EDWARDS, Eduard et al.

Patent Trials and Appeals Board

Dec 30, 2019

14446094 - (D) (P.T.A.B. Dec. 30, 2019)

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.
14/446,094 07/29/2014 Eduard EDWARDS CFLAY.00951 1003
110933 7590 12/30/2019
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
AXTELL, ASHLEY
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
12/30/2019 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte EDUARD EDWARDS, DAVID LESTAGE,
STEPHEN D. TYNER, and PATRICK RYAN WINDLEY

Appeal 2019–000767
Application 14/446,094
Technology Center 1700
____________

Before JEFFREY T. SMITH, KAREN M. HASTINGS, and
MICHAEL G. MCMANUS, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s final decision to reject claims 1, 3–11, 17, and 19.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Frito-Lay North America, Inc. as the real
party in interest. Appeal Br. 2.
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The following rejections are presented for appeal: 2
I. Claims 1, 3, 5–11, 17 and 19 are rejected under 35 USC § 103 as
unpatentable over Craddock (Craddock et al., US 3,079,062, issued Feb. 26,
1963, hereinafter “Craddock”) in view of Wollen (Wollen et al., WO
96/22230, published July 25, 1996, hereinafter “Wollen”), Unilever (DE
7838633, issued Nov. 7, 1978 (Espacenet Translation) hereinafter
“Unilever”), Hix (Hix et al., US 4,139,643, issued Feb. 13, 1979, hereinafter
“Hix”), Chapman (US 2,143,646, issued Jan. 10, 1939), Connolly et al. (US
2005/0069610, Mar. 31, 2005, hereinafter “Connolly”), as further evidenced
by Zinke (US 6,213,387 B1, Apr. 10, 2001).
II. Claim 4 is rejected under 35 USC § 103 as being unpatentable over
Craddock, Wollen, Unilever, Hix, Chapman, Connolly, Zinke and further in
view of Goldstein (US 3,339,721, issued Sept. 5, 1967).
Appellant’s invention relates to a snack container with a three
dimensional base and a two dimensional top. (Spec. ¶ 1.) Claim 1 is
illustrative of the subject matter on appeal and is reproduced below:
1. A snack container having a base, side walls,
and a top edge, said top edge having a left side and a
right side, said container comprising:
a substantially square base, said base having left,
right, front, and back corners;
a first straight line fold starting at the left corner of
said base and terminating at the left side of the top edge
of the container;
a second straight line fold starting at the right
corner of said base and terminating at the right side of the
top edge of the container;

2 The complete statement of the rejection on appeal appears in the Final
Office Action (mailed Feb. 28, 2018 (“Final Act.”). (Final Act. 3–17).
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a first “V” shaped crease starting at the front
corner of said base and terminating at the first and second
folds at points in the same horizontal plane below the top
edge of the container, the first “V” shaped crease formed
of straight lines;

a second “V” shaped crease starting at the back
corner of said base and terminating at the first and second
folds at points in the same horizontal plane as the top of
the first “V” shaped crease, the second “V” shaped crease
formed of straight lines;

a flat top seal extending horizontally across the top
edge of the container, the flat top seal comprising
registering upper ends of two opposed isosceles triangle
shaped side walls in direct interfacial and planar contact
with each other;

a horizontal crease extending across the container
and spaced above termination points of the first and
second V shaped creases;

a horizontal tear feature extending along at least
one side wall, said tear feature located below the top seal
and below the horizontal crease and above the
termination points of the “V” shaped creases; and

a flat portion extending from below the horizontal
crease to the termination points of the first and second V
shaped creases, when the container is sealed closed;.

wherein, below the termination points of the top of
the “V” shaped creases, the folds and “V” shaped creases
define two pairs of right-triangle shaped side walls, with
each pair of right-triangle shaped side walls separated by
one of the two opposed isosceles triangle shaped side
walls;

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wherein an inwardly tapered base flap extends
from a base of each of the right triangle shaped side walls
and each of the isosceles triangle shaped side walls, the
inwardly tapered trapezoidal base flaps of equal vertical
height and width to each other and folded to form the
substantially square base;

wherein when the container is opened by tearing
along the horizontal tear feature, the container opens to
allow access to contents therein upon squeezing the first
and the second straight line folds, and recloses when the
squeezing ceases; and

whereby the sealed snack container promotes shelf
stability of a contained snack product.

Appeal Br. 23, Claims App.
OPINION3
Upon consideration of the evidence of record and each of Appellant’s
contentions as set forth in the Appeal Brief, as well as the Reply Brief, we
determine that Appellant has not demonstrated reversible error in the
Examiner’s rejections of claims 1, 3–11, and 17–19. In re Jung, 637 F.3d
1356, 1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice
of requiring Appellant(s) to identify the alleged error in the Examiner’s
rejection). We sustain the rejections of these claims generally for the
reasons expressed by the Examiner in the Final Office Action and the
Answer. (Ans. 3–14; see also Final Act. 3–17.) We have reviewed each of

3 We limit our discussion to the independent claim 1 as argued by
Appellant. 37 C.F.R. § 41.37(c)(1)(iv). Claims 3, 5–11, and 17–19 stand or
fall with independent claim 1. Appellant has failed to present arguments
addressing separately rejected dependent claim 4. The patentability of
depending claim 4 will also stand or fall with independent claim 1.

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Appellant’s arguments for patentability. We add the following primarily for
emphasis.
The Examiner finds Craddock describes a tapered container
comprising first and second “V” shaped creases starting at the base and
terminating at the first and second fold points in the same horizontal plane as
the top of the first and second “V” creases. (Final Act. 4 (citing Figs. 1–2).)
The Examiner recognizes Craddock fails to provide a specific embodiment
that describes all of the elements required by independent claim 1. The
Examiner relies upon the various embodiments included in Craddock as well
as the descriptions of Wollen, Unilever, Hix and Chapman, Conley and
Zinke to establish that these features were well known and recognized
arrangements in the container art. (Final Act. 3–17).
Appellants argue the features identified below are not suggested or
motivated from the prior art cited by the Examiner. (Appeal Br. 18; see also
Reply Br. 2–3). Appellant specifically states:
As to the first finding, there are several combinations of
features that the combination of selected bits and pieces from 7
references do not show or motivate that are recited in Claim 1. These
include:
• (1) The combination of straight fold lines and a flat top seal
comprising two co-extensive isosceles triangular side walls in direct
and opposed planar contact with each other, and with a tear feature
below the top seal to open the container
• (2) The combination of straight fold lines, a flat top seal
comprising two coextensive side walls in direct and opposed planar
contact with each other, with a tear feature below the seal to open the
container, and four equal (height and width) trapezoidal (See, FIG. 1)
inward tapered flaps extending from the square base
• (3) = (1) and (2) above along with wherein the
container is opened by tearing along the horizontal tear feature,
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the container opens to allow access to contents therein upon
squeezing the first and the second straight line folds, and
recloses when the squeezing ceases
• (4) The combination fails to show the vertical distance
between the top ends of the V-shaped side walls and the top of the
container (for which Zinke is cited)
Appeal Br. 18.
We perceive no convincing merit in Appellant’s argument that the
number of references cited by the Examiner is evidence that the invention is
not obvious. (Appeal Br. generally.) This is because the test for
obviousness is not the number of references, but what they would have
meant to a person of ordinary skill in the field of the invention. In re
Gorman, 933 F. 2d 982, 986 (Fed. Cir. 1991).
It has been established that the predictable use of known prior art
elements performing the same functions they have been known to perform is
normally obvious, and the combination of familiar elements is likely to be
obvious when it does no more than yield predictable results. KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[T]he [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.”). See
also In re Fritch, 972 F.2d 1260, 1264–65 (Fed. Cir. 1992) (a reference
stands for all of the specific teachings thereof as well as the inferences one
of ordinary skill in the art would have reasonably been expected to draw
therefrom).
Appellant argues the combination of straight fold lines and a flat top
seal comprising two co-extensive isosceles triangular side walls in direct and
opposed planar contact with each other, and with a tear feature below the top
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seal to open the container is not taught or suggested by the applied prior art.
Appellant’s argument does not dispute the Examiner’s finding that
Craddock describes a container including a flat portion extending from
below the horizontal crease to the termination points of the “V” shaped
creases, when the container is sealed closed. (Final Act. 4.) The Examiner
finds Craddock describes in another embodiment the container comprises a
flat portion extending from below the closure of the container to the
termination points of the “V” shaped creases when the container is closed
(space between 55 and 42). (Final Act. 4 (citing Craddock Fig. 3, Fig. 4).)
Appellant has not disputed the Examiner’s position that Wollen is evidence
that various techniques for closing or sealing a container were known to
persons of ordinary skill in the art. (Final Act. 6 (citing Wollen Figs 5, 5A).)
A person of ordinary skill in the art would have recognized the suitability of
adding a flat top seal comprising two coextensive side walls in direct and
opposed planar contact with each other, with a tear feature below the seal to
open the container.
Appellant argues the container comprises four equal height and width
trapezoidal inward tapered flaps extending from the square base as depicted
in Figure 1.
Craddock discloses a tapered container that comprises a square base
including flaps 34–37. (Craddock 2, ll. 24–35, Fig. 1.) Appellant has not
disputed that the use of trapezoidal inward tapering flaps to seal a container
is known to persons of ordinary skill in the art and described by Chapman.
(Chapman 2 paragraph bridging columns 1 and 2, Fig. 1.) A person of
ordinary skill in the art would have reasonably expected that the use of
trapezoidal inward tapering flaps would have been suitable for sealing the
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bottom portion of a tapered container such as described by Craddock.
Appellant has not directed us to evidence that the trapezoidal inward
tapering flaps provide unexpected results.
Appellants argue the claimed invention is characterized by the
container being opened by tearing along the horizontal tear feature, the
container opens to allow access to contents therein upon squeezing the first
and the second straight line folds, and recloses when the squeezing ceases.
The container of Craddock comprises first and the second straight line
folds, 11 and 14, that are opposite of one another and would result an
opening of the container upon squeezing. (Craddock Figures 1–4.)
Appellant has not explained that the container described by Craddock is
incapable of opening by squeezing the first and the second straight line
folds, and recloses when the squeezing ceases. Appellant’s arguments
regarding the horizontal tear feature have been addressed above.
Appellant argues the combination fails to show the vertical distance
between the top ends of the V-shaped side walls and the top of the container.
The Examiner relied upon the teachings of Wollen as evidence that it
would have been obvious to include a flat top seal comprising a tear feature
below the top seal to open the container. The addition of the flat top seal
would have been located between the top ends of the V-shaped side walls
and the top of the container. In the absence of unexpected results, a person
of ordinary skill in the art would have sufficient skill to determine the
appropriate vertical distance between the top ends of the V-shaped side walls
and the top of the container.
It has been established that obviousness does not require absolute
predictability of success; all that is required is a reasonable expectation of
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success. In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009). Furthermore,
inasmuch as tapered containers comprising first and second “V” shaped
creases in combination with straight fold lines; containers comprising a flat
top seal comprising a tear feature below the seal to open the container; and
the use of four equal trapezoidal flaps to seal the container were all known to
persons of ordinary skill in the art, it is incumbent upon Appellant to
establish that the present inventors had to resort to more than routine
experimentation to determine if these features would have been effective to
form a container especially in light of the teachings of the references cited
by the Examiner. However, no such evidence is of record.4
Thus, Appellant has not shown reversible error in the Examiner’s
obviousness determination of claims 1, 3–11, 17, and 19. See KSR, 550 U.S.
at 417 (the predictable use of known prior art elements or steps performing
the same functions they have been known to perform is normally obvious;
the combination of familiar elements/steps is likely to be obvious when it
does no more than yield predictable results); see also In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”); and In re Sneed, 710

4 It has also been generally held that ordinarily changes in shapes of known
elements are within the level of skill in that art, especially in the absence of
unexpected results or criticality. Cf. In re Dailey, 357 F.2d 669, 676 (CCPA
1966) (change in shape ordinarily prima facie obvious). Thus to the extent
the shape of the claimed container may differ from any one of the
exemplified prior art containers, this is not indicative of nonobviousness
absent evidence of criticality, especially in light of the myriad of known
container shapers exemplified in the applied prior art.

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F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of
the references be physically combinable to render obvious the invention
under review.”).

DECISION SUMMARY
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5–11, 17–19 103

Craddock, Wollen,
Unilever, Hix,
Chapman, Connolly,
Zinke
1, 3, 5–11,
17–19

4 103

Craddock, Wollen,
Unilever, Hix,
Chapman, Connolly,
Zinke, Goldstein
4
Overall Outcome 1, 3–11,
17–19

AFFIRMED