KRAFT FOODS R&D, INC.

Patent Trials and Appeals Board

May 28, 2020

14903480 - (D) (P.T.A.B. May. 28, 2020)

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.
14/903,480 01/07/2016 Adam Lloyd CDS0997US 9529
23413 7590 05/28/2020
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
EXAMINER
PAGAN, JAVIER A
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
05/28/2020 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):
usptopatentmail@cantorcolburn.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ADAM LLOYD, FILIPA GUERRA,
JO-ANN CLARK, RICHARD ANDREWS,
RON EXNER, and VINCENT DISAVINO

Appeal 2019-006786
Application 14/903,480
Technology Center 3700
____________

Before JOHN C. KERINS, EDWARD A. BROWN, and
MICHAEL L. HOELTER, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–9, 15–18, 21, 28, 30, and 53.1
Pending claims 37 and 49 are withdrawn from consideration. Claims 10–14,
19, 20, 22–27, 29, 31–36, 38–48, and 50–52 are canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Kraft Foods R&D, Inc., as the real party
in interest. Appeal Br. 2.
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Application 14/903,480

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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a packaged food item and package.
Claim 1 is illustrative, and is reproduced below:
1. A packaged food item comprising a package having an
enclosure adapted to hold a food item, wherein the package
comprises:

a first package part comprising a receptacle having an opening
with an edge extending at least partially around the opening, and

a second package part attached to the edge,

wherein the enclosure is at least partially formed via an
association between the first and second package parts,

wherein the receptacle includes an inner face adapted to conform
to a shaped portion of a surf ace of the food item,

wherein the enclosure is configured to retain the food item with
the shaped portion of the surface of the food item being
proximate to the inner face of the receptacle,

wherein the edge comprises a flange extending at least partially
around the opening, and the second package part is attached to
the flange,

wherein the second package part is peelably and re-attachably
sealed to the first package part at the flange,

wherein the first package part and the second package part are
formed from the same sheet of film as a unitary item and folded
together to form the package, and

wherein the second package part is a substantially flat piece of
film.
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THE REJECTION
The Examiner rejects claims 1–9, 15–18, 21, 28, 30, and 53 under 35
U.S.C. § 103 as being unpatentable over Seiler (DE 1904070 A1, published
Aug. 20, 1970) in view of Lipinski (US 5,445,838, issued Aug. 29, 1995)
and Sinichko (US 2006/0062874 A1, published Mar. 23, 2006).
A rejection of claims 16 and 17 under 35 U.S.C. § 112(b) for
indefiniteness appearing in the Final Action apparently has been withdrawn
in view of the entry of a Response (after Final Action) dated October 15,
2018. Entry of the Response was indicated in an Advisory Action dated
December 28, 2018.

ANALYSIS
Appellant argues the rejected claims as a group, presenting arguments
directed to both independent claims 1 and 53, and relies on the arguments
presented for claims 1 and 53 for the patentability of the dependent claims.
We choose claim 1 as representative of the group, and claims 2–9, 15–18,
21, 28, 30, and 53 stand or fall with claim 1.
The Examiner finds that Seiler discloses all limitations in claim 1,
except for the second package part being re-attachably sealed to the first
package part, and having the first and second package parts formed from the
same sheet of film that is folded together to form the package. Final Act. 4–
5. The Examiner cites to Lipinski as disclosing a food package in which a
second package part is re-attachably sealed to the first package part at a
flange, and concludes that it would have been obvious to modify Seiler to
include such a feature, to allow Seiler’s package to be resealable. Id. at 5–6.
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The Examiner turns to Sinichko for a disclosure of a food package in
which the first and second package parts are formed from the same sheet of
film that is folded over to form the package. Final Act. 6. The Examiner
concludes that it would have been obvious to modify the Seiler package such
that it is formed from a single sheet of film, to be folded over to form the
package, in order to limit waste in production. Id. Additionally, the
Examiner reasons that making the first and second package parts in Seiler
from a single sheet of film and folding it together to make the package
would decrease the likelihood that the first and second package parts would
be separated, with the possibility of losing one of the parts while separated.
Ans. 12.
Appellant argues, relative to the proposed modification of Seiler in
view of Lipinski, that Seiler solves the problem of allowing a person to
consume part of a product, while leaving some for later, by dividing the
product into separate portions, and individually packaging each portion.
Appeal Br. 11. As such, according to Appellant, there is no need to provide
re-sealability to the individual packages. Id. at 12. The Examiner replies
that, even though Seiler describes that each package contains an individual
portion, the portion has nine distinctive wells of chocolate, and a person may
wish to remove and consume only part of the serving, and providing for re-
sealability would allow this to be accomplished, such that the unconsumed
remaining portion of the serving would be safely contained in the resealed
package. Ans. 10. The Examiner has the better position here. Appellant
does not argue that Seiler opted for its construction as a means for avoiding
the use of a resealable package, and, given that Appellant had portions of the
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text of the reference favorable to Appellant’s argument translated,2 we
believe it fair to assume that Seiler does not discuss any particular
drawbacks related to resealable packaging. Resealability of the package
would also afford the flexibility of including a plurality of the individual
portions in one package, while still allowing the remaining portions to stay
untouched and tightly closed.
Appellant additionally argues that Lipinski does not shape its first
package part to conform to the product shape. Br. 12. The Examiner relies
on Seiler, and not Lipinski, for a teaching of the corresponding claim
limitation. Final Act. 5. Appellant also argues that Lipinski does not hint at
forming the first and second package parts from the same sheet of film, and
folding that together to form the package. Br. 12. Again, the Examiner does
not rely on Lipinski for disclosure of the corresponding claim element;
instead Sinichko is relied on for this element. Final Act. 6.
As to the Examiner’s reliance on Sinichko in the rejection, Appellant
argues that a person of ordinary skill in the art “would not consider the
teachings of Sinichko as compatible with the production-line method of
manufacture used to make the packages of Seiler, or the package of Lipinski,
without extensive need for modification to the principle operation of Seiler.”
Br. 13. We do not have the benefit of an English-language translation of the
entirety of the Seiler disclosure so as to determine exactly what production-
line method is employed there. Lipinski is only slightly more informative,
indicating that use of a “form/fill/seal machine” is contemplated. Lipinski
8:21–22.

2 See Br. 10–11.
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As best as we understand, Appellant’s argument appears to be
premised on the Seiler and Lipinski products being packaged in a continuous
process or on a continuously running line, whereas the forming of individual
packages in Sinichko by injection blow molding or the like (see, e.g.,
Sinichko ¶ 41) would render such packaging incompatible with the
packaging processes of Seiler, without significant modification.
The Examiner responds by pointing out that this amounts to an
individual attack on the Sinichko reference, and that “Sinichko is used to
disclose the first and second package part being formed from the same sheet
of film as a unitary item and folded together.” Ans. 12, 15. In other words,
the Examiner does not propose to modify the Seiler package by adopting the
specific egg-like shape of the Sinichko packaging, but instead proposes to
modify the first and second package parts of Seiler, as modified by Lipinski
to afford resealability, such that they are made from the same film sheet and
folded over to form the package having the shape disclosed in Seiler.
Appellant does not address whether the rejection as proposed would
have any deleterious effect on whatever type of packaging process is used in
Seiler. However, it seems to us that running an unfolded sheet of film
having one or a plurality of successive package pre-forms (to be later
separated into individual packages) could readily be used in a continuous
process in which product is added to the first product part, and, in a
subsequent step, the second part is folded to join the first part, and attached
at flange portions of the first product part. As such, Appellant’s argument
regarding unsuitability of the modification in view of Sinichko from a
production standpoint is not indicative of Examiner error.
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Appellant additionally argues that the shape of the Sinichko package
does not lend itself to being peelable. Br. 13–14. Specifically, Appellant
maintains that “[t]he second part of Sinichko will behave as a rigid form
because of its 3D structure, and so would detach from the flange of the first
package part in a single movement, not by peeling.” and “[a] rigid shell
cannot be peeled.” Id.
As noted above, the Examiner does not propose to modify Seiler to
incorporate the package shape, nor the alleged rigidity, of the Sinichko
package. Appellant’s argument thus does not address the rejection as
presented, and does not apprise us of error in the rejection. We do wish to
note, however, that Sinichko discloses, as noted by Appellant, that its
container is sufficiently rigid to maintain its shape when candy is not
present, and that it is a self-supporting, rigidly shaped container. See Br. 14,
quoting Sinichko ¶ 6. Appellant’s own first package part is sufficiently rigid
to maintain its shape when product is not in the package, yet Appellant’s
Figure 3B, for example, shows that sufficiently rigid part being peeled. See
also, Spec. 22:1–4.
For the reasons appearing above, none of Appellant’s arguments
apprise us of error in the rejection of claim 1 as being unpatentable over
Seiler in view of Lipinski and Sinichko. The rejection is sustained. Claims
2–9, 15–18, 21, 28, 30, and 53 fall with claim 1.

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Application 14/903,480

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DECISION
The rejection of claims 1–9, 15–18, 21, 28, 30, and 53 as being
unpatentable is affirmed.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–9, 15–
18, 21,
28, 30, 53
103 Seiler, Lipinski,
Sinichko
1–9, 15–
18, 21,
28, 30, 53

Overall
Outcome
1–9, 15–
18, 21,
28, 30, 53

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