UNITED STATES INTERNATIONAL TRADE COMNIISSION
`
`WASHINGTON, D.C.
`BEFORE THE HONORABLE PAUL J. LUCKERN
`ADMINISTRATIVE LAW JUDGE
`
`
`
`
`CERTAIN PLASTIC GROCERY AND
`RETAIL BAGS
`
`In the Matter of Inv. No. 337—TA—492
`
`COMPLAINANT’S MOTION FOR PARTIAL SUMMARY DETERMINATION
`THAT U.S. PATENT NO. 5 188 235 IS NOT INVALID UNDER 35 U.S.C.
`102 103
`
`
`
`OR 135 AND NOT UNENFORCEABLE
`
`Pursuant
`
`to Rule 210.18 of the Commission’s Rules of Practice and Procedure,
`
`Complainant Superbag Corp. (“Complainan ” or “Superbag”) moves for a partial summary
`
`determination that U.S. Patent No. 5,188,235 is not invalid under 35 U.S.C. §§102, 103, or 135,
`
`and is not unenforceable because the agreement between Complainant and Orange Plastics with
`
`respect to the ‘235 patent was not filed with the Patent Office.
`
`Complainant’s Statement of Material Facts as to Which Complainant Contends There Is
`
`No Genuine Issue is attached hereto as Exhibit 1. Complainant’s Memorandum in Support of Its
`
`Motion for Partial Summary Determination that U.S. Patent No. 5,188,235 Is Not Invalid Under
`
`35 U.S.C. §§102, 103, and 135 and Not Unenforceable (with accompanying exhibits) is
`
`submitted herewith. As detailed in Superbag’s Memorandum and shown in the accompanying
`
`exhibits, none of the prior art references cited by Respondents anticipate or render obvious the
`
`claims at issue in this investigation. Respondents therefore carmot meet their burden of showing
`
`by clear and convincing evidence that the ‘235 patent is invalid under 35 U.S.C. §§102 and
`
`103(a). Moreover, because no interference was ever declared by the Patent Office involving the
`
`‘235 patent, 35 U.S.C. §l35 carmot apply.
`
`

`
`Complainant Superbag therefore respectfully requests a partial summary determination
`
`that the ‘235 patent is not invalid under 35 U.S.C. §§l02, 103, or 135 and that the ‘235 patent is
`
`not unenforceable because the agreement between Superbag and Orange Plastics was not filed
`
`Respectfully submitted,
`
`//7
`
`with the Patent Office.
`
`%(n
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`I
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`Date; `'n 6,-‘,1/1 'n L‘
`
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`7/ 1'
`(V/UL 0J'n
`
`,
`
`I , \, /V‘
`
`V
`
`K
`
`
`
`Steven R. Borgman
`Stephen S. Hodgson
`VINSON & ELKINS L.L.P.
`
`2300 First City Tower
`1001 Fannin Street
`
`Houston, Texas 77002-6760
`Phone: 713-758-2002
`
`Facsimile: 713-615-5758
`
`ATTORNEYS FOR COMPLAINANT,
`SUPERBAG CORP.
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of a COMPLAINANT’S MOTION FOR
`PARTIAL SUMMARY DETERMINATION THAT U.S. PATENT N0. 5,188,235 IS NOT INVALID
`UNDER U.S. C. §§102, 103, OR 135 AND NOT UNENFORCEABLE was served by ovemight
`courier service, except as indicated below:
`
`Filed Via EDIS
`Hon. Marilyn R. Abbott, Secretary United States
`International Trade Commission
`
`500 E Street, S.W., Room 112A
`Washington, DC 20436
`
`Two Copies by Hand Delivery
`The Honorable Paul J. Luckern
`U.S. International Trade Commission
`
`500 E Street, S.W., Room 317
`Washington, D.C. 20436
`
`One Copy by Hand Deliveg
`David H. Hollander, Jr., Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`
`Also Via Facsimile
`
`John M. Peterson, Esq.
`Neville Peterson LLP
`
`1900 M Street, N.W., Suite 850
`Washington, D.C. 20036
`
`Also Via Facsimile
`
`Karl G. Schwappach, Esq.
`Faegre & Benson LLP
`2200 Wells Fargo Center,
`90 South Seventh Street
`
`Minneapolis, MN 55402-3901
`
`Also Via Facsimile
`
`David A. Belasco, Esq.
`Belasco Jacobs & Townsley, LLP
`100 Corporate Pointe, Suite 330
`Culver City, CA 90230
`
`+6
`on the / I day of December, 2003.
`
`1464398
`
`Also Via Facsimile
`John Kao, Esq., Attorney at Law
`580 California Street, 5th Floor
`San Francisco, CA 94104-1000
`
`Also Via Facsimile
`
`Joseph J. Zito, Esq.
`Zito & Grandinetti
`
`26005 Ridge Road, Suite 203
`Damascus, MD 20872
`
`Also Via Facsimile
`
`Roger A. Gilcrest, Esq.
`Standley Law Group LLP
`495 Metro Place South, Suite 210
`Dublin, OH 43017-5315
`
`DHL Priority Service
`Polson Products Limited
`
`Harbour Commercial Bldg 19/F
`122 Connaught Road Central
`Hong Kong
`
`DHL Priority Service
`Nantong Huasheng Plastic Products Co.
`Jiangzao, Tongzhou City
`Jingsau Province 226315
`People’s Republic of China
`
`DHL Priority Service
`Bee Lian Plastic Marketing PTE Ltd.
`67 Begonia Drive
`Singapore
`
`n Stephen S. Hodgson
`
`é
`
`

`
`EXHIBIT 1
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`BEFORE THE HONORABLE PAUL J. LUCKERN
`ADMINISTRATIVE LAW JUDGE
`
`Inv. No. 337-TA-492
`
`
`
`
`CERTAIN PLASTIC GROCERY AND
`RETAIL BAGS
`
`
`In the Matter of
`
`COMPLAINANT'S STATEMENT OF MATERIAL FACTS AS TO WHICH
`COMPLAINANT CONTENDS THERE IS NO GENUINE ISSUE
`
`Pursuant to rule 3(iv) of the Ground Rules, Complainant Superbag Corp. ("Complainant"
`
`or "Superbag") lists below the material facts as to which Superbag contends there is no genuine
`
`issue and which entitle Superbag to judgment as a matter of law pursuant to Complainant’s
`
`Motion for Partial Summary Determination that U.S. Patent No. 5,188,235 Is Not Invalid under
`
`35 U.S.C. §§l02, 103, or 135 and Not Unenforceable:
`
`1.
`
`Superbag alleges in the Complaint (as amended) that all the Respondents infringe U.S.
`
`Patent No. 5,188,235 ("the ‘235 patent").
`
`2.
`
`3.
`
`Claims 1-8 and 15-19 of the ‘235 patent are at issue in this Investigation.
`
`[Notice of
`
`Investigation.]
`
`Superbag is the assignee of record of the ‘235 patent.
`
`[Exhibit 2 to the Complaint, as
`
`amended.]
`
`4.
`
`Claim 1 of the ‘235 patent reads as follows:
`
`In a bag construction of the type comprising front and rear bag walls, a
`
`closed bottom, and a top portion, said top portion having a pair of laterally spaced
`
`handles, said handles comprising integral extensions of said front and rear bag
`
`walls, said front and rear bag walls, between said handles, defining an open bag
`
`mouth, each said handle extending above the bag mouth from a lower handle
`
`Page 1 of 9
`
`

`
`portion defining the lateral extent of said bag mouth to an upper handle portion
`
`defining a hand grip,
`
`the improvement comprising front and rear central mounting tabs formed
`
`integrally with said front and rear bag walls and extending upwardly from the
`
`lower portion of said open bag mouth, a central mounting aperture associated with
`
`each of said front and rear mounting tabs and adapted for cooperation with a
`
`support hook of a rack for mounting said bag and a weakened portion defining a
`
`severance line in each of said front and rear mounting tabs extending from said
`
`mounting aperture to the top of said mounting tabs,
`
`whereby when said bag is mounted on said rack with said support hook of
`
`said rack engaging said mounting aperture, said mounting tabs will sever along
`
`said severance line as said front and rear bag walls are moved forwardly of said
`
`mounting hook, so that said bag may be removed from said bag rack without
`
`leaving any portion of said mounting tabs on said hook.
`
`William C. Seanor testified in his deposition on November 6, 2003, that he and co-
`
`inventor Milton C. Kuklies conceived of what matured into an application that led to U.S.
`
`Patent No. 5,074,674 (“the ‘674 patent”) on August 22, 1990. [Seanor 11/6/03 deposition
`
`transcript, pp. 8-11.]
`
`Salim Bana testified in his deposition on November 18, 2003, that the conception of the
`
`invention claimed in U.S. Patent No. 5,323,909 (“the ‘909 patent”) occurred sometime
`
`after a patent was reissued to Sonoco, and Mr. Bana referred to the reissue patent as a
`
`“Quickmate” bag patent. [Bana deposition transcript, pp. 1 1-13.]
`
`U.S. Patent No. Re. 33,264 (“the Re. 33,264 patent”), which issued July 17, 1990, shows
`
`on its face that it was assigned to Sonoco Products Co. A copy of Re. 33,264 is attached
`
`to the Memorandum in Support of Complainant’s Motion for Partial Summary
`
`Determination that U.S. Patent No. 5,188,235 is Not Invalid Under 35 U.S.C. §§ 102,
`
`103, & 135 and Not Unenforceable (“the Memorandum in Support”) as Exhibit 9. The
`
`Page 2 of 9
`
`

`
`10.
`
`ll.
`
`invention disclosed in the ‘909 patent was conceived sometime after the Re. 33,264
`
`patent issued on July 17, 1990.
`
`Kwik Kut, Inc. (“Kwik Kut”) made dies for Superbag in 1990.
`
`[Declaration of Jacobo
`
`Bazbaz (“Bazbaz Decl.”), 11 13.] A copy of the Bazbaz declaration is attached to the
`
`Memorandum in Support as Exhibit 3.
`
`Jimmie L. Parker of Kwik Kut testified that Superbag (deposition) Exhibit 1 is a copy of
`
`a drawing of a die that he made for Superbag on April 20, 1990 (“the April 20, 1990
`
`drawing”).
`
`[J. Parker deposition transcript, pp. 140-42.] A copy of the April 20, 1990
`
`drawing is attached to the Memorandum in Support as Exhibit 4.
`
`Mr. Parker testified that API (deposition) Exhibit 29 is a copy of a drawing of a die that
`
`he made for Superbag on April 22, 1990 (“the April 22, 1990 drawing”).
`
`[J . Parker
`
`deposition transcript, pp. 142-43.] A copy of the April 22, 1990 drawing is attached to
`
`the Bazbaz declaration, which is attached to the Memorandum in Support as Exhibit 3.
`
`A bag made using a die made according to either the April 20, 1990 drawing or the April
`
`22, 1990 drawing would have a structure with front and rear bag walls, a closed bottom
`
`and a top portion. The top portion would have a pair of laterally spaced handles. The
`
`handles would be integral extensions of the front and rear bag walls. An open bag mouth
`
`would be defined between the handles by the front and rear bag walls. Each of the
`
`handles would extend above the bag mouth from a lower handle portion that defines the
`
`lateral extent of the bag mouth to an upper handle portion, which defines a hand grip.
`
`The bag would have front and rear central mounting tabs, which would be formed
`
`integrally with the front and rear bag walls. The front and rear central mounting tabs
`
`would extend upwardly from the lower portion of the open bag mouth. Each of the front
`
`and rear mounting tabs would have a central mounting aperture, which would be adapted
`
`for cooperation with a support hook of a rack for mounting the bag. The front and rear
`
`central mounting tabs would have a weakened portion, and the weakened portion would
`
`define a severance line in each of the front and rear mounting tabs. (The severance line is
`
`where each of the front and rear mounting tabs would sever when the bag is pulled off a
`
`dispensing rack.) The severance line would extend from the mounting aperture to the top
`
`Page 3 of 9
`
`

`
`12.
`
`13.
`
`14.
`
`15.
`
`of the mounting tab. When the bag is mounted on the rack with the support hook of the
`
`rack engaging the mounting aperture, the mounting tabs will sever along the severance
`
`line as the front and rear bag walls are moved forwardly of the mounting hook. The bag
`
`would be removed from the bag rack without leaving any portion of the mounting tabs on
`
`the hook. [Bazbaz Decl., 1[ 14.]
`
`Jacobo Bazbaz and Larry W. Pierce conceived of the bag that would be made by the die
`
`illustrated in the April 20, 1990 drawing and in the April 22, 1990 drawing at least as
`
`early as April 20, 1990. [Bazbaz Decl., 1[1[ 11 and 12.]
`
`U.S. Patent No. 1,713,341 (“the ‘34l patent”) is directed to a paper bag.
`
`[Declaration of
`
`Gordon L. Benoit, Jr. (“Benoit Decl.”), 1[ 4.] A copy of the ‘341 patent is attached to the
`
`Memorandum in Support as Exhibit 10. A copy of the Benoit declaration is attached to
`
`the Memorandum in Support as Exhibit 11.
`
`A pre-cut slit as taught in the ‘34l patent would not work for a soft-sided plastic bag as
`
`there would not be ample strength in the bag wall to support the weight of the bag.
`
`[Benoit Decl., 1[ 5.]
`
`With reference to claim 1 of the ‘235 patent, the ‘341 patent does not anticipate claim 1
`
`of the ‘235 patent because the ‘34l patent does not disclose a bag having “a pair of
`
`laterally spaced handles,” “front and rear central mounting tabs,” or “a central mounting
`
`aperture associated with each of said front and rear mounting tabs.” The ‘34l patent does
`
`not disclose a bag having “a weakened portion defining a severance line in each of said
`
`front and rear mounting tabs” because the bag in the ‘34l patent has a pre-cut line and is
`
`thus already severed, providing a severance line rather than a weakened portion that
`
`defines a severance line. The ‘34l patent does not disclose a bag having “mounting tabs
`
`[that] will sever along said severance line as said front and rear bag walls are moved
`
`forwardly of said mounting hook.” [Benoit Decl., 1] 7.]
`
`16.
`
`None of the claims in the ‘235 patent are anticipated by the ‘34l patent.
`
`[Benoit Decl.,
`
`ll 7-]
`
`Page 4 of 9
`
`

`
`17.
`
`There is no suggestion or teaching in the ‘341 patent, either alone or in combination with
`
`any other patent or reference produced by any party in this Investigation, to modify the
`bag in the ‘341 patent to have handles, central mounting tabs, central mounting apertures
`in the central mounting tabs, or a weakened portion defining a severance line in each of
`
`the central mounting tabs such that said mounting tabs will sever along said severance
`
`line as said front and rear bag walls are moved forwardly of said mounting hook.
`
`[Benoit
`
`Decl.,1[ 9.]
`
`18.
`
`19.
`
`20.
`
`21.
`
`22.
`
`The ‘341 patent, either alone or in combination with any other patent or reference
`
`produced by any party in this Investigation, does not render obvious claim 1 (or any other
`
`claim) of the ‘235 patent. [Benoit Decl., 1[ 9.]
`
`U.S. Patent Nos. 3,044,233 and 3,338,398 (“the ‘233 patent” and “the ‘398 patent,”
`
`respectively) are directed to bread bags.
`
`[Benoit Decl., 1[ 10.] Copies of ‘233 patent and
`
`the ‘398 patent are attached to the Memorandum in Support as Exhibits l2 and 13,
`
`respectively.
`
`A patent document concerning a prior art bread bag, German Patent No. 3831823, was
`
`considered by the Examiner during the prosecution of the application that led to the ‘235
`
`patent.
`
`[Benoit Decl., 1] 10.] A copy of German Patent No. 3831823 is attached to the
`
`Memorandum in Support as Exhibit 14.
`
`There are no features or elements, which may be relevant to the validity of the ‘235
`
`patent, disclosed in the ‘233 patent or in the ‘398 patent that are not found in German
`
`Patent No. 3831823. [Benoit Decl., 1[ 10.]
`
`A bread bag is different from a T-shirt bag in a number of ways. Bread bags are not
`
`supported from a dispensing rack in an vertical position. Thus, there is no need in a
`
`bread bag to support the bread bag as it hangs from a dispensing rack. Only the back
`
`wall of a bread bag has apertures for mounting in a horizontal position since the front
`
`wall is folded in a manner to leave a lip. [Benoit Decl., 1] 11.]
`
`Page 5 of 9
`
`

`
`23.
`
`24.
`
`25.
`
`26.
`
`The bread bags of the ‘233 patent and the ‘398 patent do not anticipate the ‘235 patent
`because the bread bags do not have handles, a central mounting tab or a central mounting
`
`aperture in the central mounting tab. [Benoit Decl., 1] 12.]
`
`There is no suggestion or teaching in the ‘233 patent or in the ‘398 patent, either alone or
`
`in combination with any other patent or reference produced by any party in this
`
`Investigation, to modify the bag in the ‘233 patent or in the ‘398 patent to have handles,
`
`central mounting tabs, central mounting apertures in the central mounting tabs, and a
`
`weakened portion defining a severance line in each of the central mounting tabs such that
`
`said mounting tabs will sever along said severance line as said front and rear bag walls
`
`are moved forwardly of said mounting hook. [Benoit Decl., 1] 13.]
`
`Neither the ‘233 patent nor the ‘398 patent, alone or in combination with any other
`
`reference produced by any party in this Investigation, renders obvious any claim in the
`
`‘235 patent. [Benoit Decl., 1] 13.]
`
`U.S. Patent Nos. 3,184,055 (“the ‘O55 patent”) and 4,669,251 (“the ‘251 patent”) are also
`
`directed to bread bags. The ‘O55 patent and the ‘251 patent do not anticipate the ‘235
`
`patent because the bread bags disclosed and described in these patents do not have
`
`handles, a central mounting tab or a central mounting aperture in the central mounting
`
`tab.
`
`[Benoit Decl., 1] 14.] Copies of ‘O55 patent and the ‘251 patent are attached to the
`
`Memorandum in Support as Exhibits 17 and 18, respectively.
`
`27.
`
`There is no suggestion or teaching in the ‘O55 patent or in the ‘251 patent, either alone or
`
`in combination with any other patent or reference produced by any party in this
`
`Investigation, to modify the bag in the ‘O55 patent or in the ‘251 patent to have handles,
`
`central mounting tabs, central mounting apertures in the central mounting tabs, and a
`
`weakened portion defining a severance line in each of the central mounting tabs such that
`
`said mounting tabs will sever along said severance line as said front and rear bag walls
`
`are moved forwardly of said mounting hook. [Benoit Decl., 1] 14.]
`
`Page 6 of 9
`
`

`
`28.
`
`29.
`
`Neither the ‘O55 patent nor the ‘251 patent, alone or in combination with any other
`
`reference produced by any party in this Investigation, renders obvious any claim in the
`
`‘235 patent. [Benoit Decl., 1] 14.]
`
`U.S. Patent No. 4,476,979 (“the ‘979 patent”) is directed to a prior art tabbed bag that
`
`leaves a clump of tab tops on a dispensing rack when the bags are removed. While the
`
`typical prior art tabbed bag had a central mounting aperture in a tab and a horizontal
`
`perforated line below the central mounting aperture, the ‘979 patent uses an orifice 28
`
`which serves the function of both a central mounting aperture and a horizontal perforated
`
`line. The bag tears away at points 30, leaving a tab on the dispensing rack.
`
`[Benoit
`
`Decl., 1] 15.] A copy of the ‘979 patent is attached to the Memorandum in Support as
`Exhibit 15.
`
`30.
`
`While the ‘235 patent teaches releasable bonding of the central mounting tabs,
`
`the
`
`individual bags in the ‘979 patent are permanently bonded together at points 29. With
`
`reference to column 4, lines 5-10, of the ‘979 patent, “[w]hile this bonding can be
`
`effected by any suitable means, it is preferred to effect it by ultrasonic means. More
`
`specifically, by the use of any means which can cause inter-welding of the polymer films,
`
`small areas are melt-bonded one to the other throughout the entire thickness of the stack
`
`to form a bag pack.” The thermal fiision described above forms a permanent bond, which
`
`leaves a clump of tab tops on the dispensing rack after all of the bags are dispensed from
`
`a bag pack. [Benoit Decl., 1] 16.]
`
`31.
`
`32.
`
`The ‘979 patent fails to show apertures in the handles. This style of bag had a single
`
`support point. The central mounting tab, which was pennanently bonded to other tabs in
`
`a bag pack, provided the single point of support. Consequently,
`
`tab 26 had to be
`
`sufficiently strong to support the weight of the bag pack. [Benoit Decl., 1] 17.]
`
`The ‘979 patent does not anticipate the ‘235 patent because it does not disclose a bag
`
`having the feature of a weakened portion defining a severance line so that as the bag
`
`walls are moved forwardly of the mounting hook, no portion of the mounting tabs remain
`
`on the dispensing rack. The bag disclosed and claimed in the ‘979 patent leaves a tab top
`
`Page 7 of 9
`
`

`
`33.
`
`34.
`
`35.
`
`behind on the rack when the bag is removed from the rack because the tabs are
`
`permanently bonded or welded together at bonding points 29. [Benoit Decl., 1] 17.]
`
`There is no teaching, suggestion or motivation in the ‘979 patent, alone or in combination
`
`with any other patent or reference produced by any party in this Investigation, to have a
`
`central mounting tab with a weakened portion defining a severance line so that as the bag
`
`walls are moved forwardly of the mounting hook, no portion of the mounting tabs remain
`
`on the dispensing rack. [Benoit Decl., 1] 17.]
`
`The ‘979 patent does not, alone or in combination with any other reference produced by
`
`any party in this Investigation, render obvious any claim in the ‘235 patent.
`
`[Benoit
`
`Decl., 1] 17.]
`
`Australian Patent Application No. 77,853 (“the Australian application”) shows a bag with
`
`handles, but it has no text to describe its features, the material of which it is made, or how
`
`it functions. A single bag is shown with no suggestion for the use of a bag pack. There is
`
`no disclosure for supporting the bag on a dispensing rack.
`
`[Benoit Decl., 1]] 30 and 31.]
`
`A copy of the Australian application is attached to the Memorandum in Support as
`Exhibit 16.
`
`36.
`
`The Australian application does not show any apertures in the handles of the bag. Thus,
`
`if this bag was mounted on a hook, the mounting tab had to be strong enough to support
`
`the entire weight of the bag, unlike the modern 3-point suspension system with each
`
`handle and the central tab having apertures and providing support.
`
`If the bag in the
`
`Australian application was intended to be supported on a dispensing rack, the limited
`
`disclosure suggests a strong central mounting tab so that the single support point was
`
`strong enough to support the bag. [Benoit Decl., 1] 30.]
`
`37.
`
`The Australian application does not disclose a weakened portion in the central mounting
`
`tab that defines a severance line. The Australian application does not disclose or suggest
`
`that the bag shown in the figures would be severed in any marmer if dispensed from a
`
`rack. [Benoit Decl., 1] 31 .]
`
`Page 8 of 9
`
`

`
`38.
`
`The Australian application does not anticipate the ‘235 patent because it does not disclose
`
`a bag having a central mounting tab with a weakened portion defining a severance line.
`
`The Australian application does not anticipate the ‘235 patent because it does not disclose
`
`a bag having a central mounting tab with a weakened portion defining a severance line so
`
`that as the bag walls are moved forwardly of a mounting hook, no portion of the
`
`mounting tabs remain on the dispensing rack. [Benoit Decl., 1] 31.]
`
`The single support point in the bag disclosed in the Australian application teaches away
`
`from providing a weakened portion in the tab that severs when the bag walls are pulled
`
`forward of the hook because a single support point would be expected to be strong.
`
`[Benoit Decl., 1] 32.]
`
`There is no teaching or suggestion in the Australian application, alone or in combination
`
`with any other patent or reference produced by any party in this Investigation, to have a
`
`central mounting tab with a weakened portion defining a severance line so that as the bag
`
`walls are moved forwardly of the mounting hook, no portion of the mounting tabs remain
`
`on the dispensing rack. There is no disclosure in the Australian application on any
`
`severance line at any location. [Benoit Decl., 1] 31.]
`
`The Australian application does not, alone or in combination with any other reference
`
`produced by any party in this Investigation, render obvious any claim in the ‘235 patent.
`
`[Benoit Decl., 1] 32.]
`
`Prior art bags at the time of the conception of the ‘235 patent were typically provided
`
`with a horizontal perforated line below a central mounting aperture in a central mounting
`
`tab. The prior art tabbed bags generally required a relatively strong point of support at
`
`the central mounting tab. The ‘235 patent, however, has a relatively weak point of
`
`support at the central mounting tab, contrary to the teaching of the prior art tabbed bags.
`
`Thus, the invention claimed in the ‘235 patent would not have been obvious to a person
`
`of ordinary skill in the art at the time that the invention was made.
`
`[Benoit Decl., 1] 33.]
`
`The Patent Office never declared an interference involving the ‘235 patent.
`
`39.
`
`40.
`
`41.
`
`42.
`
`43.
`
`1454709
`
`Page 9 of 9