Scott HUFFER et al.

Patent Trials and Appeals BoardAug 4, 2020

2020001295 (P.T.A.B. Aug. 4, 2020)

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. 13/584,931 08/14/2012 Scott W. HUFFER 29958/09048 6963 27530 7590 08/04/2020 Nelson Mullins Riley & Scarborough LLP IP Department One Wells Fargo Center 301 South College Street, 23rd Floor Charlotte, NC 28202 EXAMINER STINSON, CHELSEA E. ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 08/04/2020 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): ip@nelsonmullins.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SCOTT W. HUFFER and JACOB DONALD PRUE BRANYON Appeal 2020-001295 Application 13/584,9311 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, SHEILA F. McSHANE, and ROBERT J. SILVERMAN, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), the Appellant2 appeals from the Examiner’s decision to reject claims 1–4, 7, 9, 10, 21, 27, 28, 31, and 32.3 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 This application includes a previous decision from this Board, Appeal 2017-006558, mailed March 8, 2018. 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as “Sonoco Development, Inc.” Appeal Br. 1. 3 Claims 5, 6, 8, 11, 12, 19, 20, and 22 are withdrawn. Final Act. 2. Claims 13–18, 23–26, 29, and 30 are cancelled. Id. Appeal 2020-001295 Application 13/584,931 2 STATEMENT OF THE CASE Subject Matter on Appeal The Appellant states that invention “relates to a method of manipulating thermoplastic film to create integrated features and particularly relates to a method of manufacturing a packaging bag that is reclosable after initial opening.” Spec. ¶ 1. Claims 1 and 27 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A method comprising: layering multiple sections of thermoplastic film, wherein said multiple sections are continuous and integral parts of said film, to form a first multi-layer portion; using a first heated shaping die to heat and apply pressure to said multiple sections of said first multi-layer portion to transform said first multi-layer portion into a unitary first thicker portion of said film and simultaneously shape the unitary first thicker portion into a first closure strip. Rejections Claims 1–4, 7, 9, 10, 27, 28, 31, and 32 are rejected under 35 U.S.C. § 102(b) as anticipated by Forman (US 2001/0010253 A1, pub. Aug. 2, 2001). Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over Forman in view of Dais et al. (US 5,405,561, iss. Apr. 11, 1995) (“Dias”). ANALYSIS Claim 1 recites a method that includes “using a first heated shaping die to heat and apply pressure to said multiple sections of said first multi- layer portion to transform said first multi-layer portion into a unitary first Appeal 2020-001295 Application 13/584,931 3 thicker portion of said film and simultaneously shape the unitary first thicker portion into a first closure strip.” Appeal Br. 7 (emphasis added). Claim 27 includes a similar method step. See id. at 9–10. The Examiner finds that the claimed “first heated shaping die” reads on lower heater block 57 of Forman’s closure former 70 and the claimed “first multi-layer portion” reads on outer female section 22A of Forman’s resealable package locking closure 22. Final Act. 2 (citing Forman ¶¶ 51, 62, Figs. 6, 9); see Forman ¶¶ 49, 60. The Examiner also finds that the claimed “unitary first thicker portion” reads on resealable package locking closure 22. Final Act. 3 (citing Forman Fig. 9). The Appellant argues, Forman fails to disclose that “forming device 70 transforms a first multi-layer portion into a unitary first thicker portion of said film.” Appeal Br. 4 (citing Forman ¶ 62). The Appellant contends that “the Examiner is making an assumption which is not disclosed in the reference.” Id. at 4–5. The Appellant’s argument is persuasive. Forman’s resealable package locking closure 22 includes outer female section 22A and inner male section 22B, where each section has multiple thermally fused layers. Forman ¶¶ 51–52, Figs. 2, 3, 3A. Figure 2, for example, shows outer female section 22A having three thermally fused layers 23A, 23B, 23C. Id. ¶ 51. Closure 22 is formed at closure forming device 70. See id. ¶¶ 59–62; Figs. 6, 9. As shown in Forman’s Figure 6, closure former 70 is positioned away from fanfolding device 29. At fanfolding device 29, film 25 is reversely folded multiple times to create layers that are edge heat sealed into strips 30. See id. ¶¶ 54–56, Figs. 6–8F. The layers of heat seal strip 30 are unsecured between edge seals 53. Id. ¶ 56, Fig. 8F. Closure former 70, includes Appeal 2020-001295 Application 13/584,931 4 various dies, heaters, forming plates, and vacuum ports to transform heat seal strip 30 –– disposed in two layers, one above the other –– into resealable package locking closure 22 having outer female section 22A and inner male section 22B. Forman ¶¶ 51, 60–62, Figs. 2, 6, 9. As pointed out by the Appellants, there is no indication that the layers of outer female section 22A, i.e., layers 23A, 23B, 23C, are a unitary thicker portion as compared to the layers of heat seal strip 30, which are unsecured between edge seals 53. Appeal Br. 4; Reply Br. 2–3. Stated otherwise, when heat and pressure are applied by Forman’s closure former 70 to the layers of heat seal strip 30, the layers do not change into unitary first thicker portion. See Reply Br. 4–6. Further, we note that the Examiner finds that the claimed “unitary first thicker portion” reads on resealable package locking closure 22. Final Act. 2–3. Consequently, it appears that the Examiner may be taking the position that the claimed “unitary thicker portion” corresponds to resealable package locking closure 22’s outer female section 22A and the inner male section 22B together. See Ans. 8 (“Forman also discloses that the conglomeration step occurs at 57 and 70 in Fig. 9 since the interlocking closure is subsequently formed in this step.”) (citing Forman ¶ 56)4. We find it difficult to understand the how the finding that the “unitary first thicker portion” reads on Forman’s resealable package locking closure 22, which includes a male part and a female part, is consistent with the Examiner’s earlier finding that “first multi-layer portion” reads on the 4 The Examiner cites to Forman’s paragraph 565, which is a typographical error. Ans. 8. In context of page 8 of the Answer, we understand the citation to be Forman’s paragraph 56. Appeal 2020-001295 Application 13/584,931 5 layers of outer female section 22A, i.e., layers 23A–C. As discussed above, layers 23A, 23B, 23C do not become a unitary first thicker portion by being reformed into a shape that interlocks with inner male section 22B. Moreover, an interlocking structure that is separable does not correspond with the broadest reasonable understanding of the claim term “unitary first thicker portion,” when read in light of the Specification as interpreted by one of ordinary skill in the art. See Reply Br. 4–5; Spec. ¶¶ 33, 35–37, Figs. 1– 11. Further, the Examiner fails to rely on Dais in any manner that would remedy the deficiency in the Examiner’s rejection as discussed above. Thus, we do not sustain the Examiner’s rejections of independent claims 1 and 27 and dependent claims 2–4, 7, 9, 10, 21, 28, 31, and 32. CONCLUSION In summary: Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1–4, 7, 9, 10, 27, 28, 31, 32 102(b) Forman 1–4, 7, 9, 10, 27, 28, 31, 32 21 103(a) Forman, Dais 21 Overall Outcome 1–4, 7, 9, 10, 21, 27, 28, 31, 32 REVERSED