Ex Parte Krebs et al

Patent Trial and Appeal Board

Jul 29, 2013

11047297 (P.T.A.B. Jul. 29, 2013)

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.
11/047,297 01/31/2005 Jean M. Krebs 6081
7590 07/29/2013
Sonnenschein Nath & Rosenthal LLP
2000 McKinney Ave., Suite 1900
Dallas, TX 75201
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
07/29/2013 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 JEAN M. KREBS and CYNTHIA A. SALTZMAN
______________

Appeal 2012-002071
Application 11/047,297
Technology Center 1700
_______________

Before CHUNG K. PAK, CHARLES F. WARREN and
GRACE KARAFFA OBERMANN, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicants appeal to the Board from the decision of the Primary
Examiner finally rejecting claims 1, 2, 8, 10-25, 29-31, 33-35, 37-47, 49-53,
56. 57, 59 and 60. Br. 1, 2. We have jurisdiction. 35 U.S.C. §§ 6 and
134(a) (2002).
We affirm the decision of the Primary Examiner.
Claims 1, 25, 33 and 37 illustrate Appellants’ invention. Claim 1
specifies a package for food products having a plurality of vertically layered
food storage compartments in a shape of a three-dimensional pyramid,
wherein each “food storage compartment is associated with a different food
Appeal 2012-002071
Application 11/047,297
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group recommended by a nutritional guideline.” Br. 12 (Claim App’x).
Spec., e.g., Fig. 2.
Claim 25 specifies a modular food package for food products having a
plurality of modules for food, wherein each of the modules is “associated
with a different food group recommended by a nutritional guideline” and has
at least two connectors each of which “is operable to connect to exactly one
other connector on exactly one other module . . . and not operable to connect
with any other connector;” the connected modules are “designed to contain
food that creates a balanced meal having an appropriate nutritional content
according to the nutritional guideline.” Br. 14-15 (Claim App’x). Spec.,
e.g., Fig. 3.
Claim 33 specifies a method for packaging a food comprising at least
the step of selecting a first module including a first type of connector,
wherein both the module and connector are “associated with a first food
group recommended by a USDA nutritional guideline,” and the connector
“is not operable to form a connection with another connector of the first type
of connector;” selecting a second module including a second type of
connector, wherein both the module and connector are “associated with a
second food group recommended by a USDA nutritional guideline;” and
coupling the first and second modules. Br. 15 (Claim App’x). Spec., e.g.,
Fig. 4.
Claim 37 specifies a package for food products, each of the
compartments of which is “associated with at least one connector operable to
physically couple the compartment to at least one other compartment,”
wherein the compartments are operable to form a predetermined shape when
“coupled together in an arrangement determined in response to USDA
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Application 11/047,297
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nutritional guideline;” “the compartments each include a different food
group selected according to the USDA nutritional guideline;” and first and
second compartments are connected with “a connector strip” having first and
second strip connectors which are respectively operable to couple only with
a connector on the first compartment and a connector on the second
compartment. Br. 16 (Claim App’x). Spec., e.g., Fig. 4.
Appellants request review of these grounds of rejection under
35 U.S.C. § 103(a) advanced on appeal by the Examiner: claim 1 over
Wigfield (WO 2004/078599 A2), Beppu (US 5,560,653), Brownell (US Des.
400,403), Food Guide Pyramid,1 Segal (US 2005/0118233 A1) and What
Shape is Your Pyramid?;2 claims 25, 33 and 47 over Wigfield, Jenkins (US
5,690,245) and Kosansvich (US 769,615); and claim 37 over Wigfield,
Jenkins, Kosansvich and Glaenzer (US 1,736,651). Br. 6; Ans. 8-11, 16-17,
17-18, 18-20, 22-23.
The Examiner also advanced these grounds of rejection: under 35
U.S.C. § 112, second paragraph, claims 13 and 52; and under 35 U.S.C.
§ 103(a): claims 2, 8 and 10-24 over Wigfield, Beppu, Brownell, Food
Guide Pyramid, Segal and What Shape is Your Pyramid?; claim 19 over
Wigfield, Beppu, Brownell, Food Guide Pyramid, Segal, What Shape is
Your Pyramid?, Goetz (US Des 336,555), Florian (US 3,997,101) and
Farley (US 2,928,372); claims 31, 35, 49, 50, 59 and 60 over Wigfield,
Jenkins and Kosansvich; claims 29 and 30 over Wigfield, Jenkins,
Kosansvich and Intradonato (US 4,708,256); claims 34, 38, 40, 41 and 42

1 Food Guide Pyramid 1-2 (National Live Stock and Meat Board. 1993).
2 What Shape is Your Pyramid? 1-2 (November 19, 2012).
www.intel ihealth.com/IH/ihtPrint/WSIHW000/23722/20988/232308.html
Appeal 2012-002071
Application 11/047,297
4
over Wigfield, Jenkins, Kosansvich and Glaenzer; claim 39 over Wigfield,
Jenkins, Kosansvich, Glaenzer and Cease (US 3,240,610); claims 43-46 over
Wigfield, Jenkins, Kosansvich, Glaenzer and Nicholas (US 2004/0000565
A1); and claims 51-53, 56 and 57 over Wigfield, Nicholas and Thayer (US
4,164,301). Ans. 7, 11-15, 15, 17, 18, 20, 20-21, 21-22, 23-24, 25, 25-27,
27-29. Appellants did not request review of or submit argument with respect
to these grounds of rejection. See Br. 6-11.
With respect to the grounds of rejection of claims 1, 25, 33, 37 and 47,
Appellants argue the second ground based on claims 25 and 33. Br. 9, 10.
Thus, we decide this appeal with respect to the grounds of rejection of these
claims based on claims 1, 25, 33 and 37. 37 C.F.R. § 41.37(c)(1)(vii).
OPINION
We are of the opinion Appellants’ arguments do not establish that the
evidence in the totality of the record weighs in favor of the nonobviousness
of the claimed packages for food products encompassed by claims 1, 25 and
37, and of the method of packaging a food product encompassed by claim
33. In these respects, we are in agreement with the Examiner’s analysis of
the evidence in the references and the findings of fact and conclusions of law
stated in the Answer, to which we add the following for emphasis with
respect to Appellants’ arguments.
I. Claim 1: Wigfield, Beppu, Brownell,
Food Guide Pyramid, Segal and What Shape is Your Pyramid?
We agree with Appellants that Brownell would not have disclosed to
one of ordinary skill in the art a food products package of a plurality of food
storage compartments arranged “in a shape of a three-dimensional pyramid”
which is “associated with a different food group recommended by a
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Application 11/047,297
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nutritional guideline” as specified in claim 1. Spec. 12:16-19, Fig. 2.
Brownell, e.g., Figs. 1, 2. Br. 7. Appellants’ contention does not, however,
support the position that the applied combination of references would not
have suggested the claimed package having a three-dimensional pyramid
shape. Br. 8.
Indeed, as the Examiner finds, Wigfield, Beppu and Segal would have
disclosed a food products package of a plurality of food storage
compartments arranged according to a nutritional guidelines, Brownell’s
compartmentalized plate resembles the three-dimensional pyramidal shaped
nutritional guideline shown in Food Guide Pyramid, and “the USDA
nutritional guideline is in a pyramid shape” as is the pyramidal nutritional
guide in What Shape is Your Pyramid? Ans. 8-11, 30-31. Thus, we agree
with the Examiner, that contrary to Appellants’ position, the combination of
references would have reasonably led one of ordinary skill in the art to shape
the plurality of food storage compartments of a food container in any
manner of pyramidal shape reflecting recommended nutritional guidelines,
including a three-dimensional pyramid shape as claimed in claim 1. Ans.
10-11, 30-31. See, e.g., KSR Int’l Co., v. Teleflex, Inc., 550 U.S. 398,
417-18 (2007) (“[A]nalysis [of whether the subject matter of a claim would
have been obvious under § 103] need not seek out precise teachings directed
to the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.”); Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d
1324, 1329 (Fed. Cir. 2009) (“hold[ing] that while an analysis of
obviousness always depends on evidence that supports the required Graham
factual findings, it also may include recourse to logic, judgment, and
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Application 11/047,297
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common sense available to the person of ordinary skill that do not
necessarily require explication in any reference or expert opinion.”); In re
Kahn, 441 F.3d 977, 985-88 (Fed. Cir. 2006); In re Sovish, 769 F.2d 738,
743 (Fed. Cir. 1985) (skill is presumed on the part of one of ordinary skill in
the art)
Accordingly, we affirm the ground of rejection of claim 1 under
35 U.S.C. § 103(a).
II. Claims 25 and 33: Wigfield, Jenkins and Kosansvich
Claim 37: Wigfield, Jenkins, Kosansvich and Glaenzer
Each of article claims 25 and 37 and method claim 33 is directed to a
food products package having a plurality of modules or compartments, each
of which is associated with a food group associated with a nutritional
guideline and has at least one connector so that the modules or
compartments can be connected together in a particular arrangement
associated with the nutritional guideline. In this respect, each of the
connectors is specifically operable with another connector so that the
modules and compartments can only be connected to form the particular
nutritional guideline arrangement. See above pp. 2-3.
We agree with Appellants that Jenkins’ tray connects the food
containers, that all but one of Kosansviches’ bottle sections can be
connected to any other bottle section, that Glaenzer’s connector strip E has
opposed connector strips 42, 43 on web 44 each of which will connect to
grooves 40 on any of boxes B, C, D, and that Wigfield discloses different
types of connectors, such that none of the references would have disclosed
connectors which are specific to particular modules or compartments so that
a particular arrangement will result. See Jenkins abstract, Figs. 1, 3;
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Application 11/047,297
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Kosansvich 1:10-16, 45-52, Figs, 1, 2; Glaenzer 2:5-10, Figs. 1, 4, 6;
Wigfield 12:13-20. Br. 8-10. Appellants thus contend that the applied prior
art would not have led one of ordinary skill in the art to use connectors on
modules and compartments to result in specific arrangements associated
with nutritional guidelines as specified in claims 25, 33 and 37. Br. 8-10.
The Examiner makes the same findings. Ans. 8-9, 16-17, 17-18,
22-23, 31-34. The Examiner maintains, however, that Jenkins discloses that
the tray holds the food compartments in a particular orientation, that
Kosansvich discloses that the connected bottle sections are in a particular
orientation, that Glaenzer’s boxes are in a particular orientation, and that
Wigfield discloses that the receptacles corresponding to a nutritional
guideline are adapted to be coupled together in a unitary package held
together by conventional connecting mechanisms. Ans. 8-9, 16-17, 17-18,
22-23, 31-34.
On this record, we agree with the Examiner’s conclusion in each of
the grounds of rejection that, contrary to Appellants’ position, the combined
teachings of Wigfield, Jenkins and Kosansvich and further with Glaenzer
would have led one of ordinary skill in the art to employ connectors on
Wigfield’s food receptacles to result in a particular orientation in the
reasonable expectation that the particular orientation will reflect a nutritional
guideline. Ans. 16-17, 17-18, 22-23, 31-34, 34-37. See, e.g., KSR, 550 U.S.
at 417-18; Perfect Web Techs., 587 F.3d at 1329; Kahn, 441 F.3d at 985-88;
Sovish, 769 F.2d at 743.
Accordingly, we affirm the grounds of rejection of claims 25, 33 and
37 under 35 U.S.C. § 103(a).

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Application 11/047,297
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III.
We summarily affirm the grounds of rejection of claims 2, 8, 10-24,
29-31, 34, 35, 38-46, 49-53. 56. 57, 59 and 60 which have not been selected
for review and briefed by Appellants. See above pp. 3-4. See 37 C.F.R.
§ 41.37(c)(1)(vi) and (vii); see also Manual of Patent Examining Procedure
§ 1205.02 (8th ed., Rev. 3, August 2005) (“If a ground of rejection stated by
the examiner is not addressed in the appellant’s brief, that ground of
rejection will be summarily sustained by the Board.”).
The Primary Examiner’s decision 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)(iv).
AFFIRMED

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