Ex Parte Crawford et al

Patent Trial and Appeal Board

Mar 9, 2015

10585902 (P.T.A.B. Mar. 9, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte KAREN RITA CRAWFORD and NICOLAAS LUTTIK
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Appeal 2012-0109911
Application 10/585,9022
Technology Center 3700
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Before MICHAEL C. ASTORINO, KEVIN W. CHERRY, and
JAMES A. WORTH, Administrative Patent Judges.

WORTH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
non-final rejection of claims 40 and 44–52. We have jurisdiction under
35 U.S.C. §§ 134 and 6(b).
We AFFIRM.

1 Our decision refers to the Appellants’ Appeal Brief (“Br.,” filed Feb. 13,
2012), and the Examiner’s Answer (“Ans.,” mailed Apr. 24, 2012).
2 According to Appellants, the real party in interest is N. V. Nutricia (Br. 2).
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Introduction
Appellants’ disclosure relates to a method for providing a packaging
filled with powder, such that the packaging contains a container, lid, and
scoop assembly, and the contents of the container can be guaranteed by the
provision of a seal (Spec. 2, ll. 4–9).
Claims 40 and 51 are the independent claims on appeal. Claim 40,
reproduced below, is illustrative of the subject matter on appeal:
40. A method for providing a packaging filled with powder
comprising the provision of a container provided with a base
and a top which has a peripheral edge, the inside wall of the
container consisting of a heat-sealable material, filling powder
into said container, providing a heat-sealable film having a tear
lip and a weakening line, placing the heat-sealable film above
the powder and permanently joining said film to said inside
wall of the container 20–50 mm below the peripheral edge,
provision being made for the fitting of a lid,
said packaging further comprising a scoop for dosing
said powder, accommodated by the top part of the container,
wherein said method further comprises the step of placing the
scoop on the heat-sealable film,
said method further comprising the step of providing a lid
provided with fixing means for said scoop, said lid fixed, such
that it can hinge to a lid rim, said lid and lid rim provided from
a single part of plastic material, and
said method further comprising the step of adhering said
lid rim onto the peripheral top edge of said container, for
defining an accommodation space between said lid and said
heat-sealable film for said scoop.

Br., Claims App.

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Rejections on Appeal
1. Claims 40, 44–45, and 48–52 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bois (FR 2747107, pub. Oct. 10, 1997) and
Suzuki (JP 10-291529, pub. Nov. 4, 1998); and
2. Claims 46 and 47 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bois, Suzuki, and Gibble (US 3,556,174, iss. Jan. 19,
1971).

OPINION
Independent claim 40
With regard to Bois, which Appellants refer to as “the French patent,”
Appellants assert that there are no provisions in Figures 1–4 made for
accommodating the scoop (3) prior to removal of the lid (7), as recited by
claim 40, i.e., “said method further comprising the step of adhering said lid
rim onto the peripheral top edge of said container, for defining an
accommodation space between said lid and said heat-sealable film for said
scoop” (see Br. 6). However, the Examiner relies on Figure 6 of Bois which
depicts a deformation (16) in the lid (7) so that the measuring scoop (3) is
below the plane delimited by the edge of the can (17) (see Ans. 8). We
agree with the Examiner (see Bois at 1 (discussing Figure 6)).3 Bois’s lid (7)
contains a deformation to accommodate the scoop (3) so that the scoop may
fit between Bois’s cover and Bois’s lid (7). (Bois, Fig. 6 and accompanying
text).

3 The references to Bois and Suzuki refer to the machine translations which
are of record in this appeal.
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Appellants further argue that Bois does not teach or suggest a heat-
sealable film joined to an internal wall at a distance of 20–50 mm from the
top edge, as recited in claim 40, i.e.,
…the inside wall of the container consisting of a heat-sealable
material, filling powder into said container, providing a heat-
sealable film having a tear lip and a weakening line, placing the
heat-sealable film above the powder and permanently joining
said film to said inside wall of the container 20–50 mm below
the peripheral edge,….

Instead, the Examiner concludes that it would have been obvious to a person
of ordinary skill to substitute the heat-sealable film of Suzuki for the lid (7)
of Bois (Ans. 5) (citing KSR Int’l v. Teleflex Inc., 550 U.S. 398, 417–18
(2007)). We agree with the Examiner that the substitution of Suzuki’s heat-
sealable film for Bois’s lid (7) would be the substitution of one method for
another with predictable results (Ans. 9).4
As to the distance of 20–50 mm, the Examiner explains that it would
have been obvious to adjust the deformation (16) in Bois, discussed above,
to accommodate the spoon depending on the size of the spoon. Appellants
have not provided evidence or reasoning in rebuttal thereof. Appellants
suggest that “[t]he value of 20mm–50mm has been included in the claim to
emphasize that this distance is not a de minimis distance but a clear spacing
sufficient to allow the fitting of a lid rim to the exposed portion of the
peripheral edge” (Br. 8). However, Bois has a cover which fits the lid (Bois,
all Figures). Therefore, Appellants have not identified a deficiency in the
rejection, which is based on Bois.

4 Therefore, we note that, in the Examiner’s proposed combination, Bois’s
lid (7), as modified by Suzuki’s teaching of a heat-sealable film, corresponds
to the recited “film,” and Bois’s cover corresponds to the recited “lid.”
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Appellants assert that Suzuki’s folding of the top and bottom surfaces
over the edge of the container does not permit the top surface or the bottom
surface to be recessed within the container a distance of 20–50mm (Br. 7).
However, the Examiner correctly observes that it would have been obvious
to heat-seal the film in Bois, as modified by Suzuki, inside the container
(Ans. 9). The Examiner explains that both Bois (Fig. 3) and Suzuki (Figs.
1–2) use internal seals. We agree. Indeed, Figures 1–2 of Suzuki depict that
layer (3) is sealed below the edge of the container, even with the top layer
being folded over.
Appellants assert that opening of the lid, in the proposed combination,
would leave a conical lid rim portion which would render “a significant
amount of product . . . very difficult, if not impossible, to remove” (Br. 8).
However, Appellants do not provide evidence in support of this contention.
Further, to the extent that Appellants are referring to tab 6 of Suzuki, which
extends across part of the cross-section of Suzuki’s packaging, Bois utilizes
a tab which extends across the entire cross-section of the packaging
(compare Figs. 1–2 of Suzuki with Fig. 3 of Bois, discussed above).
Appellants argue that Suzuki is a totally unrelated package that is not
intended to receive a modified lid and would have no reason to include a
scoop (Br. 8). To the extent that Appellants are arguing that Suzuki is non-
analogous art, we agree with the Examiner (Ans. 5) that Suzuki is directed to
the problem of putting film inside a container. See In re Bigio, 381 F.3d
1320, 1325–26 (Fed. Cir. 2004) (art is analogous when it is reasonably
pertinent to the particular problem faced by the inventor, if the art is not
from the same field of endeavor.). Further, Suzuki is closely related as it
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also discloses food packaging. We, therefore, are unpersuaded by
Appellants’ argument that Suzuki is non-analogous art.
We, therefore, sustain the rejection of claim 40 under 35 U.S.C.
§ 103(a).

Dependent claims 44, 45, and 50
Appellants do not argue the patentability of claims 44, 45, and 50
separately from that of claim 40, from which they depend (Br. 9). We
sustain the rejection of claims 44, 45, and 50 under 35 U.S.C. § 103(a), for
similar reasons as for claim 40.

Dependent claims 46 and 47
Appellants argue that Bois and Suzuki fail to disclose, “inert gas is fed
into the space located below the film before/when sealing the film to the
container wall,” as recited by claim 46 (Br. 11). Instead, the Examiner
correctly relies on Gibble (col. 1, ll. 20–40) for this limitation. Appellants
do not dispute the Examiner’s reliance on Gibble. Thus, we sustain the
Examiner’s rejection of claim 46 under 35 U.S.C. § 103(a). We also sustain
the Examiner’s rejection of claim 47, which depends from claim 46, under
35 U.S.C. § 103(a), for similar reasons.

Dependent claim 48
Appellants assert that Bois and Suzuki fail to teach or suggest “a heat-
sealable film [which] is provided less than 10 mm above the powder,” as
recited by claim 48 (Br. 9). However, the Examiner finds that Bois discloses
a lid (7) above the powder, and concludes that it would have been obvious to
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adjust the distance between the lid and the powder (Ans. 9). We agree with
the Examiner. Appellants have not explained why the 10mm distance is
more than a routine, nonobvious application of Bois. We, therefore, sustain
the Examiner’s rejection of claim 48 under 35 U.S.C. § 103(a).

Dependent claims 49
Appellants assert that Bois and Suzuki fail to disclose “wherein the
container wall contains a heat-sealable material on the inside, and wherein
said seal comprises a plastic film seal, which seal is fixed to said container
wall by heat sealing,” as recited by claim 49 (Br. 9–10). However, the
Examiner finds that the modified container of Bois/Suzuki contains a heat-
sealable material and the container walls consists of a paper/plastic laminate
(Ans. 10). We agree. In particular, we note that Suzuki (Fig. 3 and ¶ 9)
discloses paper and inorganic oxide that are laminated with heat-sealable
polyolefin resin layers 21 and 21a. We, therefore, sustain the Examiner’s
rejection of claim 49 under 35 U.S.C. § 103(a).

Independent claim 51
Appellants’ arguments with respect to independent claim 51 are
similar to those with respect to claims 40 and 49, addressed above (Br. 10–
11). We, thus, sustain the Examiner’s rejection of claim 51 under 35 U.S.C.
§ 103(a), for similar reasons as for claims 40 and 49, above.

Dependent claim 52
Claim 52 depends from claim 40. Appellants argue (Br. 11) that the
Examiner does not provide reasons for the rejection of claim 52, which
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recites “wherein said powder is baby food.” However, the Examiner
correctly finds that Bois (3, ll. 4–5) discloses that “the container is powder
milk for infants” (Ans. 10). Thus, we sustain the Examiner’s rejection of
claim 52 under 35 U.S.C. § 103(a).

DECISION
The decision of the Examiner to reject claims 40 and 44–52 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)(1)(iv).

AFFIRMED