Ex Parte Krebs et alDownload PDFPatent Trial and Appeal BoardJul 29, 201311047297 (P.T.A.B. Jul. 29, 2013) Copy Citation 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 2 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 Appeal 2012-002071 Application 11/047,297 3 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 Appeal 2012-002071 Application 11/047,297 5 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 Appeal 2012-002071 Application 11/047,297 6 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; Appeal 2012-002071 Application 11/047,297 7 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). Appeal 2012-002071 Application 11/047,297 8 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 tc Copy with citationCopy as parenthetical citation