Ex Parte Gasco et al

Board of Patent Appeals and Interferences

Jan 30, 2006

10010818 (B.P.A.I. Jan. 30, 2006)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte MARY CARMEN GASCO, SHANE EDWIN MEEKER, RONALD PETER
DEVLAM, MARK WILLIAM RAKENTINE, PATRICK LEE O’BRIEN, JEAN-MARC
HENRI KIROUAC and JANET ADELE VEITH
_____________
Appeal No. 2005-2412
Application No. 10/010,818
______________
ON BRIEF
_______________
Before GARRIS, FRANKFORT and NASE, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal which involves claims 1 and
3-20.
The subject matter on appeal relates to a shaped container
bottom for containing a plurality of curved snack pieces (e.g.,
Pringles® potato chips). The container bottom comprises a bottom
panel having a concave-curvature which substantially conforms to
the curvature of the snack pieces and wherein a peripheral edge
of a lowest snack piece of the plurality of snack pieces rests
Appeal No. 2005-2412
Application No. 10/018,818
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upon the bottom panel. Further details regarding this subject
matter are set forth in claims 1 and 11 which are the only
independent claims on appeal and which read as follows:
1. A shaped container bottom integral to a container for
containing a plurality of curved snack pieces, each
snack piece having a center radius, a center height, a
saddle height, a peripheral edge and a lower surface,
within a container, the container bottom comprising a
bottom panel having a center radius, a center height,
and a concave-curvature about a first axis of the
bottom panel, wherein the concave-curvature of the
bottom panel substantially conforms to the curvature of
the snack pieces and at least a portion of the
peripheral edge of a lowest snack piece of the
plurality of snack pieces rests upon the bottom panel.

11. A shaped container bottom for containing a plurality of
curved snack pieces, each snack piece having a saddle
height, a peripheral edge and a lower surface, within a
container, the container bottom comprising a bottom
panel comprising at least two base portions and a
bottom panel center disposed between the base portions,
the bottom panel center having a center height and a
concave curvature about a first axis of the container,
wherein the concave-curvature of the bottom panel
substantially conforms to the curvature of the snack
pieces and a peripheral edge of a lowest snack piece of
the plurality rests upon the base portions.
The references set forth below are relied upon by the
examiner in the Section 102 and Section 103 rejections before us:
Baur et al. (Baur) 3,498,798 Mar. 3, 1970
Beall (Beall ‘485) 3,852,485 Dec. 3, 1974
Beall (Beall ‘510) 3,956,510 May 11, 1976
Griffith 4,011,347 Mar. 8, 1977
Ruiz 4,873,099 Oct. 10, 1989
Appeal No. 2005-2412
Application No. 10/018,818
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Claims 1, 3-5 and 10 are rejected under 35 U.S.C. § 102(b)
as being anticipated by either Beall ‘510 or Beall ‘485.
Claims 1 and 3-20 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Baur.
Claims 1, 3 and 4 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Ruiz.
Claims 6-9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beall ‘510 or Beall ‘485.
Finally, claims 6-9 also are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Baur in view of Griffith.
We refer to the brief and to the answer for a complete
exposition of the opposing viewpoints expressed by the appellants
and by the examiner concerning the above noted rejections.
OPINION
We cannot sustain any of the rejections advanced on this
appeal for the reasons set forth below.
In making a patentability determination, analysis must begin
with the question, “what is the invention claimed?” since
“[c]laim interpretation . . . will normally control the remainder
of the decisional process.” Panduit Corp. v. Dennison Mfg. Co.,
810 F.2d 1561, 1567, 1 USPQ2d 1593, 1597 (Fed. Cir. 1987).
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In resolving this question, we interpret the independent
claims on appeal as being directed to a particular shaped
container bottom in combination with a plurality of snack pieces
having certain shapes. This interpretation is consistent with
the claim language itself as well as the subject specification.
Moreover, both the appellants and the examiner have likewise
interpreted the independent claims. For analogous reasons, we
share the appellants viewpoint that it is appropriate to
interpret these claims as also requiring that the snack pieces be
vertically stacked one on another (e.g., see page 5 of the
brief). Such an interpretation is supported, for example, by the
independent claims 1 and 11 recitation that a peripheral edge of
“a lowest snack piece” of the plurality of snack pieces rests
upon the bottom panel. The examiner’s argument that these claims
are not so limited is not persuasive for the reasons explained
hereinafter.
With respect to this last mentioned point, it is the
examiner’s position that independent claim 1 is anticipated by
the combination of a container bottom with snack pieces
horizontally arranged thereon as disclosed in each of Beall ‘510
and Beall ‘485. According to the examiner, the above discussed
claim 1 feature concerning “a lowest snack piece” is satisfied by
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the Beall disposition wherein all of the snack pieces are
horizontally disposed on the same level because “any and every
snack piece is considered the lowest” (answer, page 5). This is
not a reasonable interpretation of claim 1. The claim phrase
“lowest snack piece” must be reasonably interpreted consistent
with the phrase language and the subject specification as
referring to a snack piece which is at the lowest disposition
relative to the other snack pieces in the here claimed plurality
of snack pieces.
Thus, we agree with the appellants that claim 1, when
properly interpreted consistent with their specification,
requires a shaped container bottom in combination with a
plurality of curved snack pieces which are vertically stacked one
on another. Correspondingly, we agree with the appellants that
this claim is not anticipated by the combination of a container
bottom having a plurality of snack pieces horizontally disposed
thereon as in Beall ‘510 or Beall ‘485. For this reason alone,
we cannot sustain the examiner’s Section 102 rejection of
independent claim 1 and of claims 3-5 and 10 which ultimately
depend therefrom as being anticipated by the Beall references.
Analogously, we also cannot sustain the examiner’s Section
103 rejection of claims 6-9, which ultimately depend from claim
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Application No. 10/018,818
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1, as being unpatentable over the Beall references. This is due
to the fact that the modification proposed by the examiner in
this Section 103 rejection, even if made, would not cure the
previously discussed deficiency of Beall ‘510 and Beall ‘485.
Concerning the Section 102 rejection based on the Ruiz
patent, the examiner argues that patentee’s disclosure of
vertically stacked edible bowls (e.g., see 37 in figure 6)
anticipatorily satisfies the claim 1 limitations concerning both
the snack pieces and the shaped container bottom. As
explained on page 6 of the answer, “[t]he examiner relies on the
bottommost edible bowl (snack piece) [of Ruiz] as being the
. . . shaped container bottom.” Again, the examiner’s
interpretation of claim 1 is neither reasonable nor consistent
with the appellants’ specification. A review of this
specification clearly establishes that the here claimed shaped
container bottom cannot be interpreted to be the bottom one of
patentee’s edible stack (just as it cannot be interpreted to be
the bottom one of a Pringles® potato chip stack which the
appellants describe as prior art on page 1 of their
specification).
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For this reason, we also cannot sustain the examiner’s
Section 102 rejection of claims 1, 3 and 4 as being anticipated
by Ruiz.
The Section 102 rejection of claims 1 and 3-20 as being
anticipated by Baur likewise cannot be sustained. As correctly
explained by the appellants, Bauer does not disclose a shaped
container bottom as defined by the independent claims on appeal.
To the contrary, patentee’s container bottom is flat. In
responding to the appellants’ arguments, the examiner refers to
“the edge regions of the bottom member 12 of Baur has [sic, as]
providing the concave-curvature limitations [of the independent
claims]” (answer, page 6). The examiner’s position is not well
taken.
We do not perceive and the examiner does not explain why it
would be reasonable and consistent with the appellants’
specification to interpret the claim 1 requirement for a panel
bottom having a concave-curvature which substantially conforms to
the curvature of the snack pieces as being satisfied by the
circular shape along the edge of patentee’s bottom member 12.
Even if the circular edge region of Baur’s bottom member were
somehow considered to satisfy the claim 1 requirement for a
bottom panel having a concave-curvature, the rejection of claim
Appeal No. 2005-2412
Application No. 10/018,818
This acknowledged deficiency of Baur is contradictory to1
the examiner’s previously discussed position that the Baur patent
anticipatorily satisfies the bottom panel limitations of
independent claims 1 and 11.
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1 still would be improper. This is because the circular
edge region of patentee’s bottom member 12 does not satisfy the
claim 1 requirement that the bottom panel concave-curvature
substantially conforms to the curvature of the snack pieces. As
clearly shown in figure 2 of Baur, the circular shape defined by
the edge region of bottom member 12 does not substantially
conform to the oval shape defined by patentee’s snack pieces.
These deficiencies of Baur are even more pronounced with
respect to independent claim 11 since this claim additionally
requires a bottom panel having certain features involving two
base portions with a bottom panel center disposed therebetween.
We see nothing and the examiner points to nothing in the Baur
patent which would satisfy this requirement of claim 11.
The examiner’s position concerning the Section 103 rejection
of claims 6-9 over Baur in view of Griffith is expressed on page
6 of the Office action mailed May 5, 2004 in the following
manner:
Baur discloses the invention except for the bottom
panel substantially conforming to the curvature of the snack
pieces. Griffith teaches a shaped container bottom formed[1]
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Application No. 10/018,818
Indeed, Griffith expressly teaches the need to provide a2
container of the type taught by Baur with additional cushioning
means (see lines 6-25 in column 1), and figure 1 of Griffith
plainly illustrates the result of providing Baur’s container with
Griffith’s cushioning member.
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by cushioning member 18 that conforms to the curvature of
the snack pieces (see column 2, lines 61-66). It would have
been obvious to modify the bottom of Baur to conform to the
shape of the snack pieces in order to support the piece such
that movement is restricted and the stack of chips remains
in a stable position centered within the container as
motivated by less damage to the chips because the chips are
moving less and the impact if any exist [sic] is minimized.
As reflected by the above quotation, the examiner believes
that Griffith’s teaching at lines 61-66 in column 2 would have
suggested modifying “the bottom of Baur to conform to the shape
of the snack pieces” (id.). However, this column 2 disclosure of
Griffith relates to a cushioning member 18 (e.g., see figures 2,
3, and 3A) which is adapted to be inserted into a snack container
for placement on the container bottom (e.g., see figure 1). This
disclosure certainly would have motivated an artisan to provide
the container of Baur with Griffith’s cushioning member 18 for
placement on Baur’s container bottom in order to thereby obtain
the snack cushioning advantages taught by Griffith (e.g., see
lines 28-53 in column 1). However, this is not the modification2
proposed by the examiner. Instead, the examiner proposes that it
would have been obvious to modify Bauer’s container bottom so as
Appeal No. 2005-2412
Application No. 10/018,818
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to conform with the snack piece shape. We do not perceive and
the examiner does not explain why Griffith’s column 2 disclosure
of an insertable cushioning member 18 would have suggested such a
modification. With respect to this rejection, it is only the
appellants’ own disclosure which contains any teaching of
modifying a container bottom in the manner proposed by the
examiner. These circumstances reflect that the examiner’s
proposed combination of Baur and Griffith is the result of
impermissible hindsight derived from the appellants’ own
disclosure rather than any teaching or suggestion derived from
these applied references. See W.L. Gore & Assocs. v. Garlock,
Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir. 1983),
cert. denied, 469 U.S. 851 (1984).
Appeal No. 2005-2412
Application No. 10/018,818
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For the above stated reasons, the Section 103 rejection of
claims 6-9 over Baur in view of Griffith cannot be sustained.
The decision of the examiner is reversed.
BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
BRG:hh
Appeal No. 2005-2412
Application No. 10/018,818
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