Ex Parte LUIZZI et al

Patent Trial and Appeal Board

May 16, 2018

14588047 (P.T.A.B. May. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/588,047 12/31/2014 BRYANT LUIZZI
5409 7590 05/18/2018
SCHMEISER, OLSEN & WATTS
22 CENTURY HILL DRIVE
SUITE 302
LATHAM, NY 12110
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.
LUIZ.50743CON-NY 9431
EXAMINER
NGUYEN, THANH H
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
05/18/2018 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):
AZ5409@IPLA WUSA.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRYANT LUIZZI, CHRISTIAN LUIZZI,
and PETER LUIZZI
Appeal2017-008172
Application 14/588,047
Technology Center 1700
Before TERRY J. OWENS, AVEL YN M. ROSS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1, 3-12, and 14--20. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellants claim a food container and a method for making it.
Claim 1 is illustrative:
1. A food container comprising:
a box filled with pourable food, the box having a sealed
gable top having a first gable and a second gable;
Appeal2017-008172
Application 14/588,047
wherein the gable top is configured to be unsealed by
pulling open the first gable and the second gable halfway along
an entire width of the sealed gable top and pulling a spout out
of the first and second gables, and wherein the spout includes a
resealable zip-top located on an inner surface of the first and
second gables.
Anderson
Bouraoui
Petkovsek
Laverdure (Laverdure '596)
Laverdure (Laverdure '029)
VanLoocke
Steele
The References
us 5,014,854
us 5,848,748
us 6, 164,826
US 2004/0007596 Al
US 2005/0017029 Al
US 2008/0240628 Al
US 2008/0279485 Al
The Re} ections
May 14, 1991
Dec. 15, 1998
Dec. 26, 2000
Jan. 15,2004
Jan.27,2005
Oct. 2, 2008
Nov. 13, 2008
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1,
4, 6, 12, 15, 16 and 18 over Anderson in view of Laverdure '596 and
Laverdure '029, claims 3 and 14 over Anderson in view of Laverdure '596,
Laverdure '029 and Bouraoui, claims 5 and 17 over Anderson in view of
Laverdure '596, Laverdure '029 and VanLoocke, claims 7 and 20 over
Anderson in view of Laverdure '596, Laverdure '029 and Petkovsek,
claims 8, 9, 11 and 19 over Anderson in view of Laverdure '596,
Laverdure '029 and Steele and claim 10 over Anderson in view of
Laverdure '596, Laverdure '029, Steele and Petkovsek.
OPINION
We reverse the rejections. We need address only the independent
claims (1, 9, and 12). Each of those claims requires a gable-top box with a
pullout spout having a resealable zip-top on an inner surface of first and
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Appeal2017-008172
Application 14/588,047
second gables. 1 To meet that claim requirement the Examiner relies upon
the combined disclosures of Anderson, Laverdure '596 and Laverdure '029
(Ans. 3--4, 6-7).
Anderson discloses a gable-top carton (130) which can contain food
and is opened by removing a tear strip (35) on the carton's flat top, urging
comers of top panels (25, 85) away from each other, and folding a top
panel (65) about a fold line (52) to form a reclosable pour spout (col. 7,
11. 4 7-51; col. 8, 11. 16-31; Figs. 4, 5).
Laverdure '596 provides, as an alternative to a one pint or smaller
gable-top carton's conventional tear-and-pullout pour spout, an easy-open,
self-closing dispenser comprising a mouth portion with lips having along
their lengths guide mouth attachments ( 46, 4 7) which separate to form a
dispensing opening when the dispenser is squeezed and self close when the
squeezing force is released (i-fi-f 3, 7, 50; Fig. IE). For additional protection
against spills the carton can have a zip-lock seal (not shown) along the
length of the easy-open, self-closing dispenser (i-fi-f 3, 15, 17).
Laverdure '029 provides a thin-film plastic bag with a dispenser
which has "a pair of nested flexible and resilient plastic curved quadrant
clamps with novel guide mouth attachments which makes it possible to
squeeze the thin gauge film chamber walls manually for opening and for
dispensing when up-ended, which upon release of the squeeze effort,
automatically self closes to form a dust tight seal" (Abstract) and can be
used with a zip-lock interlocking joint (i-fi-f 4, 7, 72).
1 The Appellants' Specification states that "[t]he resealable zip-top 418 may
be a zip-lock seal, or any similar airtight compressible zipper or the like"
(Spec. i136).
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Appeal2017-008172
Application I4/588,047
The Examiner finds that "Anderson, Laverdure '596 and
Laverdure '029 are directed to gable top containers having a pull-out spout
for dispensing food" (Ans. 4).
Anderson discloses a pullout spout for dispensing food (col. 7, 11. 47-
5I; col. 8, 11. I 6-3 I). Laverdure '596, however, discloses a gable-top
container squeeze-to-open, self-closing dispenser that is an alternative to a
pullout spout (i-f 3), and Laverdure '029 discloses a squeeze-to-open,
self-closing dispenser for a thin-film plastic bag (Abstract). Neither
Laverdure dispenser is a pullout spout.
The Examiner finds (Ans. 3):
Laverdure '596 teaches a zip-loc closure located on or adjacent
to the guide mouth attachment (46 and 47 of Fig. IE). As seen
in Figures 5A-5D of Laverdure '029 which appears to be a
similar gable top container as Laverdure '596, the spout seen in
Fig. 5C of Laverdure '029 corresponds to the first gable 40 in
Fig. IE of Laverdure '596, therefore indicating that the zip-loc
is located in the inner surface of the spout.
Laverdure '029 states that Figure 5 shows "an alternate reclosable
curved quadrant male and female clamps assembly" (i-f 56) and "is a blow up
of a partial cross sectional view of a resilient reclosable joint which can be
made during the profile extrusion of the indidual [sic] curved quadrant
clamps" (i-f 74). Laverdure '029's Figure 5 description (id.) clearly does not
describe what is shown in Figures 5A-5D, and Laverdure '029 does not
relate what is shown in those figures to the dispenser in the other figures.
Also, Laverdure '596's Figure IE's item 40 is not a "first gable" as asserted
by the Examiner but, rather, is the "[f]emale portion of curved quadrant
elongated dispenser outlet" (i-f 50). Moreover, the portion of
Laverdure '029's Figure 5C relied upon by the Examiner as corresponding
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Appeal2017-008172
Application 14/588,047
to Laverdure '596's item 40, which appears to be Laverdure '029's
item 42,43, does not appear to be a spout.
Thus, the Examiner has not provided a factual basis which supports
the Examiner's conclusion that "it would have been obvious to one having
ordinary skill in the art to modify the spout of Anderson by adding an
interlocking element such as a zip-loc as taught by Laverdure '596 and '029
to make the gables resealable" (Ans. 4). See In re Warner, 379 F.2d 1011,
1017 (CCP A 1967) ("A rejection based on section 103 clearly must rest on a
factual basis, and these facts must be interpreted without hindsight
reconstruction of the invention from the prior art"). Accordingly, we reverse
the rejections.
DECISION
The rejections under 35 U.S.C. § 103 of claims 1, 4, 6, 12, 15, 16
and 18 over Anderson in view of Laverdure '596 and Laverdure '029,
claims 3 and 14 over Anderson in view of Laverdure '596, Laverdure '029
and Bouraoui, claims 5 and 17 over Anderson in view of Laverdure '596,
Laverdure '029 and VanLoocke, claims 7 and 20 over Anderson in view of
Laverdure '596, Laverdure '029 and Petkovsek, claims 8, 9, 11 and 19 over
Anderson in view of Laverdure '596, Laverdure '029 and Steele and
claim 10 over Anderson in view of Laverdure '596, Laverdure '029, Steele
and Petkovsek are reversed.
The Examiner's decision is reversed.
REVERSED
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