Ex Parte Landau

Board of Patent Appeals and Interferences

Jun 14, 2010

10638191 (B.P.A.I. Jun. 14, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte STEVEN M. LANDAU
__________

Appeal 2009-004575
Application 10/638,191
Technology Center 1700
___________

Decided: June 14, 2010
___________

Before ADRIENE LEPIANE HANLON, TERRY J. OWENS, and
MARK NAGUMO, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
rejecting claims 1, 3-15, and 17-20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
Appeal 2009-004575
Application 10/638,191

2
The claims on appeal are directed to a method of inducing olfactory
sense deception when consuming an ingestible product from a container.
Claim 1, reproduced below, is illustrative.
1. A method of inducing olfactory sense deception when
consuming an ingestible product from a container, said method
comprising the steps of:

providing a container having an internal surfaces and
external surfaces, wherein said internal surfaces define an
internal chamber, said container being formed at least in part
from a plastic supersaturated with a fragrance material that
was dissolved into said plastic when said plastic was molten,
wherein said container emits an aroma of said fragrance
material externally from said external surfaces and internally
from internal surfaces into said internal chamber as said
fragrance material migrates to interior surfaces and said
exterior surfaces;

retaining an ingestible product within said internal
chamber; and

receiving said at least part of said container within a
consumer’s mouth, thereby bringing said external surfaces in
close proximity to a consumer’s nose, wherein aroma from said
internal chamber flows into the mouth with the ingestible
product being consumed and aroma from said external surfaces
is perceived by the nose, therein creating olfactory sense
deception in a perceived flavor of said ingestible product.

Br., Claims Appendix (emphasis added).1
The following Examiner’s rejections are before us on appeal:
(1) Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Courtright,2 Ray,3 Tanner,4 and Hahn.5

1 Appeal Brief dated June 9, 2008.
2 US 5,064,698 to Courtright et al. issued November 12, 1991.
Appeal 2009-004575
Application 10/638,191

3
(2) Claims 1, 3-15, and 17-20 are rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Tanner, Hahn, Courtright, and
Edwards.6
B. ISSUES
The Appellant contends that the subject matter of claim 1 is not
rendered obvious by the combined teachings of the prior art of record. The
Appellant does not provide separate arguments for any of claims 3-15 and
17-20. Therefore, the only issues on appeal are:
(1) Has the Appellant identified reversible error in the Examiner’s
conclusion that the combined teachings of Courtright, Ray, Tanner, and
Hahn render obvious the method of claim 1 wherein the container is formed
from a plastic that is supersaturated with a fragrance material?
(2) Has the Appellant identified reversible error in the Examiner’s
conclusion that the combined teachings of Tanner, Hahn, Courtright, and
Edwards render obvious the method of claim 1 wherein the container is
formed from a plastic that is supersaturated with a fragrance material?
C. FINDINGS OF FACT
The Appellant discloses a method of adding olfactory detected
properties to an ingestible product through its packaging. The packaging is
made from plastic that is supersaturated with flavored material that blooms
from the surfaces of the packaging over time. Spec. 10:13-22.

3 US 5,635,229 to Ray issued June 3, 1997.
4 US 4,988,546 to Tanner et al. issued January 29, 1991.
5 US 5,297,732 to Hahn issued March 29, 1994.
6 US 4,513,014 to Edwards issued April 23, 1985.
Appeal 2009-004575
Application 10/638,191

4
The Appellant defines “bloom” as follows:
Bloom is a term of art in plastics that refers to the
migration of a liquid or solid material from the composition of
the plastic to the surface of the plastic. Bloom is caused when a
dissolved ingredient is added to the plastic compound recipe in
a concentration that is in excess of its solubility.
Spec. 15:13-18. The Appellant explains:
In such a situation, if the conditions for crystallization of the
supersaturated ingredient are more favorable in the presence of
air than within the body of the plastic compound, then the
supersaturated ingredient will separate out of the plastic
compound and crystallize at the surface of the plastic as it
contacts the surrounding air. The change in the saturation
concentration gradient created by the surface crystallization
causes the supersaturated ingredient to migrate from within the
plastic compound toward the exterior surfaces of the plastic
compound. . . . Bloom ceases when the concentration of the
migrating substance in the plastic compound becomes equal to
its solubility at a given temperature.

Spec. 15:19-16:13.
The Examiner found, and the Appellant does not dispute, that
Courtright, Tanner, and Hahn provide evidence that aroma-generating
compounds were known to be used in packaged consumable products. See,
e.g., Courtright 3:6-17; Tanner 3:41-44, 5:24-31; Hahn 5:53-6:13.
Edwards discloses a chewable polyurethane animal toy having a
surface-migrating flavoring agreeable to an animal, wherein as the surface
flavoring is removed during the chewing process, the flavoring is replaced at
the surface by flavoring from the interior of the toy. Edwards 2:3-9.
Edwards discloses that certain types of materials are used to formulate
the urethane compound. These materials, with the exception of fillers and
non-functional additives, comprise the polymer network. Edwards 5:56-65.
Appeal 2009-004575
Application 10/638,191

5
The fillers and non-functional additives do not enter into the polymer
reaction but are held by the polymer structure by physical entrapment and, in
some cases, by secondary chemical association. Edwards 6:1-7.
Additives include flavors or “aromatic extracts” which are complex
organic compounds that can be soluble in many oils. Some of the aromatic
extracts function as surface-migrating substances that are incompatible with
polyurethane. Edwards discloses that this incompatibility could be due to
the extract’s basic chemical structure or to the greater solubility of the
aromatic extract in its oil or wax carrier, which causes the extract to migrate
to the surface. Edwards 6:28-37.
Edwards discloses that such surfacing of incompatible components is
referred to as “bloom.” Edwards 6:19-23.
According to one embodiment of the invention disclosed in Edwards,
the flavoring extract is initially added and thoroughly mixed with the
granulated polyurethane when the latter is heated and melted immediately
prior to the molding operation. Edwards 2:38-46.
Edwards discloses that the flavoring or aromatic oils that are used to
flavor the toy are dispersed uniformly and preferably homogeneously
throughout the toy. Edwards 5:30-41.
D. ANALYSIS
1. Issue (1)
The Appellant argues that the prior art of record does not disclose or
suggest supersaturating a plastic compound with a soluble fragrance material
that will “bloom” or migrate to the surface over time.
Appeal 2009-004575
Application 10/638,191

6
The Examiner relies on Tanner to show that it would have been
obvious to supersaturate the plastic of Courtright or Hahn with a fragrance
material. Ans. 7.
Tanner discloses a laminated structure that enhances the aroma of a
packaged food product. Tanner 1:8-15. According to the invention
disclosed in Tanner, a flavor/fragrance concentrate is “blended” with a
polymer and incorporated into a product-contact layer or buried layer in the
structure. Tanner 3:37-44. The Examiner recognizes that Tanner does not
expressly disclose that the polymeric carriers are supersaturated with the
flavor/fragrance concentrate. However, the Examiner points out that Tanner
discloses that the polymeric carriers have “high load levels” of flavors or
fragrances. Ans. 17; Tanner 1:8-15.
The Examiner has not shown that the flavor/fragrance concentrate
disclosed in Tanner is soluble in the polymeric carriers. Thus, on this
record, the Examiner has failed to show why the teachings of Tanner would
have suggested supersaturating the plastic compound of Courtright or
Tanner with a soluble fragrance material. For this reason, we will reverse
the first § 103(a) rejection on appeal.
2. Issue (2)
Again, the Appellant argues that the prior art of record does not
disclose or suggest supersaturating a plastic compound with a soluble
fragrance material that will “bloom” or migrate to the surface over time. In
particular, the Appellant argues:
[T]he Edwards patent teaches away from the technology of the
present invention. The Edwards patent teaches a flavor additive
that is mixed with the plastic, where the flavorant is
INSOLUBLE with the plastic. The plastic is then made
porous. Since the flavorant is not soluble with the plastic, it
Appeal 2009-004575
Application 10/638,191

7
separates from the plastic and flows out the plastic through the
pours [sic, pores] in the plastic. See Edwards, Column 6, lines
14-18, and lines 34-38. See also Edwards, Column 7, lines 5-
18.
It will be understood that since the flavorant in the
Edwards patent is insoluble with the plastic, it is not possible
for the flavorant to be dissolved in the plastic to a concentration
where the flavorant supersaturates the plastic.

Br. 7-8 (emphasis in original).
The portions of Edwards relied on by the Appellant do not state that
the aromatic extract is “insoluble” in the polyurethane. Rather, those
portions state that the polyurethane and the aromatic extract are
“incompatible” which causes the flavoring material to migrate to the surface
of the article. See, e.g., Edwards 6:31-37.
Edwards discloses that “incompatibility . . . pertains to surface-
migrating substances that apparently do not combine chemically with the
components that form the polyurethane.” Edwards 7:14-17. In other words,
the flavoring materials are not chemically bound to the polymer structure but
are held by the polymer structure by physical entrapment and, in some cases,
secondary chemical association. Edwards 6:3-7. The term “secondary
chemical association” appears to describe interactions characteristic of
dissolution.
Edwards also discloses that the flavoring materials are “dispersed
uniformly and preferably homogenously” throughout the polyurethane.
Edwards 5:29-41. In one embodiment of the invention, the aromatic extract
is distributed in the polyurethane by mixing the aromatic extract with the
polyurethane when the latter is heated and melted. Edwards 2:38-46.
Appeal 2009-004575
Application 10/638,191

8
Based on the foregoing, we find that the flavoring materials of
Edwards are dissolved to some degree in the polyurethane.
As for supersaturating the polyurethane with the flavoring materials,
the Examiner correctly found that Edwards teaches that the flavoring
material “blooms” from the polyurethane. Ans. 9-10, 25.7
According to the Appellant:
Bloom is a term of art in plastics that refers to the
migration of a liquid or solid material from the composition of
the plastic to the surface of the plastic. Bloom is caused when a
dissolved ingredient is added to the plastic compound recipe in
a concentration that is in excess of its solubility.

Spec. 15:13-18.
As discussed above, the flavoring material in Edwards is dissolved in
the polyurethane to some degree. Moreover, the Examiner found, and the
Appellant does not dispute, that Edwards teaches mixing high concentrations
of the flavoring material with the polyurethane. Ans. 9-10; see also
Edwards 2:32-33 (“flavoring extract is usually highly concentrated, such that
thorough mixing is important”). Thus, the preponderance of the evidence of
record supports the conclusion that the “bloom” described in Edwards is
caused, at least in part, by supersaturation of the polyurethane with the
flavoring material. See Ans. 22 (“the concept of supersaturation which, as
stated by Appellant, appears to be related to the blooming process”).
Significantly, the Appellant does not direct us to any evidence establishing
otherwise.

7 Examiner’s Answer dated August 18, 2008.
Appeal 2009-004575
Application 10/638,191

9
Finally, the Appellant argues that “the Edwards patent is non-
analogous art since a person skilled in the art of food packaging would not
look to the technology of dog chew toys.” Br. 7.
The Examiner explains:
[T]he Edwards patent is analogous in that it teaches the concept
of blooming for the purpose of providing a pleasing flavor /
fragrance to migrate to the surface of a molded plastic article.
Whether this blooming was a food packaging container or a dog
chew toy, the Edwards patent, nonetheless, teaches a material
that blooms from a molded plastic article for the similar
purpose of providing a fragrance / flavor at the surface.

Ans. 27.
Based on the record before us, we find that Edwards is reasonably
pertinent to the particular problem with which the Appellant and the other
applied prior art were involved, i.e., dispensing an aroma. Thus, we find that
Edwards is analogous art and is properly combinable with the teachings of
the applied prior art. In re Wood, 599 F.2d 1032, 1036 (CCPA 1979).
For the reasons set forth above and in the Examiner’s Answer, we will
affirm the second § 103(a) rejection on appeal.
F. DECISION
The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Courtright, Ray, Tanner, and Hahn is reversed.
The rejection of claims 1, 3-15, and 17-20 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Tanner, Hahn, Courtright, and
Edwards 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).

Appeal 2009-004575
Application 10/638,191

10
AFFIRMED

PL Initial:
sld

Eric A. LaMorte
LaMorte & Associates, P.C.
P.O. Box 434
Yardley PA 19067