12335590 (P.T.A.B. Jul. 29, 2015)

Ex Parte Bowers et al

Patent Trial and Appeal BoardJul 29, 2015

12335590 (P.T.A.B. Jul. 29, 2015)

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. 12/335,590 12/16/2008 Paul K. Bowers 1421-207 CIP/RCE 1369 23869 7590 07/29/2015 Hoffmann & Baron LLP 6900 Jericho Turnpike Syosset, NY 11791 EXAMINER POON, ROBERT ART UNIT PAPER NUMBER 3788 MAIL DATE DELIVERY MODE 07/29/2015 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 PAUL K. BOWERS and ALEJANDRA BUITRAGO ____________ Appeal 2013-0024641 Application 12/335,5902 Technology Center 3700 ____________ Before NINA L. MEDLOCK, JAMES A. WORTH, and TARA L. HUTCHINGS, Administrative Patent Judges. WORTH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 3–6, and 8, all pending claims in the subject application. We have jurisdiction under 35 U.S.C. §§ 134 and 6(b). Appellants appeared for oral hearing on July 23, 2015. We REVERSE. 1 Our decision refers to the Appellants’ Appeal Brief (“Appeal Br.,” filed Apr. 26, 2012) and Reply Brief (“Reply Br.,” filed Nov. 28, 2012), and the Examiner’s Final Office Action (“Final Action,” mailed Nov. 25, 2012) and Answer (“Ans.,” mailed Oct. 2, 2012). 2 According to Appellants, the real party in interest is Kraft Foods Global Brands LLC (Appeal Br. 2). Appeal 2013-002464 Application 12/335,590 2 Introduction Appellants’ disclosure relates to a blister package assembly “to house and support a plurality of consumable products such as candy, gum, mints, as well as pharmaceutical products such as capsules, tablets and the like.” (Spec. ¶ 3). The package assembly stores the consumable products in a tray (which has a plurality of upwardly opening compartments), such that the compartments can be sealably covered and later opened for dispensing the consumable products. (Id. ¶¶ 3–4). Claim 1, the sole independent claim on appeal, is reproduced below: 1. A blister package assembly for consumable products comprising: a blister tray having a plurality of open ended blister compartments opening to a common planar surface for supporting said consumable products therein; a separately formed rupture-resistant plastic blister film directly overlying said planar surface of said blister tray and adjacently closing said open ends of said compartment, said blister film having a pair of opposed film surfaces and being resilient and stretchable so as to define said rupture resistance, said blister film including a pattern of rupturable locations extending across said blister film and partially through said film between said film surfaces, at least a portion thereof in overlying registry with said open ends of said blister compartments to render said sheet rupturable at said locations; said blister compartments being compressible and deformable so as to cause rupturable movement of said products through said blister film; said rupturable locations are configured from patterns selected from the group consisting of lines, dots, letters, shapes and combinations thereof. Appeal Br. 9, Claims App. Appeal 2013-002464 Application 12/335,590 3 Rejection on Appeal The Examiner maintains, and the Appellants appeal, the following rejection: Claims 1, 3–6, and 8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Marks (US 3,759,371, iss. Sept. 18, 1973) and Bobbett (WO 2005/056419 A1, pub. June 23, 2005). ANALYSIS Independent claim 1 and dependent claims 3–6 and 8 We are persuaded by Appellants’ argument that neither Marks nor Bobbett discloses a film layer that is both “resilient and stretchable,” as recited by independent claim 1, i.e., “said blister film having a pair of opposed film surfaces and being resilient and stretchable so as to define said rupture resistance” (see Appeal Br. 5–6). Although Marks discloses the use of a plastic sheet, the plastic in Marks is polystyrene and acetate (col. 2, ll. 35–39; Final Action 3). The Examiner (Ans. 4–5) reasons that the plastic sheet of Marks is resilient because the sheet is thin (col. 2, ll. 38–40), because the plastic container possesses a hinge (Fig. 3), and because the pod breaks by overcoming the resistance of central web 34 before tearing (col. 4, ll. 24–29). However, we agree with Appellants that the snap fit construction of Marks indicates that the plastic of Marks is rigid (see Appeal Br. 5, Reply Br. 2). In any event, there is insufficient evidence that a person of ordinary skill in the art would consider the polystyrene and acetate of Marks to be resilient and stretchable.3 3 For completeness of discussion, we note that the Examiner in Application No. 11/800,058, of which this application is a continuation-in-part, made a Appeal 2013-002464 Application 12/335,590 4 The Bobbett blister pack includes a first sheet, an adhesive, and a second sheet (col. 2, ll. 10–28). The Examiner relies on Bobbett for the pattern of rupturable locations (Final Action 3), but does not rely on Bobbett to remedy the argued deficiency in Marks. We, therefore, do not sustain the rejection of claim 1 under 35 U.S.C. § 103(a). For the same reasons, we do not sustain the rejection under 35 U.S.C. § 103(a) of claims 3–6 and 8, each of which depends from claim 1. DECISION The decision of the Examiner to reject claims 1, 3–6, and 8 is reversed. REVERSED hh finding that the plastic of Marks was non-resilient. (See Examiner’s Answer at 13 (mailed May 25, 2012)).