Ex Parte Colo et al

Patent Trial and Appeal Board

Feb 13, 2018

13254310 (P.T.A.B. Feb. 13, 2018)

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.
13/254,310 10/21/2011 Christian Anthony Colo 10010-US-NP 8118
74475 7590
Nestec S.A.
Attn: Patent Department
12 Vreeland Road
Florham Park, NJ 07932
02/15/2018 EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
02/15/2018 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):
patentdepartment@rd.nestle.com
gary. lobel @ us .nestle, com
docketing@dunlapcodding.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN ANTHONY COLO,
JOHN JOSEPH WOLF, ANNE MCCANDISH EMENHISER,
ERIC ANTHONY HANSON, CHRISTINA MAYADAS
LAWRENCE, and ROBERT LAVENTURE FLETCHER
Appeal 2017-004497
Application 13/254,310
Technology Center 1700
Before: MICHAEL P. COLAIANNI, AVELYN M. ROSS, and
JANE E. INGLESE, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 2, 4-9, 26, 29-38. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In our Decision we refer to the Specification filed September 1, 2011
(“Spec.”), the Non-Final Office Action appealed from dated February 1,
2016 (“Non-Final”), the Appeal Brief filed August 1, 2016 (“Appeal Br.”),
the Examiner’s Answer dated November 28, 2016 (“Ans.”) and the Reply
Brief filed January 27, 2017 (“Reply Br.”).
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Application 13/254,310
STATEMENT OF THE CASE
The subject matter on appeal relates to a customized children’s
feeding system and methods for customizing children’s nutrition. Spec. 6.
According to the Specification, the system
provides a packaged food product including a tray defining at
least three compartments. The packaged food product also
includes a removable food cartridge including an individual food
product sealed in each of the food cartridges. The food cartridges
are located in each of the compartments. Each food cartridge and
compartment can be associated with a corresponding color that
is representative of a food category. The shape of the food
cartridges can be the same shape as the compartments.
Id. Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A packaged food product comprising:
a tray having an outer edge and defining at least three
compartments, wherein the outer edge has at least three
indentions corresponding to the at least three compartments; and
a removable food cartridge located in each of the
compartments, the removable food cartridge comprising a food
product sealed therein, wherein the food product in each food
cartridge is from a different food category than the food product
in the other cartridges, and
wherein each of the food cartridges comprises a snap-in
element having a shape selected from the group consisting of a
square, a triangle, a circle, an oval, a star, and a rectangle that
connects to a corresponding receiving aperture in the
compartments, wherein the snap-in element of each food
cartridge has a different shape than the snap-in elements of the
other food cartridges, and
wherein each shape of the snap-in elements is
representative of a different food category corresponding to the
food product sealed in each food cartridge, and
wherein the receiving aperture of each compartment has a
different shape than the apertures of the other compartments such
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that each food cartridge corresponds to only one compartment
defined by the tray.
Appeal Br. 23 (Claims App’x).
REJECTIONS
The Examiner maintains the following rejections:
A. Claims 1, 2, 4, 7-9, 26, and 29-31 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Wigfield2 in view
of Sato3 and Krebs4, and in further view of Jacquin5,
Mucciacciaro6, Russell7, and Gilbilisco.8 Non-Final 3.
B. Claims 4 and 32 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Wigfield and further in view of either
Grossman9 or Beppu.10 Id. at 11.
Appellants request reversal of Rejections A and B. See generally
Appeal Br. Appellants present arguments in support of claim 1 and do not
separately argue independent claims 26 and 31 or dependent claims 2, 4, 7-
9, 29, and 30. Id. at 21-22. Therefore, we focus our discussion on
2 Sally-Anne Wigfield, WO 2004/078599 A2, published September 16, 2004
(“Wigfield”).
3 Takao Sato, JP 2005092261 A, published April 7, 2005 (“Sato”).
4 Krebs, et al., US 2006/0172043 Al, published August 3, 2006 (“Krebs”).
5 Yves Emmanuel Jacquin, FR 2597740 A, published October 30, 1987
(“Jacquin”).
6 Domenic Mucciacciaro, US 5,239,491, issued August 24, 1993
(“Mucciacciaro”).
7 Larry L. Russell, US 5,975,628, issued November 2, 1999 (“Russell”).
8 Kenneth J. Gilbilisco, US 5,267,650, issued December 7, 1993
(“Gilbilisco”).
9 Arthur M. Grossman, US D 194,054, issued November 13, 1962
(“Grossman”).
10 Yoshio Beppu, US 5,560,653, issued October 1, 1996 (“Beppu”).
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independent claim 1 and the remaining claims stand or fall with claim 1.
37 C.F.R. §41.37(c)(1).
OPINION
The Examiner rejects claim 1 as obvious over Wigfield, Sato, Krebs,
and in view of Jacquin, Mucciacciaro, Russell, and Gilbilisco. The
Examiner finds that Wigfield discloses a tray having three compartments
having removable food storage cartridges located in each compartment.
Non-Final 3. The Examiner finds that the foods are contained in separate
packages indicating that the packages are sealed and further that the
compartments can include a lid. Id. In addition, the Examiner finds that
Sato teaches a tray holding packaged food product cartridges where the
cartridges are sealed. Id. at 3—4. The Examiner reasons that providing
sealed cartridges would have been obvious to ensure that the food product is
free from contamination. Id. at 4. The Examiner also finds “that Wigfield
teaches providing cartridges where each cartridge is representative of a
different food group” and that Krebs similarly teaches that “it has been
conventional to provide foods in food cartridges that contain food from a
different food category than the food product in the other cartridges.” Id.
The Examiner additionally finds that Wigfield “already teaches using indicia
and color coding for the purpose of ensuring that the user consumes the
requisite varieties of food” {Id. at 6) and Jacquin teaches different shaped
cartridges (and color coding) control the types of containers that may be
placed in the tray. Id. at 5. Further, the Examiner finds that “Mucciacciaro
teaches protuberances and corresponding apertures that a specific container
can only be associated with a specific compartment on the tray” and further
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that Russell teaches interlocking elements, i.e., a snap-in element, for
securing the food containers to the tray. Id. The Examiner reasons that these
features would have been obvious to one skilled in the art in order to control
the location of food containers on the tray. Id. The Examiner also reasons
that providing apertures with different shapes in different compartments
would have been obvious to one skilled in the art to “ensure [s] that food
cartridges were securely retained within each compartment of the tray and
for the purpose of using another conventional expedient that would control
into which compartment... a specific container be received.” Id. at 7.
Lastly, the Examiner finds that Gilbilisco teaches a tray having
compartments “where the tray further comprises an outer edge that has at
least three indentations corresponding to the at least three compartments for
the purpose of facilitating removal of the inner container from the
compartment of the tray.” Id.
Appellants argue that the Examiner ignores relevant portions of the
references which teach away from combining the references in a manner to
reach the claimed invention and that only through hindsight can the
Appellants’ claim be achieved. Appeal Br. 12. With respect to the Sato
reference, Appellants urge that Sato teaches a single compartment that holds
multiple cartridges and that the configuration of the single compartment “is
important for accepting various different configurations of food cartridges.”
Id. at 16.
Appellants fail to identify any reversible error. First, the Examiner
relies upon Sato to teach a sealed food cartridge. But, the Examiner finds
that both Wigfield and Sato teach including a seal or a lid to prevent
contamination of the food contained within the food cartridges. Non-Final
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3—4. Because Wigfield independently teaches sealing the individual
cartridges, any criticism of Sato is moot. See Wigfield 8, 9 (describing each
cartridge as having a lid), and 10 (explaining that the packaging may
comprise a film or foil covering one or more cartridges and is applied by
heat sealing of vacuum packing). Appellants do not dispute these findings
by the Examiner. We adopt these findings as fact. Cf. In re Kunzmann, 326
F.2d 424, 425 n.3 (CCPA 1964) (a finding not shown by the Appellants to
be erroneous may be accepted as fact).
Second, to teach away, a reference must discourage one of ordinary
skill in the art from following the path set out in the reference, or lead that
person in a direction divergent from the path taken by the applicant. In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Here we find nothing in Sato—
and Appellants do not identify any teaching—that would discourage the
skilled artisan from sealing the food cartridges even knowing that Sato’s
drawings depict only a single compartment tray. Furthermore, Appellants
suggestion that a single compartment tray is important to Sato’s purpose is
not supported by evidence of record and is based instead on unsubstantiated
attorney argument. Such attorney argument has low probative value. See In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Attorney argument is not
evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
Third, we find no evidence that the Examiner relies on impermissible
hindsight reasoning as the Examiner’s articulated reasons for combining the
teachings of Wigfield and Sato are supported by the prior art disclosures
themselves. See, e.g., Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566,
1570 (Fed. Cir. 1996) (citing Interconnect Planning Corp. v. Feil, 774 F.2d
1132, 1138 (Fed. Cir. 1985)) (“The invention must be viewed not after the
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blueprint has been drawn by the inventor, but as it would have been
perceived in the state of the art that existed at the time the invention was
made.”). Here, as the Examiner explains (Ans. 13-14), the references
themselves teach that providing a seal or a lid to prevent contamination is
conventional. We discern no error in these findings and conclusions.
Moreover, Appellants do not identify any knowledge relied upon by the
Examiner that was gleaned only from the Appellants’ disclosure and was not
within the level of skill in the art at the time of the invention. In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Next, Appellants contend that Krebs fails to teach cartridges that fit
into different compartments or that the cartridges are shaped similarly to the
compartments. Appeal Br. 17.
Appellants’ argument is not persuasive of reversible error. The
Examiner relies on both Wigfield and Krebs to teach that the food in each
cartridge is from a different food category than the other cartridges. Non-
Final 4; Ans. 14. For example, Wigfield “presents methods of providing a
balanced meal comprising the five essential food groups via provision of the
packaging of the invention, or via provision of a selection of at least five
receptacles containing foodstuff, each of which is colour-coded to identify
the respective food group to which the foodstuff therein belongs.” Wigfield,
Abstract. Appellants do not dispute the findings by the Examiner with
respect to Wigfield. We adopt these findings as fact. Cf. In re Kunzmann,
326 F.2d at 425 n.3. Because Wigfield independently teaches the identified
limitation, resort to Krebs is unnecessary to support the rejection. And, as
the Examiner explains, it “is not seen to teach away from and is not seen to
rely on hindsight because Wigfield also teaches a similar concept.” Ans. 14.
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Appellants also argue that while Jacquin teaches a container having
compartments of different shapes, “the shapes do not correspond to the
projections on food cartridges that prevent placing more than one type of
food cartridge on the tray.” Appeal Br. 17.
Appellants’ argument that the shapes of the containers do not
correspond to projections on food containers fails persuade us of reversible
error. “Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). Rather, “[t]he test [for obviousness] is what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). The Examiner
relies upon Jacquin to teach that “shapes of the compartments control the
specific types of containers that can be placed into the tray,” and that it is
desirable to control the placement of food containers on a tray. Non-Final 5;
Ans. 15. Appellants’ argument amounts to an attack on Jacquin individually
and fails to address the combined teachings as presented by the Examiner.
And, with respect to the Mucciacciaro reference, Appellants contend
that the reference relates to medicine storage which is unrelated to a “food
tray or encouraging a balanced diet.” Appeal Br. 18.
Appellants do not convince us of reversible error by arguing that
Mucciacciaro is nonanalogous art. To rely upon a reference as a basis for an
obviousness rejection of Appellants’ claims, the reference must either (1) be
in the field of the inventor’s endeavor or (2) be reasonably pertinent to the
particular problem with which the inventor was concerned. In re Kahn, 441
F.3d 977, 986-87 (Fed. Cir. 2006); In re Oetiker, 977 F.2d 1443, 1447 (Fed.
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Cir. 1992). Here, as the Examiner explains “Mucciacciaro teaches that
teach [sic] shape is representative of each a particular medication . . .
[which] is seen to be analogous to each shape of snap in element and
receiving aperture being representative of a particular food category.” Ans.
15. Furthermore, while related to medicine storage, the Examiner explains
the “technique [of Mucciacciaro] can be equally applicable to food trays in
view of Jacquin who also teaches controlled placement of containers on a
food tray.” Ans. 15. Thus, Mucciacciaro is reasonably pertinent to the
problem faced by the inventor, that is, particularized placement of items by
category on a tray.
Appellants also argue that the “Examiner disregards that Russell
teaches that each and every projection is the same shape . . . [and] that the
purpose of each projection being the same shape is the ability to mix and
match utensils (e.g., plates, cups) on different areas of the tray rather than
only one specific location.” Appeal Br. 19.
We are not persuaded by Appellants’ arguments. Contrary to
Appellants’ argument, the projections of Russell are not limited to being the
same shape or to an embodiment that broadly permits interchangability of
utensils on all locations of the tray. In particular, Russell explains that in
one embodiment “the projections could be differently shaped on different
areas of the surface so that, for example, the bowl would only fit where a
bowl should be placed, a cup where a cup should be placed, etc.” Russell
col. 2,11. 45^19. Thus, we agree with the Examiner that Russell suggests
“changing the configurations of the apertures and projections would have
been advantageous for controlling the position of the food container on the
tray, for securing food on the tray.” Ans. 15-16.
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Lastly, Appellants contend that unlike the claimed invention,
Gilbilisco relates to a medicine storage unit that is child proof, where the
claimed invention aims to “encourage a healthy diet for children.” Appeal
Br. 19.
Appellants’ arguments reveal no reversible error by the Examiner.
The use of a depression around the perimeter of a tray to facilitate release of
a cartridge contained therein has uses that extend beyond medicine storage
trays. As the Supreme Court explained,
[w]hen a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of ordinary
skill can implement a predictable variation, § 103 likely bars its
patentability. For the same reason, if a technique has been used
to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual
application is beyond his or her skill.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Here, the Examiner
finds that Wigfield already teaches use of food trays to encourage a healthy
diet and that the structure of Gilbilisco, having depressions at the perimeter
to facilitate easy removal of cartridges within compartments of a medication
tray, would likewise improve a food tray having a similar structure, i.e., a
tray with multiple compartments having removable cartridges placed therein.
Ans. 17. Therefore, we ascertain no reversible error in the Examiner’s
factual findings or conclusion of obviousness.
Appellants also argue that the Examiner has failed to provide a reason
why the person skilled in the art “would have searched far and wide among
the variety of cited references - including references that are directed to
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medication storage - to piecemeal individual features of each reference all at
once in order to arrive at the presently claimed invention.” Appeal Br. 20.
Without more, we are not convinced of reversible error. As the
Examiner explains, the motivation to modify Wigfield in the manner
suggested originated with the prior art. Ans. 18-19. For example, the
Examiner reasons that a person of ordinary skill in the art would modify
Wigfield to provide a seal, should it need to be modified by Sato, in order to
protect the food in each cartridge from contamination. Non-Final 4; Ans.
18. The Examiner also explains that should Wigfield need to be modified to
provide cartridges where each cartridge is representative of a different food
group, as taught by Krebs, the skilled artisan would have been motivated
“based on the particular type nutritional profile desired from the packaged
food.” Non-Final 4. The Examiner further concludes that Jacquin,
Mucciacciaro, and Russell, each suggest “the desirability of controlling the
placement of food cartridges into a tray by matching the shape of the
cartridge to that of the compartment in the tray” by using protrusions and
corresponding apertures within the tray. Ans. 18; Non-Final 5-6. The
Examiner further explains that the skilled artisan would have reason to
modify Wigfield to include a snapping connection to prevent movement of
the cartridges on the tray, to limit placement of the cartridges on the tray,
and to create a matching game. Id. And, the Examiner explains one skilled
in the art would be motivated to include indentations on the outer rim of the
tray to aid in the removal of the cartridges from the respective compartments
of the tray. Ans. 18; Non-Final 7-8. Appellants do not dispute the specific
reasoning employed by the Examiner in combining the references. See
generally Appeal Br. Instead, Appellants appear to contend that the number
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of references used suggests hindsight. However, this is not the law; “[t]he
criterion ... is not the number of references, but what they would have
meant to a person of ordinary skill in the field of invention.” In re Gorman,
933 F.2d 982, 986 (Fed. Cir. 1991). Thus, Appellants’ arguments do not
persuade us the Examiner relies on impermissible hindsight reasoning as the
Examiner’s articulated reasons for combining the teachings of Wigfield with
Sato, Krebs, Jacquin, Mucciacciaro, Russell, and Gilbilisco, are supported
by the prior art disclosures. Sensonics, 81 F.3d at 1570.
Lastly, Appellants—for the first time in the Reply Brief—contend that
certain factors, including (1) the fact that no single prior art reference
teaches more than two claimed elements, (2) the length of time between
publication dates of prior art references, (3) the crowded field of the instant
invention, and (4) the need in the art for a system for a nutritional system for
children, each weigh in favor of nonobviousness. Reply Br. 5-6.
Appellants have not explained, nor is it apparent, that these arguments were
necessitated by the Examiner’s Answer or could not have been presented in
the principal brief. Therefore, these arguments are untimely and we will not
reach arguments presented for the first time in a reply brief in the absence of
good cause. 37 C.F.R. §41.41(b)(2).
CONCLUSION
Appellants failed to identify a reversible error in the Examiner’s
rejection of claims 1, 2, 4, 7-9, 26, and 29-31 under 35 U.S.C. § 103(a) as
unpatentable over Wigfield in view of Sato and Krebs, and in further view of
Jacquin, Mucciacciaro, Russell, and Gilbilisco.
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Appellants failed to identify a reversible error in the Examiner’s
rejection of claims 4 and 32 under 35 U.S.C. § 103(a) as unpatentable over
Wigfield and further in view of either Grossman or Beppu.
DECISION
For the above reasons, the Examiner’s rejection of claims 1, 2, 4-9,
26, and 29-38 is affirmed.
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
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