Conagra Foods RDM, Inc.

Patent Trials and Appeals Board

May 29, 2020

2019003749 (P.T.A.B. May. 29, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/697,138 04/27/2015 Marcus S. Jones 15721.0937USU1 1019
96845 7590 05/29/2020
Advent, LLP
The Advent Building
17838 Burke Street
Suite 200
Omaha, NE 68118
EXAMINER
LACHICA, ERICSON M
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
05/29/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Boumstein@adventip.com
sloma@adventip.com
uspto@adventip.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARCUS S. JONES, GREGORY A. ORNOSKI, and
CRAIG P. MASSEY

Appeal 2019-003749
Application 14/697,138
Technology Center 1700
____________

Before ROMULO H. DELMENDO, JEFFREY B. ROBERTSON, and
JANE E. INGLESE, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 1–14 and 21–26.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42—namely, “Conagra Foods RDM, Inc.” (Supplemental
Application Data Sheet filed May 28, 2019 at 6). The Appellant identifies
“Pinnacle Foods Group LLC” as the real party in interest (Appeal Brief filed
December 10, 2018 (“Appeal Br.”) at 3), but a Statement Under 37 C.F.R.
§ 3.73(c) filed May 28, 2019 indicates that the application is now assigned to
Conagra Foods RDM, Inc.
2 See Appeal Br. 10–25; Reply Brief filed April 15, 2019 (“Reply Br.”) at
3–10; Final Office Action entered July 10, 2018 (“Final Act.”) at 3–18;
Examiner’s Answer entered February 14, 2019 (“Ans.”) at 4–24.
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I. BACKGROUND
The subject matter on appeal relates to a pan system in which a
removable portion with food product may be removed from a base portion
while minimizing physical impairment to the food product (Specification
filed April 27, 2015 (“Spec.”) ¶¶ 2, 16). Figure 1 (annotations added) is
reproduced from the Drawings filed April 27, 2015, as follows:

Figure 1 above illustrates an exemplary pan system 100 within the scope of
the claimed subject matter comprising, inter alia, a removable portion 104
with a food product 102 and a base portion 106 having an opening 108
defined by a periphery 109 on its bottom 119 to facilitate separation of the
removable portion 104 by a user (Spec. ¶¶ 18–19). In one embodiment,
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Application 14/697,138

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attachments 110 (shown in Figs. 2, 3, 10), which may be physical, e.g.,
chemical (adhesive) interlocks having, e.g., an arcuate shape, may be
configured to adhere or bond the removable portion 104 and the base portion
106 for receipt of a food product 102 and to release the removable portion
104 from the base portion by becoming less adhesive or tacky in response to
heat, e.g., from defrosting, thawing, cooking, or baking (id. ¶¶ 24–25, 31).
Representative claim 1 is reproduced from the Claims Appendix to the
Appeal Brief, as follows:
1. A pan system having a closed condition and an open
condition to selectively release a food product, the system
comprising:
a base portion having an outer sidewall connected to a
continuous bottom that extends inwardly to form a central
opening that does not span an entirety of the continuous bottom;
a removable portion spanning between the central opening
in the base portion and adjacent to an inner surface of the outer
sidewall; and
a plurality of attachments, each having an arcuate
configuration and being positioned in increments with
corresponding spaces about the central opening, between an
upper surface of the base portion and a lower surface of the
removable portion,
wherein each of the plurality of attachments include an
inner boundary, an outer boundary, a first sidewall, and a second
sidewall, the inner and outer boundaries being separated by a
width and forming a concentric circular arrangement between the
upper surf ace of the base portion and the lower surface of the
removable portion, the concentric circular arrangement being
interrupted by the corresponding spaces between the respective
first and second sidewalls,
wherein the plurality of attachments releasably secure
the removable portion relative to the base portion in the closed
condition prior to cooking the food product and selectively
release the removable portion from the base portion in response
to heat and remove the removable portion from the base portion
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in response to a force through the central opening to provide
the open condition, and
wherein the base portion and the removable portion are
configured to contain the food product in the closed condition
and separate to release the food product from the base portion in
the open condition.
(Claims Appendix 2 (emphases added)). Claim 8, the only other
independent claim on appeal, recites similar subject matter (id. at 3–4).
II. REJECTIONS ON APPEAL
The claims on appeal stand rejected under 35 U.S.C. § 103, as
follows:
A. Claims 1–6, 8–13, and 21–25 as unpatentable over Miller et al.3
(“Miller”), Dover,4 and Nadella et al.5 (“Nadella”); and
B. Claims 7, 14, and 26 as unpatentable over Miller, Dover,
Nadella, and de Groote.6
(Ans. 4–24; Final Act. 3–18).
III. DISCUSSION
A dispositive issue in this appeal is whether the Examiner’s
conclusion that Miller, Dover, and Nadella would have suggested a pan
system including a plurality of attachments that would meet the limitations
highlighted above in claim 1 constitutes reversible error (Ans. 19–20; Final
Act. 7–8; Appeal Br. 18–20; Reply Br. 8). For the reasons given by the

3 US 2005/0217498 A1, published October 6, 2005.
4 US 3,764,017, issued October 9, 1973.
5 US 2013/0140320 A1, published June 6, 2013.
6 US 6,793,193 B2, issued September 21, 2004.
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Appellant and below, we hold that the Examiner’s conclusion is not
supported by sufficient evidence.
The Examiner’s position is that although Miller and Dover do not
disclose the plurality of attachments as being capable of selectively releasing
the removable portion from a base portion in response to heat, as required by
claim 1, Nadella bridges this gap (Ans. 7–8; Final Act. 7–8). Specifically,
the Examiner finds that Nadella teaches attachment means in the form of
adhesives and that such adhesives, when implemented in the pan system
suggested by Miller and Dover, would be capable of selectively releasing a
removable portion from a base portion (Ans. 7; Final Act. 7). The Examiner
concludes that, therefore, the claimed subject matter would have been
obvious to a person having ordinary skill in the art in view of the combined
teachings in the prior art references as a matter of substituting one known
attachment means for another to yield a predictable result (Ans. 7–8; Final
Act. 7–8).
Nadella, however does not provide sufficient evidence that the
adhesive would be capable of “selectively releas[ing] the removable portion
from the base portion in response to heat and remov[ing] the removable
portion from the base portion in response to a force through the central
opening to provide the open condition,” as required by claim 1. Contrary to
the Examiner’s position, Nadella explicitly teaches that a seal is made when
the adhesive is heated to an activation temperature (Nadella ¶ 36). In the
Answer, the Examiner asserts that “any adhesive would be capable of
releasing the removable bottom 34 from wall 32 given a large enough
temperature that degrades the adhesive” (Ans. 19). As the Appellant argues
(Reply Br. 8), the Examiner does not offer any evidence in support of this
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position. To the extent that certain temperatures above and beyond a seal
activation temperature may in fact degrade or destroy the adhesive, the
Examiner does not direct us to sufficient evidence that such high
temperatures would be suitable for use with the claimed pan system in which
the system must be capable of use with a food product that is not
significantly impaired or destroyed. In re Smith Int’l, Inc., 871 F.3d 1375,
1382 (Fed. Cir. 2017) (“‘[T]he protocol of giving claims their broadest
reasonable interpretation . . . does not include giving claims a legally
incorrect interpretation’ ‘divorced from the specification and the record
evidence.’”) (internal citation omitted).
For these reasons, we cannot uphold the rejection as maintained
against independent claims 1 and 8 and the rejection of all other claims
dependent thereon.

IV. CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–6, 8–13, 21–25 103 Miller, Dover, Nadella 1–6, 8–13,
21–25
7, 14, 26 103 Miller, Dover, Nadella,
de Groote
7, 14, 26
Overall
Outcome
1–14, 21–26

REVERSED