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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01 June 2026 has been entered.
Response to Amendment
Receipt is acknowledged of an amendment, filed 01 June 2026, which has been placed of record and entered in the file.
Status of the claims:
Claims 1-20 are pending.
Claims 1, 15, and 19-20 are amended.
Specification and Drawings:
Amendments to the specification and drawings have not been submitted in the amendment filed 01 June 2026.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-8, 11-12, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Smithson et al. (US Patent Publ. No. 2002/0157353) in view of Chesterfield et al. (US Patent No. 5,664,408).
With respect to claim 1, Smithson et al. disclose a machine for cutting to length a bag filled with a product (vacuum packaging apparatus, fig. 1), the machine comprising a cutting device for cutting off a superfluous bag neck (heating element 41 serves as a hot cutter to trim away residual web of pouch material beyond the seal, fig. 4, [0120]) and two mutually spaced-apart clamping devices for clamping a bag section (clamping device 26, 27, and secondary clamping device brought to bear on bag in region of label 48, fig. 8b, [0127]), the cutting device is positioned between the clamping devices so that the cutting of the bag neck can be carried out by the cutting device within the bag section clamped by the spaced-apart clamping devices (heating element 41 is between clamping device 26, 27 and the secondary clamping device since the second clamping device is positioned at the label 48, [0127], fig. 8b), wherein the machine further comprises a tensioning device positioned between the clamping devices and configured to exert a tensioning force on the bag section after the bag section is clamped by the spaced-apart clamping devices (fingers 18, 19, movement of the fingers 18, 19 imparts tension to the mouth of the pouch, figs. 8a-c, [0117]), so that the bag section clamped by the clamping devices is pre-tensioned by the tensioning device when the cutting of the bag neck is carried out by the cutting device. Smithson et al. disclose the fingers 18, 19 extend into the pouch beyond the clamp members 26, 27 but not as far as the sealing line, and therefore the ends of the fingers 18, 19 are positioned between the clamp members 26, 27 and the secondary clamp members (between the clamping devices). Smithson et al. disclose that the fingers 18, 19 remain in the pouch mouth tensioning the pouch after the clamp members 26, 27 and the secondary clamp members clamp the pouch ([0126]-[0129]), and therefore the fingers 18, 19 are configured to exert a tensioning force on the bag section after the bag section is clamped by the spaced-apart clamping devices.
Smithson et al. disclose the tensioning device positioned between the clamping devices and configured to exert a tensioning force on the bag section after the bag section is clamped by the spaced-apart clamping devices. Thus, one is fully capable of operating the tensioning device so that the bag section clamped by the clamping devices is pre-tensioned by the tensioning device when the cutting of the bag neck is carried out by the cutting device.
The intended use recitation language (some of which has been italicized supra) carries no weight in the absence of any distinguishing structure. Smithson et al. disclose the structure as claimed and is thus capable of performing the functions. See MPEP 2114 which states: APPARATUS CLAIMS MUST BE STRUCTURALLY DISTINGUISHABLE FROM THE PRIOR ART While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) (The absence of a disclosure in a prior art reference relating to function did not defeat the Board's finding of anticipation of claimed apparatus because the limitations at issue were found to be inherent in the prior art reference); see also In re Swinehart, 439 F.2d 210,212-13, 169 USPQ 226,228-29 (CCPA 1971); In re Danly, 263 F.2d 844, 847, 120 USPQ 528,531 (CCPA 1959). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original).
Smithson et al. disclose a pressure plate 44 and surface to compress the pouch and contents during vacuum packaging ([0121], fig. 9a), but fail to disclose a chamber machine.
Chesterfield et al. disclose a similar vacuum packaging machine for sealing a bag mouth including an evacuating and sealing device (fig. 4), and chamber (packing frame 30 including bottom panel 32 and top panel 34 forming a chamber, bag 10 is placed into the packaging frame, pg. 4, l. 7-33) to compress the contents in a uniform manner (col. 5, l. 1-11).
It 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 to modify the Smithson et al. device to replace the pressure plate with the packing frame as taught by Chesterfield et al., to compress the contents in a uniform manner.
With respect to claim 2, Smithson et al. disclose both clamping devices are present as clamping devices formed separately from the sealing bar (elongate heat sealing members 33, 34 are separate from clamping members 26, 27, and secondary clamping members, figs. 4, 9a).
With respect to claim 3, Smithson et al. disclose a recess is provided for the tensioning device, into which recess the tensioning device can be pressed per tensioning stroke (fingers 18, 19 are received in recess formed by bridge portion 30 of frame 4, fig. 1).
With respect to claim 4, Smithson et al. disclose the tensioning device is adjustable together with the sealing bar by a common adjustment drive (pneumatic control means, cylinder and piston arrangements 22, 23 of fingers 18, 19 and cylinder and piston arrangements 28, 29 of clamp members are finely adjusted by pneumatic control means, fig. 1, [0056], [0068], [0117], [0119]).
With respect to claim 5, Smithson et al. disclose the tensioning device precedes the sealing bar (the fingers 18, 19 are separated to tension the mouth of the pouch before the elongate heat sealing members 33, 34 are operated, [0126]-[0129]).
With respect to claim 6, Smithson et al. disclose the tensioning device comprises at least one tensioning element that can be pressed into the clamped bag section to exert the tensioning force (restraining means comprises fingers 18, 19 that press into meeting portions 3a, 3b of the pouch mouth, [0117]).
With respect to claim 7, Smithson et al. disclose the cutting device comprises a cutting wire that can be energized to sever the bag neck (heating element 41 serves as a hot cutter to trim away residual web of pouch material beyond the seal, fig. 4, [0120]).
With respect to claim 8, Smithson et al. disclose at least one of the clamping devices is spring-loaded, at least one of the clamping devices has an elastic counter-pressure profile and/or at least one of the clamping devices on a side used to clamp the bag comprises at least one pressing element made of plastic or is at least partly made of plastic (the clamp members 26, 27 are made from a resilient material such as rubber, so as to be conformable to the shape of the tubes 6,7 and the fingers 18, 19, [0119]).
With respect to claim 11, Smithson et al. disclose the machine is configured for evacuating and/or gassing the bag (air extraction tubes 6, 7, fig. 8a).
With respect to claim 12, Smithson et al. disclose the clamping devices, the cutting device and/or the tensioning device are either present as integral components of a tool upper part or as integral components of a tool lower part (the lower clamp member 27, the cutting heating element 41, and the fingers 18, 19 are integral components of a lower part of the device, fig. 1).
With respect to claim 19, Smithson et al. fail to disclose an upper tool part and a lower tool part that are configured to form a sealable chamber.
Chesterfield et al. disclose a similar vacuum packaging machine including a chamber (packing frame 30 including bottom panel 32 and top panel 34 forming a chamber, bag 10 is placed into the packaging frame, pg. 4, l. 7-33) comprising an upper tool part (top panel 34) and a lower tool part (bottom panel 34) that are configured to form a sealable chamber (top panel 34, bottom panel 32, side wall 36, form a chamber having open and closed positioned, figs. 5, 6, col. 4, l. 7-33) to compress the contents in a uniform manner (col. 5, l. 1-11). Chesterfield et al. disclose the frame includes open and closed positions, and thus is considered to be sealable.
It 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 to modify the Smithson et al. device to replace the pressure plate with the upper tool part and lower tool part forming a sealable chamber as taught by Chesterfield et al., to compress the contents in a uniform manner.
Claims 9-10 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Smithson et al. in view of Chesterfield et al. as applied to claim 1 above, and further in view of Werner et al. (WO 2023/222444).
With respect to claim 9, Smithson et al. fail to disclose a discharge device for removing the bag neck after the bag neck has been cut by the cutting device.
Werner et al. disclose a device for sealing and cutting a bag including a conveying path 22 and suction channel 24 for transporting away the cut bag material 27 (fig. 3).
It 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 to modify the Smithson et al. device to including a conveying path and suction channel as taught by Werner et al. to transport away the cut bag material, especially since Smithson et al. disclose sending away the cut bag material for recycling ([0129]).
With respect to claim 10, Smithson et al. fail to disclose the discharge device comprises a blowing device and/or a suction device.
Werner et al. disclose a device for sealing and cutting a bag including a suction channel 24 for transporting away the cut bag material 27 (fig. 3).
It 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 to modify the Smithson et al. device to including a suction channel as taught by Werner et al. to transport away the cut bag material, especially since Smithson et al. disclose sending away the cut bag material for recycling ([0129]).
With respect to claim 13, Smithson et al. fail to disclose a chamber belt machine.
Werner et al. disclose a device for sealing and cutting a bag including a belt (belt 32, fig. 1) for transporting the cut bags away from the device.
It 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 to modify the Smithson et al. device to include a belt as taught by Werner et al., to positively transport the bags away from the machine.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Smithson et al. in view of Chesterfield et al. as applied to claim 1 above, and further in view of Yang et al. (CN 114955112).
With respect to claim 14, Smithson et al. fail to disclose a packaging line comprising a shrinking device and a drying device.
Yang et al. disclose a device for packaging contents in a bag, and including a shrinking device (heat shrinking packaging machine, 1, fig. 1) and a drying device (blower 102, fig. 12) for heat shrinking a bag and for drying the device.
It 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 to modify the Smithson et al. device to include a shrinking device and a drying device as taught by Yang et al. to provide a tight package and to prevent damage to the device, especially since Smithson et al. disclose shrink wrapping the sealed bag after evacuating ([0085]).
Response to Arguments
With respect to the rejection of claims 19-20 under 35 U.S.C. 112(b), the claim amendments and applicant’s arguments have been fully considered and are persuasive. The rejection under 35 U.S.C. 112(b) is hereby withdrawn.
With respect to the rejection of claim 1 under 35 U.S.C. 103 over Smithson et al. in view of Chesterfield et al., applicant’s arguments have been fully considered but are not persuasive.
Applicant argues that Smithson et al. do not disclose a tensioning device positioned between spaced-apart clamping devices and “configured to exert a tensioning force on the bag section after the bag section is clamped by the spaced-apart clamping devices, so that the bag section clamped by the clamping devices is pre-tensioned by the tensioning device when the cutting of the bag neck is carried out by the cutting device”.
In response, Smithson et al. disclose a tensioning device positioned between the clamping devices and configured to exert a tensioning force on the bag section after the bag section is clamped by the spaced-apart clamping devices (fingers 18, 19, movement of the fingers 18, 19 imparts tension to the mouth of the pouch, figs. 8a-c, [0117]). Smithson et al. disclose that the fingers 18, 19 remain in the pouch mouth tensioning the pouch after the clamp members 26, 27 and the secondary clamp members clamp the pouch ([0126]-[0129]), and therefore the fingers 18, 19 are configured to exert a tensioning force on the bag section after the bag section is clamped by the spaced-apart clamping devices.
Smithson et al. disclose the tensioning device positioned between the clamping devices and configured to exert a tensioning force on the bag section after the bag section is clamped by the spaced-apart clamping devices. Thus, one is fully capable of operating the tensioning device so that the bag section clamped by the clamping devices is pre-tensioned by the tensioning device when the cutting of the bag neck is carried out by the cutting device.
The intended use recitation language (some of which has been italicized supra) carries no weight in the absence of any distinguishing structure. Smithson et al. disclose the structure as claimed and is thus capable of performing the functions. See MPEP 2114 which states: APPARATUS CLAIMS MUST BE STRUCTURALLY DISTINGUISHABLE FROM THE PRIOR ART While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) (The absence of a disclosure in a prior art reference relating to function did not defeat the Board's finding of anticipation of claimed apparatus because the limitations at issue were found to be inherent in the prior art reference); see also In re Swinehart, 439 F.2d 210,212-13, 169 USPQ 226,228-29 (CCPA 1971); In re Danly, 263 F.2d 844, 847, 120 USPQ 528,531 (CCPA 1959). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original).
A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Applicant further argues that Chesterfield et al. do not cure the deficiencies of Smithson et al.
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).
Accordingly, in view of all of the above, the rejection of claim 1 under 35 U.S.C. 103 over Smithson et al. in view of Chesterfield et al. is still deemed proper.
Applicant has provided no arguments pointing out errors with the respect to the rejections of dependent claims 2-14 and 19, and these rejections are still deemed proper.
With respect to the rejection of claim 15 under 35 U.S.C. 103 over Smithson et al. in view of Chesterfield et al., applicant’s arguments have been fully considered and are persuasive.
Allowable Subject Matter
Claims 15-18 and 20 are allowed.
REASONS FOR ALLOWANCE
The following is an examiner’s statement of reasons for allowance:
Regarding independent claim 15: the subject matter of claim 15 is allowable over the prior art because of the combination of manipulative steps and their functional relationship to one another. Claim 15 includes the following limitations which in combination with the other limitations of the claim are not taught or suggested by the prior art:
“severing the bag neck with the cutting device while the bag section is tensioned by the tensioning device”.
Smithson et al. (US Patent Publ. No. 2002/0157353) is considered to be the closest prior art. Smithson et al. disclose a method for severing an excess bag neck, the method comprising clamping a bag section by two clamping devices, the clamping devices are spaced apart, and after the bag section is clamped, exerting a tensioning force by a tensioning device, wherein the tensioning device is positioned between the clamping devices. Smithson et al. disclose tensioning the bag neck while the bag neck is clamped. Smithson et al. disclose withdrawing the tensioning device before cutting the bag neck. Smithson et al. fail to disclose severing the bag neck while the bag neck is tensioned by the tensioning device.
Chesterfield et al. (U.S. Patent No. 5,664,408) disclose a bag sealing chamber machine.
The difference between the claimed subject matter and Smithson et al., or a combination of Smithson et al. and Chesterfield et al., is that Smithson et al., or a combination of Smithson et al. and Chesterfield et al., do not disclose or teach “severing the bag neck with the cutting device while the bag section is tensioned by the tensioning device”.
Smithson et al. disclose that the evacuating tubes and tensioning fingers are removed from the clamp before the bag neck is sealed and cut. It would not have been obvious at the time of the invention to one having ordinary skill in the art to cut and seal the bag neck while the evacuating tubes and tensioning fingers are between the clamping devices, since such placement would interfere with the sealing and cutting of the bag neck. Such a reconfiguration of the method steps would not have been envisioned by one of ordinary skill in the art, and would be based on improper hindsight reasoning. MPEP 2145. X. A.
The difference between the claimed subject matter and Smithson et al., or a combination of Smithson et al. and Chesterfield et al., would not have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, since such modifications to the Smithson et al. method would have gone beyond mere substitution or incorporation of a known structure and manipulative step capable of achieving predictable results. Any modification to the Smithson et al. method to arrive at the claimed subject matter would have required a reworking of the structure and the principle of operation in a manner which would not have been apparent to a person having ordinary skill in the relevant art, and would have required the improper benefit of the teachings of Applicant’s disclosure.
Claims 16-18 and 20 depend from claim 15 and are likewise allowable.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
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/LINDA J. HODGE/Primary Examiner, Art Unit 3731
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