Ex Parte Mayer

Patent Trial and Appeal Board

Jun 8, 2018

13082515 (P.T.A.B. Jun. 8, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/082,515 04/08/2011 William T. Mayer
23403 7590 06/12/2018
SHERRILL LAW OFFICES
4756 BANNING A VE
SUITE 212
WHITE BEAR LAKE, MN 55110-3205
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
PELCN033USPT02 6234
EXAMINER
PATEL, BRIJESH V
ART UNIT PAPER NUMBER
3728
NOTIFICATION DATE DELIVERY MODE
06/12/2018 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):
michaels@sherrilllaw.com
izag@sherrilllaw.com
docketing@sherrilllaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM T. MA YER
Appeal2017-009077
Application 13/082,515 1
Technology Center 3700
Before ANTON W. PETTING, PHILIP J. HOFFMANN, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's rejection of claims 1---6, 8-15, and 17-21. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
According to Appellant, the invention relates to a passive thermally
controlled bulk shipping container. Spec., Title. Claims 1 and 12 are the
1 According to Appellant, "[t]he real party in interest ... is Pelican
Biothermal LLC, ... which is a subsidiary of Peli Biopharma LLC, which in
tum is a subsidiary of Pelican Products, Inc." Appeal Br. 3.
Appeal2017-009077
Application 13/082,515
independent claims on appeal. We reproduce claim 1, below, as illustrative
of the appealed claims.
1. A kit capable of assembly into a passive thermally
controlled bulk shipping container, the kit including at least:
(a) an outer shell defining a retention chamber,
(b) at least twelve separate and distinct identically sized
phase change material panels,
( c) at least six separate and distinct identically sized
unconnected and rigid thin-walled jackets, each configured and
arranged to releasably retain a set of the phase change material
panels in a planar configuration, and
( d) a plurality of thermal insulation panels, each
unconnected and unattached to the jackets.
REJECTION AND PRIOR ART
The Examiner rejects claims 1---6, 8-15, and 1 7-21 under 3 5 U.S. C.
§ 103(a) as unpatentable over Tattam (GB 2459392 A, pub. Oct. 28, 2009)
(hereinafter "Tattam'392"), Tattam (WO 2006/082433 Al, pub. Aug. 10,
2006) (hereinafter "Tattam'433"), Buettiker (EP 2 022 728 Al, pub. Feb. 11,
2009), and Mayer et al. (US 2010/0326993 Al, pub. Dec. 30, 2010)
(hereinafter "Mayer").
ANALYSIS
Based on our review of the record, including Appellant's Appeal Brief
and Reply Brief, and the Examiner's Final Office Action and Answer,
Appellant does not persuade us that the Examiner errs in rejecting claims 1-
6, 8-15, and 17-21 as obvious based on Tattam'392, Tattam'433, Buettiker,
and Mayer. Thus, we sustain the rejection.
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Appeal2017-009077
Application 13/082,515
As set forth above, independent claim 1 recites, in relevant part, "at
least six separate and distinct identically sized unconnected and rigid thin-
walled jackets, each configured and arranged to releasably retain a set of
the phase change material panels in a planar configuration." Appeal Br.,
Claims App. (emphasis added). Independent claim 12 includes a similar
recitation, and claims 2-6, 8-11, 13-15, and 17-21 depend from the
independent claims. See id. Appellant argues that the rejection is in error
because
modifying the shipping container of Tattam[]'392 [as the
Examiner proposes] does not achieve the . . . [ c ]laimed
[i]nvention. . .. [Instead, the proposed modification] results in a
plurality of cardboard envelopes (i.e., jackets), each configured
and arranged to releasably retain a single panel of phase change
material[,] which does not achieve the claim limitation of
jackets[, each] ... retain[ing] a set of phase change material
panels.
Id. at 8.
This argument is not persuasive, however, based on the Examiner's
finding that Tattam'392 discloses jackets that are each configured and
arranged to retain a set of phase change materials. Answer 3. Specifically,
the Examiner explains that Tattam'392 discloses that "'[t]hree or more gel
packs may be inserted within an envelope[,]' wherein [Tattam'392's] gel
packs are the claimed phase change materials[,] and [Tattam'392's]
envelope is the claimed jacket." Id. (citing Tattam'392 p. 14, 11. 19-20).
In response, Appellant argues that the rejection is in error because
although
Tattam[]'392 states that "[t ]hree or more gel packs may be
inserted within an envelope[,]" . . . Tattam[]'392 does not
disclose configuring these three or more gel packs in a side-by-
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Appeal2017-009077
Application 13/082,515
side planar configuration. In fact, Tattam[]'392 actually teaches
away from a side-by-side planar spatial configuration in favor of
a front-to-back stacked configuration.
Reply Br. 1; see also Appeal Br. 9. This argument is not persuasive,
however. Initially, we note that claim 1 (and claim 12) does not recite that
the set of phase change materials must be retained in a side-by-side planar
configuration; only that the jackets are configured to retain the materials in a
planar configuration. Thus, even assuming that we agree with Appellant
that Tattam'392's gel packs 53 are stacked on one another, Appellant fails to
explain adequately why Tattam'392's stack would not have a planar
configuration, as claimed. Conversely, based on the illustration and
description of Tattam'392's gel packs 53, it appears, for example, that faces
of a gel-pack stack would be planar. See, e.g., Tattam'392 Figs. 5b-5e,
p. 13, 1. 33-p.14, 1. 18. Appellant fails to explain why a stack with at least
one planar face, for example, would not disclose the claimed planar
configuration, and, thus, Appellant does not demonstrate error by the
Examiner.
Notwithstanding the above explanation, we disagree with Appellant
that Tattam'392 does teaches that gel packs 53 are arranged side-by-side.
We note, for example, that Tattam'392's Figure 5b illustrates element 28b.
Tattam'392 Fig. 5b. Tattam'392 describes element 28b as "box[] 28b [that]
can retain gel packs." Id. at p. 11, 11. 26-27. As further illustrated in
Tattam'392's Figure 5b, box 28b retains unnumbered elements in a side-by-
side (as well as stacked) configuration. Thus, Tattam'392's Figure 5b
appears to show gel packs arranged in a side-by-side configuration.
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Appeal2017-009077
Application 13/082,515
DECISION
We AFFIRM the Examiner's obviousness rejection of claims 1-6, 8-
15, and 17-21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED
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