Ex Parte Fenske et al

Patent Trial and Appeal Board

Feb 28, 2019

13812986 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/812,986 01/29/2013
30173 7590 03/04/2019
Diederiks & Whitelaw, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
FIRST NAMED INVENTOR
John J. Fenske
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.
7415US02 1280
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
gmi.mail@dwpatentlaw.com
mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN J. FENSKE, JENNIFER S. BARTA,
and DIANE M. PHILLIPS
Appeal2018-001075
Application 13/812,986
Technology Center 1700
Before ROMULO H. DELMENDO, BRIAND. RANGE,
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1, 3, 5-8, 11, 20, 26, 32-34, 39-
41 and 43-55 of Application 13/812,986 under 35 U.S.C. § 103(a). Final
Action (mailed Dec. 29, 2016 "Final Act.") 5-19; Examiner's Answer
(mailed Sept. 14, 2017 "Answer") 2-16. Appellants 1 seek reversal of these
1 General Mills, Inc. is identified as the real party in interest. Appeal Br. 5.
Appeal2018-001075
Application 13/812,986
rejections2 pursuant to 35 U.S.C. § 134(a). We have jurisdiction under
35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.
BACKGROUND
The present application generally relates to packages for food
products. Spec. 1. The packages described in the application include a
closure (such as an endcap ), an aperture located on the closure, and an insert
that covers the aperture. Id. "[T]he placement of the insert at a surface of
the closure can create or maintain a vent ( e.g., space, channel, slot, opening,
etc.) between the closure and the insert." Id. at 15. Such packages may be
used for the refrigerated storage of dough products. Id. at 1.
A figure showing an embodiment of the invention is reproduced
below.
' .,
'
Spec., Fig. 4A. Figure 4A shows a side perspective of one embodiment of
the package described by the application. Spec. 18.
2 In this Decision, we refer to the correspondence on page 1, and the Appeal
Brief, (mailed May 30, 2017 "Appeal Br."); and the Specification, (filed Jan.
29, 2013 "Spec.").
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Claim 1 is illustrative of the subject matter on appeal and is
reproduced below:
1. A packaged dough product comprising a dough
composition in a package, the package being pressurized
internally to above atmospheric pressure, the package
compnsmg:
an interior space defined by a hollow container having at
least one sidewall and an opening at an end of the at least one
sidewall, and
a closure at the opening, the closure comprising
a perimeter that engages the end of the at least one
sidewall,
an interior surface extending between locations of the
perimeter on the interior side of the closure,
an aperture in the interior surface, and
an insert on the interior side of the closure that covers the
aperture on the interior side of the closure and contacts the
interior surface while establishing a vent configured to allow
fluid to pass from the interior space to an exterior of the
package through the aperture, and
wherein a perimeter of the insert is smaller than the
perimeter that engages the end of the at least one sidewall; and
wherein the package comprises a raw dough in the
interior space, and the vent is sealed by the dough contacting
the vent from within the interior space.
Appeal Br. 26 (Claims App'x).
REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1, 3, 6, 7, 26, 33, 34, 39-41, 43, 46, 48-53 and 55 are
rejected under 35 U.S.C. § 103(a) (pre-AIA) as obvious over
Domingues et al. (US 2008/0286420 Al, published Nov. 20, 2008
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Application 13/812,986
("Domingues '420")) in view of Goglio (US 5,024,538, issued Jun.
8, 1991 ("Goglio")), Ingram (US 2,263,969, Issued Nov. 25, 1941
("Ingram")), Kulesza (US 2,870,954, issued Jan. 27, 1959
("Kulesza"), Vidkjaer (US 6,733,803, issued May 11, 2004
("Vidkjaer"), and Domingues et al. (WO 2008/008804, published
July 11, 2007 ("Domingues '804")). Answer 2-10.
2. Claims 5 and 44 are rejected under 35 U.S.C. § I03(a) (pre-AIA)
as obvious over Domingues '420, Goglio, Ingram, Kulesza,
Vidkjaer, Domingues '804, and further in view of Maciag et al.
(US 2005/0236413 Al, published Oct. 27, 2005 ("Maciag")). Id. at
10-11.
3. Claims 8 and 47 are rejected under 35 U.S.C. § I03(a) (pre-AIA)
as obvious over Domingues '420, Goglio, Ingram, Kulesza,
Vidkjaer, Domingues '804, and further in view of Lewandowski et
al. (US 5,314,702, issued May 24, 1994 ("Lewandowski")),
Willoughby (GB 384114, dated Jan. 16, 1932 ("Willoughby")),
Miller et al. (US 6,983,857 B2, issued Jan. 10, 2006 ("Miller"),
and/or Perry (US 5,692,638, issued Dec. 2, 1997 ("Perry"). Id. at
11-13.
4. Claims 11 and 45 are rejected under 35 U.S.C. § I03(a) (pre-AIA)
as obvious over Domingues '420, Goglio, Ingram, Kulesza,
Vidkjaer, Domingues '804, and further in view of Lonergan et al.
(US 6,602,529 Bl, issued Aug. 5, 2003 ("Lonergan")) and Amberg
et al. (US 3,083,861, issued Apr. 2, 1963 ("Amberg")). Id. at 13-
15.
5. Claim 20 is rejected under 35 U.S.C. § I03(a) (pre-AIA) as
obvious over Domingues '420, Goglio, Ingram, Kulesza, Vidkjaer,
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Application 13/812,986
Domingues '804, and further in view of Domingues (US
2005/0271773, published Dec. 8, 2005 ("Domingues '773"). Id. at
15-16.
DISCUSSION
Rejection 1. The Examiner rejected claims 1, 3, 6, 7, 26, 33, 34, 39-
41, 43, 46, 48-53 and 55 over Domingues '420, Goglio, and certain other
references. Id. at 2-10. In particular, the Examiner relies upon Figures 8
and 49 of Domingues '420, reproduced below.
Fig. 8
layer of vented paperboard, f\trn, or
nexibJe laminate above layer of non~
vented materfaL Gas perrneates through
norHtented !ayer and exits at vents.
Fig. 49
Figure 8 (left) shows a package structure that can be closed by expanding
dough. Domingues '420 ,r 53. As the dough inside the container expands,
gas escapes through apertures (vents) in the endcap. Id. ,r,r 53-54. There is
a membrane or film in contact with the dough composition. Id. ,r 54. "The
dough will expand to cause a venting of gas from the headspace of the
container until the membrane contacts the endcap to cover the vents, after
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Application 13/812,986
which no additional venting will occur." Id. Figure 49 (right) shows a
similar structure. Id. ,r 95.
The Examiner additionally relies upon Goglio. Goglio is titled
"Packaging Bag, Especially for Cooked Ham, Provided with Drain Valve."
Figure 1 of Goglio (reoriented clockwise by 90°) is reproduced below.
Figure 1 is a cross-section view of a food storage bag 1 having a wall 4, and
a hole 6 in the bag wall. Goglio, col. 1 :36-38, 43--45. There is a drainage
valve 10 attached to the inner surface of the bag wall 4. Id. at 1:49--50. The
valve permits the drainage of "liquified fat and other liquids developed
during the cooking phase of the meat." Id. at 1 : 46--4 7.
Figure 2 of Goglio is also reproduced, below.
ri· _E
lllHlifH a .. . ~
14
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Application 13/812,986
Figure 2 of Goglio is a view of the top surface (taken along lines 2-2 of Fig.
1) of drainage valve 10. The surface 11 of drainage valve 10 "is provided
with a plurality of radial projecting ribs 12 as well as radial grooves 14 and
circular grooves 16, 17 which intersect said radial grooves." Id. at 1:51-55.
The projecting ribs 12 of the drainage valve 10 attach to the inner
surface of the bag wall. Id. at 2:7-9. Thus, the wall 4 is separated from the
valve surface 11. Id. at 2:10-11. Accordingly, the fat and other liquids can
flow between bag wall 4 and drainage valve surface 11 between the raised
ribs 12 ( e.g., through radial grooves 14) and collect in the annular recess 18
and then exit through hole 6 to the area external to the bag. Id. at 2: 11-18.
The Examiner considered both references and determined that "one
having ordinary skill in the art would have been similarly led to use this
structure [ the valve of Goglio] with a closure opening as taught by
Domingues '420 for the similar purpose of allowing gas to exit the package
while preventing contamination of the dough." Answer 4. The Examiner
further determined that "the insert [ of Goglio] would further have resulted in
a closed or sealed package, which also appears to be similar to page 13, lines
5-9 of Appellant's specification, especially because the inserts taught by the
above references would also have closed off the package." Id.
Analogous Art
Appellants argue that the rejection is in error on several bases. First,
Appellants argue that Goglio not analogous art. Appeal Br. 9-10.
A reference must be analogous to fall within the scope of the prior art.
See Jurgens v. McKasy, 927 F.2d 1552, 1557 (Fed. Cir. 1991) ("By finding
the claims nonobvious, the jury presumably found that the disputed prior art
is not analogous and therefore not within the scope of the prior art.") To be
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Application 13/812,986
analogous art, a prior-art reference must (1) be reasonably pertinent to the
particular problem with which the inventor is involved or (2) be from the
same field of endeavor. See Innovention Toys, LLC v. MGA Entm 't, Inc.,
637 F.3d 1314, 1321 (Fed. Cir. 2011).
Appellants first argue that Goglio is not within the same field of
endeavor. Appeal Br. 9. Appellants assert that claim 1 concerns "the
packaging of dough products in which the venting of fluid from an interior
space to an exterior of the package is facilitated by an aperture and insert
associated with a closure." Id. Appellants further contend that Goglio
concerns a "bag in which meat is both cooked and packaged and in which a
drainage valve allows liquefied fat and other liquids to drain from the
interior." Id. Appellants conclude that "[i]t would have been unreasonable
to presume that a person of ordinary skill in the dough packaging art would
have a reason to tum to the art of simultaneously cooking and packaging
meat." Id.
The "test for analogous art requires the PTO to determine the
appropriate field of endeavor by reference to explanations of the invention's
subject matter in the patent application, including the embodiments,
function, and structure of the claimed invention." In re Bigio, 381 F.3d
1320, 1325-26 (Fed. Cir. 2004).
In the Field of the Invention section, the application states that "[ t ]he
invention relates to packages and packaged products wherein a package
includes a closure, 3 an aperture located on the closure, and an insert th[ at]
3 Elsewhere, the Specification indicates that the term "closure" would
include the endcap of a cylindrical package. See Spec. 4, Fig. 2A ( closure
12).
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Application 13/812,986
covers the aperture; the package can be pressurized and certain embodiments
can be designed to contain a dough product for refrigerated storage." Spec.
1. Additionally, in the Summary section, the application states that "[ t ]he
described packages can be used to contain any product or material desired,
including food and non-food items. This description relates in large part to
applications for food, in particular dough products, but other food and non-
food items may also be contained and stored in the described packages."
Id. at 3 (emphasis added). The Summary further provides that "[p]ackages
according to the invention can optionally and preferably be vented to allow
gas contained in an interior space of a package to be expelled from the
interior of the package to the exterior, such as upon expansion of a dough
composition within the package." Spec. 3.
A side-by-side comparison of the venting mechanism of an
embodiment from the drawings as described in the Specification with that
shown in a figure from Goglio is provided below.
Fig ... 4R
Figure 4B from the drawings as described in the Specification (left) shows a
side cross-sectional view of package 30 including closure ( endcap) 32, and
insert 34. Spec. 19. Figure 1 of Goglio (right) depicts a cross-sectional view
of a food storage bag 1 having a wall 4, and a hole 6 in the bag wall as well
as drainage valve 10.
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Application 13/812,986
Goglio includes structures analogous to those enumerated in the Field
of the Invention. The closure ( endcap) 32 of the application is analogous to
the bag wall 4 of Goglio, the aperture 38 located on the closure is analogous
to the hole 6 of Goglio, and the insert 34 is analogous to the drainage valve
10 of Goglio.
The packages of the application and Goglio both function to store
food. Both include an aperture in the container and a valve mechanism to
permit the egress of undesirable components. Accordingly, the Examiner
has adequately established that Goglio is in the same field of endeavor as the
application.
Appellants additionally argue that Goglio is not reasonably pertinent
to the particular problem addressed by the present application. Appellants
assert that Goglio concerns the removal of liquid fat that collects during
cooking of meat in a bag while the present application relates to the exit of
gases from a dough container and to sealing the valve by the expansion of
dough. Appeal Br. 10.
The Examiner determined that Goglio is reasonably pertinent to the
problem addressed by the application because it "teaches an insert
configuration for the function of one-way exit of a fluid from a container,
where the insert is advantageous for the purpose of allowing fluid to exit the
container while avoiding contact with the product." Answer 17. The
Examiner further determined that Goglio' s function is "similar to the
function of Appellant's insert, which is such that the aperture of the end
closure does not expose the dough product once the dough has been fully
proofed within the package so as to create a sealed package." Id. The
Examiner additionally finds that Goglio' s insert would be capable of use for
permitting gas to exit a container and would (in the hypothetical
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combination) have been expected to be sealed by the expansion of dough.
Id.
We adopt the Examiner's analysis in this regard. See Answer 17-18.
A valve designed to permit the egress of unwanted liquids from a food
product is reasonably pertinent to a valve (closure and insert) designed to
permit the egress of unwanted gases from a food product. Further, claim 1
requires "a vent configured to allow fluid to pass." Appeal Br. 26 (Claims
App.) (emphasis added). Claim 52 depends (indirectly) from claim 1 and
further requires that "the fluid is a gas." Id. at 29. This suggests that claim 1
is broad enough to encompass a package that vents liquids or gases.
In view of the similarities between the application and Goglio in
function and structure, and the determination of the Examiner as set forth at
pages 16-18 of the Answer, Appellants' arguments are insufficient to show
reversible error in the Examiner's determination that Goglio is analogous art.
Reason to Modify/Combine
Appellants additionally argue that the Examiner has not made an
adequate showing why a person of ordinary skill in the art would have had
reason to modify the teachings of Domingues '420 or to combine
Domingues '420 with the teachings of Goglio. Appeal Br. 10-12.
The teachings of Figure 8 and Figure 49 of Domingues '420 are
substantially similar. Domingues '420 teaches that "FIG. 49 illustrates
structures and methods of sealing a vented package by expansion of dough
internally to close a vent from within by pressure on a mechanical structure
( e.g., as described generally at FIGS. 5, 6, 7, and 8)." Domingues '420 ,r 95.
The only difference of note appears to be that Figure 49 teaches a gas
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permeable insert such that gas "permeates through non-vented layer and
exits at vents." Id., Fig. 49 (text).
The Examiner indicates that Figure 49 of Domingues '420 is relied
upon "to show various insert structures that allow for gas generated by
expanding dough to be vented while also using the dough to seal the insert."
Answer 20; Advisory Action (March 30, 2017) 11 ("Figure 49 of
Domingues '420 teaches an insert that appears to be contacting the interior
surface of the closure"). Thus, the Examiner relies on Domingues '420 to
teach that a vent/insert may be used in the context of dough packaging and
that expanding dough may be used to seal an insert structure. Appellants
have not shown error in this determination.
With regard to the combination of the teachings of Domingues '420
with those of Goglio, Appellants argue that Goglio does not teach allowing
gas to escape and Domingues '420 does not teach a need to avoid
contamination. Appeal Br. 11. In the Answer, the Examiner indicates as
follows:
Goglio teaches a vent insert that can accomplish the function of
allowing for a zero headspace package which can allow the gas
to escape from in between the insert and the closure, while also
allowing for the dough to seal the vent structure. Goglio's
structure would have functioned equally for allowing gas to
escape and also teaches that such [a] structure can be
advantageous for preventing contamination and contact with the
product.
* * *
The concept of allowing a fluid to escape from the interior of a
sealed package through a valve is analogous to the concept of
allowing gas to escape from the interior of a dough package as a
result of the expansion and proofing of the dough. Furthermore,
arrangements of valve structures similar to Goglio have been
conventionally recognized in packaging foods, where such
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Application 13/812,986
inserts allow for the escape gas from within an interior of a
package .... In view of this, one having ordinary skill in the art
would have been similarly led to use Goglio's structure with the
apertured end cap closure opening as taught by Domingues '420
for the similar purpose of allowing gas to exit the package while
preventing contamination of the dough.
Answer 21, 22-23. That is, the Examiner determines that one of skill in the
art would have known that the valve of Goglio could have been used to
permit the egress of gas. We discern no error in such determination.
Further, the Examiner determines that Goglio (not Domingues '420)4
teaches the need to avoid contamination. See Final Act. 7 ("Goglio teaches
that this configuration can be advantageous for the purpose of providing a
valve structure to allow fluid to exit the container while avoiding contact
with the product."). Accordingly, we find Appellants' arguments not to be
persuasive. We additionally adopt the analysis of the Examiner in this
regard. See Advisory Action (March 30, 2017) 11-13; Answer 20-24.
All Elements
Appellants additionally argue that the Examiner's proposed
hypothetical combination would not teach each element of the claims.
Appeal Br. 12-14. Appellants put forward a number of contentions in this
regard.
Appellants argue that Figure 8 of Domingues '420 does not teach a
vent established by contact of an insert and a closure that has an aperture.
Id. at 12. Appellants further argue that Domingues '420 does not teach a
4 We note that Domingues '420 additionally teaches that it is beneficial to
avoid contamination. Domingues '420 ,r 14.
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membrane having a perimeter smaller than that of the endcap. Id.
Appellants further argue that Domingues '420 does not teach that the
expanding dough directly seals the vents. Id. at 13.
Appellants further argue that a combination of the drainage valve of
Goglio with Figure 8 of Domingues '420 would not teach all limitations as it
would not teach an insert having a perimeter smaller than the perimeter of
the endcap that engages the sidewalls nor that the dough seals the vents. Id.
at 13. Appellants further argue that such combination "would render the
combination unfit for its original purpose which was to place a pressure
sensitive membrane seal over dough and have the membrane seal vents in
the endcap when the dough rises." Id. (citing MPEP 2143.01, Section V).
Appellants further contend that the combination of Figure 49 of
Domingues '420 and Goglio would not teach an insert having a perimeter
smaller than the perimeter of the endcap, would lack a closure, and would
not result in the dough sealing the vents. Id. at 14.
The Examiner's hypothetical combination incorporates the valve
(insert) of Goglio with a closure opening as taught by Domingues '420.
Advisory Action 12-13. The Examiner further determines that, in view of
Ingram's teaching of an insert used for venting gas from within the container
which is also smaller than the size of the closure, "it would have been
obvious to one having ordinary skill in the art to dimension an insert, such as
that taught by Goglio to be smaller in perimeter than the closure such that it
would fit within the container." Answer 26, 27 ("in view of figure 8 of
Domingues '420 this would have been obvious for the purpose of ensuring
that the insert, such as that taught by Goglio would have fit within the
interior of the package."). In the hypothetical combination, the valve taught
by Goglio would be incorporated, for example, into the endcap of the
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container shown by the lower portion of Figure 8 of Domingues '420. The
valve of Goglio is understood to replace the "vents" (small openings) in the
endcap.
Accordingly, a container reflecting the combined teachings of
Domingues '420, Goglio, and Ingram would have an insert (valve) having a
perimeter smaller than the perimeter of the endcap and would have an
endwall/endcap (closure) between the valve (insert) and the end 58 of the
sidewalls.
Appellants contend, without further supporting argument, that claim 1
requires that the dough "directly seal the vents." Appeal Br. 13. This
argument apparently concerns the limitation "wherein the package
comprises a raw dough in the interior space, and the vent is sealed by the
dough contacting the vent from within the interior space." Id. at 26 (Claims
App.). This is a functional limitation.
"A patent applicant is free to recite features of an apparatus either
structurally or functionally." In re Schreiber, 128 F.3d 1473, 1478 (Fed.
Cir. 1997); In re Swinehart, 439 F.2d 210,212 (CCPA 1971) ("there is
nothing intrinsically wrong with the use of [ functional language] in drafting
patent claims"). In order to be accorded patentable weight, however,
functional language in an apparatus claim must limit the claim in terms of
structure rather than function. In re Schreiber, 128 F.3d at 1477-78; MPEP
§ 2114 (Ninth Ed., Rev. 08.2017). It has long been held that "apparatus
claims cover what a device is, not what a device does." Hewlett-Packard
Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990).
The limitation "the vent is sealed by the dough contacting the vent
from within the interior space" concerns what the dough does. Accordingly,
we construe this limitation to require a vent that is capable a/being sealed
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by dough from within the interior space. The container of the Examiner's
stated combination is capable of being sealed in such a manner. Answer 24
("it would have been obvious to one having ordinary skill in the art that
other types of inserts such as that shown by Goglio ... would also have been
capable of being sealed.").
Moreover, we note that independent claim 43 requires that "the vent is
sealed by the raw dough composition" while dependent claim 55, which
depends from claim 43, requires that the "vent is configured to be directly
sealed by the dough." Appeal Br. 30 (Claims App.) (emphasis added). This
suggests that the phrase "vent is sealed" does not require direct contact.
Further, even if we were to construe the limitation in question as
requiring direct contact between dough and vent, the Examiner determines
that such condition is met by the hypothetical combination. Answer 26; see
also Domingues '420 ,r 49 ("[a] vent may become sealed by any method,
such as by dough that expands within the package to contact and close a
vent."). We adopt such finding.
Claim 39
Appellants present separate argument against the rejection of claim
3 9. Claim 3 9 depends from claim 1 and further requires that "the perimeter
of the insert does not engage the side walls." Appeal Br. 28 (Claims App.).
The Examiner relies upon Ingram as teaching an insert that does not engage
the sidewalls of the container. Advisory Action 16; Answer 8.
Appellants argue as follows:
Ingram discloses a cap for a mason jar that allows for venting of
gases from the inside of the container to the outside. There is
simply no provision for the valve to maintain pressure in the
mason jar. Such a valve would render the combination unfit to
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accomplish the goals of the base reference in which the vents are
sealed by the expanding dough and therefore the combination
would not be an obvious one to make.
Appeal Br. 14. Appellants make factual assertions, such as the valve of
Ingram not being able to maintain pressure in the mason jar, in support of
their argument. Such factual assertions are unsupported. Attorney argument
is not evidence. See, e.g., Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d
1371, 1380 (Fed. Cir. 2009) ("[U]nsworn attorney argument ... is not
evidence and cannot rebut ... other admitted evidence .... "). In addition,
Appellants' assertion regarding maintaining pressure appears to be in error
as Ingram provides for a closure which "incorporates a simple and highly
effective mechanism for permitting outward flow of vapor and gases through
the closure when the absolute pressure within the container exceeds the
external absolute pressure by a predetermined amount." Ingram, 1 :26-31
( emphasis added). Until such predetermined threshold is crossed, Ingram
may maintain a pressure greater than the ambient atmosphere.
Appellants further argue that "[ s ]uch a valve would render the
combination unfit to accomplish the goals of the base reference." This
argument is not further supported and is inadequate to present an issue for
appeal. See 37 CPR§ 4I.37(c)(l)(iv). To the extent that this refers back to
Appellants' prior argument that a certain combination would be "unfit for its
original purpose which was to place a pressure sensitive membrane seal over
dough and have the membrane seal vents in the endcap when the dough
rises," such argument has already been rejected.
Accordingly, Appellants have not shown error in this regard.
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Claim 40
Appellants rely upon the same arguments in support of their appeal of
the rejection of claim 40 as with regard to the rejection of claim 39. Such
arguments are found to be unpersuasive for the reasons set forth above.
Claims 43, 46, 48, and 50
Appellants assert that the rejection of claims 43, 46, 48, and 50 is in
error on several bases. Appellants first argue that Goglio is not analogous
art. Appeal Br. 15-16. These arguments reiterate Appellants' earlier
arguments made with regard to claim 1 and are found not to be persuasive
for the reasons stated with regard to claim 1.
Second, Appellants argue that the Examiner has not stated an
adequate reason to modify the teachings of Domingues '420 or combine
such teachings with those of Goglio. Id. at 16-18. These arguments
reiterate Appellants' earlier arguments made with regard to claim 1 and are
found not to be persuasive for the reasons stated with regard to claim 1.
Third, Appellants argue that the Examiner's proposed combination
would not teach all the limitations of claim 43. Id. at 18-19. These
arguments reiterate Appellants' earlier arguments made with regard to
claims 1 and 39 and are found not to be persuasive for the reasons stated
with regard to claims 1 and 39.
Claims 49 and 51
Claim 49 depends from claim 43 and further requires "a plurality of
spaced, adhesive patches engaging the exterior surface of the insert with the
interior surface of the second closure, wherein the hollow container is
provided with a plurality of vents defined between adjacent ones of said
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plurality of spaced, adhesive patches." Id. at 29 (Claims App.). Claim 51 is
similar in scope. Appellants present the same arguments in regard to both
claims. Id. at 20.
The Examiner finds that Goglio teaches that the valve is attached to
the interior surface of the bag wall by spaced apart weld points. Advisory
Action 17. The Examiner further finds that Domingues '420 teaches using
an adhesive to secure an insert to a closure. Id. ( citing Domingues '420 ,r
54). The Examiner determines that using the adhesive of Domingues '420
rather than the weld points of Goglio "would have been an obvious
substitution of one conventional expedient for another both recognized for
securing an insert to a closure." Id.
Appellants argue that "[ o ]ne skilled in the art would not look to metal
welding to modify a dough container made of paper of plastic since the
results would be disastrous." Appeal Br. 20. This is unsupported attorney
argument. Further, Goglio does not teach "metal welding." It teaches "the
use of a heat weldable material packaging bag." Goglio, 1 :21-22; Answer
28-29. As Appellants' arguments are predicated upon Goglio teaching
metal welding, they are unpersuasive of error with regard to these claims.
Claims 52 and 53
Appellants argue that the rejection of claims 52 and 53 was made in
error. Appeal Br. 21. Claims 52 and 53 are dependent claims which each
require that "the fluid is a gas and the vents are configured to allow the gas
to pass from the interior space to outside the package." Appellants argue
that Goglio is directed to passing liquid rather than gas and therefore has a
different principle of operation. Id. Appellants additionally assert that a
liquid vent must be positioned on the side or bottom of a container while a
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gas vent must be on the top of the container to permit gas to vent until the
vent is sealed by expanding dough. Id.
The Examiner determined that such arguments are unpersuasive as the
valve of Goglio would have been capable of allowing gas to vent. Answer
29. The Examiner further determined that Goglio does not teach the position
of the valve is limited to any particular location of the cooking bag. Further
one of ordinary skill in the art would have been capable of placing the valve
in the correct location to facilitate the egress of gases as taught by
Domingues '420.
We discern no error in the Examiner's findings. Further, Appellants'
arguments regarding valve placement are not predicated upon evidence of
record; accordingly, they are viewed as mere attorney argument. In view of
the foregoing, Appellants have not shown error in regard to the claims at
lSSUe.
Claim 55
Appellants argue that the rejection of claim 55 was made in error.
Appeal Br. 21. Claim 55 depends from claim 43 and further requires that
"the vent is configured to be directly sealed by the dough." Appeal Br. 30
(Claims App.).
Appellants first argue that Goglio does not teach that "the valve is
involved in sealing the bag." Id. at 21. Appellants next argue that Figure 49
of Domingues '420 does not teach that dough seals the vent. Id. at 22.
Here, the proposed combination includes a valve of the sort taught by
Goglio in the endwall (endcap) of the dough package of Domingues '420.
Advisory Action 12-13. Appellants do not argue against the proposed
combination but rather against the references individually. Patentability,
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however, "cannot be established by attacking references individually where
the rejection is based upon the teachings of a combination of references." In
re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Accordingly, Appellants have not shown error in this regard.
Rejection 2. The Examiner rejected claims 5 and 44 as obvious over
Domingues '420, Goglio, Ingram, Kulesza, Vidkjaer, Domingues '804, and
further in view of Maciag. Answer 10-11. Appellants indicate that on
appeal they rely upon their arguments presented in regard to the rejection of
claim 1. Appeal Br. 22. As such arguments have not been found to be
persuasive, Appellants have not shown error in the rejection of claims 5 and
44.
Rejection 3. The Examiner rejected claims 8 and 47 as obvious over
Domingues '420, Goglio, Ingram, Kulesza, Vidkjaer, Domingues '804 and
further in view of Lewandowski, Willoughby, Miller, and/or Perry. Answer
11-13.
Claim 8 depends from claim 1 and further requires "a second vent
between the perimeter of the closure and the end of the at least one
sidewall." Appeal Br. 27 (Claims App.). This appears to correlate to the
teaching in the Specification that "[ o ]ne vent embodiment is indicated by
arrows 60, indicating gas being expelled from interior space 54, through a
passage between closure 32 and sidewall end 58" as shown in Figure 4B.
Spec. at 19:28-30; Fig. 4B.
In support of the rejection, the Examiner cites to Figure 7 of
Domingues '420 for a vent that "could also be construed as being between
the perimeter and the end of the sidewalls." Answer 11. The Examiner
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further finds that Domingues '804 teaches that micro-vents can be placed in
various locations. Id.; see Domingues '804 at 17: 15-17 ("Lid 70 is a plastic
lid that may optionally be included and that does not seal to rim 72 in an air-
tight fashion so that gas may be expelled through microvents 68 and past lid
70."). The Examiner further finds that Lewandowski teaches that a vent
opening can be "located in a seam formed between an end cap and an end of
a cylindrical container to vent internal gasses during proofing" of a dough in
the container. Answer 12 (quoting Lewandowski, 4:23-26); see
Lewandowski, Fig. 2.
Appellants present various arguments against the rejection. Appeal
Br. 23-24. Appellants argue that the Examiner indicates a reliance upon
Figure 7 of Domingues '420 but does not adequately state why a person of
ordinary skill in the art would replace the vents of Domingues '420's Figure
8 with those of Figure 7. Id. at 23. Appellants further argue that such
replacement would leave the container with only a single vent and therefore
would not teach each limitation of claim 8. Id. Appellants further argue that
Domingues '804 shows microvents in a sealing membrane 66 and not
between a perimeter and sidewalls. Id. Appellants mention Lewandowski
but do not present argument regarding that reference. Id.
Appellants argue that a review of the references indicates that there is
no teaching of adding multiple vents at different locations. Id. at 23-24.
In the Answer, the Examiner determined that the prior art teaches to
place vents in various locations. Answer 30. The Examiner determined that
additional vents would have been "advantageous in providing more locations
for internal gases to exit the container." Id. at 31. This is consistent with
Domingues '420 which teaches as follows:
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A dough composition ... wherein the package comprises
any one or a combination of the following:
a vent that comprises a tortuous path;
a vented chamber whose vent becomes closed
mechanically by contact with expanding dough inside of the
package.
Domingues '420 ,r,r 98-100 (emphasis added). The vent as indicated by
arrows 60 of Figure 4B of the drawings is a "tortuous path" while the vents
of Figures 8 and 49 ( or the hypothetical combination of the rejection of
claim 1) would be "closed mechanically by contact with expanding dough."
Appellants rely upon the same arguments with regard to their appeal
of the rejection of claim 4 7. Appeal Br. 24.
Accordingly, Appellants have not shown error in the rejection of
claims 8 and 4 7.
Rejection 4. The Examiner rejected claims 11 and 45 as obvious
over Domingues '420, Goglio, Ingram, Kulesza, Vidkjaer, Domingues '804,
and further in view of Lonergan and Amberg. Answer 13-15.
Claim 11 depends from claim 1 and further requires that "the
perimeter is circular and has diameter in a range from 3 to 12 centimeters,
and the aperture is circular and has a diameter in the range from 0.3 to 11
centimeters." Appeal Br. 27 (Claims App.). Claim 45 depends from claim
43 and further requires that "the aperture has a dimension greater than or
equal to 1 centimeter." Id. at 29.
In rejecting claim 11, the Examiner found that Domingues '804
teaches that the perimeter of the closure is circular (see Figure 6) and has a
cross-sectional diameter from 5 to 10 cm, (Answer 13 (citing Domingues
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'804 at 13:8-11)), and the aperture is circular (Answer 13 (citing Domingues
'804 at 10:21-26). The Examiner additionally found that both Domingues
'420 and Domingues '804 teach that the size of the "aperture" can be
adjusted as appropriate. Answer 14. The Examiner further found that
Amberg teaches a vent within the claimed range. Id. at 14--15.
Appellants argue that the references actually teach that the aperture
would be one or more microvents of a size less than required by either claim
11 or 45. This does not directly rebut the Examiner's findings, particularly
those with regard to Amberg. Nor do Appellants' brief arguments explicitly
contend that the references teach away from Amberg or the other teachings
cited by the Examiner. Accordingly, Appellants have not shown reversible
error in the Examiner's determination regarding claims 11 and 45.
CONCLUSION
The rejections of all claims are 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).
AFFIRMED
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