
    365 F. 2d 1017; 151 USPQ 48
    In re Fred P. Winslow
    (No. 7527)
    
    United States Court of Customs and Patent Appeals,
    September 22, 1966
    
      Charles B. Broten (Vincent L. RamiJc, of counsel) for appellant.
    
      Clarence W. Moore (Jere W. Bears, of counsel) for the Commissioner of Paténts.
    [Oral argument December 8, 1965 by Mr. Ramik and Mr. Sears]
    Before Worley, Chief Judge, and Rich, Maetin, Smith, and Almond, Jr.,' Associate Judges
    
      
      Petition for rehearing denied November 10, 1966.
    
   Rich, Judge,

delivered the opinion of the court:

This appeal is from the unanimous decision of the Patent Office Board of Appeals, adhered to upon reconsideration, affirming the examiners rejection of apparatus claims 1, 3, and 11-18 andv 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 withdfawmas 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 tom from retaining pins. The bags are stacked, with their flap sides down, and placed on a horizontal support plate 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 patent to one Altman, Jr., hereafter Altman, which is not relied on by the Patent Office in support of the rejection.

Claim 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 stop 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.

TR© examiner rejected the claims remaining on appeal an unpatentable over:

Gerbe_ 2, 673, 016 Mar. 23, 1954
Heilman__ 1,794,517 Mar. 3,1931
Rhoades__ 991, 245 May 2, 191t

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.

Ehoades 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 spring-loaded 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:

Tie 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 diclosure in the patent to Heilman showing the use of a pin for holding bags in position while the outermost hag 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 Hellman 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.

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

Smith, Judge,

dissenting.

The issue phrased in the statutory language of section 103 is whether the differences between the invention claimed and the prior art are such that the invention as a whole would have been obvious to one of ordinary skill in the bagging and filling machine art at the time of appellant’s invention.

The principal reference is Gerbe which discloses a bagging and filling machine employing a stack of bags, an enclosure, a bag support underlying a plate member, and an air blast source. The bags are roughly positioned in Gerbe by an enclosure around the closed end and two sides of the stack of bags. The bag support and plate member cooperate to clamp the open end of the bags. Gerbe discloses three alternatives to facilitate opening the bags. Where there is no flap extending from the bottom surface at the open end of the 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. Alternately, the top surface of the bags may be cut away slightly in the form of a curve so that the plate member clamps only a minimal portion of the top surface and all of the bottom surface of the bag at the open edge.

Heilman discloses an apparatus for filling envelopes employing an air blast. The envelopes are held vertically by a rod which passes through a hole in each envelope flap. The rod is inclined and a follower plate slides along the rod in descending fashion urging the envelopes towards an abutting surface causing a clamping action. The envelope is removed from the rod by tearing the flap portion from the hole to the flap edge.

Rhoades discloses an apparatus for holding a stack of bags in a vertical position employing a piercing point which pierces the open end portions of the bag. A spring loaded member urges the bags into the piercing point and back stop. The bags are constructed with a curved front edge surface so that the piercing point pierces only the bottom surface of the bag at the open end.

I agree with appellant’s arguments concerning the deficiencies in each of the references and combinations of the references. Gerbe does not teach the concept of aligning pins extending from the plate member which cooperate with a flap having holes and perforated flap sections. Appellant’s apparatus is clearly a simplified improvement over the Gerbe apparatus.

Similarly, Rhoades does not disclose alignment means and is no more than a simple wall device for hanging a number of bags within convenient reach. The bags are held by combining the action of the piercing point and friction. It need not be considered further.

The problem lies in determining what Gerbe in view of Heilman taught one of ordinary skill without the benefits of the after acquired knowledge of appellant’s teaching. It is apparent that the rod-follower combination of Heilman requires the force of gravity to operate and will not work in a horizontal position. Further, without the reconstruction taught by appellant the combination of Gerbe and Heilman per se would be nonfunctional. What is required is that, as taught by appellant, only the rod concept of Heilman be extracted and that it then be incorporated into Gerbe. Further, the rod must 'be made into a pin and then located on the clamping plate so as to extend downwardly therefrom. The concept of alignment, first disclosed by appellant, is not present in such a prior art combination. To meet this aspect, what is required is the incorporation of a double rod system, converted to pins, to provide two points of location. Only after this further modification can the sides and end boxing system of Gerbe be discarded. Only when all this is done do we finally realize an apparatus similar to that claimed by appellant.

What appellant discovered had not occurred to Gerbe, the most recent inventor of subject matter closest to that here claimed. I assume that the Gerbe device is operable. Appellant, however, points out several practical difficulties inherent in the Gerbe construction which appellant proposes to eliminate. The end stop in Gerbe requires a degree of longitudinal rigidity in the bags, lest they tend to crumple against it as the successive uppermost bags are removed. Gerbe thus found it necessary to bow the stack of bags by providing special edge supports to assure such rigidity. Also, the stop is not seen to be of any help in retaining an inflated bag. Since the frictional hold exerted by the tongue of the bag may not be great, it may well yield to a sliding force such as might be exerted by an operator’s thumb on a repetitive basis. Thus, concern is justified that the air blast could blow the bag away before it could be filled. Also, in Gerbe the stack of bags is held by friction only. The success of the clamping action requires that each bag assert a frictional force against the next bag yet the top bag must be easily removed without upsetting the clamping action. The removal of the top bag may well cause several bags to follow thus upsetting the clamping action.

To say that a pin cooperating with aligning holes in a bag flap extension is the obvious answer to eliminating the drawbacks in Gerbe, is, I think, an unwarranted simplification which results only from hindsight reasoning. A comparison of the respective devices clearly indicates the differences between appellant’s device and those of Heilman and Gerbe.

The problem as I see it is that the simplicity of appellant’s device has obscured the unobvious merits of appellant’s improvement over prior art devices. It is apparent from the above drawings that appellant’s device clearly distinguishes itself from the prior art apparatus. All he has is a spring board, a clamping plate with pins, and an air funnel. The appealed claims to this structure are direct and uncomplicated. Appellant does not have a complicated structure from which he may create limitations for his claims in an effort to distinguish over prior art devices. Rather, his claims distinguish over 'thé prior art' by the absence of complicated structure; his claimed invention is simplicity itself in the art of opening and filling thermoplastic bags.

I would reverse the decision of the board. 
      
       Consisting of Examiners-in-Chief Brewrink, Manian and Freehof, the latter' writing the opinion.
     
      
       No. 3,044,233, July 17, 1962. According to tile solicitor,
      As initially presented, appellant’s claims 11-16 were said to correspond generally to Altman’s claims 1, 2, 10, 13, 1'5> and 16, respectively. Appellant’s subsequently presented claims 17 and 18 were said in turn to correspond to Ms own claims 11 and 13, respectively, except for calling tlie stack of bags an “assembly” rather than a “package.”
     