KWIK-LOK CORPORATION

[1985] APO 11

In the Matter of the Patents Act 1952 - and - In the Matter of Patent Application No. 73602/81 for Letters Patent in the Name of KWIK-LOK CORPORATION - and - In the Matter of Examiner's Objections thereto.

 

DECISION OF A SUPERVISING EXAMINER OF PATENTS:

Background

This matter concerns an application for a patent entitled "IMPROVED BAG CLOSURE" lodged on 31 July, 1981. Examination of the application and complete specification has been in accordance with section 48 and has resulted in the issuance to date of three adverse reports.

In his most recent report dated 8 March, 1985, the examiner has maintained the substance of the objections of his two earlier reports, i.e. that the invention is not for a manner of new manufacture, and is not novel.As a result of this the applicant requested a hearing, and this took place in Canberra on 14 May, 1985. Mr. G.J. Noonan, patent attorney, of Davies Collison, Melbourne, appeared on behalf of the applicant.

The Specification

The complete specification to be considered is in the form as lodged, save for one proposed amendment deleting an omnibus claim, and the description commences on page 2 by stating that:

"This invention pertains to closures formed of flat plastic material for holding closed the necks of flexible bags and to strips of such closures which can be separated by breaking the connections between adjacent closures in the strip."

Then follows references to prior art closures and strips in United States patent specifications and the problems associated with these closures and strips. Thus jagged edges are left on the closures after separation from the strip necessitating that the webs connecting adjacent closures to form the strip are of sufficient strength to prevent premature separation during handling prior to intentional separation either manually or in an automatic closure-applying machine.

The specification then sets out two objects of the invention, namely, to provide an improved multi-closure strip from which the closures may be broken to consistently leave a smooth edge (on the closure) with no protrusions, and, to provide a strip which is robust enough to prevent premature separation of closures from the strip during handling. The description then outlines the invention as follows:

"Basically, these objects are obtained by providing the shape of each spaced web or interconnecting material between adjacent closures in the strip with a transversely enlarged central portion, with the juncture between the central portion and the edges of the adjacent closures being of reduced transverse width. This type of closure-connecting web will provide sufficient strength in handling, but when the closure is separated, particularly when separated by the application of a force transversely and in the plane of the closure, will break the webs cleanly at their juncture with each adjacent closure edge. The enlarged central portion is believed to provide greater resistance to deformation during the shearing or breaking operation, thus concentrating the stresses at the thinner juncture points of fracture at the closure edge to consistently break at the points of fracture. In the few cases where complete fracture does not occur, the webs are so weakened at the points of fracture that subsequent handling of the separated closure will cause any remaining webs to be knocked off the closure.

In the preferred form of the invention, the web is generally circular in configuration, having a radius arc approximately tangent to the opposed edges of both adjacent closures. The circular configuration appears to function better than other enlarged central portion configurations due to the additional effect of a camming action as the circular surface is rolled along each adjacent edge of the closure when broken by a transverse shearing action".

The specification then describes the single embodiment of the invention with reference to two figures in the accompanying sheet of drawings.In particular the drawings show two views of a multi-closure strip which is described as follows:

"The figures show a portion of a multi-closure strip of generally flat, rigid, plastic closures with only the two most end closures 10 and 11 of the strip being illustrated. Closure 10 is the last closure in the strip, with the closure to the left of closure 10 having been broken off. That is, closure 10 is the next closure to be broken from the strip. Each of the closures, as is well known, has a bag access opening 14 and a bag-holding central opening 16 for gripping a flexible material or bag, such as 18.

The closures are joined by webs or tabs 20. The tabs have a transversely enlarged central portion 22 and points of fracture or junctures 24 of reduced transverse width. In the preferred embodiment illustrated, the curvature of the enlarged central portion 22 is of a radius which is equidistantly positioned lengthwise between adjacent closures so that the edges of the adjacent closures are at a point of tangency with the radius of the circle. Thus, if the end closure 10 is broken off by a force F as the closure 11 is being stopped by an abutment 30, for example, the central portions 22 will tend to roll against the edges, acting like cams to push the central portions away from the edges of the closures. This assists in the separation of the webs at the points of fracture.

It should be understood, of course, that other configurations other than the circular configuration, such as ovals or rectangles, can be provided so long as the central portion is of an increased transverse width. These other configurations may or may not also achieve the additional camming action but will also break generally cleanly because of the stress concentration at the narrower widths."

The specification concludes with four claims which read as follows:

"1. In a multi-closure strip wherein the closures each have a side-edge, bag-neck access opening joining a bag-neck confining aperture, said closures being joined together in such strip by webs spaced transverse to the length of the strip, the webs having a thickness in the length direction of the strip to space adjacent closures, and each said web having a transversely enlarged central portion relative to the lengthwise direction of the strip and transversely reduced points of fracture on each end of said central portion at the juncture of the closure and web whereby separation of the closures by breaking the points of fracture will leave a smooth edge at each closure.

2. The closure strip of claim 1, said enlarged central portion being generally circular about a center equidistantly spaced between points of tangency with adjacent closures in the strip.

3. The closure of claim 1 wherein said central portion is symmetrically located lengthwise of the strip.

4. A multi-closure strip substantially as hereinbefore described with reference to the accompanying drawings."

Section 40

I consider that claim 1 is directed to improvements in a multi-closure strip of the type wherein each closure has a bag-neck access opening connected to an aperture which confines the bag-neck when applied to a bag, the access opening being located in a side-edge of the closure. The closures in the strip are joined together (to form the strip) by webs spaced apart in the transverse direction of the strip. The webs are defined as having a thickness in the length direction of the strip to space the closures in the strip. To my mind the word "thickness" is inappropriate in describing what is, in effect, the length of the web as "thickness" in the context of the description and drawings would relate to the dimension between the two major planar surfaces of the closures. The claim requires that each web be configured to have a transversely enlarged central portion relative to the lengthwise direction of the strip and transversely reduced points of fracture at each end of the enlarged portion where the web and the closure are joined together.

In my view, this portion of the claim includes in its scope configurations of the shape of the web falling outside the disclosure of the invention as described in the specification, and thus claim 1 is not fairly based. The definition in the claim of "a transversely enlarged central portion relative to the direction of the strip", to my mind, only requires the web to have, near its longitudinal centre, a portion which is larger in width than other portions of the web. It does not, for example, preclude the configuration of a number of enlarged portions in the manner of a "saw-tooth"pattern along each side of the web or a large rectangular portion which occupies almost the whole of the space between adjacent closures or a portion in the shape of an annulus. Clearly, these and other configurations which come readily to mind fall within the ambit of the claim. A similar interpretation applies, in my opinion, to the requirement in the claim in relation to "transversely reduced points of fracture at each end of the central portion at the juncture of the web and closure".

Another factor affecting my interpretation of this part of the claim is that neither of the abovementioned passages have their "dimensional" characteristics related to a reference datum. Thus "transversely enlarged" and "transversely reduced" have no clear meaning as the "enlargement" and "reduction" has not been defined in relation to a basal feature or "dimension"Consequently, there is no requirement that the junctions of a web with the two adjacent closure members be the minimum transverse dimensions in the plane of the strip, and the object of the invention would not, it seems, be achieved by such constructions.

At the hearing Mr. Noonan agreed that this portion of the claim included configurations other than those described in the preferred embodiment, and he described several of these. As a particular example, he said that the central portion of the web could be of rectangular shape such that the long side of the rectangle extends transverse to the direction of the strip, with the short side of the rectangle being of a length approximately one third of the distance between adjacent closures and centrally located between them. In this example the rectangular portion is connected to each closure by narrow web portions which have parallel sides thus providing reduced points of fracture at the juncture of the web and the closures, as required by the claim. I will return to this particular configuration when I am considering the novelty of the claim.

The final portion of the claim is a functional limitation which requires that the separation of the closures (from the strip) by breaking of the points of fracture will leave smooth edges on the closure.

In view of the above considerations in relation to claim 1, I find that the claim contravenes the provisions of Section 40, in that it is not fairly based. Claims 2 and 3 also are not clear in their appendancy to claim 1, as claim 2 is directed to the closure strip of claim 1 whereas claim 3 is directed to the closure of claim 1. In addition, the requirement in claim 3 that the central portion is located symmetrically of the strip is unclear as the symmetry should be related to the web.

In my opinion, the abovementioned deficiencies in claim 1 could be overcome if the claim defined the web as having a central portion, the transverse width thereof decreasing from a maximum at the central portion of the web to a minimum at the juncture between the web and each closure thereby forming the points of fracture.

Novelty

During examination of the application, the examiner maintained, inter alia, the objection that the present invention was not novel in the light of three United States patents, one of which is patent No. 3164250 in the name of F.G. Paxton. I will now consider the novelty of the claims under consideration in the light of the disclosures in this U.S. patent which I will refer to as the Paxton Patent. The Paxton Patent is directed to a polystyrene multi- closure strip adapted for separation into individual closures. The description states that sheet polystyrene closures have been known for many years in a form which is described in such a way that it is very similar to the form of the present invention and one of the disadvantages of these prior art strips is that separating a closure from the strip resulted in sharp ends on the webs which scratched the hands of a person removing the closure from a bag as well as giving the closure a ragged appearance. The specification continues by describing a closure strip which is identical with that claimed in the specification under consideration save for the transverse shape of the webs which, in the U.S. Patent, have parallel sides.

Thus, in my view, the determination of novelty in this case turns upon whether it is an invention or inventive to provide a web with an enlarged central portion.

Mr. Noonan made a number of submissions on the law regarding novelty however I am of the opinion that the question of novelty can be resolved by reference to the test as stated by Dixon J. of the Full High Court of Australia in Griffin v. Isaacs (1942) AOJP 739 at 740:

"Where variations from a device previously published consist in matters which make no substantial contribution to the working of the thing or involve no ingenuity or inventive step and the merit if any of the two things, considered as inventions, is the same, it is, I think, impossible to treat the differences as giving novelty.'.

In considering the first aspect of the test I have to consider the requirement that the difference makes "no substantial contribution to the working of the thing" together with the requirement that "the merit if any ... is the same". For the purpose of comparison between the two inventions I will assume that although the claims in suit are silent on the matter of the direction of separation of a closure from the strip, the direction of separation is that described at lines 24 and 25 of page 3 of the complete specification, i.e. a direction transverse to the length of the strip and in the plane of the strip; this direction is identical to the one described in the Paxton patent.

In comparing the two strips/closures in the light of the manner in which separation is effected, I will use the form suggested by Mr. Noonan which I described in detail earlier in this decision; however, my finding in relation to this construction will obviously apply to several of the other forms of the web envisaged by claim 1 as it now stands.

I consider that the only effect of having a rectangular enlarged portion at the centre of the web will be to ensure that, during separation, the web will not "tear" at its central portion. In all other respects the consequence of separation will be no different to that for the web described in the Paxton patent (see Fig. 4). Further, there is no indication that the enlarged portion of this type would ensure the formation of smooth edges at the separation zones anymore than would the construction described in Paxton. This conclusion is even more evident in relation to constructions of claim 1 (to which I have earlier referred) not requiring the minimum dimensions of the web to be at its junctions with the adjacent closures. As I have earlier stated, claim 1 is not fairly based, and clearly it is this lack of fair basis which leads to the above conclusion.

Conclusion

In summary, I find that claim 1 is lacking in novelty and claims 1 to 3 do not comply with section 40, however, I am of the opinion that these deficiencies can be overcome and accordingly, I direct the applicant to propose amendments to the specification to my satisfaction within the time remaining for acceptance of the application under section 54(1).

(P.J. White)

Acting Supervising Examiner of Patents

13 JUN 1985