Graphic Packaging International, LLC

Patent Trials and Appeals Board

Aug 10, 2021

2020004812 (P.T.A.B. Aug. 10, 2021)

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.
15/367,272 12/02/2016 Fermin P. Resurreccion JR. R029 18380US.1 5693
26158 7590 08/10/2021
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
EXAMINER
AXTELL, ASHLEY
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/10/2021 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):
BostonDocket@wbd-us.com
IPDocketing@wbd-us.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FERMIN P. RESURRECCION JR. and
VLADIMIR C. MARTINEZ
____________

Appeal 2020-004812
Application 15/367,272
Technology Center 1700
____________

Before LINDA M. GAUDETTE, JEFFREY R. SNAY, and
JENNIFER R. GUPTA, Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–42. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Graphic Packaging International, Inc. as the real party in interest.
Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The invention relates to containers for holding food items during
exposure to microwave energy. Spec. ¶ 4. According to the Specification, a
container sidewall comprises a substrate and a microwave interactive layer
which shields an interior portion of the container from microwave energy.
Spec. ¶ 4. In use, a first food, e.g., ice cream, contained in the shielded
container portion is shielded from microwave energy while a second food,
e.g. cake, contained in an unshielded container portion is subjected to
microwave heating. Id. ¶¶ 7, 38. Claim 1 reads as follows:
1. A container for holding at least a first food item and a
second food item during exposure to microwave energy in a
microwave oven having a cutoff frequency, the container
comprising:
a sidewall extending at least partially around an interior
of the container, the sidewall comprising at least a substrate
layer and a microwave energy interactive layer;
a shielded interior portion of the interior of the container,
the shielded interior portion being at least partially defined by
at least the microwave energy interactive layer of the sidewall,
the shielded interior portion being for at least partially receiving
the first food item; and
an at least partially unshielded interior portion of the
interior of the container, the at least partially unshielded interior
portion being at least partially defined by the sidewall, the at
least partially unshielded interior portion being for at least
partially receiving the second food item;
wherein a plurality of apertures extend through at least
the microwave energy interactive layer, at least the substrate
layer covering each aperture of the plurality of apertures, each
aperture has a characteristic dimension that is selected based on
the cutoff frequency of the microwave oven to be sufficiently
small so that substantially all microwave energy incident on the
microwave energy interactive layer is substantially prevented
from passing through the apertures.
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Appeal Br. 31 (Claims Appendix) (emphasis added to highlight a key
recitation in dispute).
Claim 19 recites a method for forming a container essentially as
recited in claim 1. Claim 27 recites a package including first and second
food items contained in a container essentially as recited in claim 1.
Claim 32 recites a method comprising exposing a container essentially as
recited in claim 1 to microwave energy. Each remaining claim on appeal
depends from claim 1, 19, 27, or 32.
REJECTIONS
I. Claims 1–8, 12–18, 27–29, 31–34, 36–39, 41, and 42 stand rejected
under 35 U.S.C. § 103 as unpatentable over Cutler2 and Woodward.3
II. Claims 9–11, 30, and 35 stand rejected under 35 U.S.C. § 103 as
unpatentable over Cutler, Woodward, Slangan,4 and Lai.5
III. Claims 19–26 and 40 stand rejected under 35 U.S.C. § 103 as
unpatentable over Lorence6 and Woodward.
OPINION

Rejection I: obviousness over Cutler and Woodward
With regard to Rejection I, Appellant argues claim 1, contends
claims 27 and 32 are patentable for the reasons argued in connection with
claim 1, and does not separately argue any other rejected claim. See Appeal

2 US 2004/0108313 A1, published June 10, 2004 (“Cutler”).
3 US 6,054,697, issued April 25, 2000 (“Woodward”).
4 US 4,233,325, issued November 11, 1980 (“Slangan”).
5 US 2009/0223951 A1, published September 10, 2009 (“Lai”).
6 US 2015/0274400 A1, published October 1, 2015 (“Lorence”).
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Br. 19–29. We select claim 1 as representative of the claims subject to this
ground of rejection. Each of claims 2–8, 12–18, 27–29, 31–34, 36–39, 41,
and 42 stands or falls with claim 1.
Relevant to Appellant’s arguments on appeal, the Examiner finds
Cutler discloses a container having a sidewall comprising a substrate and a
microwave shielding layer, arranged such that the container provides
microwave shielded and unshielded zones, but fails to teach providing the
recited apertures in the shielding layer. Final Act. 3. The Examiner finds
Woodward teaches a microwave shielding layer can be apertured and still
function to shield microwave energy. Id. at 4. In light of the foregoing
disclosures, the Examiner finds one of ordinary skill would have had a
reason to provide Cutler’s microwave interactive layer as an apertured layer,
to reduce material cost of the layer. Id.
Consistent with the Examiner’s findings, Cutler discloses a container
having shielded and unshielded interior zones to permit differential heating
of food products upon exposure to microwave energy. Cutler ¶ 29. For
example, Cutler discloses a container having ice cream in a microwave
shielded zone and syrup in an unshielded zone. Id. ¶ 40; Fig. 8. Cutler
teaches forming the microwave shielded zone by applying a shielding
material “label” on the inside or outside surface of a molded container. Id.
¶ 32. Shielding label materials include “metal foil or other microwave
reflective material.” Id. ¶ 36. Woodward teaches microwave shielding of a
food product can be achieved by providing metallic material with
perforations of less than about 3mm in diameter. Woodward 10:44–46.
According to Woodward, “[i]t is known to those versed in the art that
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microwaves commonly used to heat food . . . cannot and do not pass through
perforations of such small diameter.” Id. 10:46–50.
Appellant argues neither Cutler nor Woodward discloses shielding
layer apertures covered by a substrate, and that covering the apertures would
have been contrary to the intended purpose in Woodward. E.g., Appeal
Br. 22 (“[n]either reference discloses covering perforations with a substrate
and covering the perforations of Woodward as proposed in the Final Office
Action would change the principle of operation of the perforations and
render the perforations unsatisfactory for their intended purpose.”); Reply
Br. 3. Appellant contends Woodward requires uncovered apertures to
permit both shielding of microwave energy and passage of other forms of
heating, such as impingement heating, infrared heating, and/or intense light
heating. Id. at 21; Reply Br. 5.
Appellant’s argument that neither Cutler nor Woodward specifies
covered apertures in a shielding layer does not address the Examiner’s
obviousness determination which is based on the collective teachings of
those references. The Examiner finds one of ordinary skill in the art would
have had a reason to provide apertures in Cutler’s shielding layer to reduce
material cost. Final Act. 4; Ans. 4. Woodward’s teaching that apertured
metal was known to be useful for shielding food from microwave energy is
evidence that such a modification to Cutler’s container would have been met
with a reasonable expectation of success. Thus, under the Examiner’s
rationale, the disputed recitation that shielding apertures are covered would
have resulted from substituting an apertured metallic shielding layer for
Cutler’s metal foil shielding layer because Cutler teaches applying the
shielding layer on a substrate when forming the container sidewall. Final
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Act. 4 (“[S]ince Cutler already teaches that the substrate covers the
microwave shielding material, the produce made obvious by Cutler in view
of Woodward has been considered to teach that the substrate layer covers
each aperture of the plurality of apertures.”).
Appellant’s argument concerning Woodward’s intended use of the
disclosed apertures also is not persuasive. The fact that Woodward teaches
uncovered apertures in a shielding layer to permit simultaneous microwave
shielding and heating by other forms of energy, such as infrared or air jet
heating (Woodward 10:52–57), does not negate Woodward’s teaching that it
was known to provide an apertured metal layer for shielding food from
microwave exposure (id. 10:46–52).
For the foregoing reasons, Appellant’s arguments do not identify
reversible error in the Examiner’s rejection of claim 1, which we sustain.
The Examiner’s rejection of each of claims 2–8, 12–18, 27–29, 31–34, 36–
39, 41, and 42 is sustained for the same reason.

Rejection II: obviousness over Cutler, Woodward, Slangan, and Lai
Appellant does not separately argue against the Examiner’s rejection
of claims 9–11, 30, and 35 other than to state, “Slangan and Lai do not
overcome the deficiencies of Cutler and Woodward.” Appeal Br. 23. We
are not persuaded of deficiency in the Examiner’s reliance on Cutler and
Woodward for the reasons discussed above. Accordingly, Appellant’s
contention regarding Slangan and Lai is not persuasive and the Examiner’s
rejection of claims 9–11, 30, and 35 is sustained.

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Rejection III: obviousness over Lorence and Woodward
The Examiner finds Lorence discloses forming a container from a
sidewall blank comprising a microwave shielding layer on a substrate that,
like Cutler with regard to claim 1, meets all the recitations of claim 19
except Lorence does not teach using an apertured shielding layer. Final Act.
14–15. The Examiner again relies on Woodward as evidence that it was
known to use apertured metal for microwave shielding, and determines it
would have been obvious to use apertured metal for Lorence’s shielding
layer to reduce material cost. Id. 15–16.
Appellant presents the same arguments regarding claim 19 as are
discussed above in connection with claim 1—namely, Woodward does not
teach shielding apertures covered by a substrate and that Woodward requires
uncovered apertures to permit heating applications other than microwave
energy. Appeal Br. 24; Reply Br. 7–8. Appellant’s arguments are not
persuasive of error for the reasons set forth above in connection with
claim 1. The Examiner’s rejection of claims 19–26 and 40 is sustained.

CONCLUSION
The Examiner’s decision rejecting claims 1–42 is affirmed.

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–8, 12–18,
27–29, 31–
34, 36–39,
41, 42
103 Cutler, Woodward 1–8, 12–18,
27–29, 31–
34, 36–39,
41, 42

9–11, 30, 35 103 Cutler, Woodward,
Slangan, Lai
9–11, 30, 35
19–26, 40 103 Lorence,
Woodward
19–26, 40
Overall
outcome
1–42

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).
AFFIRMED