Lindsay Breidenbach

Patent Trials and Appeals Board

Dec 1, 2020

2019006643 (P.T.A.B. Dec. 1, 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.
13/964,090 08/11/2013 Lindsay Bell Breidenbach LBB-01U1 2783
65585 7590 12/01/2020
THOMAS SCOTT BREIDENBACH
10692 N. EAGLE LAKE BLVD.
MAPLE GROVE, MN 55369-7666
EXAMINER
STASHICK, ANTHONY D
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
12/01/2020 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):
BREID_T@YAHOO.COM
TBreidenbach@merchantgould.com
breid_ln@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LINDSAY BELL BREIDENBACH
____________

Appeal 2019-006643
Application 13/964,090
Technology Center 3700
____________

Before EDWARD A. BROWN, JAMES P. CALVE, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 1, 19, 23–26, 28–30, 33, 35, 36, 49–70, 82–84, 86,
and 87.2 Appeal Br. 5. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party as Lindsay Bell
Breidenbach. Appeal Br. 3.
2 The only other pending claims are claims 76–81, which have been
withdrawn from consideration. Final Act. 1.
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CLAIMED SUBJECT MATTER
Claims 1 and 82 are independent claims. Claim 1, reproduced below,
illustrates the claimed subject matter.
1. A container of food comprising:
an enclosure including an interior with a base portion and
a perimeter portion, the perimeter portion of the interior
extending between the base portion of the interior and an
opening of the enclosure;
a lid adapted to cover the opening of the enclosure when
the container is in a storage configuration and also adapted to
uncover the opening of the enclosure when the container is in a
serving configuration; and
a partition member separating a first food layer from a
second food layer, the partition member including a separating
portion with a perimeter substantially matching a cross-
sectional shape of the perimeter portion of the interior of the
enclosure, and the partition member further including at least
one pulling structure extending from the separating portion to a
grip of the pulling structure positioned outside of the interior of
the enclosure at least when the container is in the storage
configuration;
wherein the lid includes a lip, wherein the perimeter
portion of the interior terminates at an edge that surrounds the
opening of the enclosure, and wherein the lip of the lid
surrounds the edge of the perimeter portion when the container
is in the storage configuration;
wherein the at least one pulling structure is hooked over
the edge at least when the container is in the storage
configuration; and
wherein the grip of the pulling structure is positioned
between an interior surface of the lip of the lid and an exterior
of the enclosure.
Appeal Br. 37 (Claims App.).

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REJECTIONS ON APPEAL3
1. Claims 1, 23, 24, 28–30, 49–54, 61, 62, 64–66, 68, and 69 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Lorber (US
1,904,741, issued Apr. 18, 1933) and Fallon. Final Act. 2.
2. Claims 19 and 63 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Fallon, and Bailey (US 2,334,595, issued Nov. 16,
1943). Final Act. 6, 10.
3. Claims 33 and 70 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Fallon, and Chapman (US 2013/0089643 A1,
published Apr. 11, 2013). Final Act. 7.
4. Claims 35 and 36 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Fallon, and Willoughby (US 1,811,772, issued
June 23, 1931). Final Act. 7.
5. Claims 55–58 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Fallon, and Sireix (US 2002/0017074 A1,
published Feb. 14, 2002). Final Act. 8.
6. Claims 59 and 60 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Fallon, Sireix, and Bailey. Final Act. 9.
7. Claims 82–84 and 87 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Lorber and Parr (US 1,985,516, issued Dec. 25, 1934).
Final Act. 12.
8. Claim 86 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Lorber, Parr, and Chapman. Final Act. 14.

3 The rejection of claims 1, 24–26, and 67 under 35 U.S.C. § 103(a) over
Ellam (US 3,182,890, issued May 11, 1965) and Fallon (US 1,032,053,
issued July 9, 1912) has been withdrawn. Ans. 3; Final Act. 11.
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ANALYSIS
Rejection 1—Lorber and Fallon
(Claims 1, 23, 24, 28–30, 49–54, 61, 62, 64–66, 68, and 69)
For claim 1, the Examiner finds that Lorber discloses a container
comprising an enclosure (container body 10), a lid (top 11), and a partition
member (disc 20) including a separating portion and separating a first food
layer from a second food layer. Final Act. 2–3 (citing Lorber, Figs. 1–3).
The Examiner relies on Fallon as teaching “an equivalent container of
consumable” comprising at least one pulling structure (ribbon 10) extending
from a separating portion (bed 6) to a grip positioned outside the container.
Final Act. 3 (citing Fallon, Figs. 1, 2). The Examiner concludes that it
would have been obvious to one of ordinary skill in the art to modify
Lorber’s partition member to include a pulling structure having a grip, as
taught by Fallon, “to facilitate removal of the layer/content from the
container.” Id. The Examiner explains that, in Lorber as modified by
Fallon, the pulling structure would be hooked over the edge (similar to
Fallon Figs. 1–2) on top of body 10 at least when the container is in the
storage configuration (Lorber Figs. 1–4), and the grip would be positioned
between an interior surface of a lip of the lid and an exterior of the
enclosure. Id.
Appellant notes that Lorber’s container includes discs 20 that move as
dough masses D rise within container body 10 with top 11 fitted on an upper
end of body 10. Appeal Br. 24 (citing Lorber 1, ll. 69–74, 2, ll. 16–21, Figs.
1, 2). Figures 1 and 2 of Lorber show the condition of the interior of the
container before and after, respectively, dough masses D have risen. See
Lorber, 1, ll. 69–75, Figs. 1, 2. Accordingly, discs 20 and dough masses D
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move upward, without any externally supplied lifting force, as dough masses
D rise inside container 10. As such, the Examiner does not provide an
adequate reason with a rational underpinning why one of ordinary skill in
the art would have modified Lorber’s discs 20 to include a “pulling
structure,” as taught by Fallon, to facilitate an externally supplied lifting
force to lift discs 20.
Further, Appellant points out that discs 20 move (upward) as dough
masses D rise within container body 10 with top 11 fitted on an upper end of
body 10. Appeal Br. 24. Figure 2 of Lorber shows a passage 19 configured
to allow excess generated gas to pass between discs 20 and container body
10 during rising. As shown, top 11 fits closely on the top of container 10,
with no visible gap between the outer surface of container 10 and the inner
surface of the lip of top 11. A centrally disposed vent opening 13 is
provided in top 11 to allow excess gas to pass as the dough rises when top
11 is provided on container 10. See Lorber, 2, ll. 22–25. Appellant asserts,
and we agree, that upward movement of discs 20 within container body 10
with top 11 fitted thereon would appear to render the container unsuitable
for use with Fallon’s ribbon 10, as proposed by the Examiner, because this
upward movement of discs 20 supporting dough masses D would cause
ribbon 10 to bunch and bind with discs 20 and render the container
inoperable. Id. Further, it appears that such added ribbon would contact
with side portions of dough masses 20, which swell outward as they rise
(Fig. 2). Consequently, the ribbon would interfere with dough masses 20
attaining their desired shapes and sizes. For this additional reason, the
Examiner has not articulated an adequate reason with a rational
underpinning to modify Lorber in view of Fallon in the proposed manner.
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Thus, we do not sustain the rejection of claim 1 and dependent claims
23, 24, 28–30, 49–54, 61, 62, 64–66, 68, and 69 as unpatentable over Lorber
and Fallon.

Rejection 2—Lorber, Fallon, and Bailey (Claims 19 and 63)
Rejection 3—Lorber, Fallon, and Chapman (Claims 33 and 70)
Rejection 4—Lorber, Fallon, and Willoughby (Claims 35 and 36)
Rejection 5—Lorber, Fallon, and Sireix (Claims 55–58)
Rejection 6—Lorber, Fallon, Sireix, and Bailey (Claims 59 and 60)
Claims 19, 33, 35, 36, 55–60, 63, and 70 depend directly or indirectly
from claim 1. The Examiner’s additional reliance on Bailey, Chapman,
Willoughby, and Sireix in rejecting these dependent claims fails to cure the
deficiency in the rejection of claim 1. See Final Act. 6–10. Thus, we do not
sustain Rejections 2–6 for the same reasons as for claim 1.

Rejection 7—Lorber and Parr (Claims 82–84 and 87)
In rejecting independent claim 82, the Examiner finds that Lorber
discloses a first lifting portion (a disc 20) adapted to be positioned between
first and second food layers (dough D), and a second lifting portion (another
disc 20) adapted to be positioned between the second and a third food layer.
Final Act. 12 (citing Lorber, Figs. 1, 2).
The Examiner relies on Parr as teaching a food container comprising a
first lifting member (tabs 6, portion 10 of hook) adapted to lift a first food
layer from a second food layer. Final Act. 12. The Examiner determines
that it would have been obvious to provide Lorber’s lifting portions with a
lifting member, as taught by Parr, “to facilitate lifting and/or removal of the
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layer/content from the container.” Id. at 12–13. The Examiner explains that
Lorber, as modified by Parr, discloses that the first lifting member includes
at least one pulling structure extending (at tab 6) from the first lifting portion
to a grip (top of tab 6, portion 10) positioned outside of the interior of the
enclosure at least when the container is in the storage configuration, and that
the at least one pulling structure is positioned adjacent the perimeter portion
of the interior. Id. at 13. The Examiner further determines that it would
have been obvious to substitute/provide a second lifting member in Lorber
as a mere duplication of working parts. Id.
Appellant contends that Parr’s tab 6 and hook portion 10 cannot
reasonably be construed as a grip of a lifting member. Appeal Br. 34.
Appellant points out that Parr discloses that “‘[t]he end 14 of the piece 10 of
the clip may be bent inwardly to improve the grip on the caddy by slipping
over the edge 15 of the flap 16. In this way we make provision against the
upward dislodgment of our hook member in use.’” Appeal Br. 34 (quoting
Parr 2, ll. 15–20) (emphasis omitted). Therefore, Appellant contends, “the
hook portion 10 has provisions against upward dislodgement and is not
suitable for a grip of a lifting member.” Appellant further contends that Parr
also discloses:
The retailer then grasps the end of the tabs 6, one in each hand,
and pulls them upwardly until the second layer is at the top of
the caddy and engages the ear 12 of the hook in an appropriate
one of the slits 8, to hold the bottom in its new position.
Id. (quoting Parr 2, ll. 48–53) (underlining added).
The Examiner responds that Parr’s tab 6 and hook portion 10 “are part
of lifting the partition member 1 as shown in figure 2.” Ans. 13. Further,
the Examiner submits, the use of a one-piece construction instead of the
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structure disclosed in Parr would have been an obvious engineering choice.
Id. The Examiner states that Parr is brought in for a structural teaching of a
pulling structure extending from the first lifting portion to a grip of the first
lifting member positioned outside of the interior of the enclosure. Id. (citing
Parr, Fig. 2).
The Examiner’s rationale for modifying Lorber’s “lifting portions”
with Parr’s “lifting member” (6, 10) “to facilitate lifting and/or removal of
the layer/content from the container” is not supported by Parr. Final Act.
12–13. Parr’s elements 10 are not provided in the cake caddy to assist in
lifting tray 1. Rather, Figure 1 of Parr shows that tabs 6 are disengaged from
respective associated hook portions 10 to allow a user to grasp the upper end
of tabs 6 to adjust the vertical position of tray 1 inside the cake caddy. Once
tray 1 has been moved to its desired vertical position, portions 12 of the
hooks are then received in slits 8 formed in tabs 6, as depicted in Figure 2, to
maintain tray 1 in the vertical position.
The Examiner’s citation of MPEP § 2144.04 (V)(B) “that the use of a
one piece construction instead of the structure disclosed in [the prior art]
would be merely a matter of obvious engineering choice” (Ans. 13), is
inapposite. The issue is not that the prior art discloses a two-piece lifting
mechanism, whereas the claim requires a one-piece lifting mechanism.
Rather, the issue is that the prior art’s lifting mechanism consists entirely of
Parr’s tab 6; Parr’s hook 10 is not used to lift the container. Moreover,
making Parr’s tabs 6 and hook portions 10 a one-piece construction would
eliminate the vertical adjustability provided by the two-piece construction.
As for the Examiner’s position that Parr is relied on to teach a pulling
structure extending from the first lifting portion to a grip of the first lifting
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member positioned outside of the interior of the enclosure (Ans. 13), we
agree with Appellant that Parr’s tab 6 and hook portion 10, together, cannot
reasonably be construed as a grip of a lifting member (Appeal Br. 34).
For these reasons, the Examiner has not provided an adequate reason
with a rational underpinning to modify any disc 20 disclosed by Lorber to
incorporate a tab 6 and hook portion 10 as taught by Parr. Thus, we do not
sustain the rejection of claim 82, and claims 83, 84, and 87 depending
therefrom as unpatentable over Lorber and Parr.

Rejection 8—Lorber, Parr, and Chapman (Claim 86)
The Examiner’s reliance on Chapman does not cure the deficiency in
the rejection of claim 82. Final Act. 14. Thus, we do not sustain the
rejection of claim 86 for the same reasons as for claim 82.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 23, 24, 28–
30, 49–54,
61, 62, 64–
66, 68, 69
103(a) Lorber, Fallon 1, 23, 24,
28–30, 49–
54, 61, 62,
64–66, 68,
69
19, 63 103(a) Lorber, Fallon,
Bailey
19, 63
33, 70 103(a) Lorber, Fallon,
Chapman
33, 70
35, 36 103(a) Lorber, Fallon,
Willoughby
35, 36
55–58 103(a) Lorber, Fallon,
Sireix
55–58
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Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
59, 60 103(a) Lorber, Fallon,
Sireix, Bailey
59, 60
82–84, 87 103(a) Lorber, Parr 82–84, 87
86 103(a) Lorber, Parr,
Chapman
86
Overall
Outcome
1, 19, 23–
26, 28–30,
33, 35, 36,
49–70, 82–
84, 86, 87

REVERSED