Zachary Targoff

Patent Trials and Appeals Board

Jul 18, 2019

15587007 - (D) (P.T.A.B. Jul. 18, 2019)

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.
15/587,007 05/04/2017 Zachary Targoff 00658/005758-US0 4471
76808 7590 07/18/2019
Leason Ellis LLP
One Barker Avenue
Fifth Floor
White Plains, NY 10601-1526
EXAMINER
TAWFIK, SAMEH
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
07/18/2019 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):
uspto@leasonellis.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ZACHARY TARGOFF
____________

Appeal 2019-0007661
Application 15/587,0072
Technology Center 3700
____________

Before CYNTHIA L. MURPHY, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 2–8 and 12–14. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 Our decision references the Appeal Brief (“Appeal Br.,” filed June 26,
2018), the Reply Brief (“Reply Br.,” filed Nov. 7, 2018), the Examiner’s
Answer (“Ans.,” mailed Sept. 7, 2018), and the Final Office Action (“Final
Act.,” mailed Nov. 24, 2017).
2 According to Appellants, the real party in interest is Zachary Targoff.
Appeal Br. 1.
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Application 15/587,007

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BACKGROUND
The Specification discloses “[a] system, method, and device for
providing a separable container[,] and, in particular, a separable container
that can be separated to expose, for removal, a predetermined portion of
product contained therein.” Spec. ¶ 1.
ILLUSTRATIVE CLAIM
Claim 7 is the only independent claim on appeal and recites:
7. A method for providing predetermined portions of
product, comprising the steps of:
providing a container, the container comprising:
a sidewall extending in a first direction to define a
height of the container and extending in a second direction
to define an outer periphery and an interior space for
containing the product within the container, the sidewall
having a plurality frangible sections disposed at
predetermined distances along the height of the sidewall,
and the sidewall having a plurality of sidewall segments
defined adjacent each frangible section;
an end wall disposed at one end of the sidewall, the
end wall engaging with the sidewall and having sufficient
structural integrity to prevent inadvertent release of the
product contained within the container;
a plurality of flexible dividers interspersed with the
product in the container, each of the plurality of flexible
dividers being substantially aligned with a respective
frangible section of the sidewall; and
a cover sized and shaped to engage with the
sidewall;
disengaging the cover from the sidewall;
separating a sidewall segment from a remainder of the
sidewall along one of the plurality of frangible sections;
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exposing a predetermined portion of product by removing
the separated sidewall segment;
removing the exposed, predetermined portion of product
along a boundary defined by a respective flexible divider; and
reengaging the cover with the remainder of the sidewall.
REJECTION
The Examiner rejects claims 2–8 and 14–14 under 35 U.S.C. § 103 as
unpatentable over Dorazio3 in view of Larsen.4
DISCUSSION
As discussed below, we are persuaded by Appellant’s argument that
the Examiner has not established that the method of claim 7 would have
been obvious over Dorazio in view of Larsen.
In the rejection of claim 7, the Examiner finds that Dorazio discloses a
method as claimed except that Dorazio does not disclose providing a
container including a plurality of flexible dividers as claimed, for which the
Examiner relies on Larsen. Final Act. 2–4. More particularly, in relevant
part, the Examiner finds that Dorazio discloses exposing a predetermined
portion of product as claimed “via detaching sections 103 to get access to the
content C.” Id. at 3 (citing Dorazio Figs. 2, 3). The Examiner further
explains that
[Dorazio,] as shown in Fig. 2, shows the contents/ice-cream C to
be at the top and above of the removed sections 103 & 202, while
the body portion is being removed, which is equivalent to the
claimed portion of the container is been [sic] removed/separated
to expose the contents C of the product by removing the side wall
of the container.

3 Dorazio, US 5,626,250, iss. May 6, 1997.
4 Larsen et al., US 8,282,301 B2, iss. Oct. 9, 2012.
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Application 15/587,007

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Final Act. 6. The Examiner also finds that with respect to Dorazio’s
container, a user “is capable of removing sidewall section of the container to
expose [a] predetermined portion of the content (ice-cream) to be used or
removed.” Id.
We agree with Appellant that Dorazio does not disclose exposing a
predetermined portion of product by removing the separated sidewall
segment. We agree with Appellant that Dorazio only describes removing a
sidewall segment after contents have been removed. See Appeal Br. 4–6.
Dorazio specifically discloses that the device is structured so that it
“facilitates reducing the internal volume of the container after a certain
amount of content has been removed from the opened container.” Dorazio
col. 1, ll. 45–49. Consistent with this description, Figure 3 shows the
removal of a sidewall section 105 from the device after the contents C have
been removed to a level below that sidewall section. The Examiner relies on
Figure 2 to show that Dorazio also discloses removing a sidewall portion to
expose a predetermined portion of the contents C. We disagree for the
reasons provided by Appellants. See Appeal Br. 7. In particular, when
viewed in the context of Figures 1 and 3 and the description that the volume
of the container is reduced after contents have been removed, we agree “that
the portion of product that is visible through area 203 [in Figure 2] is merely
a result of a change in viewing angle due to the fact that the image is
provided as an enlarged and isometric view of Fig. 1.” Id. Thus, we
determine that the Examiner erred in finding that Dorazio specifically
discloses exposing a predetermined portion of product as claimed.

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Application 15/587,007

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Further, regarding the Examiner’s finding that Dorazio’s sidewalls are
capable of being removed to expose a portion of product, this alone does not
establish that the claimed method would have been obvious. Insofar as
Dorazio’s sidewalls are capable of such removal, claim 7 is a method claim;
and the Examiner does not establish that it would have been obvious to use
Dorazio’s device with the claimed method steps. Finally, the Examiner also
indicates that Dorazio teaches exposing the top surface of the product by
removing the sidewall. Ans. 5. We disagree. Rather, we agree with
Appellant that Dorazio shows only that the top surface is exposed by
removing the cover and that Dorazio depicts that the “same top surface of
the product is exposed both before [and] after the removal of the container
wall section.” Reply Br. 2.
Based on the foregoing, we are persuaded of error with respect to the
rejection of claim 7. Accordingly, we do not sustain the rejection of claim 7.
We also do not sustain the rejection of dependent claims 2–6, 8, and 12–14
for the same reasons.

CONCLUSION
We REVERSE the rejection of claims 2–8 and 12–14.

REVERSED