Ex Parte Doll et al

Patent Trial and Appeal Board

Jan 11, 2017

12757314 (P.T.A.B. Jan. 11, 2017)

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.
12/757,314 04/09/2010 Paul E. Doll 1410-97210-US 2426
48940 7590 01/11/2017
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
01/11/2017 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 E. DOLL, TIMOTHY E. COULSON,
ERIC J. FREDERICKSON, ALEXANDER D. JONES, and
ROBERT C. JONES
____________________

Appeal 2015-007314
Application 12/757,314
Technology Center 1700
____________________

Before CATHERINE Q. TIMM, JAMES C. HOUSEL, and
BRIAN D. RANGE, Administrative Patent Judges.

RANGE, Administrative Patent Judge.

DECISION ON APPEAL

SUMMARY
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–11 and 19–25. We have jurisdiction. 35 U.S.C.
§ 6(b). We REVERSE.

1 According to the Appellants, the real party in interest is Kraft Foods Group
Brands LLC whose parent corporation is Kraft Foods Group, Inc. Appeal
Br. 3.
Appeal 2015-007314
Application 12/757,314

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STATEMENT OF THE CASE
Appellants describe the invention as relating to reduced oxygen food
product packaging. Spec. ¶ 2. In particular, the invention relates to a system
where food products are saturated with modified atmosphere gas and then
wrapped by a flow wrapping station. Id. at ¶¶ 7–10. Claim 1, reproduced
below with emphases added to certain key recitations, is illustrative of the
claimed subject matter:
1. A method of forming a reduced oxygen food package, the
method comprising:
conditioning the food product to reduce an amount of
residual oxygen within the food product;
forming a partial enclosure, having a laterally outward
opening, from a web of film around the food product as the food
product is conveyed in a machine direction using a folding
member having laterally outward side portions extending
generally parallel to the machine direction, wherein the folding
member includes one or more vents along one of the side
portions thereof aligned with the opening of the partial
enclosure to provide a path for residual oxygen to escape from
the partial enclosure prior to sealing the web of film;
sealing one side of the partial enclosure to form a tubular
precursor around the food product;
subjecting the food product in one of the partial enclosure
and the tubular precursor to a modified atmosphere gas while
advancing the food product; and
sealing the tubular precursor to create a substantially
hermetic food package surrounding the food product.
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Application 12/757,314

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Appeal Br.2 15 (Claims App’x).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Maxfield
James et al.
(hereinafter “James”)
Shanklin et al.
(hereinafter “Shanklin”)
Van Erden et al.
(hereinafter “Van Erden”)
Suga
(hereinafter “Suga ’654”)
Siegel
Rauscher et al.
(hereinafter “Rauscher”)
Nowotarski et al.
(hereinafter “Nowotarski”)
Stork
Fujiwara et al.
(hereinafter “Fujiwara”)
US 2,160,367
US 3,274,746

US 4,035,983

US 4,663,915

US 5,109,654

US 5,282,349
US 5,311,726

US 5,682,723

US 5,956,931
US 6,119,435

July 29, 1941
Sep. 27, 1966

July 19, 1977

May 12, 1987

May 5, 1992

Feb. 1, 1994
May 17, 1994

Nov. 4, 1997

Sep. 28, 1999
Sep. 19, 2000
Sjöberg US 6,123,969 Sep. 26,2000
Garwood US 2005/0208188 A1 Sep. 22, 2005
Suga
(hereinafter “Suga ’499”)
GB 2,250,499 A June 10, 1992

REJECTIONS
The Examiner withdraws the rejection of claims 1–11 and 19–25
under 35 U.S.C. § 112 as indefinite. Ans. 21.
The Examiner maintains the following rejections on appeal:

2 In this decision, we refer to the Final Office Action mailed July 30, 2014
(“Final Act.”), the Appeal Brief filed February 2, 2015 (“Appeal Br.”), the
Examiner’s Answer mailed June 2, 2015 (“Ans.”), and the Reply Brief filed
August 3, 2015 (“Reply Br.”).
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Application 12/757,314

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Rejection 1. Claims 1, 3–4, and 6–9 under 35 U.S.C. § 103 as
unpatentable over Nowotarski in view of Van Erden, Maxfield, Sjöberg, and
Siegel and further in view of any of Shanklin, Stork, or Fujiwara. Ans. 3.
Rejection 2. Claims 2, 10, 11, and 19–25 under 35 U.S.C. § 103 as
unpatentable over the combination applied to claim 1 above in further view
of James and Garwood. Id. at 13.
Rejection 3. Claim 5 under 35 U.S.C. § 103 as unpatentable over the
combination applied to claim 4 above in further view of any one of Suga
’654, Suga ’499, or Rauscher. Id. at 20.
ANALYSIS
We begin our analysis by construing claim 1. Claim 1 recites
“forming a partial enclosure, having a laterally outward opening, from a web
of film around the food product.” The Examiner construes the orientation of
the “outward opening” broadly such that, for example, “laterally” could be
an opening that extends perpendicular to the direction of the conveyor’s
movement. Ans. 3 (finding that Nowotarski’s opening across “the back end
of the partial enclosure” has an opening that extends “laterally outward”).
In the context of claim 1 and the Specification, the Examiner’s
construction of “laterally outward opening” is overbroad. Embodiments
described by the Specification orientate the web of film’s opening at one
edge of the conveyor so that the length of the opening runs parallel to the
conveyor’s machine direction along edges of the conveyor. See, e.g., Fig. 3
(showing partial opening 38 and fold 36 along edges of conveyor). The
Specification uses lateral to describe this positioning. See, e.g., Fig 5
(showing “lateral edges 54 and 56”); ¶ 36 (referencing “lateral side portion
36” as depicted in figure 3), ¶ 37 (“film webbing 40 is folded over its
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Application 12/757,314

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longitudinal axis 52 such that its lateral edges 54 and 56 are positioned
adjacent to one another . . . .”). Moreover, the term, “lateral,” as an adjective
generally means “of or relating to the side” or “situated on, directed toward,
or coming from the side.”3 This definition is consistent with Appellants’
disclosure which orients the opening along the sides of the conveyor. The
laterally outward opening must therefore have a length that runs parallel to
the machine direction along the sides of the conveyor so that air flowing out
of the opening is flowing perpendicular to the movement of the conveyor
and towards the sides of the conveyor.
Claim 1 also recites a “folding member [that] includes one or more
vents along one of the side portions thereof.” The vents are “aligned with
the opening of the partial enclosure to provide a path for residual oxygen to
escape from the partial enclosure prior to sealing the web of film.” Also,
recited side portions “extend[] generally parallel to the machine direction,”
and the “machine direction” in this context refers to the direction of the
conveyor’s movement. Spec. ¶ 29 (“food product . . . advances in the
machine direction”). Thus, the line of the air flow must go from the lateral
opening to the “vents along the side portions thereof.” The “vents along one
of the side portions thereof” cannot, for example, be orientated so that they
are on top of the food packaging to handle an upward air flow. Appeal
Br. 8–9.
Based on the claim construction above, the Examiner’s application of
the prior art is in error. In particular, the back end of the partial enclosure of
Nowotarski does not extend “laterally outward.” Appeal Br. 7; Ans. 3;

3 See, e.g., Merriam-Webster’s Collegiate Dictionary 703 (Merriam-
Webster, Inc., 11th ed. 2007).
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Application 12/757,314

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Reply Br. 2–3. Also, Figure 6, item 52 of Van Erden does not provide
“vents along one of the side portions thereof” because it is orientated
towards the top portion of the webbing rather than the side of the folding
member. Final Act. 5–6; Ans. 4–5; Appeal Br. 7–9. While Maxfield,
Figures 4 and 6, item 13 depict a discharge pipe or conduit orientated at the
side of the Maxfield apparatus (Ans. 5–6), a preponderance of the evidence
does not support that this is a vent along the side portion of a folding
member. Appeal Br. 10–11.
The Examiner also cites Shanklin, Stork, and Fujiwara as showing
that “the folding structure as claimed has been a conventional structure used
in horizontal form, fill seal packaging.” Ans. 7. The Examiner does not
establish, however, that these references teach modified atmosphere
packaging. Appeal Br. 12. The Examiner does not provide a persuasive
rationale as to why a person of skill would have modified Shanklin, Stork,
and Fujiwara to provide the specific recitations of claim 1 that relate to
modified atmosphere packaging or, alternatively, why a person of skill in the
art would have modified the art that provides modified atmosphere
packaging to meet the changed orientation of these references. Ans. 8
(stating that “changing the location on the folding member would also have
been a matter of engineering choice and orientation”).
Accordingly, we do not sustain the Examiner’s rejection of claim 1.
Likewise, we do not sustain the Examiner’s rejection of claims 2–114
because those claims depend from claim 1.

4 Appellants’ argument at page 7 of the Appeal Brief refers to “claims 1, 3,
4, and 6–9.” In the conclusion of the Appeal Brief, Appellants request “that
the Board reverse the rejections set forth in the Final Office action and allow
claims 1–11 and 19–25.” In this particular circumstance, we will consider
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Many of Appellants’ arguments apply with equal force to independent
claim 19. We construe the recitation “folding member includes one or more
vents along one of the side portions thereof to provide a path for residual
oxygen to escape” consistently with our construction provided with respect
to claim 1 above. Under this construction, the Examiner’s application of the
prior art in error for the reasons provided above. See also Appeal Br. 7–13;
Reply Br. 3–9. We therefore do not sustain the Examiner’s rejection of
claim 19. We also do not sustain the rejection of claims 20–25 because
those claims depend from claim 19.
DECISION
For the above reasons, we reverse the Examiner’s rejection of claims
1–11 and 19–25.
REVERSED

Appellants’ arguments with respect to claims 2, 5, 10, 11, and 19–25 to the
extent Appellants’ arguments as to claim 1 apply with equal force to those
claims. (We also note that the Board reviews adverse decisions of
examiners but does not “allow” claims in this context. 35 U.S.C. § 6(b).)