Appeal No. 97-2491
Application 08/514,010
The opposing viewpoints of appellants are set forth in the brief (Paper No. 13). In addition,
appellants rely on evidence of nonobviousness in the form of a declaration by Abraham N. Reichental
and videotape exhibits to show commercial success of the claimed invention demonstrated by a
competitor’s copying. A copy of the Reichental declaration is appended to this opinion.5
In arguing the patentability of claims 33, 34, 40 and 41 as a group (brief, page 5), appellants do
not dispute the examiner’s implied position that the modified Sperry device would result in the claimed
subject matter. Instead, appellants challenge the examiner’s foundation position that it would have been
obvious to modify Sperry in the manner proposed in view of Willden’s teachings. In this regard,
appellants note on pages 6-7 of the brief that there are several ways of forming foam-filled cushions for
packaging cushions, including (1) a technique that includes a device for first forming the bags from a
tube of plastic material, (2) a method like that of Sperry where bags are formed from two separate
sheets of plastic material that are joined longitudinally and transversely to produce single bags, and (3)
an approach such as that of the
appealed claims where a single center-folded sheet of plastic material is used to form bags by sealing
5The evidence of nonobviousness was originally submitted by appellants in parent application
SN 08/121,751, and was incorporated by reference into the present application for the first time by
reference thereto in the unentered amendment filed subsequent to the final rejection. Although said
amendment was not entered, the examiner nevertheless indicated that the evidence has been considered
(answer, pages 7-8). In view of the late stage of prosecution at which this evidence came before the
examiner in this case, it would appear that the examiner was not obligated to consider it in the answer.
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