Ex Parte 6,918,532 et al

Board of Patent Appeals and Interferences

Aug 19, 2011

90008843 (B.P.A.I. Aug. 19, 2011)

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.
90/008,843 10/17/2007 6,918,532 1410-92743-US 1669
48940 7590 08/19/2011
FITCH EVEN TABIN & FLANNERY
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
GELLNER, JEFFREY L
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
08/19/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte KRAFT FOODS GLOBAL BRANDS LLC.1
Patent Owner, Appellant
____________________

Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B22
Technology Center 3900
____________________

Before RICHARD M. LEBOVITZ, DANIEL S. SONG and
MICHAEL L. HOELTER, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Kraft Foods Global Brands LLC. is the real party in interest (App. Br. 1).
2 Issued July 19, 2005 to Sierra-Gomez et al. (hereinafter "'532 patent").
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

2
The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306 from
the Examiner's Final Rejection of claims 1-43, 45 and 46. Claims 47-68
were indicated to be patentable while claim 44 was previously canceled
(Appeal Brief (hereinafter "App. Br.") 6). We have jurisdiction under 35
U.S.C. §§ 134(b) and 306. The Patent Owner also relies on a Reply Brief
and multiple declarations of Ms. Sierra-Gomez and Mssrs. Cornell and
Batic, as well as 22 Exhibits in support of patentability. An oral hearing
with the Patent Owner's representative was held before the Board of Patent
Appeals and Interferences on June 15, 2011.

THE INVENTION
The invention is directed to a resealable food container. Figure 2 of
the '532 patent is reproduced below.

Figure 2 of the '532 patent reproduced above is a perspective view of
a container 10 including a wrapper 11 that surrounds a frame 30, the
wrapper having a reclosable sealing layer 20 covering an opening 18 on the
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

3
top 12 of the wrapper 11 (col. 2, ll. 37-38; col. 3, ll. 13-23, 33-36, 44-48;
Fig. 2).
Representative independent claim 1 reads as follows (Claims App'x.):
1. (Original) A polygonal shaped food container
comprising:
a frame defining the polygonal shape of the
container, said container having a top, a bottom and sides
connecting the top and bottom, the flame containing a
food product comprised of discrete food articles;
a wrapper surrounding said frame, said wrapper
forming the top sides and bottom of the container;
said top having an access opening sufficiently
large to provide hand access to substantially all of the
discrete food articles contained within the frame, such
that substantially any one of the discrete food articles can
be accessed and removed individually through said
access opening; and
a sealing layer, adhesively sealed to said top
around said opening, said sealing layer including a starter
portion located near a side of the top which can be
grasped by a user, said sealing layer being releasable
when said starter portion is pulled in a direction away
from said side to in turn pull and thereby release at least a
portion of said sealing layer to provide the hand access to
said top access opening and reclosable against said top to
seal said opening when said sealing layer is moved back
against the said top.

THE REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims is:
Graham 3,740,238 Jun. 19, 1973
Gilley 3,885,727 May 27, 1975
Lisiecki 4,397,415 Aug. 9, 1983
Cassidy 4,671,453 Jun. 9, 1987
Nakamura 4,790,436 Dec. 13, 1988
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

4
Friedman et al. 4,972,953 Nov. 27, 1990
Goth 5,197,618 Mar. 30, 1993
Etheredge 5,582,887 Dec. 10, 1996
Kenji et al. (translation)JP915677(A) Jun. 17, 1997
"Reclosure system lengthens food life," Packaging News PPMA Preview,
September 2001 (hereinafter "Packaging News").

The Examiner rejected the following claims under 35 U.S.C. § 103(a)
as obvious over the noted combination of prior art references:
1. Claims 1, 2, 4, 5, 12-16, 23, 25-29, 31-35, 37-43, 45 and 46
over Gilley in view of Packaging News.
2. Claims 3 and 24 over Gilley in view of Packaging News and
further in view of Lisiecki.
3. Claims 6, 7, 17 and 18 over Gilley in view of Packaging News
and further in view of Etheredge.
4. Claims 6, 8, 17 and 19 over Gilley in view of Packaging News
and further in view of Goth.
5. Claims 6, 9, 17 and 20 over Gilley in view of Packaging News
and further in view of Cassidy.
6. Claims 6, 10, 17 and 21 over Gilley in view of Packaging News
and further in view of Kenji.
7. Claims 6, 11, 17 and 22 over Gilley in view of Packaging News
and further in view of Friedman.
8. Claim 30 over Gilley in view of Packaging News and further in
view of Nakamura.
9. Claims 1, 2, 4, 5, 12-16, 23 and 25-46 over Graham in view of
Packaging News.
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

5
10. Claims 3 and 24 over Graham in view of Packaging News and
further in view of Lisiecki.
11. Claims 6, 7, 17 and 18 over Graham in view of Packaging
News and further in view of Etheredge.
12. Claims 6, 8, 17 and 19 over Graham in view of Packaging
News and further in view of Goth.
13. Claims 6, 9, 17 and 20 over Graham in view of Packaging
News and further in view of Cassidy.
14. Claims 6, 10, 17, and 21 over Graham in view of Packaging
News and further in view of Kenji.
15. Claims 6, 11, 17, and 22 over Graham in view of Packaging
News and further in view of Friedman.

We REVERSE.

ISSUES
The following issues have been raised in the present appeal.
1. Whether the Examiner erred in rejecting the independent claims
as obvious over the combination of Gilley in view of Packaging News.
2. Whether the Examiner erred in rejecting the independent claims
as obvious over the combination of Graham in view of Packaging News.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

6
1. Gilley discloses a packaging tray. Figure 1 of Gilley is
reproduced below.

Figure 1 of Gilley reproduced above is a perspective view of
the packaging tray 10 in use, product 12 being received therein and
wrapped together with the tray 10 by transparent wrapping such as
non-elastic cellophane or thermoplastic that may be sealed by glue or
heat (col. 2, ll. 49-53; col. 3, ll. 4-14).

2. A. Packaging News discloses a food packaging including a
"reclosure system with a low cost filmic label" (first column;
photograph). The photograph of Packaging News is reproduced
below.

Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

7
The photograph of Packaging News reproduced above is captioned
"The Re-Seal It system in action" and shows a packaging with a tray
containing food items wherein the top is being opened by the user.
B. The Packaging News states "[t]he system operates without
conventional wrapping film, first die-cutting three sides of a rectangle
to produce a flap, which is held in place by small notches. A filmic
label is then applied over the flap and sealed into place under pressure
. . ." (First and second columns).
C. The Packaging News also states "[t]o open the pack, consumers
simply peel back the label, which carries the flap with it." (Second
column).
D. The Packaging News further states "[t]o reclose, the label is
wiped backed into place, held by the peelable adhesive which has
been specially formulated to grip through fat and product residues."
(Second column).

3. Graham discloses a stackable cookie package and tray. Figure
2 of Graham is reproduced below.

Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

8
Figure 2 of Graham reproduced above is a perspective view of
the cookie package 10 including a thin, resiliently flexible transparent
plastic tray 12 enclosed by a transparent flexible wrap 14 (col. 2, ll.
21-22, 58-65; Fig. 2).

PRINCIPLES OF LAW
In rejecting claims as obvious over the prior art, the Court noted that
"this analysis should be made explicit." KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
("[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness")). In this regard, "a patent composed of several elements is not
proved obvious merely by demonstrating that each of its elements was,
independently, known in the prior art. Although common sense directs one
to look with care at a patent application that claims as innovation the
combination of two known devices according to their established functions,
it can be important to identify a reason that would have prompted a person
of ordinary skill in the relevant field to combine the elements in the way the
claimed new invention does." Id. at 418-19.
"A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). The entirety of the reference must be considered. In re
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

9
Wesslau, 353 F.2d 238, 241 (CCPA 1965) ("It is impermissible within the
framework of section 103 to pick and choose from any one reference only so
much of it as will support a given position, to the exclusion of other parts
necessary to the full appreciation of what such reference fairly suggests to
one of ordinary skill in the art.").

ANALYSIS
Rejections Based on the Combination of Gilley and Packaging News
(Rejections 1 to 8)
In Rejection 1, the Examiner concedes that Gilley does not disclose a
top having an access opening, or a sealing layer adhesively sealed to the top
around the opening (Ans. 5; see FF 1). The Examiner observes that
Packaging News discloses a polygonal shaped food container with a top
access opening sufficiently large to provide hand access and a sealing layer
that is reclosable (Ans. 5; see FF 2A, 2C, 2D). The Examiner concludes that
it would be obvious to a person of ordinary skill in the art "to modify the
food container of Gilley by adding the access opening and sealing layer of
Packaging News" so as to provide food items where the package can be
"'opened and then resealed to avoid drying out in the fridge[.]'" (Ans. 5-6).
The Patent Owner argues, inter alia, that Gilley and Packaging News
are not properly combinable because they are directed to divergent
technologies, and there is no motivation to combine these references (App.
Br. 20-23, 25-26). The Patent Owner argues that in considering Gilley, there
is no reclosure since the packaging is designed for one time use (App. Br.
20). In addition, the Patent Owner argues that the Examiner's articulated
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

10
reason for combining the references together is "insufficient" because
"Packaging News discloses a package that already meets this motivation" so
that "there is no need to combine it with Gilley in order to achieve the
identified motivation. [] Thus, the purported motivation for modifying Gilley
simply does not exist." (App. Br. 25). In this regard, a declaration of record
states "Packaging News teaches away from using a complete wrapper with
the tray because only a lid is required to package the contents. That is, the
tray and lid container do not need any additional material to protect the food,
such as its freshness." (Decl. of Sierra-Gomez dated June 12, 2008, ¶ 13).
Furthermore, the Patent Owner contends that the evidence of secondary
considerations rebut any showing of obviousness (App. Br. 45-56).
Whereas we do not disagree with the Examiner's contention that it
would be desirable to provide the package of Gilley with resealability (Ans.
41-42), the Examiner's articulated rationale does not appear to account for
the fact that Packaging News teaches to not utilize conventional wrapping
film (FF 2B), and that its mere use of a tray in conjunction with a flap/label
is sufficient (FF 2B-2D). This teaching by Packaging News which
specifically "operates without conventional wrapping film" (FF 2B) would
lead a person of ordinary skill in the art away from using a wrapper
surrounding a frame, that is, in "a direction divergent from the path that was
taken by the applicant." In re Gurley, 27 F.3d at 553; In re Wesslau, 353
F.2d at 241.
The Examiner also does not substantively respond to the Patent
Owner's contention that the proffered reason for the combination is
insufficient in view of the fact that the package of Packaging News by itself,
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

11
meets the proffered reason. The Examiner responds that the "fact that
Packaging News has a reclose structure and could be used by itself is not
dispositive because the rejection is written as an improvement to the base-
reference package." (Ans. 42). However, the rejection as written must be
explicit and have a rational underpinning. KSR, 550 U.S. at 418. When
Packaging News is considered in its entirety, including its teachings that
would lead a person of ordinary skill in the art in a divergent direction, in
conjunction with the fact that the package of Packaging News by itself
satisfies the Examiner's articulated reason for the combination, tends to
indicate that the rejection is not based some rational underpinning, but
rather, on impermissible hindsight.
Further, while detailed consideration of the evidence of secondary
considerations is not necessary in view of the above, we also agree with the
Patent Owner that the evidence would rebut the Examiner's tenuous
contention of obviousness based on the combination of Gilley and
Packaging News (App. Br. 45-56). In this regard, we observe the numerous
accolades as set forth in the Exhibits of the Appeal Brief by those in the
packaging industry, the press, and consumers with respect to the commercial
implementation of the '532 patent (Declaration of Sierra-Gomez dated June
12, 2008, Pgs. 3-11, Exhibits 1-18; App. Br. 47-48, 49-55).
Therefore, in view of the above, we do not sustain the Examiner's
Rejection 1. The Patent Owner's remaining arguments pertaining to
patentability are moot. We also do not sustain Rejections 2 to 8 which are
all based on the same combination of Gilley and Packaging News as
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

12
Rejection 1. The Patent Owner's arguments specifically directed to the
claims subject to Rejections 2 to 8 are also moot.

Rejections Based on the Combination of Graham and Packaging
News (Rejections 9 to 15)
The Examiner concedes that Graham does not disclose a top having
an access opening, or a sealing layer adhesively sealed to the top around the
opening (Ans. 23-24; see FF 3). The Examiner observes that Packaging
News discloses a polygonal shaped food container with a top access opening
sufficiently large to provide hand access and a sealing layer that is reclosable
(Ans. 24; see FF 2A, 2C, 2D). The Examiner contends that it would be
obvious to a person of ordinary skill in the art "to modify the food container
of Graham by adding the access opening and sealing layer of Packaging
News so as to provide the flow-wrapped food longer larder life" as taught in
Packaging News (Ans. 24, internal quotations omitted).
The Patent Owner argues, inter alia, that Graham and Packaging
News are not properly combinable because they are directed to divergent
technologies, and there is no motivation to combine these references (App.
Br. 35, 39). The Patent Owner argues that in Graham, the top must be thin
and flexible to aid in stacking/nesting of packages whereas the sealing layer
of Packaging News requires the top to be taut which would prevent
interlocking of the stacked packages (App. Br. 35). The Patent Owner also
argues that reclosure of the package in Graham can be attained by using
various mechanisms such as tape, a clip, a tie, zipper or pinch seal (App. Br.
40). The Patent Owner further argues that the Examiner's articulated reason
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

13
for combining the references together is insufficient and is fully met by the
package system of Packaging News itself (App. Br. 39).
As discussed supra relative to Rejection 1, the Examiner's articulated
rationale does not appear to account for the fact that Packaging News
teaches to not utilize conventional wrapping film (FF 2B) and that its mere
use of a tray in conjunction with flap/label would lead a person of ordinary
skill in the art away from using a wrapper surrounding a frame, and in a
divergent direction than that taken by the applicant of the '532 patent. The
Examiner also does not substantively respond to the Patent Owner's
contention that the proffered reason is insufficient since it is met by the
package of Packaging News itself. The Examiner's rejection appears to be
based on impermissible hindsight, especially considering the available
alternative reclosure mechanisms usable in conjunction with a wrap and the
teachings in Packaging News. As to the evidence of secondary
considerations, we again agree with the Patent Owner that the evidence
would rebut the Examiner's tenuous contention of obviousness based on the
combination of Graham and Packaging News (App. Br. 45-56).
Therefore, in view of the above, we do not sustain the Examiner's
Rejection 9. The Patent Owner's remaining arguments pertaining to
patentability are moot. We also do not sustain Rejections 10 to 15 which are
all based on the same combination of Graham and Packaging News as
Rejection 9. The Patent Owner's arguments specifically directed to the
claims of Rejections 10 to 15 are moot.
Appeal 2011-005770
Reexamination Control 90/008,843
Patent US 6,918,532 B2

14

CONCLUSION
The Examiner erred in rejecting the claims as obvious over the
combination of Gilley or Graham in view of Packaging News. Hence, we
REVERSE the Examiner's rejections.

REVERSED

ack

cc:
For Patent Owner:
FITCH, EVEN, TABIN, & FLANNERY
120 South LaSalle Street
Suite 1600
Chicago, IL 60603-3406

For Third Party Requester:
Douglas J. Bucklin
VOLPE and KOENIG, P.C.
United Plaza
Suite 1600
30 South 17th Street
Philadelphia, PA 19103