Ex Parte Ettridge et alDownload PDFPatent Trial and Appeal BoardMay 24, 201712495781 (P.T.A.B. May. 24, 2017) 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. 12/495,781 06/30/2009 Peter Ettridge 28489/44858 3359 4743 7590 05/26/2017 MARSHALL, GERSTEIN & BORUN LLP 233 SOUTH WACKER DRIVE 6300 WILLIS TOWER CHICAGO, IL 60606-6357 EXAMINER SANDERSON, LEE E ART UNIT PAPER NUMBER 1782 NOTIFICATION DATE DELIVERY MODE 05/26/2017 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): mgbdocket@marshallip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER ETTRIDGE and CHRISTOPHER R. WHITE Appeal 2016-004850 Application 12/495,7811 Technology Center 1700 Before BRADLEY R. GARRIS, N. WHITNEY WILSON, and BRIAN D. RANGE, Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—14. We have jurisdiction. 35 U.S.C. § 6(b). We AFFIRM. 1 According to the Appellants, the real party in interest is Amcor Flexibles Transpac N.V. Appeal Br. 2. Appeal 2016-004850 Application 12/495,781 STATEMENT OF THE CASE2 Appellants describe the invention as relating to biodegradable packaging for food products such as fresh produce. Spec. 12. Claim 1, reproduced below with spacing added for readability and emphases added to certain key recitations, is illustrative of the claimed subject matter: 1. Modified gas atmosphere packaging for fresh produce comprising a multi-layer structure including a biodegradable compostable regenerated cellulose film and an extrusion coating of biodegradable compostable copolyester polymer on the inside of the packaging relative to the cellulose film, the extrusion coating of biodegradable compostable co-polyester polymer being arranged to reduce uptake of moisture from packed fresh produce by the cellulose film, wherein the packaging has one or more microperforations formed therein arranged to maintain the modified gas atmosphere within the packaging. Appeal Br. 11 (Claims App’x). REFERENCES The Examiner relies upon the prior art below in rejecting the claims on appeal: Yabusa et al. US 5,409,772 Apr. 25, 1995 (hereinafter “Yabusa”) Varriano-Marston US 6,441,340 B1 Aug. 27,2002 Isshiki et al. US 2005/0163944 Al July 28, 2005 (hereinafter “Isshiki”) 2 In this decision, we refer to the Final Office Action dated September 13, 2012 (“Final Act.”), the Appeal Brief filed February 13, 2013 (“Appeal Br.”), and the Examiner’s Answer dated October 7, 2013 (“Ans.”). 2 Appeal 2016-004850 Application 12/495,781 REJECTIONS The Examiner maintains the following rejections on appeal: Rejection 1. Claims 1—5 and 7 under 35 U.S.C. § 103 as unpatentable over Yabusa in view of Varriano-Marston. Ans. 2. Rejection 2. Claims 1 and 4—14 under 35 U.S.C. § 103 as unpatentable over Isshiki in view of Varriano-Marston. Id. at 6. ANALYSIS We review the appealed rejections for error based upon the issues identified by the Appellants and in light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”)). After considering the evidence presented in this Appeal and each of Appellants’ arguments, we are not persuaded that Appellants identify reversible error. Thus, we affirm the Examiner’s rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Appellants argue all claims as a group, but Appellants make certain arguments that apply to only the Examiner’s first rejection or only the Examiner’s second rejection. See Appeal Br. 4—10. Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013) and because both rejections address claim 1, we limit our discussion to claim 1. All other claims on appeal stand or fall together with claim 1. For clarity, however, we address the Examiner’s rejections and Appellants’ arguments pertaining to each rejection separately below. Rejection 1. The Examiner rejects claims 1—5 and 7 as obvious over Yabusa in view of Varriano-Marston. Ans. 2—6. The Examiner finds that 3 Appeal 2016-004850 Application 12/495,781 Yabusa teaches a biodegradable multi-layer laminate comprising cellophane (i.e., cellulose) and a co-polyester layer that may be used in food packaging. Ans. 3 (providing citations to Yabusa). The Examiner finds that Yabusa is silent with respect to micro-perforations, but the Examiner finds that Varriano-Marston teaches that micro-perforation of multi-layer films was well-known in the art to make the film more suitable for modified atmosphere packaging applications for food. Ans. 3^4 (providing citations to Varriano-Marston). The Examiner concludes that it would have been obvious to incorporate the micro-perforations of Varriano-Marston into Yabusa because, for example, doing so would be application of a known to technique to a known product to achieve predictable results. Ans. 4—5. A preponderance of the evidence supports the Examiner’s findings and conclusion. Appellants argue that neither Yabusa nor Varriano-Marston nor a combination thereof discloses a multilayer structure with a co-polyester polymer coating on the inside of the packaging relative to the cellulose film. Appeal Br. 4—5. The Examiner finds, however, that Yabusa discloses a cellulose substrate film with a co-polyester polymer layer on “at least one side” so that, therefore, Yabusa teaches a film with co-polyester on both sides of the cellulose film including “on the inside of the packaging relative to the cellulose film,” as recited in claim 1. Ans. 14 (citing Yabusa 2:46—67, 5:26—33). This finding is adequately supported by the evidence, and Appellants present no persuasive argument or evidence disputing this finding. Appellants’ argument therefore does not identify reversible error. Appellants also argue that a person of ordinary skill would not consider Yabusa suitable for maintaining “a modified gas atmosphere by the introduction of micro-perforations” because of, for example, the allegedly 4 Appeal 2016-004850 Application 12/495,781 “well known problems in the art of micro-perforations in cellulose film.” Appeal Br. 6. The Examiner finds, however, that Yabusa teaches its film is useful for food packaging. Ans. 3; see also Yabusa 1:6—15. Varriano- Marston teaches the use of micro-perforations for modified atmosphere food packaging. Ans. 3—5; see also, e.g., Varriano-Marston Abstract, Title. The Examiner finds that Varriano-Marston teaches that its micro-perforations can be used with packaging materials that are, for example, polyester or cellophane. Ans. 16 (quoting Varriano-Marston 5:37—43). The evidence of record thus supports that use of Varriano-Marston’s perforations to improve the film of Yabusa would be no more than the predictable use of prior art elements according to their established function. KSR Int 7 Co. Teleflex Inc., 550 U.S. 398, 417 (2007). Appellants do not persuasively explain why the Examiner erred in combining the teachings of these two references. Finally, Appellants argue that unexpected results rebut any prima facie case of obviousness. Appeal Br. 9—10. In particular, Appellants contend that a person of ordinary skill in the art “would not expect... a co polyester layer to prevent the absorption of moisture by a cellulose film and the resulting constriction of micro-perforations.” Id. at 9. Superior results alone, however, are not sufficient to show that the results is unexpected. Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007) (“[A]ny superior property must be unexpected to be considered as evidence of non obviousness.” (emphasis in original)). Here, the Examiner finds that “there is nothing unexpected about a reduction in the uptake of moisture by a cellulose film that has a reduced surface area that is available for moisture absorption.” Ans. 17. Appellants do not rebut this finding of fact, and Appellants present no evidence that the argued results are unexpected. See Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) 5 Appeal 2016-004850 Application 12/495,781 (“Counsel’s argument cannot take the place of evidence lacking in the record.”). Rather, the portions of the record cited by Appellants merely provide evidence of the superior property rather than establishing that the superiority was unexpected. See Spec. H 13, 29—30 (stating that co polyester reduces moisture uptake of the cellulose film despite not providing a barrier to moisture vapor transmission but not indicating that this result is surprising or unexpected); June 7, 2012 Declaration of Mr. Alan Campbell 12, 14, 16 (explaining that co-polyester lining controls moisture vapor but not stating this result is surprising or unexpected). Moreover, Appellants’ burden of establishing unexpected results requires Appellants to proffer factual evidence that shows unexpected results relative to the closest prior art, see In re Baxter TravenolLabs., 952 F.2d 388, 392 (Fed. Cir. 1991), and that is reasonably commensurate in scope with the protection sought by the claim on appeal, In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983). Here, Appellants present no data establishing improved results as compared to the films of Yabusa or Varriano-Marston and present no data reasonably establishing that improved results will occur over the wide range of, for example, cellulose films, co-polyesters, and dimensions within the scope of claim 1. Because Appellants’ unexpected results argument rests upon conclusory statements rather than evidence, it does not persuade us of error in the Examiner’s rejection. We thus sustain the Examiner’s rejection of claims 1—5 and 7 under 35 U.S.C. § 103 as obvious over Yabusa in view of Varriano-Marston. Rejection 2. The Examiner rejects claims 1 and 4—14 under 35 U.S.C. § 103 as unpatentable over Isshiki in view of Varriano-Marston. Ans. 6. The Examiner finds that Isshiki teaches a biodegradable film with a moisture barrier layer coated by a biodegradable polymer that may be cellulose or 6 Appeal 2016-004850 Application 12/495,781 polyester. Id. at 6—7. Isshiki’s film, much like the Yabusa film, may be used for packaging foods. Isshiki Tf 2. The Examiner finds that Isshiki is silent as to using micro-perforations in its film. Ans. 7. The Examiner relies on findings regarding Varriano-Marston teachings of micro-perforations (discussed above) and concludes that it would have been obvious to modify the Isshiki packaging by incorporating the micro-perforations as taught by Varriano-Marston because doing so would be application of a known technique to a known product ready for improvement and yielding predictable results. Id. at 8—9. A preponderance of the evidence supports the Examiner’s findings and conclusion. Appellants argue that neither Isshiki nor Varriano-Marston nor a combination thereof discloses a multilayer structure with a co-polyester polymer coating on the inside of the packaging relative to the cellulose film. Appeal Br. 4—5. The Examiner finds, however, that Isshiki teaches such a film. Ans. 14—15. In particular, the Examiner finds that Isshiki teaches a film having “the layer arrangement: co-polyester/barrier layer/cellulose/co polyester.” Id. at 14. The Examiner finds that in such an arrangement, the inner surface would necessarily comprise a co-polyester. Id. The evidence supports the Examiner’s finding (see, e.g., Isshiki || 15, 16, 19, 24, 48, 53— 55), and Appellants do not persuasively dispute this finding of fact or identify contrary evidence. Appellants’ argument therefore does not identify reversible error. Appellants also argue that a person of skill in the art would not perforate the film of Isshiki because its barrier layer is flowable and would therefore ooze out of the interior of the film if the film were perforated. Appeal Br. 8—9. The Examiner, however, finds that Isshiki teaches barrier layers of polyvinyl alcohol resin and of wax that would not be flowable (at 7 Appeal 2016-004850 Application 12/495,781 least at typical food storage temperatures below 60°C). Ans. 17. The evidence supports the Examiner’s finding (Isshiki || 27—29), and Appellants do not persuasively rebut this finding. Appellants also argue unexpected results. Appeal Br. 9—10. This argument is unpersuasive for the reasons addressed above. Because Appellants’ arguments do not identify reversible error, we sustain the Examiner’s rejection of claims 1 and 4—14 under 35 U.S.C. § 103 as unpatentable over Isshiki in view of Varriano-Marston. DECISION For the above reasons, we affirm the Examiner’s rejection of claims 1-14. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 8 Copy with citationCopy as parenthetical citation