Appeal 2006-3391
Application 10/371,485
10 and side walls 11, 12 are folded (FF5). Appellants' first argument, that
Adams' side flaps are folded over opposite sides of packaging stock that has
a heat reactivated adhesive, not a reactivatable adhesive, present thereon, is
therefore without merit.
The other issue before us focuses on the limitation "forming, filling
and sealing" and is particularly concerned with the order in which these
steps are performed. Specifically, Appellants' argument seems to presume
claim 7 requires that the forming step be performed before the filling step, a
sequence which is not met by Adams (FF4). A two-part test has been
established for determining if the steps of a method claim that do not
otherwise recite an order must nonetheless be performed in the order in
which they are written. First, we look to the claim language to determine if,
as a matter of logic or grammar, the recited steps must be performed in the
order written. "If not, we next look to the rest of the specification to
determine whether it 'directly or implicitly requires such a narrow
construction.'" Altiris Inc. v. Symantec Corp., 318 F.3d 1363, 1371, 65
USPQ2d 1865, 1869-70 (Fed. Cir. 2003) (quoting Interactive Gift Express,
Inc. v. CompuServe Inc., 256 F.3d 1323, 1343, 59 USPQ2d 1401, 1416 (Fed.
Cir. 2000)) (emphasis in original). If not, the sequence in which such steps
are written is not a requirement of the claim. Id.
Following the first part of the test, we look to the claim language itself
and find no indication, as a matter of logic or grammar, that the steps of
forming and filling the container must be performed in any particular order.
As evidenced by Adams, the container could be formed around the item(s)
that will form the contents thereof and thus could be formed while the
contents are being inserted. Moreover, looking to the Specification in
6
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Last modified: September 9, 2013