NESTEC S.A.

Patent Trials and Appeals Board

Feb 20, 2020

15508289 - (D) (P.T.A.B. Feb. 20, 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.
15/508,289 03/02/2017 Wai Ping Sin 3712036-02835 1092
29157 7590 02/20/2020
K&L Gates LLP-Chicago
NESTEC S.A.
P.O. Box 1135
Chicago, IL 60690
EXAMINER
LACHICA, ERICSON M
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
02/20/2020 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):
USpatentmail@klgates.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex Parte WAI PING SIN and BEE KHIM TEO
Appeal 2019-002168
Application 15/508,289
Technology Center 1700
Before CATHERINE TIMM, JULIA HEANEY, and
LILAN REN, Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2019-002168
Application 15/508,289

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STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–15. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to food packaging having a
removably sealed lid or cover comprising a scored weakening line forming a
spiral. Appeal Br. 6. According to the Specification, the packaging can be
easily opened by poking with one finger into the middle of the spiral and
peeling open the lid or cover membrane along the scored weakening line, to
enable easy, simple, convenient, and intuitive opening with a graphic
indication to guide consumers. Spec. 4:30–5:6. Claim 1, reproduced below
with italics indicating the limitation most at issue in this appeal, is
illustrative of the claimed subject matter:
1. A package for storing and/or cooking a food product,
the package comprising:
a container for holding the food product;

1 In this Decision, we refer to the Specification dated March 2, 2017
(“Spec.”), the Final Office Action dated May 29, 2018 (“Final Act.”), the
Appeal Brief dated October 15, 2018 (“Appeal Br.”), the Examiner’s
Answer dated December 11, 2018 (“Ans.”), and the Reply Brief dated
January 14, 2019 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Nestec
S.A. Appeal Br. 2.
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a cover removably fastened to an upper rim of the
container;
the cover comprises a weakening line forming a spiral,
the spiral starting in a central part of the cover and running
towards an edge of the cover; and
the spiral winds at least one-and-a-half times around a
central axis of the spiral.
Appeal Br. 19 (Claims Appendix). Claims 12 and 14 are the other
independent claims on appeal, and both of them also contain the limitation
italicized above.
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Perick3 EP 2 662 309 A1 Nov. 13, 2013
Zerfas US 2103/0026170 A1 Jan. 31, 2013

REJECTION
The Examiner maintains the following rejections:
Claims 1–4 and 6–15 under 35 U.S.C. § 103 as unpatentable over
Perick. Ans. 4.
Claim 5 under 35 U.S.C. § 103 as unpatentable over the combination
of Perick and Zerfas. Ans. 10.
OPINION
Claims 1, 12, and 14

3 Citations to Perick refer to the translation of record, cited by the Examiner
and Appellant.
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Although Appellant argues claims 1, 12, and 14 under different
headings, the dispositive issue around all of these claims turns on the
limitation “the spiral winds at least one-and-a-half times around a central
axis of the spiral.” The Examiner finds that Perick teaches a package
capable of storing a food product, comprising a container and a film lid
having a weakening line forming a spiral starting in a central part of the film
lid and running towards an edge of the lid. Ans. 4 (providing citations to
Perick). The Examiner acknowledges that Perick is silent regarding the
spiral winding at least one and a half times around a central axis of the
spiral, but finds that Perick teaches a generic spiral shape. Ans. 5–6 (citing
Perick ¶ 7, Fig. 1). The Examiner determines that the number of times the
spiral winds on itself around the central axis does not impart a non-obvious
functional difference, and that the configuration of the spiral is a matter of
choice that a person of ordinary skill in the art would have found obvious
absent persuasive evidence that the particular configuration of the claimed
container was significant. Ans. 6.
Appellant argues that the rejection over Perick should be reversed
because Perick does not disclose or suggest a weakening line that is a spiral
winding at least one-and-a-half times around a central axis of the spiral.
Appeal Br. 8. Relying on the Declaration of Teo Bee Khim dated July 19,
2018 (“Declaration”), Appellant argues that the spiral winding recited in
claim 1 has functional significance because it provides the advantage of a
cover that can be partially removed. Id. (citing Declaration ¶¶ 4–7); Reply
Br. 2–3 (citing Spec. 5:14–31). Appellant argues that the cover of Perick is
functionally different because it is entirely removed (id. (citing Declaration
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¶¶ 6–7)), and a person of ordinary skill in the art would not have seen any
advantage in modifying Perick’s cover, as proposed by the Examiner.
Appeal Br. 9. Thus, Appellant argues, the Examiner’s rationale for why a
person of ordinary skill in the art would modify Perick’s cover to allow for
partial removal lacks rational underpinning. Id.
Appellant’s arguments are not persuasive of reversible error. The
claimed feature on which Appellant seeks to distinguish Perick is the spiral
winding at least one and a half times around its central axis. Although the
Specification and Declaration provide evidence generally that the spiral
design in the claimed cover has functional significance (i.e., by preventing
spilling of the container’s contents), they do not provide specific evidence
that the functional significance is imparted by the spiral winding at least one
and a half times around its central axis. In comparing Appellant’s claimed
feature to Perick’s cover, the Declaration merely states that a person of
ordinary skill in the art would recognize that Perick’s spiral configuration
does not provide the same function, but provides no objective evidence as to
how Perick functions. See Declaration ¶¶ 6–7. Figures 2A and 2B of Perick
depicting partial removal of Perick’s cover, and Appellant’s conclusory
assertion as to how a person of ordinary skill would interpret those figures,
do not constitute sufficient evidence to establish that Appellant’s claimed
feature provides a functional difference. Upon consideration of the evidence
in light of Appellant’s arguments, we determine that a preponderance of the
evidence supports the Examiner’s conclusion that the number of times the
spiral winds around its central axis does not impart a non-obvious functional
difference over Perick.
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Claims 2 and 3
Appellant’s arguments against the rejection of these claims, although
organized under separate headings in the Appeal Brief, are based on the
same arguments presented against rejection of claim 1, and do not present a
separate argument for patentability. Accordingly, we sustain the rejection of
these claims for the same reasons as discussed above. 37 C.F.R. § 41.37
(2013).
Claims 4 and 15
Claims 4 and 15 depend from claims 1 and 14, respectively, and
additionally recite that the cover comprises “only one single weakening
line.” Appeal Br. 19–20. The Examiner determines that the meaning of
“line” is “an indication or demarcation” and thus encompasses markings that
veer off away from a main indication or demarcation. Ans. 15. The
Examiner finds that Perick’s spiral reads on a single weakening line because
“all of the weakened portions of the cover of Perick can be drawn without
lifting a pencil.” Id. The Examiner further finds that the claimed
configuration of a weakening line is a matter of design choice. Id.
Appellant argues that the Specification defines the term “single line”
as “one single continuous line having two ends. The line can be curved,
straight, in spiral form, or in any combination thereof. The single line is not
the combined product of two lines crossing each other, nor is it a line which
is branched into two lines.” Reply Br. 7 (citing Spec. 7:27–31). Appellant
argues that according to this definition, Perick does not teach a single
weakening line and no evidence supports the Examiner’s determination that
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a person of ordinary skill in the art would have understood Perick as
teaching a single weakening line.
We agree with Appellant, and determine that under the definition of
“single line” set forth in the Specification, there is no evidence to support the
Examiner’s conclusion that a person of ordinary skill in the art would have
understood Perick as teaching a single weakening line. Accordingly, we
reverse the rejection as to claims 4 and 15.
Claim 5
Claim 5 depends from claim 1 and additionally recites that “the
weakening line is a score.” Appeal Br. 19. The Examiner acknowledges
that Perick does not disclose the weakening line being a score, but finds that
Zerfas discloses a package comprising a scored line. Ans. 10 (citing Zerfas
¶ 56). The Examiner determines it would have been obvious to a person of
ordinary skill in the art to modify Perick by using scored lines as taught by
Zerfas. Id. Appellant argues that Zerfas does not disclose a spiral winding
and thus it would not have been obvious to combine Zerfas with Perick.
Appeal Br. 15.
Appellant’s argument against the rejection is not persuasive because it
attacks Zerfas individually, although the rejection is based on a combination
of the references. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Accordingly, we affirm the rejection of claim 5.
Claim 6
Claim 6 depends from claim 1 and additionally recites that the cover
comprises “a depression zone, and the depression zone overlaps with the
central axis of the spiral.” Appeal Br. 19. The Examiner finds that Perick
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discloses a depression zone having at least the size of a fingertip, and that
the location of the finger and depression zone is an intended use of the
container that does not provide a structural difference over the prior art.
Ans. 7, 16 (citing Perick Figs. 1, 2A, and 3, ¶¶ 7, 16). Appellant argues that
the location of the depression zone is not an intended use, but rather a
structural element (Reply Br. 8 (citing Spec. 8:24–28)), and that Perick does
not disclose a depression zone that overlaps with the central axis of the
spiral. Id.
We agree with Appellant that the limitation of claim 6 that recites the
location of the depression zone is structural, and that Perick’s depression
zone does not overlap with the central axis of its spiral. Accordingly, we
reverse the rejection of claim 6.
Claims 7–11 and 13
Appellant does not separately argue any of these dependent claims.
Accordingly, we sustain the rejection of these claims for the same reasons as
discussed above for claims 1 and 12, the independent claims from which
they depend. 37 C.F.R. § 41.37 (2013).
CONCLUSION
The Examiner’s rejections are affirmed in part.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4 and 6–15 103(a) Perick 1–3, 7–14 4, 6, 15
5 103(a) Perick, Zarfas 5
Overall
Result
1–3, 5, 7–
14
4, 6, 15
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AFFIRMED IN PART