Ex Parte Reeves-Collins et al

Patent Trial and Appeal Board

Sep 26, 2014

10980352 (P.T.A.B. Sep. 26, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DONNA REEVES-COLLINS and
WILLIAM O. COLLINS
____________________

Appeal 2012-007227
Application 10/980,352
Technology Center 3700
____________________

Before: ANNETTE R. REIMERS, JILL D. HILL, and
TIMOTHY J. GOODSON, Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Donna Reeves-Collins and William O. Collins (Appellants) appeal
under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 17–36.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

Appeal 2012-007227
Application 10/980,352

2
Claimed Subject Matter
Claims 17, 24, and 36 are independent. Claim 17, reproduced below,
illustrates the claimed subject matter on appeal.
17. A carton for holding a plurality of single-serving size
ready-to-cook foodstuffs, comprising:
a lower portion having a plurality of recessed regions
formed therein, including only a single-serving size, ready-to-
cook foodstuff in at least one of said recessed regions;
an upper cover, covering said lower portion;
a flexible hinge connecting the lower portion and the
upper cover, wherein the hinge, the lower portion and the upper
cover are made of the same material, and where the lower
portion, the hinge and the cover form a clamshell design for
covering the single-serving ready-to-cook foodstuff and
enclosing the single-serving ready-to-cook foodstuff in the
carton; and
an identification symbol associated with each of the
plurality of recessed regions formed in the lower portion.

EVIDENCE
The Examiner relies on the following evidence in rejecting the claims
on appeal:
Lorber US 1,861,124 May 31, 1932
Gics US 5,888,565 May 30, 1999
Alessi US 6,231,906 B1 May 15, 2001
Falat US 6,237,843 B1 May 29, 2001
Kelley US 6,349,820 B1 Feb. 26, 2002
Gavie US 6,627,239 B1 Sept. 30, 2003

Appeal 2012-007227
Application 10/980,352

3
REJECTIONS
Claims 17, 18, 21–25, and 28–35 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Lorber, Alessi, and Gavie. Ans. 5.
Claim 19 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Lorber, Alessi, Gavie, and Falat. Id. at 10.
Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Lorber, Alessi, Gavie, Falat, and Gics. Id. at 11.
Claim 26 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Lorber, Alessi, Gavie, and Falat. Id. at 12.
Claim 27 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Lorber, Alessi, Gavie, Falat, and Gics. Id. at 13.
Claim 36 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Lorber, Alessi, Gavie, and Kelley. Id. at 14.
OPINION
Rejection of Claims 17–35
Regarding claim 17, the Examiner finds that Lorber teaches all of the
limitations of claims 17, 18, 21–25, and 28–35, except for: (1) the lower
portion, the hinge, and the cover forming a clamshell design; and (2) an
identification symbol associated with each of the plurality of recessed
regions. Ans. 5–6. The Examiner finds that Alessi teaches the clamshell
design and Gavie teaches the identification symbol associated with each of
the recessed regions. Id. at 6–7.
Appellants argue, among other things, that
Gavie fails to disclose that the embossed design 18 is or may be
an identification symbol as recited in independent claim 17.
Moreover, Gavie depicts the same embossed design appearing
in multiple recesses in Fig. 1. The embossed design of Gavie
Appeal 2012-007227
Application 10/980,352

4
could not suggest an identification symbol to one of ordinary
skill in the art as there would be no way to distinguish one
recess from another by the design, particularly when several
recesses contain the same design. In other words, the teachings
of Gavie related to embossed designs in the recesses are entirely
contrary to any alleged use thereof as identification symbols.
Appeal Br. 15.
The Examiner responds that “claims must be interpreted as broadly as
their terms reasonably allow, and that “as claimed, the limitation ‘an
identification symbol associated with each of the plurality of recessed
regions formed in the lower portion’ is clearly taught by Gavie []” Ans. 19–
20 (citing In re Am. Acad. of Sci. Tech Ctr, 367 F.3d 1359, 1369 (Fed. Cir.
2004) and Gavie, col. 1, ll. 61–62 and col. 6, ll. 18–21). The Examiner,
however, does not set forth what he considers to be the broadest reasonable
interpretation of “an identification symbol associated with each of the
plurality of recessed regions formed in the lower portion” as set forth in
claim 17.
In re American Academy of Science Tech Center more precisely states
that, during examination, claims terms are to be given their broadest
reasonable construction “in light of the specification as it would be
interpreted by one of ordinary skill in the art.” 367 F.3d at 1364 (citations
omitted). Paragraph 34 of Appellants’ Specification states that the
identification symbol is used “to provide a consumer with a reference
symbol corresponding to the identifier 78 on the order fulfillment slip 70.”
As shown in Figure 3, the identifier 78 on the order fulfillment slip 70
informs a customer what type of foodstuff is in each recess. Thus, the
identification symbol provides a consumer with information regarding the
content of the recess (i.e., identifies the content of the recess).
Appeal 2012-007227
Application 10/980,352

5
Because Gavie’s “fanciful design” 18 does not provide any
information to a consumer, let alone information regarding content of the
recess, we disagree with the Examiner that the term “identification symbol”
can be interpreted broadly enough to be met by Gavie’s fanciful design 18.1
We therefore do not sustain the rejection of independent claim 17. Claims
18–23 depend from claim 17 and we therefore do not sustain the rejection of
these dependent claims. Claim 24 also recites the “identification symbol”
and we do not sustain the rejection of claim 24 for the reasons set forth
above. Claims 25–35 depend from claim 24 and we therefore do not sustain
the rejection of these dependent claims.
Rejection of Independent Claim 36
The Examiner finds that Lober teaches all of the limitations of claim
36 except for: (1) the lower portion, the hinge, and the cover forming a
clamshell design; (2) a single-serving size ready-to-cook foodstuff
consisting of a dough egg in a pre-formed ball of cookie dough; (3) an
alphanumeric symbol associated with each of the plurality of recessed
regions, each symbol uniquely identifying the associated recessed region;
and (4) a customized label including an indication of a type of cookie dough
egg located in each of the recessed regions, wherein dough type is indicated

1 In the rejection of claim 36, the Examiner finds that Kelley teaches “an
alphanumeric symbol 40 associated with each of the plurality of recessed
regions formed in a lower portion 16, each symbol 40 uniquely identifying
the associated recessed region.” Ans. 16. The Examiner does not find,
however, that Kelley’s alphanumeric symbol similarly meets the broader
“identification symbol” recitation of independent claims 17 and 24, and we
decline to make such a finding and any associated additional findings
regarding the dependent claims. Applicability of Kelley’s teachings to
claims 17–35 should be considered by the Examiner.
Appeal 2012-007227
Application 10/980,352

6
in association with the alphanumeric symbol. Ans. 14–16. The Examiner
finds that Alessi teaches the clamshell design, that Gavie teaches the single-
serving size ready-to-cook cookie dough egg given that a change in shape is
considered to be within the level of ordinary skill in the art, and that Kelley
teaches “an alphanumeric symbol 40 associated with each of the plurality of
recessed regions” that uniquely identifies the recessed region, and “a
customized label 44 or 45 affixed to an upper cover 14 of a carton 10b, the
label including an indication of a type of cookie dough egg located in each
of the recessed regions,” wherein dough type is indicated in association with
the alphanumeric symbol. Id. at 15–16.
Appellants argue, among other things, that Kelley fails to teach “a
customized label, or the label including an indication of a type of cookie
dough egg located in each of the recessed regions,” wherein dough type is
indicated in association with the alphanumeric symbol. Appeal Br. 23.
We agree with Appellants because, even if Kelley’s recipe book and
recipe cards could be considered “customized label[s],” the Examiner fails to
explain how they can be interpreted to include an indication of a type of
cookie dough (or any foodstuff) located in each of the recessed regions,
wherein the foodstuff type is indicated in association with the alphanumeric
symbol. We therefore do not sustain the rejection of claim 36.

Appeal 2012-007227
Application 10/980,352

7
DECISION
We REVERSE the rejection of claims 17, 18, 21–25, and 28–35 under
35 U.S.C. § 103(a) as unpatentable over Lorber, Alessi, and Gavie.
We REVERSE the rejection of claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Alessi, Gavie, and Falat.
We REVERSE the rejection of claim 20 under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Alessi, Gavie, Falat, and Gics.
We REVERSE the rejection of claim 26 under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Alessi, Gavie, and Falat.
We REVERSE the rejection of claim 27 under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Alessi, Gavie, Falat, and Gics.
We REVERSE the rejection of claim 36 under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Alessi, Gavie, and Kelley.

REVERSED

llw