a second
peripheral edge and a second sidewall formed by the first seam,
the second edge seal terminating below the upper seal and
outwardly of the other one of the ends of the upper seal forming
a second seam notch between the second peripheral edge and the
upper seal, the second compartment is transparent;
the first seam is positioned between the first panel and the
second panel, and between the first edge seal and the second edge
seal, extending vertically from a third edge seal and ending at a
position below the upper seal; and
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a slider assembly movably attached to the upper seal, the
upper seal being resealable between the two ends, the slider
assembly securing the first compartment and the second
compartment in one direction and permitting access to both the
first compartment and the second compartment in an opposite
direction.
Appeal Br. 51
REJECTIONS
1. The Examiner rejects claims 1 and 3–5 under 35 U.S.C. § 103 as
unpatentable over VanLoocke2 in view of First3 and Dytchkowskyj.4
2. The Examiner rejects claims 9, 11–13, and 17–20 under 35 U.S.C. § 103
as unpatentable over VanLoocke in view of First, Ajootian,5 and
Dytchkowskyj.
3. The Examiner rejects claim 2 under 35 U.S.C. § 103 as unpatentable over
VanLoocke in view of First, Dytchkowskyj, and Chapek.6
4. The Examiner rejects claim 10 under 35 U.S.C. § 103 as unpatentable
over VanLoocke in view of First, Ajootian, Dytchkowskyj, and Chapek.
5. The Examiner rejects claims 6–8 under 35 U.S.C. § 103 as unpatentable
over VanLoocke in view of First, Dytchkowskyj, and Murray.7
6. The Examiner rejects claims 14–16 under 35 U.S.C. § 103 as
unpatentable over VanLoocke in view of First, Ajootian, Dytchkowskyj,
and Murray.

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 Dytchkowskyj et al., US 2012/0281934 A1, pub. Nov. 8, 2012.
5 Ajootian, US 2004/0140233 A1, pub. July 22, 2004.
6 Chapek, US 2014/0298757 A1, pub. Oct. 9, 2014.
7 Murray, US 2014/0367295 A1, pub. Dec. 18, 2014.
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7. The Examiner rejects claims 14–16 under 35 U.S.C. § 103 as
unpatentable over VanLoocke in view of First, Ajootian, Dytchkowskyj,
and Nakamura.8
DISCUSSION
With respect to independent claim 1, the Examiner finds that
VanLoocke discloses a flexible pouch as claimed except for the
requirements that the first compartment is opaque and the forming of a first
seam notch, for which the Examiner relies on First and Dytchkowskyj,
respectively. Final Act. 2–3, 7–8; Ans. 3–4.9 With respect to the issues
raised by Appellant, the Examiner finds that VanLoocke discloses a seal 16,
which is a first seam as required by the claim. Id. at 2, 7–8.
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
that the frangible seals define compartments within the package and are

8 Nakamura, US 4,744,673, iss. May 17, 1988.
9 We note that the Examiner refers to a “permanent seal” in the rejection, but
the Examiner corrects this to read “first seam” in the Answer, which is
consistent with the language of the claim. Ans. 3.
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“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 may be separated into a first
compartment 102 and a second compartment 104 “by means of a first seam
126 . . . [that] acts as a barrier between the first compartment 102 and the
second compartment 104. The first seam 126 may be formed by heat seal
and/or compression between the panels 105, 106.” Spec. ¶ 19. The
Specification further indicates that the first seam 126 is formed by the panels
105 and 106, which 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. ¶ 22.
Appellant argues that the Examiner incorrectly finds that VanLoocke
discloses a first seam. Appeal Br. 25. More specifically, Appellant argues
that VanLoocke’s discloses 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 seam that is intended to be a barrier seal
regardless of the user.” Id. at 25–28. Appellant further asserts that the
claimed seam should be equated to a permanent seal separating the first
compartment and the second compartment. Id. at 29 (relying on the
Declaration of R. Charles Murray, dated December 10, 2019 (“Murray
Declaration”)). We are not persuaded.
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We agree with the Examiner that the claim limitation “first seam” 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 seam 126 is intended to be permanent. Rather, as
quoted above, the Specification describes only that the seam “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 “first seam” should be construed narrowly to require that it is a
permanent seal. 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
first seam to be a barrier seal or a permanent seal. See Murray Dec. ¶ 8.
Further 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 states that a frangible seal may be formed by
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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
Specification describes forming the seam 126, i.e., by melting the S-LLDPE
layer, the Specification does not provide an indication that the seam is made
by either process described in the Murray Declaration, i.e., there is no
indication that the seam is formed by a process that would create a barrier
seal or a frangible seal. We also note that the Specification does not define
the seam as a “barrier seal,” and only describe it as a seal that is intended to
create a barrier. Thus, to the extent Appellant is asserting that a “barrier
seal” is a term of art, that term is not used in the Specification.
Based on the foregoing, we determine that the broadest reasonable
interpretation of the claim, consistent with the Specification, requires a first
seam 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 first seam as claimed. See
Final Act. 3.
Accordingly, we are not persuaded of error in the rejection of claim 1.
Regarding independent claim 9, the Examiner relies on substantially the
same findings regarding the first seam, and Appellant raises substantially the
same arguments. Thus, we are also not persuaded of error in the rejection of
claim 9 for the reasons provided. Appellant does not raise separate
arguments regarding the rejections of dependent claims 3–8 and 11–20, and
thus, we are not persuaded of error in the rejections of those claims as well.
Therefore, we sustain the rejections of claims 1, 3–8, and 11–20.

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Claims 2 and 10
Claim 2 depends from claim 1 and further requires:
a slider portion configured to slide across the upper seal,
the seal is secured by the slider portion in one direction and
permitting access in the other;
a pair of receiving portions, one of the pair of receiving
portions abuts the first seam notch and the other one of the pair
of receiving portions abuts the second seam notch, the pair of
receiving portions extend in a vertical direction above the seal,
each one of the pair of receiving portions receive the slider
portion at the respective end of the upper seal;
a locking mechanism portion having a lever is disposed on
the slider portion, the locking mechanism portion is configured
to lock the slider portion into the receiving portion when received
in either one of the pair of the receiving portions; and
a lever notch is positioned adjacent to each one of the pair
of receiving portions,
wherein the slider portion is released from either one of
the pair of the receiving portions by the lever of the locking
mechanism portion, the lever releases the slider portion when the
lever is engaged into the lever notch, the lever notch is only
accessible when the slider portion is seated within either one of
the pair of receiving portions.
Appeal Br. 52. Claim 10 depends from claim 9 and recites a similar
configuration as that provided in claim 2. Id. at 55.
We are persuaded of error in the rejection of claims 2 and 10 because
we agree with Appellant that the Examiner has not adequately explained
how the art of record teaches the features of this claim.
The Examiner finds that Chapek discloses a slider portion, receiving
portions, and a locking mechanism with a lever and a notch. Final Act. 4–5.
The Examiner provides further explanation in the Answer. Ans. 11.
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However, to the extent the claim requires that the lever notch is only
accessible when the slider portion is seated within either one of the pair of
receiving portions, we see no explanation from the Examiner regarding how
the art of record teaches such a configuration. To the extent the Examiner
relies on Chapek’s notch 8 as the lever notch, it is not clear how that notch is
only accessible when Chapek’s slider 1 is seated within a receiving portion
at an end of the upper seal, as claimed. Thus, we are persuaded of error and
do not sustain the rejections of claims 2 and 10.
CONCLUSION
We AFFIRM the rejections of claims 1, 3–9, and 11–20. We
REVERSE the rejections of claims 2 and 10.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–5 103 VanLoocke, First,
Dytchkowskyj
1, 3–5
9, 11–13,
17–20
103 VanLoocke, First,
Ajootian,
Dytchkowskyj
9, 11–13,
17–20

2 103 VanLoocke, First,
Dytchkowskyj,
Chapek
2
10 103 VanLoocke, First,
Ajootian,
Dytchkowskyj,
Chapek
10
6–8 103 VanLoocke, First,
Dytchkowskyj,
Murray
6–8
14–16 103 VanLoocke, First,
Ajootian,
Dytchkowskyj,
Murray
14–16
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
9 103 VanLoocke, First,
Ajootian,
Dytchkowskyj,
Nakamura
9
Overall
Outcome
1, 3–9, 11–
20
2, 10

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).

AFFIRMED IN PART