Intellectual Property Office of New Zealand - Patents Decisions
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Last Updated: 16 October 2008
P15/2006
IN THE INTELLECTUAL
PROPERTY OFFICE OF
NEW
ZEALAND
IN THE MATTER of the Patents Act 1953
AND
IN THE
MATTER of an application for Letters Patent No 333649 in the name of
CRYOVAC INC
Applicant
AND
IN THE MATTER of opposition to said application under
section 21 by PECHINEY EMBALLAGE FLEXIBLE EUROPE
Opponent
No hearing
The applicant made written submissions.
Decision
BACKGROUND
Patent application 333649 was filed on 4 July 1997, claiming priority from European patent application no 96 96110976 filed on 8 July 1996.
The notice of acceptance issued on 25 May 2000, acceptance being published in Intellectual Property Office of New Zealand (IPONZ) Journal No 1452 of 23 June 2000.
Notice of opposition was filed on 24 October 2000.
An amended notice of opposition and a statement of case were filed on 19 March 2001. Grounds (b), (d), (e) - both limbs, (f) and (g) of section 21(1) were pleaded by the opponent.
The applicant’s counterstatement was filed on 23 May 2001. All grounds pleaded were denied by the applicant.
The applicant filed a supplementary counterstatement, together with unconditional amendment proposals, on 20 May 2002. The proposed amendments were found to be acceptable in part as meeting the requirements of section 40(1) by an IPONZ patent advisor.
The applicant filed a second supplementary counterstatement, together with replacement unconditional amendment proposals, on 30 September 2002. The proposed amendments were found to be acceptable as meeting the requirements of section 40(1) by an IPONZ patent advisor.
The parties subsequently reached settlement and the applicant withdrew from the opposition proceedings on the understanding that the proposed amendments were to be effected and that each party would meet its own costs.
This decision is made in the public interest. The applicant provided written submissions.
LOCUS STANDI
The applicant admitted that the opponent was a person interested. I accept that the opponent has locus.
PRIORITY DATES
The opponent has questioned the priority date, however the opponent has not set out any facts upon which the priority date is disputed. The applicant asserts that date of the convention document is the priority date to which the claims are entitled. I accept for the purposes of this decision that the priority date to which the claims are entitled is 8 July 1996.
EVIDENCE
Filed in support of the opposition were affidavits of:
AMENDMENT PROPOSALS
Section 40(1) relates to amendment of a specification after acceptance:
After the acceptance of a complete specification, no amendment thereof shall be effected except by way of disclaimer, correction, or explanation, and no amendment thereof shall be allowed, except for the purpose of correcting an obvious mistake, the effect of which would be that the specification as amended would claim or describe matter not in substance disclosed in the specification before the amendment, or that any claim of the specification as amended would not fall wholly within the scope of a claim of the specification before the amendment.
The amendment proposals are as follows, with deletions shown underlined and additions shown in italics:
1. A hermetically sealed package comprising
i) a substantially rigid base,
ii) a product to be packaged supported on said substantially rigid base,
iii) a stretch thermoplastic film extending over the product and welded, all around the product, to said substantially rigid base,
iv) said stretched thermoplastic film being heat welded to said substantially rigid base along a sealing line so as to form a hermetically sealed enclosure for the product,
wherein the stretched film is stretched in at least one direction by at least 10%.
2. The hermetically sealed package of claim 1, wherein said stretch thermoplastic film is capable of being stretched at room temperature under the conditions of ASTM D-882 (Method A) by at least 180% of its original length without breaking when a stretching force not higher than 2 kg/cm is applied thereto.
3. The hermetically sealed package of claim 1, wherein said stretch thermoplastic film is capable of being stretched at room temperature under the conditions of ASTM D-882 (Method A) by at least 180% of its original length without breaking when a stretching force not higher than 1.5 kg/cm is applied thereto.
4. The hermetically sealed package of claim 1, wherein said stretch thermoplastic film is capable of being stretched at room temperature under the conditions of ASTM D-882 (Method A) by at least 180% of its original length without breaking when a stretching force not higher than 1 kg/cm is applied thereto.
5. The hermetically sealed package of any one of the preceding claims, wherein said stretch thermoplastic film has a permanent deformation, after being cold stretched 50% and allowed to relax for 30 seconds, of less than 20%.
6. The hermetically sealed package of claim 5, wherein said stretch thermoplastic film has a permanent deformation, after being cold stretched 50% and allowed to relax for 30 seconds, of less than 15%.
7. The hermetically sealed package of claim 1, wherein the substantially rigid base is of a foam polymer optionally lined with a heat-sealable thermoplastic film.
8. The hermetically sealed package of claim 7, wherein the foam polymer is foam polystyrene.
9. The hermetically sealed package of claim 8, wherein the stretch film comprises a styrene-based thermoplastic elastomer in the heat-sealing layer.
10. A method for manufacturing a hermetically sealed package for a product comprising
i) providing a substantially rigid base,
ii) placing said product to be packaged on said substantially rigid base,
iii) stretching a thermoplastic film all around said product,
iv) welding said thermoplastic stretched film to said substantially rigid base all around the product,
v) cutting at least some of the stretched film extending beyond the outer perimeter of said substantially rigid base,
vi) said stretching being performed by stretching and pressing said film against said substantially rigid base along a pressure line, and
vii) said welding of said film to said substantially rigid base being performed by heating along a sealing line so as to form a hermetically sealed enclosure for the product,
wherein said thermoplastic stretch film is at least longitudinally stretched before said step c).
11. A method for manufacturing a hermetically sealed package for a product comprising
i) providing a substantially rigid base,
ii) placing said product to be packaged on said substantially rigid base,
iii) stretching a thermoplastic film all around said product,
iv) welding said thermoplastic stretched film to said substantially rigid base all around the product,
v) cutting at least some of the stretched film extending beyond the outer perimeter of said substantially rigid base,
vi) said stretching being performed by stretching and pressing said film against said substantially rigid base along a pressure line, and
vii) said welding of said film to said substantially rigid base being performed by heating along a sealing line so as to form a hermetically sealed enclosure for the product,
wherein said thermoplastic stretch film is at least transversally stretched before said step c).
12. The method of claim 10, wherein said thermoplastic stretch film is also transversally stretched before said step c).
13. A packaging machine for manufacturing a hermetically sealed package comprising
A) means for feeding a thermoplastic stretch film,
B) mans for advancing said film over a substantially rigid base bearing a product to be packaged,
C) means for stretching said film all around the product,
D) means for welding said stretched film to said substantially rigid base all around the product,
E) means for cutting at least some of the stretched film extending beyond the outer perimeter of said substantially rigid base,
wherein
F) said means for stretching comprises a first frame capable of stretching and pressing said film against said substantially rigid base along a pressure line, and
G) said means for welding comprises a second frame capable of heat welding said stretched film to said substantially rigid base along a sealing line so as to form a hermetically sealed enclosure for said product.
14. The packaging machine of claim 13, wherein said means for advancing are further capable of longitudinally stretching said thermoplastic stretch film.
15. The packaging machine of claim 13, wherein said means for advancing are further capable of transversally stretching said thermoplastic stretch film.
16. The packaging machine of claim 13, wherein said means for advancing are further capable of longitudinally and transversally stretching said thermoplastic stretch film.
17. The packaging machine of claim 16, wherein said means for advancing while longitudinally and transversally stretching said thermoplastic stretch film comprise a pinching roll and two partially diverging grip chains.
18. A hermetically sealed package substantially as hereinbefore described with reference to the accompanying drawings.
19. A method for manufacturing a hermetically sealed package as claimed in any one of claims 10-12, substantially as herein described with reference to any embodiment disclosed.
20. A packaging machine for manufacturing a hermetically sealed package substantially as hereinbefore described with reference to the accompanying drawings.
1. A hermetically sealed package comprising
a) a substantially rigid base,
b) a product supported on said substantially rigid base, and
iii) a thermoplastic stretch film over said product, wherein said stretch film:
is capable of cold stretching at room temperature under the conditions of ASTM D-882 (Method A) by at least 150% of its original length without breaking when applying a stretching force of not higher than 2 kg/cm;
is capable of a permanent deformation in length in each of the machine and transverse directions of less than 20%, wherein the permanent deformation is measured by providing a representative film sample having original dimensions of 12.5 cm long and 2.5 cm wide, stretching the film sample lengthwise at a constant rate until 50% stretch is obtained, releasing the film sample for 30 seconds, subsequently measuring the length of the stretched film sample, and calculating the percent increase in length of the stretched film sample compared to the original film sample;
is pre-stretched by an elongation of at least 10% in at least one direction to place the stretch film under pre-stretched tension before contact with said rigid base or said product; and
is welded to said substantially rigid base along a sealing line while said stretch film is under at least said pre-stretched tension so as to form said hermetically sealed package.
2. A hermetically sealed package of claim 1 wherein said substantially rigid base comprises a tray with a recessed center portion, upwardly extending side walls, and a peripheral rim provided with a continuous flange, said thermoplastic film being heat bonded along said sealing line on said continuous flange.
3. A hermetically sealed package of claim 2 wherein said product extends above said tray side walls.
4. A hermetically sealed package of claim 1 wherein said thermoplastic film is capable of being stretched without breaking by at least about 180% of its original length, as measured according to Method A of ASTM D-882, at room temperature when a stretching force of up to about 1 kg/cm is applied thereto.
5. A hermetically sealed package of claim 1 wherein said substantially rigid base is of a foam polymer optionally lined with a heat-sealable thermoplastic film.
6. A hermetically sealed package of claim 5 wherein said foam polymer is foam polystyrene.
7. A hermetically sealed package of claim 5 wherein said foam polymer is foamed polystyrene and wherein said thermoplastic film comprises in its heat-sealing layer a thermoplastic elastomer comprising mer units derived from styrene.
8. A method of manufacturing a hermetically sealed package for a product comprising:
a) placing said product on a substantially rigid base,
b) pre-stretching a thermoplastic stretch film by an elongation of at least 10% in at least one direction to place the stretch film under pre-stretched tension before contact with said rigid base or said product, wherein said stretch film:
is capable of cold stretching at room temperature under the conditions of ASTM D-882 (Method A) by at least 150% of its original length without breaking when applying a stretching force of not higher than 2 kg/cm; and
is capable of a permanent deformation in length in each of the machine and transverse directions of less than 20%, wherein the permanent deformation is measured by providing a representative film sample having original dimensions of 12.5 cm long and 2.5 cm wide, stretching the film sample lengthwise at a constant rate until 50% stretch is obtained, releasing the film sample for 30 seconds, subsequently measuring the length of the stretched film sample, and calculating the percent increase in length of the stretched film sample compared to the original film sample;
c) extending said pre-stretched stretch film over said product and base;
d) pressing said pre-stretched stretch film against said substantially rigid base along a pressure line;
e) welding said stretch film to said substantially rigid base while said stretch film is under at least said pre-stretched tension by heating along a sealing line so as to form said hermetically sealed package; and
f) cutting at least some of the stretch film extending beyond the outer perimeter of said substantially rigid base.
9. A method of claim 8 wherein said substantially rigid base comprises a tray with a recessed center portion, upwardly extending side walls, and a peripheral rim provided with a continuous flange, said thermoplastic film being heat bonded along said sealing line on said continuous flange.
10. A method of claim 8 wherein said pre-stretching step places said thermoplastic film under pre-stretched tension in both longitudinal and transversal directions.
11. A packaging machine for manufacturing a hermetically sealed package, comprising:
a) means for feeding a thermoplastic stretch film;
b) means for advancing said film over a substantially rigid base bearing a product to be packaged while pre-stretching said film by an elongation of at least 10% in at least one direction to place the film under pre-stretched tension before contact with said rigid base or said product;
c) a first frame capable of stretching and pressing said film against said substantially rigid base along a pressure line;
d) a second frame capable of welding said thermoplastic film to said substantially rigid base along a sealing line all around said product while said film is under at least said pre-stretched tension so as to form a hermetically sealed enclosure for said product; and
e) means for cutting at least some of the stretched film extending beyond the outer perimeter of said substantially rigid base.
12. A machine of claim 11 wherein said advancing means pre-stretches said film and comprises a pinching roll and two partially diverging grip chains.
13. A package of claim 1 wherein said stretch film is pre-stretched by an elongation of at least 15% in at least one direction to place the stretch film under pre-stretched tension before contact with said rigid base or said product.
14. A package of claim 1 wherein said stretch film is capable of cold stretching at room temperature under the conditions of ASTM D-882 (Method A) by at least 180% of its original length without breaking when applying a stretching force of not higher than 1.5 kg/cm.
15. A method of claim 8 further comprising the step of stretching said pre-stretched film beyond said pre-stretched tension by contacting the film with said product.
16. A hermetically sealed package substantially as hereinbefore described with reference to the accompanying drawings.
17. A method for manufacturing a hermetically sealed package as claimed in any one of claims 8 to 10 and 15 substantially as herein described with reference to any embodiment disclosed.
18. A packaging machine for manufacturing a hermetically sealed package substantially as hereinbefore described with reference to the accompanying drawings.
I have studied the amendment proposals, and I agree with the IPONZ advisor that they are acceptable as meeting the requirements of section 40(1). The amendments are to be made, and I note that suitably amended pages have been supplied.
NATURE OF THE INVENTION
The specification is entitled:
Hermetically sealed package, and method and machine for manufacturing it.
The first two paragraphs of the specification describe the field of invention:
The present invention relates to the packaging of consumer goods (food and non food products) in plastic containers.
In particular the present invention relates to improved package constructions comprising a base over which the product to be packaged is placed and a thermoplastic cover film which extends over the product and is welded to the base.
The next several paragraphs describe the background to the invention:
A substantial number of products including foodstuffs, such as cheese, meat, processed meat, poultry, fruit, vegetable, fish, pizza, etc., are currently sold in packages consisting of a base, such as a flat support or preferably a tray, on which the product to be packaged is placed, which is then overwrapped with a stretch film, such as, typically, stretch PVC (polyvinyl chloride) and stretch polyolefin films.
This [sic] packages are particularly useful when either a flat support is used as the base or when the base has a tray-like configuration and the product to be packaged is higher than the tray side-walls.
A stretch film is by definition a thermoplastic film that when applied under tension around a product elongates and conforms to the shape of the product to be packaged. Stretch overwrapping is generally carried out using either a horizontal stretch wrapper or an elevator-type stretch wrapper.
In the horizontal stretch wrapper the film is pre-stretched and applied over the product while kept under tension by a suitable grip system. The film is then folded longitudinally around the base supporting the product and sealed longitudinally below said base by means of a center-sealer. The film tubing is then transversally severed and the front and rear flaps thus obtained are folded and welded against the tubing surface by passing the package on a heated belt.
In the elevator-type stretch wrapper, the film is kept tensioned and stretched by raising the product placed on a suitable base against the film. Then the film is folded, both transversely and longitudinally, around the base supporting the product and bunch-sealed against the lower surface of said base by passing the package on a heated belt.
Depending on the type of film employed, passing on a heated belt may be insufficient to close the package by tack welding. In such a case, a pressure-assisted welding step is necessary, wherein a driven overhead pressure roller operates in conjunction with the heated belt.
In both cases, however, the welding that is obtained does not always provide for a hermetically sealed package. As a consequence thereof, purge or in general liquids that exude from the packaged product may leak from the package and contaminate the outside of the same package and/or of the other packages that are stored close to it. Furthermore the presence of a liquid in the tack welding area decreases the strength of the tack welding and the overwrapping film can easily unwrap or anyway the package becomes loose.
PVC is the film most commonly used in stretch overwrapping because it has, in addition to a remarkable elongation, also very good elastic properties, i.e. a good elastic recovery and a very low permanent deformation.
Alternatively, stretch polyolefin films are commonly employed such as those described for instance in EP-A-687,558, Japanese patent application publication no. 262673/1994 (Derwent Accession Number 94-337840), Japanese patent application publication no. 39973/1994 (Derwent Accession Number 94-103866), Japanese patent application publication no. 31882/1994 (Derwent Accession Number 94-086225), Japanese patent application publication no. 155210/1985 (Derwent Accession Number 85-239384), or Japanese patent application publication no. 327936/1992 (Derwent Accession Number 93-002817).
These stretch films may be manufactured by cast extrusion or co-extrusion, using either a flat or a circular film die that allows to shape the polymer melt into a thin film or tube; by heat or glue lamination of two or more cast films obtained as above; or by coating or extrusion coating of a cast film with one or more polymer layers. Alternatively, and preferably, these stretch films are manufactured by the blown film (or hot blown film) process wherein a mono- or multi-layer tube is formed and then, while it is still molten, is blown up like a bubble to generate a large diameter tube from a relatively small circular die.
Said stretch films, besides having remarkable elongation and preferably good elastic properties, may also be heat-shrinkable, i.e. they shrink when heated to a temperature that is above the Vicat softening temperature of the film polymers but below their melting temperature. Said heat shrink feature is provided to the stretch films, by the process for their manufacture. Said process may involve extruding or co-extruding or extrusion-coating a so-called primary tube or sheet, that is quickly quenched, reheated to a suitable orientation temperature and oriented either mono-axially or bi-axially (trapped bubble process or tenter frame process). Or, as the so-called double bubble method described in EP-A-410,792, it may involve extruding or co-extruding the molten polymer to a hot blown film, heating the obtained film to a temperature above its orientation temperature and reinflating it by a blown bubble process. When the stretch film obtained by one of these methods is heated to a temperature that approximates the orientation temperature, it will shrink tending to return to its original dimension before orientation.
Examples of suitable heat-shrinkable stretch polyolefin films are for instance described in EP-A-286,430, EP-A-369,790, GB-A-2,154,178, EP-A-562,496, U.S. Pat. No. 5,460,861, etc..
Actually, in packaging, the stretch films, either PVC or the stretch polyolefin films, are used in the same way to overwrap the product placed on the flat support or in the tray, as indicated above.
When a heat-shrinkable stretch film is employed, a heat treatment following the bunch-sealing step improves the package appearance by tightly conforming the film to the packaged item. Besides the disadvantage of the poor hermeticity of the stretch overwrapped conventional packages, the cost of getting a package by stretch overwrapping, particularly when expensive polyolefin stretch films are employed, may sometimes be unacceptable at industrial level. A large surface of film is in fact needed to get
− the overwrap of the base and the product placed thereupon, and
− the overlapping between the edges to be welded together below the base itself.
As a consequence of the large surface of film required, an additional disadvantage of this packaging method resides in the large amount of plastic waste that is generated and that eventually needs to be disposed of.
Defensive Publication US-T-896 016 discloses a sealed package comprising a tray containing a foodstuff and a polymeric film attached to an outwardly extending flange of said tray by means of a heat sealed adhesive wherein the polymeric film has a tab portion extending beyond at least a portion of the perimeter of the flange to provide easy opening of the package by pulling on the tab.
Said polymeric film has a thickness of about 1 to 10 mils (25,4 to 254 μm) and is not stretched over the foodstuff.
As known in the art, a package wherein a film is not stretched over the foodstuff results in a slack, unattractive package which becomes worse upon handling or upon storage under low temperature conditions.
Further drawbacks of said package are inherent in the manufacturing method requiring burdensome and expensive steps
− of smearing said heat-sealed adhesive on the tray flange, and
− of disposing of a substantial ring portion of film extending beyond the perimeter of the flange to provide material for cutting a tab therein.
FIG. 6 of U.S. Pat. No. 3,587,839 discloses a package consisting of a relatively rigid tray containing a packaged product wherein said tray is closed between an upper stretched elastic film and a lower heat shrunk film. This package involves a large waste of plastic material (i.e. the lower film) compared to a package where the upper film is attached to the tray rather than to an additional lower film.
In turn, the packaging method disclosed by U.S. Pat. No. 3,587,839 comprises the steps of
− placing a heat shrinkable film on a platen,
− placing a product or a relatively rigid tray containing the product to be packaged on said heat shrinkable film,
− placing a stretchable elastic film on said product or on said relatively rigid tray containing the product to be packaged,
− moving downward a film holding device to hold both films against the platen along a line around the periphery of said product, or of said relatively rigid tray containing the product to be packaged, spaced outwardly at a predetermined distance therefrom and from the sealing head so that the tensioning of said upper film occasioned by the subsequent lowering of said sealing head may be controlled and uniform,
− lowering said sealing head while forcing said upper film into contact with said lower film along a line around and adjacent the periphery of said product or of said relatively rigid tray containing the product to be packaged,
− energizing the electrical resistance of said sealing head to heat both films sufficiently to form a welded seal and to sever them along a continuous line around and adjacent the periphery of said product or of said relatively rigid tray containing the product to be packaged,
− transporting the thus obtained package to a suitable station to effect an appreciable shrinkage of said lower heat shrinkable film.
In said method the sealing head has the double task of tensioning the upper film and of heating both films sufficiently to form a welded seal and to severe them. Thus, it requires sufficient time to allow said sealing head to become cold before performing the next tensioning and sealing step otherwise the hot head pierces the upper film while tensioning it. The packaging speed is thereby substantially slowed down.
U.S. Pat. No. 2,147,384 claims a package comprising a relatively stiff opaque backing sheet of material capable of receiving printing impressions on the surface thereof, and a transparent facing membrane of thermoplastic elastic material stretched over and attached to the face of said backing sheet along the edge portions of said sheet and a membrane so as to provide a commodity receiving space between said sheet and membrane within the connected edges thereof, the edge portions of said backing sheet being corrugated and the edge portions of said transparent membrane being fused into the corrugations of said backing sheet. The backing sheet is said to be preferably composed of a cellulose material, preferably coated with casein. In contrast, no information at all are [sic] given about the composition of said transparent elastic rubber membrane and the elastic modulus thereof.
Even the packaging method and machine applied for manufacturing said package are not enabled by such document.
It is an object of the present invention to provide a hermetically sealed package for a product supported on a substantially rigid base as well as a method and a machine for manufacturing said package in a quick way.
It is another object of this invention to provide a hermetically sealed package for a product supported on a substantially rigid base as well as a method and a machine for manufacturing said package using less plastic material than necessary according to the prior art.
Preferably, the product to be packaged has a particularly high profile and is placed in a substantially rigid tray.
The main claims are amended claims 1, 8 and 11, above. The remainder of the claims depend from these claims.
THE LAW
The applicant pointed out that the burden of proof clearly lies with the opponent and the benefit of any doubt must be given to the applicant. Reliance was placed on the well known dicta in General Electric Company’s Application [1964] RPC 413 (approved in Beecham Group Limited v Bristol Myers Company (No2) [1979] NZLR 629 at 634) and Saxpack Foods v Watties Canneries (unreported, Wellington High Court, M No. 454/85, 11 July 1988, per Ongley J).
PRIOR PUBLICATION – section 21(1)(b)
Section 21(1)(b) states:
That the invention, so far as claimed in any claim of the complete specification, has been published in New Zealand before the priority date of the claim —
(i) In any specification filed in pursuance of an application for a patent made in New Zealand and dated within 50 years next before the date of filing of the applicant’s complete specification:
(ii) In any other document (not being a document of any class described in subsection (1) of section 59 of this Act)
The usual test for prior publication is that set forth in the judgment of the English Court of Appeal by Sachs LJ in The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited and Others [1972] RPC 457 at 485 to 486:
If the prior inventor’s publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee’s claim if carried out after the grant of the patentee’s patent, the patentee’s claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated. The prior inventor, however, and the patentee may have approached the same device from different starting points and may for this reason, or it may be for other reasons, have so described their devices that it cannot be immediately discerned from a reading of the language which they have respectively used that they have discovered in truth the same device; but if carrying out the directions contained in the prior inventor’s publication will inevitably result in something being made or done which, if the patentee’s patent were valid, would constitute an infringement of the patentee’s claim, this circumstance demonstrates that the patentee’s claim has in fact been anticipated.
If, on the other hand, the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee’s claim, but would be at least as likely to be carried out in a way which would not do so, the patentee’s claim will not have been anticipated, although it may fail on the ground of obviousness. To anticipate the patentee’s claim the prior publication must contain clear and unmistakeable directions to do what the patentee claims to have invented ... A signpost, however clear, upon the road to the patentee’s invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.
The dicta have been applied and followed by the Court of Appeal of New Zealand in Beecham Group Limited’s (New Zealand/Amoxycillin) Application [1982] FSR 181.
i) United States Patent Specification 3,813,846
No availability data has been provided. From the specification number it would appear the document would have been available at IPONZ before any priority date to which the claims could be entitled.
This document discloses a method and machine for a conventional lidding process where a flat cover is sealed to a tray flange. There is no reference to a possible stretching of the lid or to the use of a stretch film. The document relates to the packaging of butter or the like in the form of individual serves.
The document does not prior publish the applicant’s claimed invention.
ii) United States Patent Specification 3,997,677
This document was available at IPONZ from 9 January 1991.
This document discloses a conventional flat lidding process where a flat cover is sealed to a tray flange. The materials have to withstand freezing and cooking temperatures and the tray may act as a serving dish. There is no reference to a possible stretching of the lid or to the use of a stretch film.
The document does not prior publish the applicant’s claimed invention.
iii) United States Patent Specification 4,120,984
This document was available at IPONZ from 5 December 1978.
This document discloses a sealed package obtained by a conventional flat lidding process. There is no reference to a possible stretching of the lid or to the use of a stretch film. The document relates to the baking of products within the package while maintaining sterility therein and preventing damage to the product therein during cooling.
The document does not prior publish the applicant’s claimed invention.
iv) United States Patent Specification 4,365,456
This would appear to have been available from IPONZ as of 1 February 1983.
This document discloses a method and machine for bundling a number of objects, such as bottles, cans or cartons, loaded on a tray. The wrapping process is merely to hold the objects together on the tray, not to protect, and especially not to hermetically seal, the wrapped objects. The wrapping process uses heat and pressure to bond the film sheet to the tray, to do away with the need for glue or other adhesive. There is no reference to a possible stretching of the lid or to the use of a stretch film.
The document does not prior publish the applicant’s claimed invention.
v) United States Patent Specification 4,475,653
This document was available at IPONZ from 17 December 1984.
This document is similar to document iv) above, being a continuation-in-part of that patent specification. The comments there apply here, although there is no reference to any complete enclosure of the package as in document iv). There is no reference to a possible stretching of the lid or to the use of a stretch film.
The document does not prior publish the applicant’s claimed invention.
vi) United States Patent Specification 4,609,101
This document was available at IPONZ from 24 November 1986.
This document is a divisional of document iv) above. The specifications are the same, hence the comments there apply here. There is no reference to a possible stretching of the lid or to the use of a stretch film.
The document does not prior publish the applicant’s claimed invention.
vii) United States Patent Specification 4,756,421
This document was available at IPONZ from 10 August 1988.
This document discloses a peelable flat lid made by laminating different layers or films using thermosetting adhesives. The document relates to the packaging and display of the likes of luncheon meat, the peelable lid providing easy access to the contents of the package. There is no reference to a possible stretching of the lid or to the use of a stretch film.
The document does not prior publish the applicant’s claimed invention.
Viii) United States Patent Specification 4,925,685
This document was available at IPONZ from 20 September 1990.
This document discloses a process where a top film covers a tray which has a rim and outer walls. The top film is heated and lowered onto the tray while a vacuum is provided beneath the tray, the vacuum pulling the film into intimate contact with the rim and outer walls of the tray. For hermetic sealing to be attained the lip of the tray and/or the film have to be coated with an adhesive. The top film is not heat-welded to the tray rim, but is attached by way of ‘a vacuum induced thermally set crimp’. The document relates to containers that may be used in either conventional ovens or microwave ovens to cook the contents.
The document does not prior publish the applicant’s claimed invention.
ix) United States Patent Specification 5,345,069
This document was available at IPONZ from 4 October 1994.
This document discloses a food package which has a conventional lid, where a flat film is sealed to a tray rim to close the package. There is no reference to a possible stretching of the lid or to the use of a stretch film. The applicant says that the two working examples use a tray lid containing a biaxially oriented polyethylene terephthalate which it submits is not a stretch film as defined in the present application.
The document does not prior publish the applicant’s claimed invention.
x) European Patent Specification 687,558
This document was available at IPONZ from 4 January 1996.
This document discloses a multilayer stretch film for use as a tray overwrap for wrapping the likes of fresh red meat. In use the film is wrapped completely round the product and is tacked or sealed to itself in a flattened relationship against the lower surface of the bottom section of the tray by heat. It is not sealed to a rim of the tray.
The document does not prior publish the applicant’s claimed invention.
xi) European Patent Specification 707,955
No availability data has been provided.
This document describes a composite of expanded polystyrene and a liner that can be thermoformed to make a container particularly for meat products. The document relates to the tray rather than any lidding or wrapping arrangement involving the polystyrene container and a contained product.
The document would not prior publish the applicant’s claimed invention.
xii) New Zealand Patent Specification 205,784
This document was available at IPONZ from 8 October 1986.
The document discloses a vacuum skin package (VSP). The upper film is caused to adhere to almost all the surfaces of the product articles not directly in contact with the tray-like sheet material in order to provide a smooth sealed cover without voids. The film also adheres to the bottom, walls and border of the support because in the VSP process the heated top film drapes down over the product and adheres to everything it comes into contact with, the product, the bottom of the tray, the tray walls and the border. The top film in the VSP cannot be said to be heat-welded to a substantially rigid base along a sealing line as in the present claims.
The document does not prior publish the applicant’s claimed invention.
xiii) New Zealand Patent Specification 209,123
This document was available at IPONZ from 8 October 1986.
The document discloses a process for making a gas impervious tray by lining a gas pervious tray with a barrier liner adhered to the tray by a vacuum skin step. The tray produced can, once loaded with product, be closed by a conventional flat lid sealed to the tray rim or it can be sealed by another vacuum skin step.
The document does not prior publish the applicant’s claimed invention.
xiv) New Zealand Patent Specification 215,441
The document was available at IPONZ from 31 July 1987.
The document discloses a tray obtained by lining a flat sheet with a barrier film and then thermoforming the composite obtained. The tray is then closed by a conventional flat lid sealed to the tray rim. There is no reference to a possible stretching of the lid or to the use of a stretch film.
The document does not prior publish the applicant’s claimed invention.
xv) New Zealand Patent Specification 226,195
This document was available at IPONZ from 27 November 1990.
This document discloses a process and device for stretch-wrapping a loaded tray where the over-wrapping film is folded under the tray and heat sealed securely to itself. The stretch wrap is not sealed along a sealing line to the tray.
The document does not prior publish the applicant’s claimed invention.
xvi) New Zealand Patent Specification 259,315
The document was not available until 29 January 1997, i.e. well after any priority date to which the present claims could be entitled. It will not be considered further.
The document does not prior publish the applicant’s claimed invention.
I find that the ground of prior publication is not made out.
PRIOR USE - section 21(1)(d)
Section 21(1)(d) states:
That the invention, so far as claimed in any claim of the complete specification, was used in New Zealand before the priority date of that claim
IPONZ practice note, published in Journal No 1287 in July 1986, page 714, sets out what the opponent must do to prove this ground:
To succeed on this ground, an opponent must first establish that the alleged instance(s) of prior use was (were) not secret use(s) of the invention, as claimed. See the decision of the House of Lords in Bristol-Myers (Johnson’s) Application [1975] RPC 127, at 157, for a discussion on what constitutes public use, as opposed to secret use. The opponent must also establish, by evidence,
(a) what was used
(b) where it was used
(c) by whom it was used
(d) the date it was used
(e) where apparatus still extant may be inspected.
No evidence of prior use has been filed.
This ground is not made out.
OBVIOUSNESS - section 21(1)(e)
Section 21(1)(e) reads:
That the invention, so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step having regard to matter published as mentioned in paragraph (b) of this subsection, or having regard to what was used in New Zealand before the priority date of the applicant’s claim
In the absence of any evidence establishing any prior use the limb of the section covering obviousness by way of what was used in New Zealand before the priority date cannot be pursued. Only the ground of obviousness having regard to matter published can be considered.
The usual test for obviousness was that set out by Oliver J in Windsurfing International Inc v Tabur Marine (Great Britain) Ltd [1985] RPC 59 at 73, and followed in New Zealand by Gault J in Ancare v Cyanamid [2000] 3 NZLR 299 at 309 (paragraph 45)
The first [step] is to identify the inventive concept embodied in the patent in suit. Thereafter, the court has to assume the mantle of the normally skilled but unimaginative addressee in the art at the priority date and to impute to him what was, at that date, common general knowledge in the art in question. The third step is to identify what, if any, differences exist between the matter cited as being “known or used” and the alleged invention. Finally the court has to ask itself whether, viewed without any knowledge of the alleged invention, those differences constitute steps which would have been obvious to the skilled man or whether they require any degree of invention.
The approach was summarised by the applicant as:
In following this procedure the applicant submitted that it is important to keep in mind the comments of Gault J in Ancare v Cyanamid [2000] 3 NZLR 299, at 309 (paragraph 43):
[the test] postulates a person ... skilled in the field but not inventive, invested with the common general knowledge available in the field at the priority date, presented with the prior knowledge ... relied upon. Prior documents may be looked at together if that is what the skilled person or team would do.
The applicant submitted that to combine documents together requires evidence from a skilled person that he or she would consider them together, and that there is no evidence in this case on that issue.
Moreover, submitted the applicant, dissection of a claim into individual features and analysing each feature separately is not an acceptable approach to showing that claim obvious without evidence. The applicant relied on Blanco White in Patents for Inventions (5th edition) at paragraph 4-203:
If, however, it is necessary in order to arrive at what is claimed to make a “mosaic of extracts from annals and treatises,” it becomes difficult to resist the inference that an inventive step was needed; although for the purpose of showing obviousness it is permissible in our law to make a mosaic out of the relevant documents, the mosaic must be one which “can be put together by an unimaginative man with no inventive capacity”.
The applicant also pointed out that a ‘scintilla of invention’ is sufficient (Samuel Parkes (1929) 46 RPC 241).
The inventive concept of the present invention is that given in the main claims. The applicant stated that the nature of the invention was best encapsulated in the counterstatement at paragraph 5.6, as follows:
The Applicant states that the invention claimed in the Application consists of a package where the product is supported on a substantially rigid base and the package is hermetically closed by a stretch film that is stretched over the product and sealed to the base along a sealing line all around the product. If the base is a tray then typically the stretched film will be sealed along the tray rim. In the prior art, where a stretch film is employed the packages are over-wrapped. As pointed out in the text of the Application, this prior art method presents a number of drawbacks as summarised on page 4 of the Application. These disadvantages include poor hermeticity of the stretched over-wrapped package, the cost of producing a package by stretch over-wrapping (particularly when expensive polyolefin stretch films are employed) as a large piece of film is needed to over-wrap each package and the over-wrap packaging method results in a large amount of plastic waste. Additionally, if a film is not stretched over the product, the result is a slack unattractive package which becomes worse on handling or storage at low temperatures. The invention claimed in the Application overcomes these drawbacks with a package where the stretch film is stretched over the product and heat welded to the base along a sealing line all around the product.
The opponent has not really established what would be the common general knowledge possessed by the notionally skilled addressee at the relevant date.
The difference from the prior art is the particular package, method and machine of the main claims.
The opponent, by way of the affidavit of Professor Solomon, has not established why the package, method and machine would be obvious from the common general knowledge at the relevant date. The affidavit contains ex post facto analysis of the claims. The integers are considered individually and are ‘questionably shown’ to be known from the common general knowledge or the cited documents. But there is nothing in the affidavit to lead me to understand how the skilled addressee would bring the individual integers together in such an obvious way that I can say that the present invention is obvious and clearly does not involve an inventive step.
I say ‘questionably shown’ in the previous paragraph because the applicant has argued that Professor Solomon has misunderstood aspects of the present claims and also of the cited documents. The applicant does not have the same understanding of some the cited documents as Professor Solomon. The result is a conflict of expert opinion that cannot be resolved in the present circumstances. Cross examination of the witness would be needed.
In my view, the applicant has also satisfactorily answered the points that Professor Solomon raised in his affidavit where he questioned aspects of the specification which he regarded as unclear.
The opponent has not made out a case for obviousness.
The ground is not made out.
NOT AN INVENTION - section 21(1)(f)
Section 21(1)(f) states:
That the subject of any claim of the complete specification is not an invention within the meaning of this Act
The opponent has pleaded mere collocation. The applicant says there is no substance to this pleading, and I agree. The integers appear to me to interact to achieve what has not been shown to be other than a new and useful result. I tend to agree with the applicant that the argument is a restatement of the issues raised under obviousness.
The ground is not made out.
NOT SUFFICIENTLY AND FAIRLY DESCRIBED - section 21(1)(g)
Section 21(1)(g) states:
That the complete specification does not sufficiently and fairly describe the invention or the method by which it is to be performed
No evidence has been filed in support.
The ground is not made out.
DECISION
I find that none of the grounds has been made out. I dismiss the opposition, and I direct that the patent be sealed, once the amended pages supplied have been inserted in the specification.
COSTS
Each party is to meet its own costs as agreed between the parties.
Dated this 4th day of April 2006
____________________________
A Hazlewood
Assistant Commissioner of
Patents
A J Park for the Applicant
Baldwins for the Opponent
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