Ex Parte Glydon

Patent Trial and Appeal Board

Jul 17, 2013

11209880 (P.T.A.B. Jul. 17, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/209,880 08/23/2005 James A. Glydon 1421-442 4336
11632 7590 07/17/2013
Hoffmann & Baron, LLP
6900 Jericho Turnpike
Syosset, NY 11791
EXAMINER
SMITH, CHAIM A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
07/17/2013 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 JAMES A. GLYDON
____________

Appeal 2012-000487
Application 11/209,880
Technology Center 1700
____________

Before CHARLES F. WARREN, PETER F. KRATZ, and
HUBERT C. LORIN, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 3, 5, 10-15, 19, 26, and 28-39. We
have jurisdiction pursuant to 35 U.S.C. § 6.
Appellant’s claimed invention is directed to a package for containing
pieces of different edible products, such as pieces of more than one type of
chewing gum.1
Claims 1, 19, and 32 are illustrative and appended to this decision.

1 See related Appeal No. 2012-000955 (Application No. 11/209,573) (App.
Br. 1).
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2
The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Wolf et al. (Wolf) 3,429,426 Feb. 25, 1969
Mattis et al. (Mattis) US 2002/0066690 A1 June 6, 2002
Kopecky 6,776,288 B2 Aug. 17, 2004
Adams, “Chiclets,” Your Convenience Manager Magazine, Convenience
Central (CCCA) [on line] Mar. 2004,
http://www.convenienceentral.ca/archieve/2004/mar/printpage.asp

Appellant’s admission of the prior art (AAP) – Appellant’s disclosure
paragraphs [0003] and [0004].

Claims 32 and 35-39 stand rejected under 35 U.S.C. § 112, first
paragraph as failing to comply with the written description requirement.
Claims 32 and 35-39 stand rejected under 35 U.S.C. § 112, second
paragraph as failing to particularly point out and distinctly claim what
applicant regards as the invention.
Claims 1, 3, 5, 10-15, 19, 26, and 28-392 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over CCCA in view of AAP,
Kopecky, Mattis, and Wolf.
We reverse the Examiner’s 35 U.S.C. § 112, first and second
paragraph rejections for reasons argued by Appellant. We affirm the

2 The Examiner inadvertently omits claims 35-39 from the rejected claims
listed in the first sentence of the stated obviousness rejection as presented in
the Final Office action (FOA) and the Examiner’s Answer (FOA, p. 4; Ans.
p. 7). However, the Examiner identifies the latter claims as being among the
rejected claims in the body of the stated obviousness rejection (FOA, p. 5;
Ans., p. 14). Appellant recognizes that claims 35-39 are subject to the
obviousness rejection (App. Br. 34). Accordingly, the aforementioned
omission represents harmless error.
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Examiner’s obviousness rejection for substantially the reasons and the
relevant fact findings set forth by the Examiner in the Answer. We offer the
following for emphasis.
Rejection for Lack of Written Descriptive Support
As our reviewing court stated in In re Kaslow, 707 F.2d 1366, 1375
(Fed. Cir. 1983)3:
The test for determining compliance with the written
description requirement is whether the disclosure of the
application as originally filed reasonably conveys to the artisan
that the inventor had possession at that time of the later claimed
subject matter, rather than the presence or absence of literal
support in the specification for the claim language. . . . The
content of the drawings may also be considered in determining
compliance with the written description requirement. [Citations
omitted.]
It is the Examiner’s burden to establish a prima facie case of non-
patentability based on the written description requirement by presenting
evidence or reasons establishing why persons skilled in the art would not
recognize in the original disclosure a description of the invention defined by
the claims. In re Alton, 76 F.3d 1168, 1175 (Fed. Cir. 1996).
In an effort to carry that burden, the Examiner asserts that the
application disclosure as originally filed does not provide adequate written
descriptive support for claim 32. In this regard, the Examiner maintains that
(Ans. 5):
Claim 32 recites the limitation that the first and second
treatments each comprise an indication communicating that the
respective surface is associated more with the first aperture than
the second aperture and that said treatment is associated more

3 See also Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F. 3d 1336, 1351 (Fed.
Cir. 2010) (en banc).
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with the first common variety that the second common variety
or vice versa. As disclosed the surface treatments correspond to,
or are directly associated to, the respective aperture and/or
first/second respective edible products. There is no disclosure
indicating that the surface treatments would comprise an
indication communicating that a surface treatment would be
associated more with one variety of edible product than another.
This limitation therefore constitutes an issue of new matter.

As for rejected claim 35, the Examiner maintains that (Ans. 5 and 6):
Claim 35 recites the first surface treatment extends to a
perimeter of the first aperture, wherein the first surface
treatment does not extend to a perimeter of the second aperture,
wherein the second surface treatment extends to a perimeter of
the second aperture, and wherein the second surface treatment
does not extend to a perimeter of the first aperture. The
specification does not disclose the surface treatments extending
to the perimeter of a respective aperture and not extending to
the perimeter of a non-respective aperture. The limitation
therefore constitutes an issue of new matter.

As for rejected claim 37, the Examiner maintains that (Ans. 6):
Claim 37 recites the first surface treatment is located
closer to the first aperture than to the second aperture, and
wherein the second surface treatment is located closer to the
second aperture than to the first aperture. Appellant discloses in
paragraph [0039] that generally each surface treatment would
correspond at least partially with an area on the front surface of
the sleeve that includes the first and second apertures. That a
particular surface treatment would be located closer to a
particular aperture and not another is not disclosed, therefore
this constitutes an issue of new matter.

The Examiner rejects claims 36, 38, and 39 as lacking the requisite
written descriptive support by virtue of their dependency on a rejected base
claim (Ans. 6).
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On the other hand, Appellant contends that the application disclosure
as originally filed reasonably conveys to one of ordinary skill in the art that
the inventors had possession of the questioned limitations set forth in claims
32, 35, and 37 at the time of the invention. (See App. Br. 29-33.)
Thus, the dispositive question is: Has the Examiner reversibly erred
in finding that the application disclosure as originally filed does not provide
adequate written descriptive support for the identified limitations recited in
claim 32, 35, and 37 within the meaning of 35 U.S.C. § 112, first paragraph?
On this record, we answer this question in the affirmative as to the contested
limitations in each of these rejected claims.
Concerning rejected claim 32, for example, Appellant argues that
(App. Br. 30-31):
Appellant’s Figure 5 . . . shows that the first surface treatment
72 is more associated with the first aperture (the aperture
surrounding first edible product 32) than the second aperture
(the aperture surrounding second edible product 34) by virtue of
the first surface treatment's 72 location surrounding the first
aperture and the first surface treatment's 72 separation from the
second aperture. Moreover, clearly the first surface treatment 72
includes an indication (the pattern shown as parallel lines on the
first surface treatment 72 indicating a particular surface) that
communicates that the first surface treatment 72, by virtue of it
having the same indication as the first edible product 32 (the
same pattern is present on both the first surface treatment and
the first edible product 32), is associated more with the first
edible product 32 than the second edible product 34 (as the
pattern shown on the second edible product 34 is different than
the pattern shown on the first edible product 32).

Moreover, Appellant's Original Specification described
such indications in detail:

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the front surface of the front wall 60 may provide
first and second visible indications of the type of
products contained therein. For instance, as shown on
Figure 5 a first surface treatment 72 on the surface of
the front wall 60 may correspond in style and/or color to
the surface treatment, color, coating, flavor, type (e.g.,
gel filled), texture and/or shape (e.g., pellet, slab etc.) of
the first variety of gum pellet 32. Additionally or
alternatively, the first surface treatment 72 may provide
an indication of one or more ingredients, which may
include, for example, the absence of one or more
ingredients (e.g., sugar) as well as the presence of one
or more ingredients (e.g., actives).

Appellant's Original Specification, page 11, line 22
through page 12, line 2 (emphasis added). In this regard, the
surface treatment 72 is clearly disclosed as providing an
indication (e.g., color) that corresponds to the first variety of
gum pellet 32. Similar language in Appellant's Application
similarly discloses that the second surface treatment 74
provides an indication that corresponds to the second variety of
gum pellet 34 (See Id., page 12, lines 4-13). Therefore, each
surface treatment is disclosed as potentially being of a color
corresponding to the particular color of product visible through
the surface treatment's corresponding aperture. Thus, in such
embodiments, by virtue of corresponding colors, each surface
treatment may be associated more with the variety of gum
visible through its corresponding aperture than with the variety
of gum visible through the other aperture.

Under such circumstances, the Examiner's position that
Figure 5 does not disclose that the first surface treatment 72
includes an indication that communicates that it is more
associated with the first edible product 32 than the second
edible product 34 is untenable. Accordingly, Appellant
respectfully requests that the § 112 first paragraph rejection of
claim 32 be reversed.

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We agree with Appellant that Figure 5 of the Drawings and the noted
sections of the Application Specification, as filed, as identified in the above-
reproduced arguments from the Appeal Brief, indicate that the Examiner has
not discharged the burden to show that those disclosures fail to establish that
Appellant was in possession of the subject matter of rejected claim 32.
Appellant has likewise detailed how the Application, as filed, furnishes
written descriptive support for the limitations set forth in rejected claims 35
and 37 that are contested by the Examine as lacking written descriptive
support (App. Br. 31-33; Application Drawing Figs. 5 and 6a).
In this regard, we observe that an ipsis verbis disclosure is not
necessary to satisfy the written description requirement of § 112. Instead,
the disclosure need only reasonably convey to persons skilled in the art that
the inventor had possession of the subject matter in question. See In re
Edwards 568 F.2d 1349, 1351-52 (CCPA 1978).
On this appeal record, we determine that the Examiner has not
established that claims 32, and 35-39 lack written descriptive support within
the meaning of 35 U.S.C. § 112, first paragraph in the subject Specification,
as filed.
Accordingly, we reverse the Examiner’s rejection of claims 32 and
35-39 under 35 U.S.C. § 112, first paragraph, as lacking written descriptive
support in the application disclosure as originally filed.

Indefiniteness Rejection
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether "those skilled in the art would understand what is claimed when the
claim is read in light of the specification." Orthokinetics, Inc. v. Safety
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Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations
omitted). In this regard, “the indefiniteness inquiry asks whether the claims
‘circumscribe a particular area with a reasonable degree of precision and
particularity.’” Marley Mouldings Ltd. v. Mikron Industries Inc., 417 F.3d
1356, 1359 (Fed. Cir. 2005), quoting In re Moore, 439 F.2d 1232, 1235
(CCPA 1971).
Here, we agree with Appellant that one having ordinary skill in this
art would reasonably understand the contested surface treatment claim
terminology of claim 32, asserted to be indefinite by the Examiner, as
broadly specifying the wall surface treatment to be such as to provide an
indication/communication that the first surface treatment is associated
(corresponds) more with the first common variety of gum pellets than the
second common variety of gum pellets. This would have been readily
recognized by one of ordinary skill in the art, particularly when the rejected
claims are read in light of Appellant’s Specification, including the
exemplifications as furnished in the Specification (App. Br. 33-34; Spec. p.
11, 23-27 (para. 0039)). In light of the above, the Examiner has not carried
the burden to establish that the rejected claims fail to particularly point out
and distinctly claim what applicant regards as the invention based on the
reasons expressed by the Examiner (Ans. 6-7). In this regard, the Examiner
appears to have improperly equated breadth with indefiniteness.
It follows that we do not sustain the Examiner's rejection of claims 32
and 35-39 under §112, second paragraph.

Appeal 2012-000487
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Obviousness Rejection
Section 103 forbids issuance of a patent when “the
differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made
to a person having ordinary skill in the art to which said
subject matter pertains.”

KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting 35
U.S.C. § 103(a)).
“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” KSR, 550 U.S. at 419-20. To
be non-obvious, the claimed subject matter must not encompass “the
predictable use of prior art elements according to their established
functions.” Id. at 417.
Here, Appellant argues the rejected claims together as a group, with
the exception that some arguments applicable to claims 1 and 32 as to the
recited surface treatments are not applicable to independent claim 19, as
acknowledged by Appellant (App. Br. 13 and 29). Appellant’s arguments
focus on claim 1 (see, e.g., App. Br. 8 -29). Accordingly, we select claim 1
as the representative claim on which we primarily focus in deciding this
appeal as the Examiner’s obviousness rejection with the proviso that only
the submitted arguments other than those respecting the surface treatment
limitations of claim 1 are relevant to our consideration of independent claim
19 (App. Br. 29).
Representative claim 1 is directed to a package for containing pieces
of first and second different edible products, such as different chewing gum
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products. The package includes, inter alia, a sheet having separate
compartments (cavities in the sheet) composed of at least partially
transparent material, a plurality of pieces of the first edible product disposed
in a first subset of the compartments, a plurality of pieces of the second
edible product (which are visually distinct from the first plurality) disposed
in a second subset of the compartments, the compartment being sealed with
a sealing layer, an opaque cover having first and second apertures disposed
over the sealed compartment-containing sheet and having first and second
apertures, and wherein a first piece of the first edible product in one of the
first subset of compartments is visible through the first aperture and
correspondingly, a piece of the second edible product in one of the second
subsets of compartments is visible in the second aperture. As further set
forth in claim 1, first and second visibly distinct surface treatments [of the
cover] correspond, respectively to the appropriate aperture and edible
product.
After consideration of the opposing positions of Appellant and the
Examiner and the evidence of record brought to bear on the obviousness
question before us, we find ourselves in agreement with the Examiner’s
obviousness determination as to representative claim 1, and correspondingly,
all of the other rejected claims.
Appellant acknowledges that (Spec. paras. 0003 and 0004):
[0003] A variety of types of gum' packaging also exist,
including certain types of packaging used predominately for
one or the other of the gum formats. Pellet gum may be
packaged together in a carton that can be opened to dispense
one or more pellets at a time. Various other package
configurations exist, but in one configuration packages each
pellet individually in what has come to be known as a blister
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pack or package. Such a package configuration may include a
sheet of plastic having multiple cavities (bulged structures) that
may typically be formed in an array. The gum pellets are placed
into the individual cavities and a sheet of foil is attached to the
plastic sheet to contain/seal the gum pellets within the
individual cavities.

[0004] Generally, the blister package is itself packaged
(e.g., wrapped) to protect the blister pack from damage prior to
sale. In one arrangement, this packaging includes an opaque
paperboard sleeve member having a hollow interior into which
the blister pack may be selectively inserted and removed. The
outside surface of this sleeve member may contain printed
subject matter that identifies the contents of the blister package.
In some instances, a single aperture may be formed though the
sleeve member such that a gum pellet in one of the individual
blisters may be viewed by a consumer prior to purchase of the
gum package.

Appellant acknowledges that the applied CCCA reference (Chiclets
pack) evinces such a blister package that is “inserted into a sleeve, where the
sleeve has a single aperture aligned with a compartment of the blister
package. The blister package contains multiple flavors of gum. The blister
package is transparent and a piece of gum is visible through the aperture.
The sleeve has surface treatments.” (App. Br. 7; see also App. Br. 15).

Appellant goes on to state and argue that (App. Br. 7)
in making the [CCCA] package, there was no predetermination
of what particular flavor of gum was to be visible through the
aperture. As detailed in the Declaration of Paul Bowers
(hereinafter "Declaration") included in the Evidence Appendix,
at the time of Appellant's filing, Chiclets were randomly
populated as to gum variety placement. There is simply no basis
for the conclusion that Chiclets discloses that a particular
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variety of product is disposed in a predetermined sub-set of
compartments.

In other words, Appellant observes that the principal difference
between the above-noted prior art packages and the subject matter of
representative claim 1 relates to the use of more than one aperture (i.e., two
or more) in the cover sleeve of a package rather than the single aperture of
the CCCA package together with the ordered or coordinated arrangement of
the edible gum pieces of a first type (i.e. first flavor of edible pieces) in a
first subset of the compartments and the arrangement of the edible gum
pieces of a second type (i.e. second flavor of edible pieces) in a second
subset of the compartments together with the coordination of these separate
subsets with a particular cover sleeve aperture and surface treatment that is
associated with each subset of compartmented edible piece. To this end,
Appellant argues that “[s]uch coordination between compartment
population, surface treatments, and blister package orientation is not
disclosed in, or rendered obvious by, any combination of the cited prior art”
(App. Br. 10).
However, and as the Examiner has found, CCCA teaches that the
blister package can include more than one type (flavor) of an edible product
(gum), wherein each gum pellet is colored, which reasonably teaches or
suggests visibly distinct appearances (different colors) for the different
flavored pieces of gum at least one of which can be viewed via a sleeve
aperture as taught by CCCA (Ans. 7-10). Moreover, the Examiner relies on
three additional references to further establish the knowledge and level of
skill available to one of ordinary skill in the art.
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The Examiner relies on Kopecky and Mattis for teaching or
suggesting a package wherein each of the provided compartments can
contain a separate piece of edible product (Ans. 8; Kopecky, Figs. 1-3;
Mattis, Figs. 5A and 5B). In this regard, Kopecky teaches that (col. 1, ll.
10-17)
packaging for consumable or confectionery products is very
important to the look, marketing and storage of the product.
Very often, in addition to text on the packaging, the packaging
also attempts to visually convey a message about the type of
product, the taste of the product or the purpose of the product.
For example, packages for cinnamon or cherry tasting products
are often red, grape tasting product packaging is often purple,
etc.
Kopecky teaches that a slidable insert for a package housing can
include compartments and be made of clear plastic so that a consumer can
view the product in each compartment (col. 4, ll. 47-61; col. 4, l. 66-col. 5, l.
13; col. 6, ll. 14-16 and 41-44).
In addition, the Examiner relies on Wolf and Mattis for teaching the
use of multiple apertures (Ans.10). For example, Wolf teaches a package
that includes recesses (compartments) in an inner receptacle that can include
identical or non-identical products and which can be surrounded by a sleeve
having multiple apertures for registering with the compartments, and for
which package, transparent materials may be used for making components
thereof ,as a matter of choice(col. 2, ll. 14-51; col. 3, ll. 44-72; col. 4, ll. 13-
30; col. 6, ll. 13-18; Figs. 1,4, and 5).
Based on the combined teachings of the applied references, the
Examiner has reasonably determined that “it is conventional to provide a
one-to-one correspondence between the total number of compartments in a
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sheet, such as a blister pack, and the combined total number of pieces of the
first and second edible products and to modify CCCA, if necessary, and
provide such one-to-one correspondence, would have been an obvious
matter of choice and/or design” to one of ordinary skill in the art (Ans. 8).
Moreover, the Examiner has determined that (Ans. 10)
[c]laim 1 differs from CCCA in the opaque cover having a
second aperture through which a first piece of the second edible
product in a second predetermined compartment of the plurality
of separate compartments is visible wherein a second piece of
the second edible product is not visible through any aperture
and the second treatment corresponds to a second aperture.
Once it was known to associate one piece viewing aperture with
a treatment in the opaque cover of a package for containing
pieces of first and second different edible products to view only
a first piece of said first edible product in said package, it would
have been an obvious matter of choice and/or design to provide
a second aperture through which to view a second different
edible product for the same reason the first aperture was
provided. . . . In any case, as evidenced by Mattis and Wolf it
was well established to employ an opaque cover containing
more than one aperture through which two or more edible
products held below said cover could be viewed. Further, note
that both Mattis and Wolf disclose the packages contain more
than one type of product. The number of apertures one provides
would have been an obvious matter of choice and/or design and
an obvious function of the number of pieces one desired to
make visible through the container. With respect to surface
treatments, it is not seen that patentability can be predicated on
said treatments since said treatments do not provide any
mechanical function to the package . . . . In fact the surface
treatments, which are just printed coloring in the package, are
nothing more than printed material, no different than indicia,
which is not seen to have patentable significance.
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Given the teachings of the applied references, we concur with the
Examiner’s determination that it would have been obvious for one of
ordinary skill in the art to modify the package of CCCA to include more
than one aperture and to arrange the multiple edible product in an organized
way in the compartments such that one product is visible through one
aperture and another visibly distinct product is viewable through another
aperture. Moreover, we agree with the Examiner that the provision of
organized surface markings that correspond with different sets of products as
arranged in the package and near the associated viewing aperture would
have been an obvious option to one of ordinary skill in the art, especially
given the combined teachings of the references and the recognized
importance of product identification.
In light of the above and contrary to Appellant’s arguments, the
evidence of record reflects that one of ordinary skill in the art exercising
routine skill would have recognized the option of organizing the
arrangement of different types of multiple products in a package and have
been led to correlate the population of the package compartments with the
type of product, apertures, and surface markings in an organized manner so
as to result in a packaged product corresponding to that claimed. See KSR,
550 U.S. at 416 (“The combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.”).
Indeed, just as the option of coordination between compartment
population of edible products, surface treatments, and blister package
orientation would be expected to yield an organized packaged product
particularly where multiple pieces of each of several types of visually
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distinct products are being packaged, the absence of such coordination
would result in a random or disorganized arrangement of the product in a
package, as Appellant indicates (see App. Br. 26-27). After all, it is skill in
the art, rather than the converse, which is to be presumed. In re Sovish, 769
F.2d 738, 742-743 (Fed. Cir. 1985). Moreover, common sense has long
been recognized to inform the analysis of obviousness if explained with
sufficient reasoning." Perfect Web Technologies, Inc. v. InfoUSA, Inc., 587
F.3d 1324, 1328-29 (Fed. Cir. 2009).
Notably, no evidence establishing unexpected results for the claimed
subject matter has been presented.
Given the above, Appellant’s considerable arguments, including
arguments suggesting that the Examiner’s proposed rejection combination
lacks motivation for the proposed modifications and/or lacks factual support
therefor, engages in speculation/impermissible hindsight, is not legally
sound, is not supported by a proper reading of the references, and is
premised on the Examiner’s supposed failure to consider the claimed subject
matter as a whole, lack persuasive merit (App. Br.6- 29; Reply Br. 4-9).
On this appeal record, we agree with the Examiner’s obviousness
conclusion because the evidence furnished by the Examiner tending to
establish the obviousness of the claimed subject matter outweighs the
argument and any citations to the evidence submitted by Appellant that may
tend to favor a contrary conclusion.
It follows that we affirm the Examiner’s obviousness rejection as to
the appealed claims

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CONCLUSION/ORDER
The Examiner’s decision to reject claims 32 and 35-39 under 35
U.S.C. § 112, first paragraph as failing to comply with the written
description requirement and to reject claims 32 and 35-39 under 35 U.S.C. §
112, second paragraph as failing to particularly point out and distinctly claim
what applicant regards as the invention is reversed.
The Examiner’s decision to reject claims 1, 3, 5, 10-15, 19, 26, and
28-39 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Convenience Central (CCCA) in view of alleged admitted prior art (AAP),
Kopecky, Mattis, and Wolf 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).

AFFIRMED

cam

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CLAIMS APPENDIX

1. A package for containing pieces of first and second different edible
products, comprising:

a sheet having a plurality of separate compartments formed as cavities
therein, wherein the separate compartments are composed of an at least
partially transparent material;

a first plurality of pieces of a first edible product disposed in a first
predetermined sub-set of less than all of the separate compartments, wherein
each piece of the first plurality of pieces of the first edible product is of a
first common variety;

a second plurality of pieces of a second edible product disposed in a
second predetermined sub-set of less than all of the separate compartments,
wherein each piece of the second plurality of pieces of the second edible
product is of a second common variety wherein the first and second edible
products are different, wherein each piece of the first plurality of pieces of
the first edible product is visibly distinct from each piece of the second
plurality of pieces of the second edible product, wherein there is a one-to-
one correspondence between the combined total number of pieces of the first
and second edible products in the package and the number of separate
compartments formed in the sheet, wherein each separate compartment
contains a single piece of either the first edible product or the second edible
product;

a sealing layer disposed over at least a portion of a first surface of the
sheet, the sealing layer sealing each of the separate compartments; and

an opaque cover having first and second apertures, the opaque cover
being disposed over at least a second surface of the sheet, wherein a first
piece of the first edible product in a first predetermined compartment of the
plurality of separate compartments is visible through the first aperture and a
first piece of the second edible product in a second predetermined
compartment of the plurality of separate compartments is visible through the
second aperture, wherein a second piece of the first edible product is not
visible through any aperture in the opaque cover, wherein a second piece of
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the second edible product is not visible through any aperture, wherein an
outside surface of the opaque cover further includes:

a. a first surface treatment corresponding with the first
aperture, wherein the first surface treatment corresponds to the first edible
product; and

b. a second surface treatment corresponding with the second
aperture, wherein the second surface treatment corresponds to the second
edible product, wherein the first and second surface treatments are visibly
distinct from each other.

19. A packaged gum product, comprising:

a package having a plurality of separate compartments formed as
cavities therein, wherein the separate compartments are composed of an at
least partially transparent material;

a first plurality of gum pellets disposed in a first predetermined sub-
set of less than all of the separate compartments, wherein each gum pellet of
the first plurality of gum pellets is of a first common variety;

a second plurality of gum pellets disposed in a second predetermined
sub-set of less than all of the separate compartments, wherein each gum
pellet of the second plurality of gum pellets is of a second common variety,
and wherein each gum pellet of the first plurality of gum pellets is visibly
distinct from each gum pellet of the second plurality of gum pellets;

a sealing layer disposed over at least a portion of a first surface of the
package, the sealing layer sealing each of the separate compartments; and

a sleeve member covering at least a portion of the package, wherein
the sleeve member comprises a first wall, wherein first and second apertures
extend through the first wall, wherein a first gum pellet of the first plurality
of gum pellets is visible through the first aperture, wherein a first gum pellet
of the second plurality of gum pellets is visible through the second aperture,
wherein a second gum pellet of the first plurality of gum pellets is not visible
through any aperture, wherein a second gum pellet of the second plurality of
Appeal 2012-000487
Application 11/209,880

20
gum pellets is not visible through any aperture, wherein no portion of the
second plurality of gum pellets is visible through the first aperture, wherein
no portion of the first plurality of gum pellets is visible through the second
aperture; and wherein there is a one-to-one correspondence between the
combined total number of pieces of the first and second plurality of gum
pellets in the package and the number of separate compartments of the
package.

32. The package gum product of Claim 19, further comprising:

a. a first surface treatment of the first wall, the first surface treatment
comprising:

an indication communicating that the first surface treatment is
associated more with the first aperture than the second aperture; and

an indication communicating that the first surface treatment is
associated more with the first common variety than the second common
variety; and

b. a second surface treatment of the first wall, the second surface
treatment comprising:

an indication communicating that the second surface treatment
is associated more with the second aperture than the first aperture; and

an indication communicating that the second surface treatment
is associates more with the second common variety than the first common
variety,

wherein the first and second surface treatments are visibly distinct
from each other.