Ex Parte MayerDownload PDFPatent Trial and Appeal BoardJun 8, 201813082515 (P.T.A.B. Jun. 8, 2018) Copy Citation 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. 2 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- 3 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. 4 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 5 Copy with citationCopy as parenthetical citation