Ex Parte HANNA

Patent Trial and Appeal Board

Aug 1, 2018

14267426 (P.T.A.B. Aug. 1, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/267,426 05/01/2014
23474 7590 08/03/2018
FLYNN THIEL BOUTELL & TANIS, P.C.
2026 RAMBLING ROAD
KALAMAZOO, MI 49008-1631
FIRST NAMED INVENTOR
David M. HANNA
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2366.P0027US 3205
EXAMINER
NEWHOUSE, NATHAN JEFFREY
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
08/03/2018 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):
DOCKET@FL YNNTHIEL.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID M. HANNA
Appeal2017-009359
Application 14/267,426 1
Technology Center 3700
Before MICHAEL L. HOELTER, MICHELLE R. OSINSKI, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner's
Final Decision rejecting claims 1-10. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Appellant is the Applicant, Arvco Container Corporation, which, according
to the Appeal Brief, is the real party in interest. Br. 1.
Appeal2017-009359
Application 14/267 ,426
CLAIMED SUBJECT MATTER
Claims 1 and 9 are independent, with claims 2-8 and 10 depending
from claim 1 or 9. Claim 1 is representative of the claims on appeal, and is
reproduced below:
1. A food container comprising:
a compartment for holding food;
the compartment having a bottom wall, side walls and a
top wall defining an exterior surface and an interior surface;
the compartment being formed of a single piece of paper;
the single piece of paper consisting of an outer planar
layer, a middle fluted layer, a middle planar layer and an inner
fluted layer all fixedly connected together;
the outer planar layer being fixedly connected to the
middle fluted layer, the middle fluted layer being fixedly
connected to the outer planar layer and the middle planar layer,
the middle planar layer being fixedly connected to the middle
fluted layer and the inner fluted layer, and the inner fluted layer
being fixedly connected to the middle planar layer; and
the outer planar layer forming the exterior surface of the
compartment and the inner fluted layer forming the interior
surface of the compartment such that the interior surface is
fluted;
wherein food can be placed on the bottom wall and on the
inner fluted layer to allow moisture and grease to separate from
the food.
REJECTIONS
1. Claims 1, 6, 7, 9, and 10 are rejected under 35 U.S.C. § 103 as being
unpatentable over Fultz (US 4,930,681, iss. June 5, 1990) and Antczak (US
5,358,174, iss. Oct. 25, 1994).
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Appeal2017-009359
Application 14/267 ,426
2. Claims 2 and 5 are rejected under 35 U.S.C. § 103 as being
unpatentable over Fultz, Antczak, and Hicks (US 1,184,749, iss. May 30,
1916).
3. Claims 3 and 4 are rejected under 35 U.S.C. § 103 as being
unpatentable over Fultz, Antczak, Hicks, and Anderson (US 5,971,150, iss.
Oct. 26, 1999).
4. Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable over
Fultz, Antczak, and Bryden (US 2003/0087066 Al, pub. May 8, 2003).
OPINION
Claims 1, 6, 7, 9, and 10
Appellant argues claims 1, 6, 7, 9, and 10 as a group. Br. 3-7. We
select claim 1 as representative. Claims 6, 7, 9, and 10 stand or fall with
claim 1. See 37 C.F.R. 4I.37(c)(l)(iv) (2015).
The Examiner finds that Fultz teaches each element of claim 1, other
than the "inner fluted layer." Final Act. 2. The Examiner finds that Antczak
teaches the "inner fluted layer" and proposes modifying the teachings of
Fultz to include an "inner fluted layer." Id. at 2-3. The Examiner reasons
that the proposed modification would have been obvious "to provide
ventilation under the food and/or to provide a non-stick surface within the
box while retaining the enhanced insulative effects of the outer corrugated
material." Id. at 2-3.
Appellant does not dispute the Examiner's findings or the particular
rationale articulated by the Examiner. See Br. 4--7. Rather, Appellant
contends that "Antczak ... teaches against using more than two layers" and
alleges impermissible hindsight. Br. 6-7. Appellant, however, fails to
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Appeal2017-009359
Application 14/267 ,426
identify anything that teaches away from the proposed modification. As
noted by the Examiner (Ans. 2-3), Antczak actually supports the
modification to include an inner fluted layer, explaining that "pizza is
supported on the parallel flute of the corrugated layer in the bottom of the
box so that air may circulate between the crust of the pizza and the bottom of
the box to prevent the crust from becoming soggy" (Antczak, 2:7-11).
Appellant also fails to apprise us of how the rejection is based on
impermissible hindsight, particularly when the Examiner provides a
rationale that Appellant does not address. See Br. 7 (simply concluding that
impermissible hindsight must be the basis for the rejection).
For the reasons set forth above, we are not apprised of Examiner error
and sustain the Examiner's decision rejecting claims 1, 6, 7, 9, and 10.
Claims 2-5 and 8
Appellant's contentions regarding claims 2-5 and 8 rely on the
alleged deficiencies with respect to claim 1, which we do not find persuasive
for the reasons explained above.
For these reasons, we sustain the Examiner's decision rejecting claims
2-5 and 8.
DECISION
We AFFIRM the Examiner's decision to reject claims 1-10 under 35
U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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