DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/4/2025 has been entered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 4-12, 42, and 43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Muckenfuhs (WO 92/10412) in view of Cornelissen et al. (US 5065868, hereinafter ‘Cornelissen’), Sampaolo et al. (US 5971266, hereinafter ‘Sampaolo’), and Watkins et al. (US 5195829, hereinafter ‘Watkins’).
Muckenfuhs discloses a package comprising a bag (15) and a stack of absorbent articles (20) having a substantially rectangular shape, wherein the stack of absorbent articles is arranged in the bag, wherein the bag is made of a paper material (page 6, ll. 34-37), wherein the bag has a closed bottom (50), a closed top (70), and a peripheral wall (30, 31, 40, 41) between said bottom and said top, wherein the bag is provided at least on an inner surface of the bag near the top, with a sealable coating (12); wherein the closed top is realized by a sealed portion of said sealable coating (page 9, ll. 3-12); the peripheral wall comprises a front wall, a rear wall opposite said front wall, a first side wall, and a second side wall opposite said first side wall, and wherein at said top, the first and the second side wall are folded inwardly such that two first wing portions are formed where the top joins the first side wall and such that two second wing portions are formed where the top joins the second side wall (upper triangular portions 70 on each end of Muckenfuhs meet scope of ‘wings’); and wherein each formed wing portion is adequately sealed (see Fig. 1); except does not expressly disclose the sealable coating extending over a closed peripheral inner portion of the bag, the exact basis weight of the material, each wing portion having two free edges, or the specific dimensions as claimed.
However, Cornelissen teaches constructing a similar packaging bag out of paper material having a basis weight of 70 to 125 grams per square meter, a range which overlaps significantly with the claimed range.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the device out pf paper material having a basis weight of 60 to 100 grams per square meter, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the device out pf paper material having a basis weight of 60 to 100 grams per square meter, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Additionally, Sampaolo teaches providing packaging with a continuous sealant coating along the edges thereof in order to create a continuous seam (claim 15) as claimed.
Because Muckenfuhs and Sampaolo both teach sealant coatings for sealed edges of packaging films, it would have been obvious to one of ordinary skill in the art to substitute the continuous sealant coating taught by Sampaolo for the intermittent sealant coating taught by Muckenfuhs to achieve the predictable result of sealing the edges of the packaging.
Further, Watkins teaches constructing a similar packaging bag wherein the wing portions are shaped/sealed to each have two free edges (see Figs. 4, 5, 8, 9; 75, 75a, 77, 77a) as claimed.
It would have been an obvious matter of design choice to make the different portions of the upper seal/wing portions of whatever form or shape was desired or expedient including having two free edges as taught by Watkins. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
At the time of the invention, it would have been obvious to a person having ordinary skill in the art to form the upper seal/wing portions taught by Muckenfuhs as modified above to have two free edges as taught by Watkins, in order to allow a user to grasp the wings to pull to open the upper end of the packaging as taught by Watkins (Fig. 10).
Regarding the limitation requiring the length of the seal portion between the wing portions to be between 8 cm and 40 cm, it is noted that while Muckenfuhs may not teach the exact dimensions, it does carry the same contents and is used for the same purpose as the instant invention, and as such it stands to reason that the dimensions would be similar. Regardless, varying the dimensions of a packaging bag was certainly well within the general knowledge of those of ordinary skill in the packaging are prior to the invention by applicant.
It would have been an obvious matter of design choice to construct the seal portion between the wing portions to be between 8 cm and 40 cm, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the seal portion between the wing portions to be between 8 cm and 40 cm, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Muckenfuhs as modified above further discloses the sealable coating extends at least over a closed peripheral inner portion of the inner surface of the bag (Sampaolo claim 15); the stack of absorbent articles is arranged such that each absorbent article extends in an upright direction between the bottom and the top (see Muckenfuhs Fig. 1).
Regarding claims 5-7. Muckenfuhs as modified above discloses all limitations of the claim(s) as detailed above except does not expressly disclose the exact dimensions as claimed.
However, it is noted that disclosures in the packaging art frequently omit dimensions altogether as it has long been known in the art that those of general knowledge can pick and choose standard dimensions for features of packaging and products to fit their intended purposes.
It would have been an obvious matter of design choice to make the absorbent articles or portions of the packaging bag whatever the claimed dimensions, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the absorbent articles or portions of the packaging bag whatever the claimed dimensions, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claims 8-9. Muckenfuhs as modified above discloses all limitations of the claim(s) as detailed above except does not expressly disclose the exact materials/weights as claimed.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the device with the claimed coating material/weight or out pf paper material having a basis weight of 65-85 grams per square meter, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Muckenfuhs as modified above further discloses the bottom is formed by folding and gluing a portion of the paper material, such that is has a substantially rectangular shape (see Muckenfuhs Figs. 1, 5).
Regarding claims 11-12. Muckenfuhs as modified above discloses all limitations of the claim(s) as detailed above except does not expressly disclose the exact materials/charactaristics as claimed.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the device with the claimed material/characteristics, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Muckenfuhs as modified above further discloses for each formed wing portion, the two free edges are mutually perpendicular (see Watkins Figs. 4, 5, 8, 9).
Claim(s) 44 is/are rejected under 35 U.S.C. 103 as being unpatentable over Muckenfuhs (WO 92/10412) in view of Cornelissen et al. (US 5065868, hereinafter ‘Cornelissen’), Sampaolo et al. (US 5971266, hereinafter ‘Sampaolo’), and Watkins et al. (US 5195829, hereinafter ‘Watkins’) as applied to claims 1, 3-12, 42, and 43 above, and further in view of Komro et al. (US 8360643, hereinafter ‘Komro’).
Muckenfuhs as modified above discloses all limitations of the claim(s) as detailed above except does not expressly disclose the wing portions needing less force to separate them than the seal seam as claimed.
However, Komro teaches constructing a similar gusseted/winged bag wherein wherein the wing portions and their corresponding seams are dimensioned and formed in such a way, that the separation force needed to separate the seams is substantially smaller as compared to the separation force needed to separate the seal seam (col. 1, ll. 62 – col. 2, ll. 16).
At the time of the invention, it would have been obvious to a person having ordinary skill in the art to construct the wing portions/seams taught by Muckenfuhs as modified above with the reduced opening force required as taught by Komro, in order to allow the packaging to be opened easily at the gusset/wing portion as taught by Komro (col. 1, ll. 62 – col. 2, ll. 16).
Response to Arguments
Applicant's arguments filed 11/4/2025 have been fully considered but they are not persuasive.
Applicant argues the newly added limitations define over the recited combination. This argument has been considered, however is not persuasive in light of the new combination with Sampaolo set forth above.
Applicant argues that the limitations of claims 1 and 42 distinguish over the cited references, in particular Watkins. This argument has been considered, however is not persuasive in light of Watkins being relied upon in the rejection for teaching the wing portions having two free edges, not the spacing of the top seam and wing portions which come from the Muckenfuhs base reference.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant is reminded that “A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.”KSR, 82 USPQ2d at 1397. “[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle.”Id. Office personnel may also take into account “the inferences and creative steps that a person of ordinary skill in the art would employ.” 82 USPQ2d at 1396.
In response to applicant's argument that Watkins is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Watkins is clearly in the field of applicant’s endeavor, the gusseted packaging bag art.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
For the reasons stated above, as well as those set forth in the rejections above, applicant’s arguments are not persuasive and the rejections are maintained.
Conclusion
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/PETER N HELVEY/Primary Examiner, Art Unit 3734
January 7, 2026