Colleen M. Kavanagh et al.

Patent Trials and Appeals Board

Apr 17, 2020

14172818 - (D) (P.T.A.B. Apr. 17, 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.
14/172,818 02/04/2014 Colleen M. Kavanagh 1298
7590 04/17/2020
Colleen M. Kavanagh
Zego LLC
912 Cole Street, #294
San Francisco, CA 94117
EXAMINER
SHUI, MING
ART UNIT PAPER NUMBER
3684
MAIL DATE DELIVERY MODE
04/17/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte COLLEEN M. KAVANAGH and JONATHAN SHAMBROOM
____________

Appeal 2018-008867
Application 14/172,818
Technology Center 3600
____________

Before MAHSHID D. SAADAT, ST. JOHN COURTENAY III, and
MARC S. HOFF, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1, 3–5, and 21–23. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42. Appellant states the real party in interest is Zego. Appeal
Br. 1.
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STATEMENT OF THE CASE
Introduction
Appellant’s Specification is directed to “[p]roviding test results for
major food allergens at the time of purchase and/or consumption” that
“would help consumers with food allergies and intolerances avoid negative
health consequences from cross contact.” See Spec. p. 9.
Exemplary claim 1 under appeal reads as follows;
1. A method for making a safer food product, said
method comprising:
selecting ingredients for said food product, said
ingredients being chosen from a group of ingredients not known
to cause an adverse reaction in a person having at least one food
allergy or intolerance;
manufacturing a batch of a food product, said
manufacturing including combining said ingredients;
packaging at least a portion of said combined ingredients
into at least one package;
providing an indicator for said batch on said package;
testing at least a portion of said batch for cross-contact,
said testing occurring during or after manufacture;
storing results of said testing on a server computer;
receiving an inquiry about said batch of said food product
from a remote device, said inquiry including information
derived, at least in part, from said indicator;
obtaining the testing results of said batch in response to
said inquiry; and
transmitting said testing results of said batch to the
device from which the inquiry was received, wherein said
testing results are transmitted to the device from which the
inquiry was made when the test results show that no measurable
cross-contact has occurred and when the test results show that
some measurable cross-contact has occurred.
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Rejections on Appeal
Claim 1 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Holman (US 2015/0186966 A1; pub. July 2, 2015), van
Waes (US 2013/0233919 A1; pub. Sept. 12, 2013), and Petty (US
2008/0085343 A1; pub. Apr. 10, 2008). Final Act. 13–16.
Claims 3 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Holman, van Waes, Petty, and Troia (US 2011/0161199
A1; iss. June 30, 2011). Final Act. 17–18.
Claims 4, 5, 21, and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Holman, van Waes, Petty, and Minteer (US
2014/0116158 A1; pub. May 1, 2014). Final Act. 19–21.2

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner erred. We disagree with Appellant’s
arguments, and we adopt as our own (1) the pertinent findings and reasons
set forth by the Examiner in the Action from which this appeal is taken
(Final Act. 13–21) and (2) the corresponding reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief
(Ans. 4–6). We concur with the applicable conclusions reached by the
Examiner and emphasize the following.
In rejecting claim 1, the Examiner relies on Holman as disclosing the
recited steps of selecting ingredients, manufacturing a batch of a food
product, packaging a portion of the ingredients, providing an indicator,

2 The Examiner has withdrawn the final rejections of claims 1, 3–5, 21–23
under 35 U.S.C. § 112(a) and (b). See Ans. 4.
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testing the batch and storing the results. Final Act. 13–14. The Examiner
further finds that van Waes discloses identifying the food product
information, receiving an inquiry about the food product, and obtaining and
transmitting the related data. Final Act. 14–15 (citing van Waes ¶¶ 98–99,
118–132). Additionally, the Examiner relies on Petty as disclosing the step
of testing the batch “for cross-contact, said testing occurring during or after
manufacture.” Final Act. 15–16 (citing Petty ¶¶ 78–79). As for the rationale
for combining the references, the Examiner states:
Moreover, one of ordinary skill would have recognized that the
teachings of van Waes would have improved the invention of
Holman by providing a detachable printed image for track and
trace purpose of a product, which include parameters and
background data of a product which a consumer can access (see
at least: van Waes [0034]; [0121]).
Moreover, one of ordinary skill would have recognized that the
teachings of Petty would have improved the invention of
Holman in view of van Waes by ensuring that the food product
is substantially free of allergens by performing various steps,
including batch testing, during or after production of the food
product (see at least: Petty [0078]).
Final Act. 15, 16.
First Argument
With respect to the disclosure of van Waes teaching the recited
transmitting of the testing results, Appellant contends that the cited
paragraph 118 of the reference “addresses only how the product in van Waes
is scanned” and “says nothing about testing or how the results might be
used.” Appeal Br. 13. Appellant also asserts, although paragraph 121 of
van Waes discloses the risk of contamination as one of the types of
information provided to the user, that the reference says nothing about
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providing the test results to the user, which can cause confusion. Appeal Br.
13–15.
In response, the Examiner explains that the rejection is based on the
combination of the references, whereas van Waes discloses that the data
regarding the food product is transmitted to the device via an accessible web
page, and Petty was relied on as disclosing “testing for cross-contact
occurring during or after manufacture of the food product.” Ans. 4–5 (citing
van Waes ¶¶ 118–120; Petty ¶ 78). The Examiner further explains that the
transmitted test results showing “that no measurable cross-contact has
occurred and when the test results show that some measurable cross-contact
has occurred” practically “encompass all possibilities from a logical
standpoint and therefore the test results would be transmitted regardless of
the test.” Ans. 5.
We agree with the Examiner that the combination is based on using
the test results of the contaminants in the food product, as taught by Petty, in
combination with the data transmission based on the unique scanned code of
van Waes, which provide improved access to the food product information
of Holman. See van Waes ¶¶ 118–120; Petty ¶¶ 78. That is, contrary to
Appellant’s argument (Reply Br. 4–6), the cited portions of van Waes and
Petty teach or suggest transmitting the test results, which include both
situations, where some, or zero, amount of cross-contact is detected. We
also observe that the food product data would be stored and retrieved more
effectively by accessing a database for “ease of use, direct and instantaneous
access, track and traceability, etc.,” as disclosed by van Waes. See van
Waes ¶ 98. As further correctly identified by the Examiner (Ans. 5), any
type of the stored/retrieved food product data, such as the specific test results
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of Petty, would equally benefit from the type of data accessibility of van
Waes. As a result, the proposed combination properly suggests providing
the food product data of Holman based on the specific test results and by the
storage/retrieval techniques of Petty and Waes discussed above.
Second Argument
Appellant argues Holman does not teach or suggest “manufacturing a
batch of a food product” and “testing at least a portion of said batch for
cross-contact.” Appeal Br. 17. Referring to paragraph 182 of Holman,
Appellant asserts testing the sources of the food product is not the same as
testing during or after manufacture and therefore, would not detect the cross-
contacts present in the batch of the food product. Appeal Br. 17–18.
In response, the Examiner restates that “Holman teaches testing of
food products generally (see e.g., ¶ 189)” and “Petty teaches testing for
cross-contact occurring during or after manufacture of the food product (see
e.g., ¶ 78 (item 10, verification using test kits)).” Ans. 6. The Examiner
specifically explains that the rejection was based on the combination of the
references such that the testing of the food product ingredients of Holman is
modified with testing of the food product during or after manufacture, as
taught by Petty. See Ans. 6.
We agree and note that Appellant’s contentions focus on the
references separately and ignore the fact that the proposed rejection is based
on the combination of food product testing of Holman with the data storage
and access of van Waes and the specific testing of the food product during or
after manufacture of Petty. Each reference must be read, not in isolation, but
for what it fairly teaches in combination with the prior art as a whole. In re
Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re Keller, 642 F.2d
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413, 425 (CCPA 1981)) (“[T]he test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.”). As
discussed above, the cited combination of prior art references provides a
skilled artisan with a reason to test the food product during or after
manufacture and transmitting the test results to the user from a database
because the combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.
See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). In fact, it is not
necessary that the features of one cited reference be directly insertable into
the other reference. See In re Keller, 642 F.2d at 425; In re Merck & Co.
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Third Argument
Appellant further contends that “the Examiner has not properly
considered the abundant evidence of objective non-obviousness,” where
“experts in the field have called the invention the ‘next generation’ of food
safety, that goes ‘above and beyond’ existing food-safety tools, that is ‘very
unique,’ ‘so unique,’ and ‘Super Cool!’” Appeal Br. 18. Appellant
specifically refers to comments that were apparently made by other
companies in a similar field of technology that, according to Appellant,
constitute evidence of commercial success. See Appeal Br. 18–21.
The Examiner responds that the evidence was not submitted properly
in the form of a declaration or affidavit, and therefore, “at most, provides
scant evidence of some industry praise.” Ans. 6. The Examiner also reasons
that
The statements cited by Appellant are understood to be a
general description what Appellant alleges the invention does,
rather than any praise for the invention. When weighed against
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the prior art, such general descriptions of the alleged invention
are insufficient to show commercial success and are far short of
any actual evidence of a nexus between commercial success
and the invention itself. Thus, even if the evidence were to
have been considered by the examiner, such evidence would be
insufficient to overcome the 103 rejection.
Id. (emphasis added.).
As an initial matter, we note Appellant has not filed its relied-upon
evidence with the instant Appeal Brief. See Appeal Br. 23–24 (Claims
Appendix; showing no evidence being relied upon which was submitted
pursuant to 37 CFR 1.130, 1.131 or 1.132). Appellant did appear to file the
evidence along with the supplemental Appeal Brief filed May, 9, 2018, in
response to a Notice of Defective Appeal Brief, mailed Apr. 19, 2018.
We also agree with the Examiner and accord “little weight to general
comments by other entities in the field” because these statements are
conclusory and lack persuasive factual support. In this regard, we note that
[t]he Board has broad discretion as to the weight to give to
declarations offered in the course of prosecution. See Velander
v. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003)
(‘[A]ccord[ing] little weight to broad conclusory statements [in
expert testimony before the Board] that it determined were
unsupported by corroborating references [was] within the
discretion of the trier of fact to give each item of evidence such
weight as it feels appropriate.’).
In re American Acad. of Science Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir.
2004).
In any case, even upon fully considering the evidence Appellant’s
arguments refer to, that evidence does not persuade us that the claims would
have been nonobvious. Secondary considerations of nonobviousness include
“commercial success, long felt but unsolved needs, [and the] failure of
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others.” Graham v. John Deere Co., 383 U.S. 1, 17 (1966). Appellant relies
on the evidence to show that “these third-party experts in food packaging
and safety are unquestionably describing their understanding of the
invention and its revolutionary potential for food safety in the real world.”
Reply Br. 9. Even if that were the case, that evidence does not show that,
and Appellant has not persuasively explained how, the claimed process, i.e.,
testing a portion of a manufactured batch of food and providing the test
results to a user, was a long felt need. The absence of the specific claimed
process does not conclusively prove that there was a long felt need for that
method of manufacturing food products. Nor does the absence of the
claimed method show that others attempted to create such a process, but
failed at doing so.
To be given substantial weight in the determination of obviousness or
nonobviousness, objective evidence of non-obviousness (including factors
such as commercial success, industry praise, and long-felt need) must be
relevant to the subject matter as claimed, and therefore it must be determined
whether there is a nexus between the merits of the claimed invention and the
evidence of secondary considerations. Ashland Oil, Inc. v. Delta Resins &
Refractories, Inc., 776 F.2d 281, 305 n.42 (Fed. Cir. 1985). Objective
evidence of nonobviousness including commercial success must be
commensurate in scope with the claims. In re Tiffin, 448 F.2d 791 (CCPA
1971) (evidence showing commercial success of thermoplastic foam “cups”
used in vending machines was not commensurate in scope with claims
directed to thermoplastic foam “containers” broadly). In order to be
commensurate in scope with the claims, the commercial success must be due
to claimed features, and not due to unclaimed features. Joy Technologies
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Inc. v. Manbeck, 751 F. Supp. 225, 229 (D.D.C. 1990), aff’d, 959 F.2d 226,
228 (Fed. Cir. 1992) (Features responsible for commercial success were
recited only in allowed dependent claims, and therefore the evidence of
commercial success was not commensurate in scope with the broad claims at
issue.). Additionally, an inventor’s opinion as to the purchaser’s reason for
buying the product is insufficient to demonstrate a nexus between the sales
and the claimed invention. In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996).
Here, neither the cited statement nor any other evidence in the record
shows that the alleged evidence of nonobviousness, such as industry praise,
is because of the features of claim 1, and not due to other features.
However, no such evidence may be sufficient, unless a nexus is shown to
exist, whereby the asserted benefits would be associated with the subject
matter of the claims. See In re Huang, 100 F.3d at 140. In the present case,
Appellant has not documented a nexus between “the packaged-food
industry’s and food-safety community’s enthusiastic reactions to the
invention” and the claims in this Appeal. See Appeal Br. 18–21.
Accordingly, notwithstanding any assessment of the sufficiency of the
evidence provided for linking the merits of the claimed subject matter over
the state of the art to establish industry praise, see Appeal Br. 21 (citing
Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034 (Fed. Cir. 2016)), we agree
with the Examiner that Appellant does not adequately establish that the cited
industry reaction relates to the subject matter presently claimed. See Answer
6.
Conclusion
As discussed herein, Appellant’s arguments have not persuaded us
that the Examiner erred in finding the combination of Holman with van
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Waes and Petty teaches or suggests the disputed limitations of claim 1.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of independent
claim 1, as well as dependent claims 3–5, and 21–23, which are not argued
separately.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1 103 Holman, van Waes,
Petty
1
3, 23 103 Holman, van Waes,
Petty, Troia
3, 23
4, 5, 21, 22 103 Holman, van Waes,
Petty, Minteer
4, 5, 21, 22
Overall
Outcome
1, 3–5, 21–23
FINALITY AND RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED