Appeal No. 2006-2630 Page 3
Application No. 10/255,014
Claim 1 stands rejected under 35 U.S.C. § 102(b) as being anticipated by
Wild.1
Rather than reiterate in detail the conflicting viewpoints advanced by the
examiner and the appellants regarding this appeal, we make reference to the
examiner's answer (mailed March 24, 2006) for the examiner's complete reasoning
in support of the rejection and to the appellants’ brief (filed February 13, 2006) and
reply brief (filed May 24, 2006) for the appellants’ arguments.
OPINION
In reaching our decision in this appeal, we have carefully considered the
appellants’ specification and claims, the applied prior art, and the respective
positions articulated by the appellants and the examiner. As a consequence of our
review, we make the determinations that follow. It is our view that, after
consideration of the record before us, Wild anticipates claim 1.
In the rejection of claim 1, the examiner determined that Wild meets the
final structure implied by the product-by-process recitations of the claim, i.e., a
straw hole sealing material that is permanently sealed to the back side of the pouch
front-side film. Answer, p. 3. The examiner also found that the method of forming
the device is not germane to the issue of patentability of the device itself. Answer,
p. 3. In particular, the examiner did not give patentable weight to the process steps
of temporarily heat sealing and then permanently heat sealing the sealing material
to the pouch, because the applicant failed to provide evidence that the temporary
heat seal is present and unchanged after application of the permanent heat seal.
1 On page 2 of the Answer, the examiner withdrew the rejection of claim 1 under 35 U.S.C.
§ 112, first paragraph.
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