Ex Parte SagelDownload PDFPatent Trial and Appeal BoardJul 31, 201312037522 (P.T.A.B. Jul. 31, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/037,522 02/26/2008 Joseph Paul Sagel CFLAY.00398 4010 110933 7590 08/01/2013 Carstens & Cahoon, LLP PO Box 802334 Dallas, TX 75380 EXAMINER SMITH, CHAIM A ART UNIT PAPER NUMBER 1792 MAIL DATE DELIVERY MODE 08/01/2013 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOSEPH PAUL SAGEL ____________ Appeal 2012-006898 Application 12/037,522 Technology Center 1700 ____________ Before CHUNG K. PAK, PETER F. KRATZ, and JAMES C. HOUSEL, Administrative Patent Judges. KRATZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner’s final rejection of claims 1-6. We have jurisdiction pursuant to 35 U.S.C. § 6. Appeal 2012-006898 Application 12/037,522 2 Appellant’s claimed invention is directed to a food product package. Claim 1, the sole independent claim on appeal, is illustrative and reproduced below: 1. A food product package comprising: a first food container holding a non-crispy food product; a second food container holding a crispy food product; a packaging sleeve in contact with said first food container and said second food container and adapted to hold said first food container on top of said second food container. The Examiner relies on the following prior art references as evidence in rejecting the appealed claims: Lopez-Garcia US 2006/0051463 A1 Mar. 9, 2006 Tuszkiewicz US 2006/0254943 A1 Nov. 16, 2006 The Examiner maintains the following grounds of rejection: Claims 1-6 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Tuszkiewicz in view of Lopez-Garcia. We affirm the stated rejection for substantially the reasons set forth by the Examiner in the Answer. We add the following for emphasis. Appellant does not present separate arguments for the patentability of dependent claims 2-6 (App. Br. 7). Accordingly, we select claim 1 as the representative claim on which we decide this appeal. Appellant does not dispute the Examiner’s determination that Tuszkiewicz discloses a food product package including first and second food containers and a packaging sleeve adapted to hold one of the containers (first container) 260 on top of another container (second container) 10, Appeal 2012-006898 Application 12/037,522 3 which package corresponds to the package required by representative claim 1 but for specifying the food product contents (crispy food in the first container and non-crispy food in the second container) of the package as called for by Appellant’s claim 1 (Ans. 4; App. Br. 4-7; Reply Br. 1-3). Rather, Appellant basically argues that the Examiner’s proposed population of the food containers of Tuszkiewicz’s package with crispy food provided in the lower container 10 and non-crispy food being placed in the upper container 260 based on the additional teachings of Lopez-Garcia is misplaced (App. Br. 5-7). According to Appellant, this is because (1) Tuszkiewicz “is not concerned with the type of food held in each container, but instead generally discloses a wide variety of food products that could be contained within the containers”; hence, teaching away from packaging two different products comprising a crispy food product and a non-crispy food product therein (App. Br. 5-6; Tuszkiewicz, para. 0072); (2) Tuszkiewicz “is not directed to microwaving two food containers together in a vertical arrangement” (App. Br. 6); (3) Lopez-Garcia does not disclose a food container separate from a main container furnishing no suggestion for combination with Tuszkiewicz (App. Br. 6-7); and one of ordinary skill in the art “would have expected the crispy food product to heat up more rapidly when placed on top of the non- crispy food product, and to be shielded from the microwave radiation when placed below the non-crispy food product” (App. Br. 7). These arguments are unpersuasive of any substantive error in the Examiner’s obviousness rejection for reasons articulated by the Examiner (Ans. 7-9). In particular, representative claim 1 is not drawn to a microwave heating process and/or any particular manner of using the claimed food Appeal 2012-006898 Application 12/037,522 4 product package. It is the claims that define the invention and, therefore, the absence in the prior art of subject matter not included in the claims cannot be a basis for patentability. See Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988); see In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“Many of appellant's arguments fail from the outset because . . . they are not based on limitations appearing in the claims.”). Moreover, Tuszkiewicz does not teach away from packaging different products in separate containers of the package by disclosures indicating that a wide variety of food products could be placed in the containers of the package. Further, the Examiner’s proposed combination of Tuszkiewicz and Lopez-Garcia need not be premised on finding all of the claimed elements in one of the references, as seemingly argued. In this regard, the Examiner relies on Lopez-Garcia to establish that the packaging of multiple food products together in separate spaces or containers, such as the chips and salsa of Lopez-Garcia, with the chips arranged to be contained in receptacle 100 below the insert 200 in which salsa is placed is a known package food combination (Ans. 5; Lopez-Garcia, Fig. 3a, paras. 0031 and 0032). The combined disclosures of Lopez-Garcia and Tuszkiewicz would have reasonably suggested to an ordinarily skilled artisan the option of populating the vertically spaced containers of Tuszkiewicz with salsa and chips as taught by Lopez-Garcia, particularly given that Tuszkiewicz indicates that the vertically arranged containers are useful for packaging a variety of food products, which would obviously include chips and salsa as a known combination of foods that can be placed in multiple containers and packaged together. Appeal 2012-006898 Application 12/037,522 5 “What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under § 103.” KSR Int’l. Co. v. Teleflex, Inc., 550 U.S. 398, 419 (2007). To be non-obvious, the claimed subject matter must not encompass “the predictable use of prior art elements according to their established functions.” Id. at 417. In this regard, Appellant has not substantiated the arguments of unpredictability presented with objective evidence that is commensurate in scope with the claimed subject matter. On this record, we determine that the evidence furnished by the Examiner to establish the obviousness, within the meaning of § 103, of the claimed subject matter outweighs the argument and evidence, and/or lack of evidence marshaled by Appellant alleging non-obviousness of the claimed subject matter over the applied prior art. CONCLUSION/ORDER The Examiner’s decision to reject the appealed claims is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 CFR § 1.136(a). AFFIRMED sld Copy with citationCopy as parenthetical citation