Ex Parte Owensby

Board of Patent Appeals and Interferences

Aug 6, 2010

10857268 (B.P.A.I. Aug. 6, 2010)

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.
10/857,268 05/28/2004 Joseph E. Owensby 031456/277820 2269
826 7590 08/06/2010
ALSTON & BIRD LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000
EXAMINER
BRADEN, SHAWN M
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
08/06/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JOSEPH E. OWENSBY
____________________

Appeal 2009-007995
Application 10/857,268
Technology Center 3700
____________________

Before WILLIAM F. PATE, III, STEFAN STAICOVICI, and
FRED A. SILVERBERG, Administrative Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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Application 10/857,268

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STATEMENT OF THE CASE2
Joseph E. Owensby (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 1, 3-63, 8-25, 28-50, 52-58 and 60-67,
which are all of the pending claims. Claims 2, 7, 26, 27, 51 and 59 have
been canceled. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
Appellant’s claimed invention is directed to a tray used in case-ready
meat packaging that has sidewall stiffness and an optimized geometry (Spec.
1:2-6).
Claims 1 and 64, reproduced below, are representative of the subject
matter on appeal.
1. A tray for case-ready meat products
comprising:
a base defining a bottom portion of said tray;
a plurality of sidewalls extending upward a
distance from said base, said sidewalls each having

2 This Decision on Appeal refers to both the Appeal Brief filed June 2, 2008
(App. Br.), and the Revised Appeal Brief filed July 11, 2008 (Revised App.
Br.). The Revised Appeal Brief, which was filed in response to a
Notification of Non-Compliant Appeal Brief dated June 11, 2008, only
included a corrected section 6 entitled, Grounds of Rejection to be Reviewed
on Appeal, and a corrected section 7, entitled Argument.
3 The Status of Claims section of the Appeal Brief indicates that canceled
claim 7 has been appealed (App. Br. 2). Since claim 7 has been canceled in
an amendment filed along with a Request for Continued Examination (RCE)
on February 16, 2007, claim 7 is not part of this appeal.
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an inner surface, an outer surface, and an upper
edge, at least one of said sidewalls having a
lengthwise portion thereof that is bowed inwardly
toward an interior of said tray;
a plurality of corners extending upward from
said base, wherein each of said corners is disposed
between, and integrally connected to, two of said
sidewalls;
a flange integrally connected to, and
extending outward from, said upper edge of said
sidewalls, said flange having an upper surface, a
lower surface, and an outer edge, said outer edge
being substantially linear between said corners and
defining a maximum outer dimension of said tray,
wherein the distance across said upper surface of
said flange between said inner surface of said
sidewalls and said outer edge of said flange defines
a width of said flange, said width varying along a
length of at least one of said sidewalls; and
a plurality of substantially vertical ribs
formed in at least a portion of at least one of said
sidewalls and spaced apart therealong, said ribs
extending a distance inwardly from said inner
surface of said sidewalls, said distance defining a
thickness of said fibs, wherein said thickness of
said ribs varies along a length of said at least one
sidewall.

64. A tray for case-ready meat products
comprising:
a generally rectangular base defining a
bottom portion of said tray;
four integrally connected sidewalls
extending upward from an outer periphery of said
base, said sidewalls comprising two opposite
generally parallel longitudinal walls and two
opposite generally parallel end walls, said
sidewalls being integrally joined at four corners
extending upward from said base;
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an inner wall perpendicular to said
longitudinal walls extending upward from said
base and being integrally joined to each of said
longitudinal walls;
a flange integrally connected to, and
extending outwardly from, an upper edge of each
longitudinal wall and each end wall and having a
free outer edge, said flange varying in width along
the lengthwise portion between the respective
corners of at least one of said longitudinal walls,
said outer edge of said flange being substantially
linear;
a plurality of substantially vertical ribs
formed in at least a portion of each of said
longitudinal walls and each of said end walls and
spaced apart therealong, said ribs extending a
distance inwardly from an inner surface of said
longitudinal walls and said end walls, said distance
defining a thickness of said ribs;
wherein at least one of said longitudinal
walls has at least a partial lengthwise portion
thereof that is bowed inwardly toward an interior
of said tray.

THE REJECTIONS
The following rejection by the Examiner is before us for review:
Claims 1, 3-6, 8-25, 28-50, 52-58 and 60-674 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Hornsby (US 2003/0108643 A1,

4 A communication mailed October 28, 2008, modified the statement of the
rejection in the Grounds of Rejection section of the Examiner’s Answer
(Ans. 3) by removing claims 2, 7, but not claim 59 from the rejection.
Claims 2, 7 and 59 were canceled in an amendment filed along with a
Request for Continued Examination (RCE) on February 16, 2007. Claims 2,
7 and 59 are not a part of this appeal.
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issued Jun. 12, 2003) in view of St. Clair (US 2,738,915, issued Mar. 20,
1956).

ISSUES
The issues before us are: (1) whether the Examiner erred in
concluding that the combined teachings of Hornsby and St. Claire would
have rendered obvious a plurality of ribs formed in a sidewall, wherein the
thickness of the ribs varies along the length of the sidewall, as called for in
claim 1 (Reply Br. 4; Revised App. Br. 6, 13), and (2) whether the Examiner
erred in finding that Hornsby describes a flange having a width that varies
along the length of one of the longitudinal walls, as called for in claim 64
(Reply Br. 4; Revised App. Br. 2-3, 13).

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Hornsby describes a tray 10 for packaging meat including a bottom
surface 12; four side walls 16, 18, 20 and 22 extending upward
from the bottom surface 12; a lip 25 with a downturned flange 26;
and a plurality of vertical ribs 28 located in each of the side walls
(p. 3, paras. [0042]-[0045] and fig. 4).
2. Hornsby describes that “[t]he side walls 16, 18, 20 and 22 may
vary in height and may also be curved . . . , as shown in FIGS. 4-
12.” (p. 3, para. [0042]).
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3. St. Clair describes a molded service tray 10 having a bottom wall
11, side walls 12, 13, 14 15, a flanged portion 16, flutes 17, a pair
of ribs 21 and 22 (col. 2, ll. 9-29 and fig. 2).
4. St. Clair describes the edge portions in the vicinity of the corner
sections are formed with flutes 17 (col. 2, ll. 13-18 and fig. 2).
5. St. Clair describes that “[t]he tray is divided into separate sections
18, 19, and 20 by a pair of ribs 21 and 22 formed to extend
upwardly from the bottom wall” (col. 2, ll. 19-23 and fig. 2).
6. The ordinary meaning of the word “flange” includes “a rib or rim
for strength, for guiding, or for attachment to another object.”
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1996).
7. The ordinary meaning of the word “rib” includes “an elongated
ridge.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed.
1996).
8. The ordinary meaning of the word “ridge” includes “a raised
strip.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed.
1996).
9. Additional findings as necessary appear in the Analysis portion of
this opinion.

ANALYSIS
Claims 1, 25, 42 and 58
Appellant contends that the combined teachings of Hornsby and St.
Clair do not describe a plurality of ribs formed in a sidewall, wherein the
thickness of the ribs varies along the length of the sidewall, as called for in
claim 1 (Reply Br. 4; Revised App. Br. 6, 13). Appellant contends that in St.
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Clair, the ribs 21 and 22 are formed to extend upwardly from the bottom
wall and are, therefore, not equivalent to the claimed ribs (Revised App. Br.
10-11).
The Examiner found (1) that Hornsby describes a tray 10 comprising
a plurality of side walls 16, 18 and vertical ribs 28 (Ans. 3-4), and (2) that
Hornsby does not describe that the ribs have a thickness that varies along the
length of the at least one side wall (Ans. 11). The Examiner found that St.
Clair describes ribs 17, 21, 22 having a thickness that varies along the length
of the at least one side wall. The Examiner concluded that it would have
been obvious to modify Hornsby by adding ribs that vary in length along the
side wall as taught by St. Clair (Ans. 11-12). (Emphasis added).
Independent claim 1 calls for, inter alia, ‘a plurality of corners . . .
integrally connected to, two of said sidewalls” and “a plurality of
substantially vertical ribs formed in at least a portion of at least one of said
side walls . . ., wherein said thickness of said ribs varies along a length of
said at least one sidewall.” Independent claims 25, 42 and 58 are of similar
scope.
In the Examiner’s conclusion of obviousness, the Examiner proffered
three interpretations as to how the combined teachings of Hornsby and St.
Claire describe the ribs of varying thickness, as called for in claim 1 (Ans.
15-17).
We agree with the Examiner that Hornsby’s ribs 28 do not vary in
thickness.
St. Clair describes a molded service tray 10 having a bottom wall 11,
side walls 12, 13, 14, 15, with corner sections therebetween, flutes 17, a pair
of ribs 21 and 22 (Fact 3) formed to extend upwardly from the bottom wall
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11 (Fact 5), wherein the edge portions in the vicinity of the corner sections
are formed with flutes 17 (Fact 4).
According to the Examiner’s first interpretation, St. Clair’s flutes 17
in the corner section have a first thickness that is thinner than the flutes 17 in
the sidewall (Ans. 16). We find that St. Clair’s flutes 17 in the corner
section are not ribs formed in a side wall (Fact 4), as required by claim 1.
With respect to the Examiner’s second interpretation, the Examiner
refers to St. Clair’s flutes 17 in the corner section as a first set of vertical ribs
and rib 21 as a second rib, wherein the first set of ribs, flutes 17, have a
thickness that is thinner than the second rib 21. We find that because St.
Clair’s ribs 21, 22 are formed to extend upwardly from the bottom wall 11
(Fact 5), the ribs 21, 22 are not formed in at least a portion of said side wall,
as required by claim 1.
In the Examiner’s third interpretation, the Examiner found that since
Hornsby already describes ribs 28, the combination of St. Clair’s ribs 22
with Hornsby’s ribs 28 would meet the claimed structure of varying rib
thickness (Ans. 16-17). We find that since St. Clair’s ribs 22 are formed to
extend upwardly from the bottom wall 11 (Fact 5), St. Clair’s ribs 22 are not
formed in at least a portion of said side wall, as required by claim 1.
As such, in contrast to the Examiner’s position, St. Clair does not
disclose a plurality of vertical ribs that have varying thickness along a length
of at least one sidewall, as required by claim 1.
Therefore, we reverse the rejection of independent claim 1, and
independent claims 25, 42 and 58, which are of similar scope. Likewise, we
reverse the rejection of claims 3-6, 8-24, 28-41, 43-50, 52-57 and 60-63,
which depend from independent claims 1, 25, 42 and 58.
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Claim 64
Appellant contends that Hornsby does not describe a flange having a
width that varies along the length of one of the longitudinal walls, as called
for in claim 64 (Reply Br. 1; Revised App. Br. 2-3, 13).
The Examiner found that Hornsby describes in Figure 4 that the
flange varies from the thinner portion to the wider area portion (Ans. 14).
Figure 4, as annotated by the Examiner, is reproduced below:

In the annotated Figure 4 of Hornsby, the Examiner labels the area
considered to be the thinner and wider portions of the flange (Ans.
14).

Appellant contends that when viewing Figure 4 of Hornsby, as relied
on by the Examiner, Hornsby describes a flange of constant width and not a
flange of variable width (Revised App. Br. 3). In support thereof, Appellant
provides an annotated version of Figures 4 and 5 of Hornsby.
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Figures 4 and 5 of Hornsby, as annotated by Appellant, are
reproduced below:

In the annotated Figures 4 and 5 of Hornsby, Appellant provides
labeling for unlabeled portions of the top of the tray 10 (Revised App.
Br. 4-5).

The patent specification does not assign or suggest a particular
definition to the word “flange,” other than describing its function, to provide
strength and where it is formed, in the sidewall (Spec. 7:28-Spec. 8:14).
Therefore, in determining the ordinary and customary meaning of the claim
word “flange” as viewed by a person of ordinary skill in the art, it is
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appropriate to consult a general dictionary definition of the word “flange”
for guidance. Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir.
2010). The ordinary meaning of the word “flange” includes “a rib or rim for
strength, for guiding, or for attachment to another object” (Fact 6), the
ordinary meaning of the word “rib” includes “an elongated ridge” (Fact 7)
and the ordinary meaning of the word “ridge” includes “a raised strip” (Fact
8). Therefore, a person having ordinary skill in the art would understand a
“flange” to be an elongated raised strip.
Hornsby describes that the tray 10 includes side walls 16, 18, 20 and
22; a lip 25 with a downturned flange 26, and ribs 28 located in each of the
side walls (Fact 1). Hornsby describes that the side walls 16, 18, 20 and 22
may vary in height, as shown in Figures 4-12 (Fact 2).
In Figure 4 of Hornsby, as annotated by Appellant supra, Appellant
labels the unlabeled portions above the ribs 28 and below the lip 25 as a
“Sidewall Top Shelf” and a “Step Up,” respectively. We find that the
“Sidewall Top Shelf” does not include any ribs 28.
We find that in Hornsby, since (1) the side walls 16, 18, 20 and 22
vary in height, (2) the ribs 28 are located in each of the side walls and (3) the
“Sidewall Top Shelf” does not include any ribs 28; the “Sidewall Top Shelf”
is not part of the side wall 18. Further, if such were the case, as Appellant
would lead us to believe; the side walls, in particular side wall 18, would not
vary in height, as Hornsby so describes.
We find that in Hornsby, the “Sidewall Top Shelf” is an angled
member connecting the top of the side wall 18 to the lip 25 via the “Step
Up.”
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We find that while Hornsby describes the element denoted by numeral
26 as a flange, the elements denoted by numerals 25, 26 and the unlabeled
elements denoted by Appellant as “Sidewall Top Shelf” and “Step Up” are,
in actuality, a flange, as found by the Examiner, as they comprise an
elongated raised strip.
Therefore, we agree with the Examiner’s rationale that Hornsby
describes in Figure 4 that the flange varies from a thinner portion to a wider
area portion (Ans. 14), as shown by the Examiner’s annotation of Hornsby’s
Figure 4 supra.
Thus, we find that Hornsby describes a flange having a width that
varies along the length of one of the longitudinal walls, as called for in claim
64.
We affirm the rejection of claim 64. Likewise, we affirm the rejection
of claims 65-67,which depend from claim 64.

CONCLUSIONS
The Examiner has erred in concluding that the combined teachings of
Hornsby and St. Claire would have rendered obvious a plurality of ribs
formed in a sidewall, wherein the thickness of the ribs varies along the
length of the sidewall, as called for in claim 1.
The Examiner has not erred in finding that Hornsby describes a flange
having a width that varies along the length of one of the longitudinal walls,
as called for in claim 64.

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DECISION
The decision of the Examiner to reject claims 64-67 is affirmed.
The decision of the Examiner to reject claims 1, 3-6, 8-25, 28-50, 52-
58 and 60-63 is reversed.
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) (2007).

AFFIRMED-IN-PART

Klh

ALSTON & BIRD LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000