Ex Parte Becraft et alDownload PDFPatent Trial and Appeal BoardDec 19, 201612384544 (P.T.A.B. Dec. 19, 2016) Copy Citation 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. 12/384,544 04/06/2009 Michael Becraft D-44270-01 8505 7590 Cryovac, Inc. P.O. Box 464 Duncan, SC 29334 12/19/2016 EXAMINER RUTHKOSKY, MARK ART UNIT PAPER NUMBER 1785 MAIL DATE DELIVERY MODE 12/19/2016 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 MICHAEL BECRAFT, SLAWOMIR OPUSZKO, JASON C. YARBROUGH, EUGENIO LONGO, PAOLO GUIDOTTI, CYNTHIA L. EBNER, and DREW V. SPEER Appeal 2015-003907 Application 12/384,544 Technology Center 1700 Before JEFFREY T. SMITH, CHRISTOPHER L. OGDEN, and MONTE T. SQUIRE, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from the January 31, 2012 Final Rejection of claims 1—15. We have jurisdiction under 35 U.S.C. § 6. Appellants’ appealed invention relates to a package that enables on- demand oxygen generation within the interior of the package. (Spec. 4). Claim 1 is illustrative of the subject matter on appeal and reproduced from the Brief below: Appeal 2015-003907 Application 12/384,544 1. A package that enables on-demand oxygen generation within the interior of the package, said package comprising: a. an article that encompasses an enclosed space; b. a product disposed within said article; c. an oxygen generating device disposed on an interior or exterior surface of said article, wherein said oxygen generating device comprises two or more components housed within said device that intermix with each other on demand to produce oxygen; and wherein said oxygen generating device comprises a means to allow oxygen to flow into the interior of the article. The Examiner has maintained the following grounds of rejection: I. Claims 1—3, 5—7, 9-11, and 13—15 under 35 U.S.C. § 103(b) as unpatentable over Leon et al., US 4,664,922 issued May 12, 1987 (“Leon”). II. Claims 4, 8, and 12 rejected under 35 U.S.C. § 103(a) as unpatentable over Leon and Scott, US 3,162,537 (“Scott”). OPINION We have reviewed each of Appellants’ arguments for patentability. We will sustain the Examiner’s rejection for essentially those reasons expressed in the Answer, including the Response to Argument section. We add the following: We refer to the Examiner’s Pinal Action for a statement of the rejection. (Pinal Act. 2—5). 2 Appeal 2015-003907 Application 12/384,544 Rejection I1 Appellants argue Leon fails to teach or suggest a package that includes an oxygen generating device comprising two or more components housed within the device that intermix with each other “on demand” to produce oxygen in accordance with the independent claim 1. (Br. 16). Appellants recognize Leon teaches a package with an absorbent sheet that generates a gas (oxygen) as exudate drips from a food item, however Appellants argue this is not “on demand.” (Br. 16; Leon col. 3,11. 52—61). Appellants’ arguments are not persuasive of reversible error. Appellants’ invention is directed to an article (a package), a method of packaging a product, and a method of promoting blooming of fresh red meat. Appellants have not disputed that Leon discloses a package suitable for meat products comprising two or more components housed within the package that interact with each other to produce oxygen upon the addition of water. (Br. 16). Appellants contend that the water that is released from the extrudate does not meet the criteria of “on demand” as required by the claimed invention. We do not agree. According to the Specification On-demand oxygen generation is accomplished by disposing a mass of oxygen generating material on an internal or external surface of an article to ultimately increase the oxygen concentration therein. The oxygen generating material is housed in oxygen generating device 55, which can be a cartridge, pouch, sachet, or other similar container. For applications with fresh red meat, at the time package 10 is ready for display, the oxygen generation can be initiated to increase 1 Appellants have not presented arguments specific to every claim on appeal. Appellants’ arguments are directed to the independent claims 1, 5, 9, and 13 (Br. 15—18). Accordingly, we limit our discussion to independent claims 1, 5, 9, and 13 as representative of the subject matter before us on appeal. 3 Appeal 2015-003907 Application 12/384,544 the oxygen concentration within the package interior, thereby promoting blooming of the meat. (Spec. 27). Leon discloses the oxygen generating material is contained within the sheet of absorbent material which comes in contact with the edges of the receptacle, however, it does not come into contact with the foodstuff contained therein. (Leon col. 3,11. 40—60). As a result, the oxygen within the container is delayed and not generated until water from the foodstuff reaches the absorbent material. According to the Specification: “the term ‘on demand’ refers [to] the ability to allow a user to initiate a particular feature at any desired time.” (Spec. 12). The package of Leon has been designed so that oxygen is not generated until the desired time, i.e., water from the foodstuff reaches the absorbent material. Accordingly, we sustain the rejections of claims 1—3, 5—7, 9-11, and 13-15 under 35 U.S.C. § 103(a). Rejection II Appellants rely on their contentions that the Examiner erred in rejecting the base claim, independent claims 1, 5, and 9 from which claims 4, 8, and 12 depend, and argue that Scott fails to remedy the deficiencies of Leon. (Br. 18—19). Because we are unpersuaded of reversible error in the Examiner’s rejection of claims 1, 5, and 9, Appellants’ position as to this rejection is also without merit. Accordingly, we sustain the rejections of claims 4, 8, and 12 under 35 U.S.C. § 103(a). ORDER The Examiner’s rejections of claims 1—15 are affirmed. 4 Appeal 2015-003907 Application 12/384,544 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED 5 Copy with citationCopy as parenthetical citation