KRAFT FOODS R&D, INC.Download PDFPatent Trials and Appeals BoardMay 28, 20202019006786 (P.T.A.B. May. 28, 2020) Copy Citation 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appeals from the Examiner’s decision to reject claims 1–9, 15–18, 21, 28, 30, and 53.1 Pending claims 37 and 49 are withdrawn from consideration.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. Appeal 2019-006786 Application 14/903,480 2 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. Appeal 2019-006786 Application 14/903,480 3 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. Appeal 2019-006786 Application 14/903,480 4 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 Appeal 2019-006786 Application 14/903,480 5 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. Appeal 2019-006786 Application 14/903,480 6 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. Appeal 2019-006786 Application 14/903,480 7 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. Appeal 2019-006786 Application 14/903,480 8 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 Copy with citationCopy as parenthetical citation