Ex Parte McCutchan

Board of Patent Appeals and Interferences

Jun 16, 2006

09905540 (B.P.A.I. Jun. 16, 2006)

The opinion in support of the decision being entered today is not binding
precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte MICHAEL DEAN MCCUTCHAN
__________

Appeal No. 2006-0930
Application No. 09/905,540
___________

ON BRIEF
___________

Before HANLON, DELMENDO, and GAUDETTE, Administrative Patent
Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL UNDER
35 U.S.C. § 134

This is a decision on an appeal under 35 U.S.C. § 134
(2004) from the examiner’s rejection of claims 1, 3, 5, 6, and
17 through 20 (Office action mailed January 7, 2005), which
are all of the claims pending in the above-identified
application. Because the examiner has made out a prima facie
case of obviousness with respect to the appealed claims and
since the appellant has failed to direct us to persuasive
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argument or evidence in rebuttal, we affirm.

The Appealed Subject Matter
The subject matter on appeal relates to a kit for
containing both a plurality of snack pieces and a dip-condiment.
According to the appellant (specification at 1, lines 10-14),
“the kit has an improved space efficiency and snack piece size.”
5

Evidence
10
15
20
The examiner relies on the following evidence in support of
a determination of unpatentability as to all the appealed
claims.
Zimmerman et al. US2002/0122852 A1 Sep. 5, 2002
(Zimmerman)(published
United States application)

Admitted prior art in the form of Snack-A-Dip® (Lightly Salted
Tortilla Chips & Salsa), ASB Group, France.

Issue Presented
For purposes of this appeal, the examiner has limited the
issues to a single rejection. (Examiner’s answer mailed August
31, 2005 at 3.) Specifically, the only issue before us is a
rejection under 35 U.S.C. § 103(a) of appealed claims 1, 3, 5,
6, and 17 through 20 as unpatentable over the combination of
25
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Zimmerman and the appellant’s admitted prior art in the form of
Snack-A-Dip® (Lightly Salted Tortilla Chips & Salsa). (Answer at
4.)
For the reasons discussed below, we affirm.
5
Findings of Fact1
We make the following findings of fact.
1. On January 14, 2004, the examiner entered a final
Office action rejecting claims 1, 3, 5, 6, and 17
through 20 on multiple grounds. (January 14, 2004
final Office action at 2-4.)
10
15

2. The appellant appealed the rejections set forth in the
final Office action. (Appeal brief filed on October
19, 2004.)
3. In an Office action dated January 7, 2005, the
examiner reopened prosecution and entered four new
separate grounds of rejection. (January 7, 2005
Office action at 3-7.)

1 In the “Discussion” section below, we number our findings
of fact as “FF__.”
3
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4. The appellant again appealed all four rejections.
(Supplemental appeal brief filed on June 9, 2005 at
3.)
5. In the examiner’s answer mailed August 31, 2005, the
examiner withdrew all but one ground of rejection.
(Answer at 3-4.)
5
10
15
20
25
6. Thus, the sole issue on appeal is whether, under 35
U.S.C. § 103(a), claims 1, 3, 5, 6, and 17 through 20
are unpatentable over the combination of Zimmerman and
the appellant’s admitted prior art in the form of
Snack-A-Dip® (Lightly Salted Tortilla Chips & Salsa).
7. With respect to the sole rejection on appeal, the
appellant argues the appealed claims together as a
group. (Substitute appeal brief at 7-8.)
8. Appealed claim 1, which is representative of all the
appealed claims, reads (supplemental appeal brief,
Appendix I):
1. A kit for containing both a plurality of
snack pieces and a dip-condiment, said kit
comprising:
a canister;
a plurality of snack pieces contained within
said canister, wherein the snack pieces have an
average projected area ranging from about 1900 mm2
to about 10,000 mm2;
a tub attached to said canister; and
4
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a dip condiment held within said tub;
wherein said kit has a space efficiency
greater than about 0.15 g/cm3.

5 9. Figure 1 of the subject application is reproduced
below.

10. Figure 1 of the subject application is said to depict
a preferred (but by no means the only) embodiment of
the present invention, wherein 10 denotes a kit, 20
10
5
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denotes a container, 21 denotes a cavity, 22 denotes a
continuous side wall, 23 denotes a lip of the
container 20, 25 denotes an opening, 26 denotes a
removable lid, 27 denotes an overcap, 28 denotes a lip
of the overcap 27, 29 denotes a peripheral edge of the
overcap 27, 30 denotes snack pieces, 40 denotes a tub,
42 denotes a lid enclosing tub 40, 44 denotes a peel
tab, 46 denotes a lip of the tub 40, and 50 denotes a
dip condiment. (Specification at 8-19.)
5
10
15
20
25
11. The subject specification (page 17, lines 23-24)
describes another embodiment of the invention as
follows:
In an alternative embodiment, tub 40 could be a
tub that inserts into the cavity 21 of container
20 either non-connected to container 20 or
connected to container 20.

12. The term “average projected area” as recited in
appealed claim 1 is defined in the specification (page
7, lines 2-12) as follows:
The projected area listed in Table 1 for
these kits was an average calculated projected
area and was calculated by randomly selecting
three whole chips from the kits, measuring each
chip’s projected area and then calculating the
average of these projected areas. Projected
area, as used herein, is essentially the area
within the two-dimensional outline of the shape
6
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of the snack piece. This two-dimensional cross-
sectional “footprint” of the snack piece forms a
projected area that can be determined either by
area calculations of a known geometry, a curve
integrator, superimposing the actual drawn area
on grid paper with predetermined area markings,
or by comparing the weight of a piece of paper
cut to the footprint outline to a weight of
similar paper with a known area. To measure the
projected area of the individual snack piece, the
snack piece to be measured is placed in an
orientation that will yield the largest possible
projected area. [Emphasis added.]
5
10
15
20
25
30
35

13. The subject specification defines the expression
“space efficiency” as the ratio of the total net
weight (net wt.) of the product contained within the
kit, to the total exterior kit or package volume (ext.
vol.). (Specification at 1, lines 25-28.)
14. The subject specification states (specification at 2,
lines 1-13):
Snack food pieces, such as potato chips (or
“crisps”) or tortilla chips, and dip-condiments
(hereinafter “dips”), such as chip dips or salsa,
have individually been available for years and
consumers enjoy them together as a combination
food item. However, the majority of snack chip
packages and dips are sold separately. This
individual retailing of the snack chips separate
from the dip creates several problems. First,
the majority of snack piece packaging, i.e., bags
already have low space efficiency and package
density. Second, due to the packaging of the
snack pieces and the dip in separate packages,
the space efficiency and bulk density of snack
pieces and dip as a food combination is even
7
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lower. Third, once purchased, the user must
carry, secure and store two separate items when
they transport the chips and dip to a remote
location for eventual consumption. And, Finally
[sic], generally these packages randomly pack the
snack chips within the package and thus permit
chip breakage, which is less conducive to
dipping. Therefore, this food combination is not
optimal as a portable food item.
5
10
15
20
25

15. Nevertheless, the specification acknowledges
(specification at 2, lines 27-28): “Various executions
of packages containing snack pieces with dips in a
unitary package or kit are known.”
16. Regardless of whether the relied upon Snack-A-Dip®
(Lightly Salted Tortilla Chips & Salsa) sample (a
product of France) is available as prior art under 35
U.S.C. § 102, the examiner found that the commercial
products identified in Table 1, which includes Snack-
A-Dip® (Lightly Salted Tortilla Chips & Salsa), of the
specification (page 6) constitute admitted prior art
(January 7, 2005 Office action at 2).
17. The appellant did not dispute the examiner’s
determination of the admitted prior art status of
Snack-A-Dip® (Lightly Salted Tortilla Chips & Salsa)
and, in fact, affirmatively stated that the commercial
products identified in Table 1 of the specification,
8
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including Snack-A-Dip® (Lightly Salted Tortilla Chips &
Salsa), are considered to be prior art to the
appellant. (Supplemental appeal brief at 7.)
18. We find that the outer packaging label of the Snack-A-
Dip® (Lightly Salted Tortilla Chips & Salsa) sample is
marked with an identification of French Patent No.
9912098, which was published as publication 2,798,911
on March 30, 2001 (copies of the document and its
English language translation are attached).
5
10
15
20
19. We further find that the outer packaging label of the
Snack-A-Dip® (Lightly Salted Tortilla Chips & Salsa)
sample touts the product as a “2-in-1 Combi Pack”
(i.e., a convenient package product combining the
snack chips and the dip-condiment tub).
20. We also find that Snack-A-Dip® (Lightly Salted Tortilla
Chips & Salsa) is a snack food kit including a
cylindrical container filled with a plurality of
tortilla chips, a plastic lid, and a dip-condiment tub
attached to the upper lip of the container by means of
the container lid pressing against an upper rim of the
dip-condiment tub.
9
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21. The appellant did not dispute the examiner’s factual
finding that Snack-A-Dip® (Lightly Salted Tortilla
Chips & Salsa) includes a dip-condiment tub attached
to the container.
22. According to the appellant (Table 1 of the
specification at 6), Snack-A-Dip
5
10
15
20
® (Lightly Salted
Tortilla Chips & Salsa) has a snack piece average
projected area of 1060 mm2 and a space efficiency of
0.134 g/cm3.
23. The subject specification refers to Zimmerman as
describing “[a]n optimized design of a curved snack
piece to accomplish high packed densities of a
plurality of curved snack pieces...” in accordance
with the claimed invention. (Specification at 14,
lines 14-25.)
24. Zimmerman describes a packaged container filled with
overlapping snack pieces placed therein, wherein the
packed volumetric bulk density is greater than about
10 x 10-5 g/mm3 to about 35 x 10-5 g/mm3 (i.e., about
0.1 g/cm3 to about 0.35 g/cm3). (¶0018 at 2; claim 14
at 10.)
10
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25. Zimmerman expressly states that snack chips and fluid
condiments are “a very popular snack combination.”
(¶0010 at 1.)
26. The examiner found that the packed volumetric bulk
density as described in Zimmerman is the same
characteristic as “space efficiency” as described in
the subject specification (page 1, lines 25-28).
(Answer at 7.)
5
10
15
20
27. The appellant did not rely on evidence to challenge
the examiner’s finding with respect to the identity of
Zimmerman’s packed volumetric bulk density and “space
efficiency” as described in the subject specification.
28. Zimmerman teaches that snack pieces having the
disclosed structural and geometric shapes in a nested
arrangement (relative to prior art products in which
the chips are randomly packed) provide increased bulk
density as well as allow efficient dipping of
condiment during use. (¶¶0002-0021 at 1-2.)
29. Zimmerman teaches that three-dimensional, triangular-
shaped snack pieces are most preferred as dipping
chips. (¶0047 at 5.)
11
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30. Zimmerman further teaches that Figure 2 depicts a
preferred embodiment of such triangular-shaped snack
pieces, wherein the length is from about 40 mm to
about 110 mm and the width is from about 30 mm to
about 110 mm. (¶0048 at 5.) 5
10
15
20
25
31. The examiner found that the preferred triangular-
shaped chips having a length of 110 mm and a width of
110 mm described in Zimmerman would have a calculated
projected area of about 6000 mm2. (Answer at 4.)
32. The appellant did not present any calculations or
other evidence demonstrating that the examiner’s
calculated snack chip projected area is incorrect.
33. The examiner concluded (answer at 4) that a person
having ordinary skill in the art would have found it
obvious within the meaning of 35 U.S.C. § 103(a) to
combine Zimmerman with Snack-A-Dip® (Lightly Salted
Tortilla Chips & Salsa) as follows:
It would have been obvious to one of ordinary
skill in the art to incorporate the tub of dip
and the lid of Snack-a-Dip into the kit of
Zimmerman et al since both are directed to chip
containers, since the chips of Zimmerman et al
were commonly eaten with dip, since it was
commonly known and practiced to provide a tub of
dip within the chip canister as shown by Snack-a-
Dip (see Sample), since the removable lid of
12
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Snack-a-Dip would have provided an effective
means for sealing the container of Zimmerman et
al, since the dip ratio of Snack-a-Dip would have
provided an appropriate amount of dip for the
chips, and since providing dip along with the
chips of Zimmerman et al would have provided
added convenience to the consumer by eliminating
the need to purchase and transport a separate tub
of dip.
5
10
15

34. Because a tub of condiment is necessarily denser than
snack chips, it would reasonably appear that the
packed volumetric bulk density would increase when a
tub of dip-condiment is incorporated within
Zimmerman’s container of snack chips.

Discussion
By way of background, the examiner entered a final Office
action on January 14, 2004 in which claims 1, 3, 5, 6, and 17
through 20 were rejected on multiple grounds. (January 14, 2004
final Office action at 2-4; FF1.) In response, the appellant
appealed the rejections set forth in the final Office action.
(Appeal brief filed on October 19, 2004 FF2.) But in a non-
final Office action dated January 7, 2005, the examiner reopened
prosecution and entered four new separate grounds of rejection.
(January 7, 2005 Office action at 3-7; FF3.) The present appeal
20
25
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ensued. (Supplemental appeal brief filed on June 9, 2005 at 3;
FF4.)
In the examiner’s answer mailed August 31, 2005, the
examiner withdrew all but one ground of rejection. (Answer at
3-4; FF5.) The sole rejection on appeal is whether, under 35
U.S.C. § 103(a), claims 1, 3, 5, 6, and 17 through 20 are
unpatentable over the combination of Zimmerman and the
appellant’s admitted prior art in the form of Snack-A-Dip
5
10
15
20

®
(Lightly Salted Tortilla Chips & Salsa).2
Before addressing the merits of the examiner’s rejection,
we review the appellant’s invention. Appealed claim 1, which is
representative of all the appealed claims, reads (supplemental
appeal brief, Appendix I; FF8):
1. A kit for containing both a plurality of
snack pieces and a dip-condiment, said kit comprising:
a canister;
a plurality of snack pieces contained within said
canister, wherein the snack pieces have an average
projected area ranging from about 1900 mm2 to about
10,000 mm2;
a tub attached to said canister; and
a dip condiment held within said tub;
wherein said kit has a space efficiency greater

2 The appellant has argued the appealed claims together as
a group. (Substitute appeal brief at 7-8; FF7.) We therefore
select claim 1 as representative of all the rejected claims and
confine our discussion of the examiner’s rejection to this
representative claim. 37 CFR § 41.37(1)(vii)(2005)(effective
September 13, 2004).
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than about 0.15 g/cm3.

Figure 1 of the subject application, which is said to
depict a preferred (but by no means the only) embodiment, is
reproduced below. (FF9-10.) 5

The appellant explains that 10 denotes a kit, 20 denotes a
container, 21 denotes a cavity, 22 denotes a continuous side
wall, 23 denotes a lip of the container 20, 25 denotes an
opening, 26 denotes a removable lid, 27 denotes an overcap, 28 10
15
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denotes a lip of the overcap 27, 29 denotes a peripheral edge of
the overcap 27, 30 denotes snack pieces, 40 denotes a tub, 42
denotes a lid enclosing tub 40, 44 denotes a peel tab, 46
denotes a lip of the tub 40, and 50 denotes a dip condiment.
(Specification at 8-19; FF10.) We also observe that the subject
specification (page 17, lines 23-24; FF11) describes another
embodiment of the invention as follows:
5
10
15
20
In an alternative embodiment, tub 40 could be a tub
that inserts into the cavity 21 of container 20 either
non-connected to container 20 or connected to
container 20.

Appealed claim 1 recites two terms (“average projected
area” and “space efficiency”), which are expressly defined in
the specification. The term “average projected area” is defined
as follows (specification at 7, lines 2-12; FF12):
The projected area listed in Table 1 for these
kits was an average calculated projected area and was
calculated by randomly selecting three whole chips
from the kits, measuring each chip’s projected area
and then calculating the average of these projected
areas. Projected area, as used herein, is essentially
the area within the two-dimensional outline of the
shape of the snack piece. This two-dimensional cross-
sectional “footprint” of the snack piece forms a
projected area that can be determined either by area
calculations of a known geometry, a curve integrator,
superimposing the actual drawn area on grid paper with
predetermined area markings, or by comparing the
weight of a piece of paper cut to the footprint
outline to a weight of similar paper with a known
area. To measure the projected area of the individual
25
30
16
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snack piece, the snack piece to be measured is placed
in an orientation that will yield the largest possible
projected area. [Emphasis added.]

5
10
15
20
25
30
The expression “space efficiency” is defined as the ratio of the
total net weight (net wt.) of the product contained within the
kit, to the total exterior kit or package volume (ext. vol.).
(Specification at 1, lines 25-28; FF13.)
The subject specification describes problems with some
prior art products as follows (specification at 2, lines 1-13;
FF14):
Snack food pieces, such as potato chips (or
“crisps”) or tortilla chips, and dip-condiments
(hereinafter “dips”), such as chip dips or salsa, have
individually been available for years and consumers
enjoy them together as a combination food item.
However, the majority of snack chip packages and dip
packages are sold separately. This individual
retailing of the snack chips separate from the dip
creates several problems. First, the majority of
snack piece packaging, i.e., bags already have low
space efficiency and package density. Second, due to
the packaging of the snack pieces and the dip in
separate packages, the space efficiency and bulk
density of snack pieces and dip as a food combination
is even lower. Third, once purchased, the user must
carry, secure and store two separate items when they
transport the chips and dip to a remote location for
eventual consumption. And, Finally [sic], generally
these packages randomly pack the snack chips within
the package and thus permit chip breakage, which is
less conducive to dipping. Therefore, this food
combination is not optimal as a portable food item.

17
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Nevertheless, the specification acknowledges (specification at
2, lines 27-28; FF15): “Various executions of packages
containing snack pieces with dips in a unitary package or kit
are known.”
With this understanding of the appellant’s invention, we
turn to the examiner’s rejection. We first address the prior
art status of the Snack-A-Dip
5
10
15
20
® (Lightly Salted Tortilla Chips &
Salsa) sample. The relied upon Snack-A-Dip® (Lightly Salted
Tortilla Chips & Salsa) sample is a product of France. (FF16.)
Regardless of whether it is available as prior art under 35
U.S.C. § 102, the examiner found that the commercial products
identified in Table 1, which includes Snack-A-Dip® (Lightly
Salted Tortilla Chips & Salsa), of the specification (page 6)
constitute admitted prior art (January 7, 2005 Office action at
2; FF16). The appellant did not dispute the examiner’s
determination of the admitted prior art status of Snack-A-Dip®
(Lightly Salted Tortilla Chips & Salsa) and, in fact,
affirmatively stated that the commercial products identified in
Table 1 of the specification, including Snack-A-Dip® (Lightly
Salted Tortilla Chips & Salsa), are considered to be prior art
to the appellant. (Supplemental appeal brief at 7; FF17.) We
therefore conclude that the examiner’s reliance on this product
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sample as prior art is appropriate.3 Riverwood Int’l Corp. v.
R.A. Jones & Co., 324 F3d 1346, 1354, 66 USPQ2d 1331, 1337 (Fed.
Cir. 2003).
We find that the outer packaging label of the Snack-A-Dip®
(Lightly Salted Tortilla Chips & Salsa) sample touts the product
as a “2-in-1 Combi Pack” (i.e., a convenient package product
combining the snack chips and the dip-condiment tub). (FF19.)
We also find that Snack-A-Dip
5
10
15

® (Lightly Salted Tortilla Chips &
Salsa) is a snack food kit including a cylindrical container
(canister) filled with a plurality of tortilla chips, a plastic
lid, and a dip-condiment tub attached to the upper lip of the
container by means of the container lid pressing against an
upper rim of the dip-condiment tub. (FF20.) With regard to the
claim limitation “a tub attached to said canister,” the
appellant does not dispute the examiner’s factual finding that
Snack-A-Dip® (Lightly Salted Tortilla Chips & Salsa) includes a

3 We find that the outer packaging label of the Snack-A-
Dip® (Lightly Salted Tortilla Chips & Salsa) sample is marked
with an identification of French Patent No. 9912098, which was
published as publication 2,798,911 on March 30, 2001 (copies of
the document and its English language translation are attached).
(FF18.)
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dip-condiment tub attached to the container.4 (FF21.) According
to the appellant (Table 1 of the specification at 6; FF22),
Snack-A-Dip® (Lightly Salted Tortilla Chips & Salsa) has a snack
piece average projected area of 1060 mm2 and a space efficiency
of 0.134 g/cm3. 5
10
15
20

Zimmerman, the other prior art evidence, is identified in
the appellant’s specification as describing “[a]n optimized
design of a curved snack piece to accomplish high packed
densities of a plurality of curved snack pieces...” in
accordance with the claimed invention. (Specification at 14,
lines 14-25; FF23.) Specifically, Zimmerman describes a
packaged container filled with overlapping snack pieces placed
therein, wherein the packed volumetric bulk density is greater
than about 10 x 10-5 g/mm3 to about 35 x 10-5 g/mm3 (about 0.1
g/cm3 to about 0.35 g/cm3). (¶0018 at 2; claim 14 at 10; FF24.)
Zimmerman teaches that snack pieces having the disclosed
structural and geometric shapes in a nested arrangement
(relative to prior art products in which the chips are randomly
packed) provide increased bulk density as well as allow
efficient dipping of condiment during use. (¶¶0002-0021 at 1-2;

4 French Patent No. 9912098 expressly teaches that the cell
or tub 3 is attached or linked to the container 2 by means of
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FF28.) Zimmerman expressly states that snack chips and fluid
condiments are “a very popular snack combination.” (¶0010 at 1;
FF25.)
The examiner found that the packed volumetric bulk density
as described in Zimmerman is the same characteristic as “space
efficiency” as described in the subject specification (page 1,
lines 25-28). (Answer at 7; FF26.) The appellant did not rely
on any evidence to challenge the examiner’s finding with respect
to the identity of Zimmerman’s packed volumetric bulk density
and “space efficiency” as described in the subject
specification. (FF27.)
5
10
15
20

Additionally, Zimmerman teaches that three-dimensional,
triangular-shaped snack pieces are most preferred as dipping
chips. (¶0047 at 5; FF29.) Zimmerman further teaches that
Figure 2 depicts a preferred embodiment of such triangular-
shaped snack pieces, wherein the length is from about 40 mm to
about 110 mm and the width is from about 30 mm to about 110 mm.
(¶0048 at 5; FF30.) The examiner found that Zimmerman’s
preferred triangular-shaped chips having a length of 110 mm and
a width of 110 mm described would have a calculated projected
area of about 6000 mm2. (Answer at 4; FF31.) The appellant did

21
lid 5. (See English language translation, abstract.)
Appeal No. 2006-0930
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not present any calculations or other evidence demonstrating
that the examiner’s calculated snack chip projected area is
incorrect. (FF32.)
After considering this evidence, the examiner concluded
(answer at 4; FF33) that a person having ordinary skill in the
art would have found it obvious within the meaning of 35 U.S.C.
§ 103(a) to combine Zimmerman with Snack-A-Dip
5
10
15
20
25
30
® (Lightly Salted
Tortilla Chips & Salsa) as follows:
It would have been obvious to one of ordinary skill in
the art to incorporate the tub of dip and the lid of
Snack-a-Dip into the kit of Zimmerman et al since both
are directed to chip containers, since the chips of
Zimmerman et al were commonly eaten with dip, since it
was commonly known and practiced to provide a tub of
dip within the chip canister as shown by Snack-a-Dip
(see Sample), since the removable lid of Snack-a-Dip
would have provided an effective means for sealing the
container of Zimmerman et al, since the dip ratio of
Snack-a-Dip would have provided an appropriate amount
of dip for the chips, and since providing dip along
with the chips of Zimmerman et al would have provided
added convenience to the consumer by eliminating the
need to purchase and transport a separate tub of dip.

We are in complete agreement with the examiner. Zimmerman
expressly teaches that snack chips and fluid condiments “are a
very popular snack combination.” (¶0010 at 1.) Even the
appellant admits that unitary packages including such
combinations are well known. (Specification at 2, lines 27-28;
FF15.) As evidenced by the Snack-A-Dip® (Lightly Salted Tortilla
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Chips & Salsa) sample, a unitary package including snack chips
and a dip-condiment tub would provide a convenient “2-in-1”
package of goods commonly used together. (FF19.) Under these
circumstances, a person having ordinary skill in the art would
have found it prima facie obvious to provide a tub of dip-
condiment within Zimmerman’s package, thus arriving at a kit
encompassed by appealed claim 1. With respect to the “space
efficiency” limitation recited in appealed claim 1, the
appellant has proffered no evidence establishing that when a
dip-condiment tub is included in Zimmerman’s canister, the
“space efficiency” would be outside the range recited in
appealed claim 1. As noted above, Zimmerman teaches that the
canister containing the chips has a packed volumetric bulk
density (i.e., space efficiency) of about 0.1 g/cm
5
10
15
20
3 to about 0.35
g/cm3, which substantially overlaps the appellant’s claimed range
of greater than about 0.15 g/cm3. Because a dip-condiment tub is
necessarily denser than relatively light snack chips and the tub
would replace the space occupied by less dense snack chips, it
would reasonably appear that the packed volumetric bulk density
(“space efficiency”) of the resulting combination would
necessarily have a packed volumetric bulk density or space
efficiency within the appellant’s claimed range. (FF34.) In re
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Appeal No. 2006-0930
Application No. 09/905,540

Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977).
As a corollary, one of ordinary skill in the art would have
found it prima facie obvious to modify the Snack-A-Dip® (Lightly
Salted Tortilla Chips & Salsa) sample by replacing the canister
of randomly packed tortilla chips with an appropriately sized
canister of snack chips in a nested arrangement as described in
Zimmerman in order to obtain the advantages of increased bulk
density and improved shapes for efficient condiment dipping.
Either way, we reject the notion that the examiner has relied
“on his own experience to provide the necessary motivation to
modify and combine the references.” (Supplemental appeal brief
at 7.) Here, the examiner has identified the motivation,
suggestion, or teaching
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10
in the prior art for one of ordinary
skill in the art to combine Zimmerman with Snack-A-Dip® (Lightly
Salted Tortilla Chips & Salsa), thus arriving at a product
encompassed by appealed claim 1.
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20
The appellant argues that “it would not be obvious to a
skilled artisan to select the Zimmerman kit comprising a
container and chips for combination with Snack-a-Dip over the
myriad of other chip choices, until one reads the present
specification and finds out the importance of the chip’s surface
area and the space efficiency of the kit.” (Supplemental appeal
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Appeal No. 2006-0930
Application No. 09/905,540

brief at 8.) We disagree. The prior art reference, namely
Zimmerman, provides motivation independent of the disclosure in
the appellant’s specification. Zimmerman’s disclosure is
replete with teachings highlighting the advantages of providing
the snack chips as described therein. (¶¶0002-0021 at 1-2.) It
is our judgment that these teachings constitute the motivation,
suggestion, or teaching required to support a rejection based on
a combination of references within the meaning of 35 U.S.C. §
103(a).
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Order
In sum, it is ORDERED that:
the 35 U.S.C. § 103(a) rejection of claims 1, 3, 5, 6, and
17 through 20 as unpatentable over the combined teachings of
Zimmerman and the appellant’s admitted prior art in the form of
Snack-A-Dip
15
® (Salsa) is AFFIRMED.
The decision of the examiner to reject appealed claims 1,
3, 5, 6, and 17 through 20 is AFFIRMED.

20

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Appeal No. 2006-0930
Application No. 09/905,540

Time for Taking Action
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv).
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15
20
25
30
35
AFFIRMED

Adriene Lepiane Hanlon )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
Romulo H. Delmendo )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
)
Linda M. Gaudette )
Administrative Patent Judge )

Rhd/mg

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Appeal No. 2006-0930
Application No. 09/905,540

Enclosure French Translation

THE PROCTER & GAMBLE COMPANY
INTELLECTUAL PROPERTY DIVISION
WINTON HILL TECHNICAL CENTER - BOX 161
6110 CENTER HILL AVENUE
CINCINNATI OH 45224
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