Ex Parte Chappell et al

Patent Trial and Appeal Board

Mar 19, 2018

13733564 (P.T.A.B. Mar. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/733,564 01/03/2013
74475 7590
Nestec S.A.
Attn: Patent Department
12 Vreeland Road
Florham Park, NJ 07932
03/21/2018
FIRST NAMED INVENTOR
Russell Leon Chappell JR.
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.
12267-US-NP 7901
EXAMINER
COX, STEPHANIE A
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
03/21/2018 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):
patentdepartment@rd.nestle.com
gary.lobel@us.nestle.com
docketing@dunlapcodding.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUSSELL LEON CHAPPELL JR.,
ANTHONY EDWARD DZIKOWICZ JR., JASON EVERETT MANN,
DHARMENDRA KUMAR MISHRA, SCOTT DAVID PETERSON,
and MICHAEL JOHN SARACHMAN
Appeal2017-006464
Application 13/733,564
Technology Center 1700
Before ROMULO H. DELMENDO, A VEL YN M. ROSS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicant (hereinafter "Appellant") 1 appeals under 35 U.S.C.
§ 134(a) from the Primary Examiner's final decision to reject claims 1-15,
18, and 21.2 We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 The Appellant is the Applicant, Nestec S.A., which, according to the Brief,
is the real party in interest (Appeal Brief filed Sept. 28, 2016, hereinafter
"Appeal Br.," 1 ).
2 Appeal Br. 6-29; Reply Brief filed Mar. 13, 2017, hereinafter "Reply Br.,"
2-8; Final Office Action entered May 4, 2016, hereinafter "Final Act.," 2-
15; Examiner's Answer entered Jan. 13, 2017, hereinafter "Ans.," 3-17.
Appeal2017-006464
Application 13/733,564
I. BACKGROUND
The subject matter on appeal relates to a multi-component food
product including a wet food component and a dry food component
(Specification filed Jan. 3, 2013, hereinafter "Spec.," iJ 2). Figure 1 is
reproduced from the application as follows:
22
.. ,.·10
l/. l
Figure 1 above illustrates a food product 10 in accordance with the
invention, wherein the product 10 includes a tray 12 with a first
compartment 14 provided with a wet food component 18 and a second
compartment 16 provided with a dry food component 20 (id. iii! 58, 88).
According to the inventors, tray 12 may be covered with, e.g., a lid (not
shown) that may be adhered or fitted to tray 12's top surface 22 (id. iJ 91).
Claim 1, the sole independent claim on appeal, is reproduced from the
Claims Appendix (Appeal Br. 31) with key limitations emphasized, as
follows:
1. A multi-component food product, consisting of:
a single unitary tray of one piece construction
comprising a top surface and at least a first compartment and a
second compartment separate from each other;
a wet, flowable food component positioned within and in
direct contact with the first compartment in a way that the wet,
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Application 13/733,564
jlowable food component wets the unitary tray of one piece
construction;
a dry, solid food component positioned within and in
direct contact with the second compartment; and
a single lid secured to the top surface of the tray to seal the
first compartment and the second compartment in a way to
prevent cross contamination between the wet food component
and the dry food component,
wherein each of the wet food component and the dry food
component is free of any artificial preservatives.
II. REJECTIONS ON APPEAL
On appeal, the Examiner maintains several rejections under pre-AIA
35 U.S.C. § 103(a) as follows:
A. Claims 1-3, 5-15, 18, and 21 as unpatentable over "Giddy
Snacks"3 in view of Weaver, Jr. 4 (hereinafter "Weaver;
Evidence Appendix C), as evidenced by
https://www.amazon.com/giddv-dipems-varietv-4-4ct-
snacks/dp/B003CNLNXA (October 21, 2013) (hereinafter
"Amazon"; Evidence Appendix A) and
hJJ1~;_ii~YlYJ:YJQ_Q_Q!19-1!J~_&Qml1!P12HP_1!g~-~PIQ_Q!lQJ~~~j_g~:lB12_4_Q2_~_:_
D018-l 1El-956E-1231381BA074 (October 21, 2013)
3 http://giddysnacks.com):
http_;LiJ:YS'.h,_9:r~hiYS'.,_Qigi_wS'.bL2_Q_l_Qf!~_2:11~2_25nLhJJQ_~ii:'!YJ:YW,_gigQ._y_§!!1!~k~&Q_mi
(archived March 24, 2010);
http://web.archive.org/web/20100323043042/http://www.giddysnacks.com/p
roducts.php (archived March 23, 2010); and
http:/ !web.arch ive.org/web/20100323043020/httn://www .giddysnacks.cornJn
utrition.php (archived March 23, 2010) (collectively "Giddy Snacks"). The
Appellant also refers to certain photos shown in
http://honestandtn1lvreviews.blogspotcornJ2011/08/ giveaway-giddv-
snacks.html (hereinafter "Honest & Truly Reviews"; Evidence Appendix E).
4 US 5,277,920, issued Jan. 11, 1994.
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Application 13/733,564
(hereinafter "Fooducate"; Evidence Appendix B);
B. Claim 4 as unpatentable over Giddy Snacks and Weaver, as
evidenced by Amazon, F ooducate, and
http://wv..r\v.dar.lviv.ua/en/production/puree/strawberrv-puree
(October 21, 2013) (hereinafter "Dar");
C. Claims 1-3, 5-15, 18, and 21 as unpatentable over Weaver in
view of Giddy Snacks, as evidenced by Amazon and
Fooducate; and
D. Claim 4 as unpatentable over Weaver in view of Giddy Snacks,
as evidenced by Amazon, Fooducate, and Dar.
(Ans. 3-17; Final Act. 3-15.)
III. DISCUSSION
The Examiner finds that Giddy Snacks describes a food product with
a single unitary tray that holds both wet food and dry food in separate
compartments (Ans. 3; Final Act. 3). The Examiner finds further that the
wet food component in Giddy Snacks "appears to be in a container" but that
"the wet food component is in direct contact with the tray compartment"
(id.). The Examiner acknowledges that Giddy Snacks does not describe a lid
(Ans. 4; Final Act. 4). The Examiner finds, however, that Weaver discloses
"the wet and dry food are in direct contact with compartments in a single
tray that are separate from one another" and covering the tray with a single
lid or plastic film (id.; emphasis added). Based on these findings, the
Examiner concludes that a person of ordinary skill in the art would have
provided the product described in Giddy Snacks with a lid "in order to
effectively cover and seal the food items to ensure freshness as taught by
Weaver" (id.). In addition, the Examiner concludes that "[i]t would have
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Appeal2017-006464
Application 13/733,564
been obvious to one of ordinary skill in the art ... to not pre-package the
wet food component of Giddy and place directly in the tray so as to wet the
tray as disclosed by Weaver in order to eliminate the need for additional
materials" (Ans. 5; Final Act. 5).
The Appellant contends that the Examiner is incorrect in finding that
Giddy Snacks discloses a single, one-piece construction tray and argues that
the transitional phrase "consisting of' excludes the two-tray construction
shown in the reference (Appeal Br. 12). The Appellant argues that Weaver
does not cure the deficiency in the Examiner's findings because it too
describes "a tray of multiple piece construction" (id. at 13).
We agree with the Appellant that the Examiner's rejection is not well-
founded. The Giddy Snacks product is pictured in Honest & Truly Reviews
as follows:
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Application 13/733,564
The photograph above appears to depict a food product having two
compartments for two different food components, wherein the dipping sauce
component is provided in a separate container placed in a tray that also holds
the solid (biscuit) component (Honest & Truly Review 2).
Weaver's Figures 2 and 6 are reproduced as follows:
10
l
f
Figures 2 and 6 above depict perspective and plan views of a packaged food
having two separate compartments 12 (flowable food) and 14 (solid food)
(Weaver col. 2, 11. 27-29, 37-39). As shown in Figure 6, lid 18, which
extends from solid food compartment 14 and is detachably connected thereto
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along transverse side 26 of the flowable food compartment 12, covers cup 16
(id. at col. 2, 11. 62-65; col. 3, 11. 39--44).
These disclosures reveal that the Examiner erred in finding that "the
wet and dry food are in direct contact with compartments in a single tray
that are separate from one another" (Ans. 4; emphasis added). Absent
additional evidence or sufficient reasoning with some rational underpinning
to modify either Giddy Snacks or Weaver to include a single unitary tray in
which a wet, flowable food component is in direct contact with and wets the
unitary tray, we cannot affirm.
IV. SUMMARY
Rejections A through Dare not sustained. Therefore, the Examiner's
final decision to reject claims 1-15, 18, and 21 is reversed.
REVERSED
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