Ex Parte Bergman

Patent Trial and Appeal Board

Dec 4, 2018

13988695 (P.T.A.B. Dec. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/988,695 05/21/2013
21839 7590 12/06/2018
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
FIRST NAMED INVENTOR
Bjorn Bergman
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.
1034170-000094 1092
EXAMINER
WITTENSCHLAEGER, THOMAS M
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
12/06/2018 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):
ADIPDOC 1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BJORN BERGMAN1
Appeal2018-002591
Application 13/988,695
Technology Center 3700
Before MICHAEL L. HOELTER, RICHARD H. MARSCHALL, and
SEAN P. O'HANLON, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner's Final Rejection of claims 1, 2, and 4---6. App. Br. 1. We have
jurisdiction under 35 U.S.C. § 6(b). For the reasons explained below, we do
not find error in the Examiner's rejection of these claims. Accordingly, we
AFFIRM the Examiner's rejection.
1 "The present application is assigned to Tetra Laval Holdings and Finance
S.A." App. Br. 2. Based on this, the data contained in the Application Data
Sheet dated May 21, 2013, and in accordance with 37 C.F.R. § 1.46, we
understand "Tetra Laval Holdings and Finance S.A." as the Appellant.
Appeal2018-002591
Application 13/988,695
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates in general to packaging of
consumer products, and in particular to [the] traceability of' such products.
Spec. 1 :4---6. Claims 1, 5, and 6 are independent. Claim 1 is illustrative of
the claims on appeal and is reproduced below.
1. A Packaging System comprising:
• a Packaging Line configured to produce and pack
Primary Packages to form Secondary Packages, said Secondary
Packages being produced in a sequence and each of said
Secondary Packages being formed from a plurality of said
Primary Packages provided in a sequence; and
• a Package Tracing System configured to allow said
Primary Packages to be traced;
wherein the Package Tracing System is configured to:
• compute, for each of said Secondary Packages, a
Primary Package Sequence Number for the first Primary Package
in the Secondary Package and a Primary Package Sequence
Number for the last Primary Package in the Secondary Package;
• compute, for each of said Secondary Packages, a
Primary Package Production Time for the first Primary Package
in the Secondary Package and a Primary Package Production
Time for the last Primary Package in the Secondary Package,
based on the corresponding Primary Package Sequence
Numbers;
• compute Primary Package Production Times for the
first and the last Primary Packages in each of said Secondary
Packages based on the following formulas where PPSN is a
Primary Package Sequence Number, PP PT is a Primary Package
Production Time, BST is a Production Batch Start Time, and
FSM(t) represents a number of Primary Packages produced per
time unit during a Production Batch:
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Application 13/988,695
and
f:>?~~1·. ,;'fR_V'f')
PPSl\,lwmsn = J FSM(t) dt
flST
• store, in a repository, the Primary Package
Production Times for the first and the last Primary Packages in
each of said Secondary Packages, along with associated
Secondary Package Identifiers such that each stored Primary
Package Production Time is linked with a corresponding
Secondary Package Identifier.
REFERENCES RELIED ON BY THE EXAMINER
Mirtsching et al.
Donati
US 2007 /0260347 Al
WO 2009/083594 Al
THE REJECTION ON APPEAL
Nov. 8, 2007
July 9, 2009
Claims 1, 2, and 4--6 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Donati and Mirtsching.
ANALYSIS
Appellant argues independent claims 1, 5, and 6 together. See App.
Br. 5-7. Appellant also states, "[t]he remaining claims (i.e., Claims 2 and 4)
all ultimately depend from Claim 1" and that withdrawal of the rejection of
these remaining claims is "consistent with the above arguments regarding
Claim 1." App. Br. 7. In view of the above, we select claim 1 for review,
with the remaining claims (i.e., claims 2 and 4--6) standing or falling with
claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner primarily relies on the teachings of Donati for
disclosing the limitations of claim 1, but relies on Mirtsching for teaching
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Application 13/988,695
limitations directed to providing package numbering and production times.
See Final Act. 3--4. The Examiner, however, acknowledges that modified
Donati "does not expressly teach" the computation of production times using
the above recited formulas. Final Act. 4. On this point, the Examiner states
that these "formulas represent nothing more than a summation of the number
of packages over time, a common mathematical process." Final Act. 5.
Consequently, as per the Examiner, it would have been obvious to employ
such formulas "since the formulas simply represent the counting of packages
over time" and that this is "well within the capability of one or ordinary
skill" in order "to extract primary package production times." Final Act. 5.
Appellant focuses on the limitation of providing a "Sequence
Number" to each package, and the use of such sequence numbering in the
recited computations. App. Br. 6; see also Reply Br. 1-2. Appellant
acknowledges that Mirtsching employs unique numbers to identify
individual products (in this case, animal carcasses, see Mirtsching ,r,r 36, 38)
but contends "the carcass ID' s are not disclosed or suggested as being
assigned as sequential numbers." 2 App. Br. 6. Thus, "[s]ince Mirtsching
simply uses unique ID' s, it does not disclose or suggest building a tracing
database in the claimed manner." App. Br. 7.
The Examiner acknowledges that "Mirtsching does not expressly
disclose carcass ID' s that are sequentially numbered" but states that one
skilled in the art "would have found it obvious to sequentially number the
carcass ID's since it is obvious to number objects in the order in which they
were produced." Ans. 12. Appellant, in reply, contends that this "statement
2 "In other words, Mirtsching' s carcass ID' s, although disclosed as unique,
are not disclosed as being sequentially numbered." App. Br. 6.
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Appeal2018-002591
Application 13/988,695
amounts to a mere conclusory generalization"; i.e., there is "no reasoned
statement" and that no "proposed reason for numbering the carcasses of
Mirtsching [in a sequential manner] is provided in the explanation of the
Examiner'[s] position." Reply Br. 2.
It is true that Mirtsching is silent as to the assigned numbers being
sequential numbers and that Mirtsching may be assigning non-sequential or
random numbers. However, Mirtsching is directed to "a relatively quick and
easy way of' tracking and managing product through the production process.
Mirtsching Abstract and Title. Paragraph 65 of Mirtsching also teaches that
"[t]his management and tracking system 100 allows for backwards and
forwards tracking of a carcass/animal from any point during the production,
fabrication and consumption process." Thus, in order to achieve this
capability, it would behoove one skilled in the art to employ an equally
"relatively quick and easy way of' numbering the product so as to avoid any
delay in decoding or deciphering such numbering, when a need arises to do
so. Consequently, to achieve the stated "quick and easy way of' tracking
both forward and backward from any point in the process as taught by
Mirtsching, we agree with the Examiner that one skilled in the art would
assign numbers in accordance with, and for, the reason expressed, i.e., "in
the order in which they were produced." Ans. 12. Accordingly, and in
view of the above, we are not persuaded that the Examiner's rationale can be
properly characterized as "a mere conclusory generalization" (Reply Br. 2)
or as lacking any reasoning, when considering the teachings of Mirtsching as
a whole. Appellant's contentions are not persuasive of Examiner error.
The Examiner also appears to proffer an alternative rationale that
Appellant's process is obvious (i.e., "the Examiner further takes the
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Application 13/988,695
position") stating that "summing the number of packages over time [is] a
common mathematical process" readily recognized by one skilled in the art.
Ans. 12-13. On this point, Appellant distinguishes the recited "product
time" (being a "time stamp") from Mirtsching's "product specific fabrication
time" (being a "time duration"). Reply Br. 2. Appellant contends that
Mirtsching' s values of the length of time required for fabrication "could not
be used" in the recited formulas "since none of the parameters in those
mathematical relationships correspond to time durations." Reply Br. 2.
Although it is true that two different time frames are discussed ( e.g.,
"time stamp" vs. "time duration"), the Examiner is not proposing the
substitution of Mirtsching' s "time duration" values for Appellant's "time
stamp" values in the recited formulas. Instead, the Examiner has taken the
position that determining production time, as claimed, simply involves
"summing the number of packages over time, a common mathematical
process" readily recognized by one skilled in the art "as an applicable
process for determining the production times of Mirtsching." Ans. 12-13.
Hence, it does not appear to us that the Examiner is replacing Appellant's
"time stamp" values with Mirtsching's "time duration" values in these
formulas, but instead is using the summation of packages over time to
ascertain Mirtsching's product times. Appellant does not explain how this
summation over time is either incorrect or inapplicable.
Accordingly, and based on the record presented, we are not persuaded
of Examiner error. We sustain the Examiner's rejection of claims 1, 2, and
4---6 as being obvious over Donati and Mirtsching.
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DECISION
The Examiner's rejection of claims 1, 2, and 4---6 is affirmed.
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).
AFFIRMED
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