Chelsea Briganti et al.

Patent Trials and Appeals Board

Jul 23, 2019

14464235 - (D) (P.T.A.B. Jul. 23, 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.
14/464,235 08/20/2014 Chelsea BRIGANTI 737842000401 1433
25227 7590 07/23/2019
MORRISON & FOERSTER LLP
1650 TYSONS BOULEVARD
SUITE 400
MCLEAN, VA 22102
EXAMINER
AXTELL, ASHLEY
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
07/23/2019 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):
EOfficeVA@mofo.com
PatentDocket@mofo.com
pair_mofo@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHELSEA BRIGANTI, LEIGH ANN TUCKER,
INGRID ZWEIFEL, MONICA BHATIA,
and KEVIN STANTON
____________

Appeal 2018-0071421
Application 14/464,235
Technology Center 1700
____________

Before JEFFREY T. SMITH, GEORGE C. BEST, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the July
13, 2017 Non-Final rejection of claims 1, 4–9, 11–15, 20, and 21. We have
jurisdiction under 35 U.S.C. § 6.
We reverse.

1 Appellant and the real party in interest is LOLIWARE LLC. (App. Br. 2.)
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Appellant’s claimed invention is directed to an edible container
comprising liquid, sugar, and plurality of hydrocolloids wherein the
container is capable of containing a drink for at least one hour without
leaking. (Spec. ¶¶ 20, 37.) Claim 1 illustrates the subject matter on appeal
and is reproduced from the Appeal Brief below:
1. An edible container comprising:
liquid;
sugar; and
a plurality of hydrocolloids, wherein the hydrocolloids are agar,
carrageenan, and pectin, wherein the liquid has a concentration
of 24% to 77% by weight, the sugar has a concentration of 5%
to 48% by weight, the agar has a concentration of 0.2% to
0.78% by weight, the carrageenan has a concentration of 2.
65% to 5 .1 % by weight, and the pectin has a concentration of
0.1 % to 0.40% by weight, and
wherein the edible container is able to contain a drink for at
least one hour without leaking.
The following rejections are presented for our review:
a. Claims 1, 4, 6–8, 13–15, and 21 rejected under 35 U.S.C.
§ 103(a) as unpatentable over Woods (US 6,423,357 B1, issued July 23,
2002) as evidenced by Langler (US 4,853,236, issued Aug. 1, 1989).
b. Claim 5 rejected under 35 U.S.C. § 103(a) in view of Woods as
evidenced by Langler further in view of Baumann (US 5,840,354, issued
Nov. 24, 1998).
c. Claim 9 rejected under 35 U.S.C. § 103(a) in view of Woods as
evidenced by Langler in view of Mazin (US 5,188,861, issued February 23,
1993).
d. Claims 11, 12, and 20 rejected under 35 U.S.C. § 103(a) in
view of Woods as evidenced by Langler in view of Ang (US 2011/0159154
Appeal 2018-007142
Application 14/464,235
3
A1, published June 30, 2011) and Renn (US 6,586,590 B1, issued July 1,
2003).
The complete statement of the rejection on appeal appears in the July
13, 2017 Non-Final Office Action. (Non-Final Act. 2–11.)
OPINION2
The Examiner found that Woods discloses an edible container formed
from dehydrated fruit that is capable of holding a liquid for extended period
of time without leaking. (Non-Final Act. 3–4; Woods c1/L 50–56.) The
Examiner found that Woods, through the incorporation by reference of
Langler’s teachings, discloses that the solid portion—including dehydrated
fruit material—comprising liquid, sugar and a plurality of hydrocolloids
including pectin, agar, carrageenan, and mixtures thereof. (Non-Final Act.
3; Woods c3/L22–23; Langler c3/L58–61, c6/L41–45.) The Examiner found
that Langer further discloses 0.5%–12% of hydrocolloids, 35–50%
sweetening agent, water content of 30%. (Non-Final Act. 3; Langler c5/L5–
6, 3/L58–61, c6/L28–2841–45.) The Examiner determined that Langler
would have led one of ordinary skill to adjust the concentration values of the
hydrocolloids through routine experimentation to achieve the desired
organoleptic attributes. (Non-Final Act. 4; Langler c4/L1–5.)
Appellant argues Woods and Langler fail to teach or suggest the
specific combination of hydrocolloids having the ability to contain a drink
for at least 1 hour as required by in claim 1. (App. Br. 3–6.) Appellant
argues that Langer lists eight different hydrocolloids and does not disclose or

2 We limit our discussion to the independent claim 1, the only independent
claim on appeal.
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Application 14/464,235
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suggest the specific combination recited. (App. Br. 5.) Appellant
additionally argues that the Examiner did not provide a rationale to
individually adjust the hydrocolloid concentration values to arrive at the
claimed invention and that there is no routine optimization on a result-
effective variable because Langler does not provide any guidance on how to
adjust the disclosed hydrocolloids to arrive at the claimed concentration of
the respectively claimed hydrocolloids that results in edible container able to
contain a drink for at least one hour without leaking. (App. Br. 6–7, 9.)
We agree with the Appellant that the Examiner’s rejection of
independent claim 1 cannot be sustained. During examination, the Examiner
bears the initial burden of establishing a prima facie case of obviousness. In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). “Rejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” KSR Int’l Co.
v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)); see also, Ball Aerosol & Specialty Container,
Inc. v. Ltd. Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (“[T]he analysis
that ‘should be made explicit’ refers not to the teachings in the prior art of a
motivation to combine, but to the court’s analysis.”).
The Examiner has failed to show that the container of Woods and
Langler individually or in combination have the ability to contain a drink for
at least one hour as required by the claimed invention. The Examiner has
not shown sufficiently that the skilled artisan would have recognized the
specific combination of hydrocolloids required to achieve a container that
has the ability to contain a drink for at least one hour as required by the
claimed invention. Further, the Examiner has failed to explain how
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Langler’s disclosure of achieving desired organoleptic attributes would have
suggested the claimed specific combination of hydrocolloids required to
achieve a container able to contain a drink for at least one hour.
Accordingly, we reverse the Examiner’s rejection of independent
claim 1 for the reasons presented by Appellant and given above. We
likewise reverse the Examiner’s decision to reject dependent claims 4–9, 11–
15, 20, and 21 since the rejections of these claims are premised on the
Examiner’s unsupported combination of Woods and Langler. We need not
reach whether the Examiner’s reliance on other references in addition to
Woods and Langler for the rejections of the dependent claims was supported
by the evidence of record because the base combination of Woods as
evidenced by Langler cannot stand.
ORDER
The Examiner’s prior art rejections of claims 1, 4–9, 11–15, 20, and
21under 35 U.S.C. § 103(a) are reversed.

REVERSED