Application of Fred P. WINSLOW

365 F.2d 1017, 53 C.C.P.A. 1574

• Court: Court of Customs and Patent Appeals
• Decided: November 10, 1966
• Docket: 1017
• Status: Published

Opinions

RICH, Judge.

This appeal is from the unanimous decision of the Patent Office Board of Appeals,¹ adhered to upon reconsideration, affirming the examiner’s rejection of apparatus claims 1, 3, and 11-18 and article claim 9, all remaining claims in application serial No. 48,668, filed August 10, 1960, for “Apparatus for and Method of Opening, Filling and Closing Thermoplastic Bags.” The appeal has been withdrawn as to claim 9.

The invention is an apparatus for packaging articles within flexible plastic bags by supplying a jet of air to the uppermost bag of a stack of bags to open it to permit the insertion of the article. The bags are generally rectangular and have an opening at one end. One of the walls is provided with an extension, or flap, which projects beyond the mouth and which contains a plurality of transversely aligned holes. Perforations extending from each hole to the edge of the flap weaken it so it can be torn from retaining pins. The bags are stacked, with their flap sides down, and placed on a horizontal support state supported at one end on a spring-biased hinge. The plate is depressed when loaded with bags, pivoting on its hinge. Upon release, the spring urges the support upwardly toward an upper plate member having pins depending therefrom which pass through the holes in the bag flaps and into openings provided in the lower support plate. Only the flap of each bag underlies the upper plate member, which functions as a stop against unlimited upward movement of the stack of bags and which, in conjunction with the lower support, acts to clamp or sandwich the flaps of the bags, the pins passing through the flap holes.

The uppermost bag is opened by directing an air blast across the top plate member and into the mouth thereof. An article is then inserted, either automatically or manually, through the mouth which is kept open by continuing the blast. The bag is then pulled longitudinally in a direction parallel to and away from the air blast, thereby tearing the flap along the perforated lines and removing the filled bag from the pin. The bag is then closed and heat sealed.

All the appealed claims define an apparatus for opening and filling bags, there being no provision for closing or sealing the bags once filled. Claims 1 and 3 require but one depending pin. Remaining claims 11-18 are patterned after certain claims in a patent² to one Altman, Jr., hereafter Altman, which is not relied on by the Patent Office in support of the rejection.

Claims 1 and 16 read:

1. An apparatus for use in opening and filling bags of the type having a mouth and a flap extending beyond the mouth, said apparatus comprising an air blast source, means for directing air from said air blast source into the mouth of a bag to open the bag and hold the same open, said air directing means including a plate member adapted to overlie flaps of the bags, and a bag support extending generally in the direction of the air blast and having an end portion underlying said plate member for cooperation therewith to engage and temporarily hold flaps of the bags during the opening thereof said plate member having at least one depending pin for passage through bag flaps, and said bag support end portion having an opening to permit the passage of said pin there-through, whereby bag flaps are simultaneously both clamped between the plate member and the bag support end portion and are firmly anchored against longitudinal movement by the pin.

16. In a bagging and filling machine wherein air is supplied to the uppermost of a pile of flexible plastic bags in a package of flexible plastic bags, each said bag comprising two contiguous walls when the bag is in folded condition, one of said walls extending beyond the other to form a lip, said lip having a pair of spaced openings therethrough, said bags being positioned with said openings in alignment, pin means extending through said openings and slidable relative thereto, said pin means having upper and lower ends, means yieldingly urging said package of bags upwardly, the improvement comprising stops means mounted on said machine against which the package of bags is urged upwardly, said stop means having portions thereof engaging and locating the upper ends of said pin means.

The examiner rejected" the claims remaining on appeal as unpatentable over:

Gerbe 2,673,016 March 23, 1954

Heilman 1,794,517 March 3, 1931

Rhoades 991,245 May 2, 1911

Gerbe discloses a bagging and filling machine employing a stack of bags, an enclosure for the stack, a bag support and plate member, and an air blast source. The stack is positioned and aligned by the enclosure around the three closed sides of the bags, and the support and plate member cooperate to clamp the bags at the open end. If the bags have no flaps extending from the bottom surface of each bag, the operator may free the top surface manually or this may be done automatically by a cam arrangement and a cooperating extending metal tab or finger. In either case the bottom surface is clamped fast. Alternatively, the top surface of the bags may be cut away slightly in the form of a curve generally conforming to the top plate, or tongue, in order “to free it,” or at least sufficiently so that the plate and support clamp only a minimal portion of the top surface and all of the bottom surface of the bag at its open edge.

Heilman discloses an apparatus for filling. envelopes or bags with piston rings after first opening them by means of an air blast. (The numbers here referred to appear in the board’s opinion as quoted infra.) The bags are held vertically on a rod 16, slightly inclined from the horizontal, which passes through a hole in each flap and which terminates in a recessed portion of an opposing plate member 5. A follower plate 20 slides by gravity down the inclined rod, urging the bags toward the opposing plate 5, thereby producing a clamping action. The bag nearest the opposing plate 5 is opened by an air jet after which a piston ring drops from above, tearing the bag free from the support rod by ripping the flap, causing the bag to fall into a hopper. The bag is then sealed.

Rhoades discloses an apparatus for suspending a stack of paper bags in a vertical position, employing a piercing point which pierces the open end portions of some of the bags as they approach the position from which they are removed. A springloaded member urges the bags against the piercing point and back stop. The bags are constructed with a curved front edge surface so that the piercing point pierces only one side of the bag at the open end.

The board said:

The patent to Gerbe discloses a bagging and filling machine of the same general character as that disclosed by appellant. The essential issue with respect to patentability resides in a consideration of the difference in the means employed to hold a stack of bags. Appellant employs a plurality of pins which pass through openings in the stack of bags. Such pins are not disclosed in Gerbe. Gerbe relies on the clamping action and a stop member for holding the bags in position. The Examiner held that in view of Heilman and Rhoades it would not be patentable to modify the Gerbe apparatus to employ pins of the character claimed.

It is our opinion that the disclosure in the patent to Heilman showing the use of a pin for holding bags in position while the outermost bag is being opened by an air blast is sufficiently related to Gerbe’s apparatus as to suggest the desirability of using pins for maintaining the Gerbe bags in position. In Heilman the relationship between the pin 16, the member 5 and the plate 20 which is urged toward the member 5 is functionally equivalent to the relationship between appellant’s pins, the plate and the support. While the patent to Rhoades does not disclose the use of an air blast, it does disclose the use of a clamping pin for maintaining a plurality of bags in position while the uppermost bag is being opened and removed. We are of the opinion that the patents to Heilman and Rhoades would render obvious to one skilled in the art a modification of the Gerbe apparatus wherein pins would be provided passing through openings in the bag flaps in the manner claimed by appellant.

We agree with that analysis. Moreover, as we view this case, the principal difference between what is claimed and the prior art resides in the “at least one depending pin” of claims 1 and 3 and the “pin means” as described in the other claims, which are so worded as apparently to require at least two pins, as the bags have two holes through all of which the “pin means” extend.

Heilman is in the very same art and has “pin means,” notwithstanding the fact he calls it a “rod.” It extends through aligned holes in the bag flaps to hold them against the air blast which opens them so that they may be individually filled, the bags being torn off of the pin just as are appellant’s, when filled. We see no patentable distinction between a rod and a pin, that being a mere choice of terminology. Appellant could properly have called his pins short rods. Nor do we see anything unobvious in using two, if desired, instead of one. Heilman “aligned” his bags by hanging them by one centered hole. The pins in appellant’s machine and the rod in Heilman perform the very same function — bag holding during air blast — almost in the very same way.

Further, we see nothing important in the change from a vertical to a horizontal position of the bags. The change requires only obvious mechanical adaptations such as substituting a spring to push up instead of a weight to slide down.

Appellant presents the usual argument that hindsight reconstruction has been employed by the examiner and the board. We disagree with that position. We think the proper way to apply the 103 obviousness test to a case like this is to first picture the inventor as working in his shop with the prior art references— which he is presumed to know — hanging on the walls around him. One then notes that what applicant Winslow built here he admits is basically a Gerbe bag holder having air-blast bag opening to which he has added two bag retaining pins. If there were any bag holding problem in the Gerbe machine when plastic bags were used, their flaps being gripped only by spring pressure between the top and bottom plates, Winslow would have said to himself, “Now what can I do to hold them more securely?” Looking around the walls, he would see Heilman’s envelopes with holes in their flaps hung on a rod. He would then say to himself, “Ha! I can punch holes in my bags and put a little rod (pin) through the holes. That will hold them! After filling the bags, I’ll pull them off the pins as does Heilman. Scoring the flap should make tearing easier.”

Thus does appellant make his claimed invention merely by applying knowledge clearly present in the prior art. Section 103 requires us to presume full knowledge by the inventor of the prior art in the field of his endeavor. We see no “hindsight reconstruction” here,, but only selection and application by the examiner of very pertinent art. That is his duty.

The decision of the board is affirmed.

Affirmed.

WORLEY, C. J., concurs in the result.

1 . Consisting of Examiners-in-Chief Brewrink, Manian and Freehof, the latter writing the opinion.

2 . No. 3,044,233, July 17, 1962. According to the solicitor,

As initially presented, appellant’s claims 11 — 16 were said to correspond generally to Altman’s claims 1, 2, 10, 13, 15 and 16, respectively. Appellant’s subsequently presented claims 17 and 18 were said in turn to correspond to his own claims 11 and 13, respectively, except for calling the stack of bags an “assembly” rather than a “package.”