Ex Parte Fogle et al

Board of Patent Appeals and Interferences

Jan 10, 2012

10874632 (B.P.A.I. Jan. 10, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JAMES C. FOGLE, JEAN-MANUEL GOMES, and KEVIN MAY
____________________

Appeal 2009-011203
Application 10/874,632
Technology Center 3700
____________________

Before: JOHN C. KERINS, PHILLIP J. KAUFFMAN, and
WILLIAM V. SAINDON, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-011203
Application 10/874,632
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
1-9, 11-13, 15, 16, and 19-23. Claims 10, 14, 17, 18, and 24-31 are
withdrawn. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
Claim 1, reproduced below with added emphasis, is illustrative of the
claimed subject matter.
1. A protective wrap for a microwavable container having a
removable lid, the wrap comprising:
a top wall, a bottom wall, and side walls adapted to
surround the container;
the wrap including a remainder portion and a separable
portion separable from the remainder portion and pivotable
away from the remainder portion about a hinge line formed in
the top wall; the remainder portion including a section of the
top wall and the separable portion including sections of at
least two of the side walls;
the separable portion being so located that when it is
pivoted away from the remainder portion, the lid of the
container is accessible for removal;
whereby, after the lid of the container has been removed,
the separable portion may be pivoted back to its initial position
with the container positioned within the wrap.
References
The Examiner relies upon the following prior art:
D’Ippolito
Ross
Chaussadas
Griffin
Roosa
Barlow
US 2,939,622
US 3,893,566
US 4,596,356
US 4,821,884
US 5,012,929
US 5,522,537
Jun. 7, 1960
Jul. 8, 1975
Jun. 24, 1986
Apr. 18, 1989
May 7, 1991
Jun. 4, 1996
Rejections
The Examiner makes the following rejections under 35 U.S.C. § 103(a):
I. Claims 1-3, 6, 8, 9, 11-13, and 21-23 over Griffin and Ross.
Appeal 2009-011203
Application 10/874,632
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II. Claims 1-3, 6, 8, 9, 11-13, 15, 16, and 19-23 over Chaussadas and
Ross.
III. Claims 3, 4, and 7 over Chaussadas, Ross, and Roosa.
IV. Claim 5 over Chaussadas, Ross, Roosa, and D’Ippolito.
V. Claims 19 and 20 over Griffin, Ross, and Barlow.
OPINION
The rejections are based on a proposed modification of the secondary
packaging of Griffin or Chaussadas to have a top section (50, 52) with Ross’
sidewalls A, B, and C (of skirt 42). See, e.g., Ans. 9, 11 (“ABC”
designations from the Examiner’s annotation of Ross, fig. 2). The
dispositive issue in this appeal is whether Ross teaches “the separable
portion including sections of at least two of the side walls.” Reply Br. 1.
The Examiner found that the three sidewalls in Ross (A, B, C in the
annotated drawing) satisfy this limitation. We agree with Appellants (Reply
Br. 3) that the portions of lip (skirt 42) of the lid structure in Ross,
characterized by the Examiner as sidewalls A, B, and C, do not describe
sections of at least two sidewalls.
Neither Griffin nor Chaussadas describe sidewalls on the sides
analogous to the B and C sides of Ross. See Chaussadas, fig, 1; Griffin fig.
1 (both disclose containers with walls on the front and back but not on the
other two sides). The Examiner does not propose to modify the packaging
of Griffin or Chaussadas to include sidewalls instead of open sides. Thus,
even if we were to assume, arguendo, that the portions A, B, and C in Ross
are sidewalls, sidewalls B and C would constitute the entirety of the sidewall
on that side and thus not a section of a sidewall as claimed.
Accordingly, the Examiner has not established how the packages of
Griffin or Chaussadas, modified to include the top section of Ross, render
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Application 10/874,632
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obvious “the separable portion including sections of at least two of the side
walls” (emphasis added). Each of the rejections suffers from this deficiency.
Thus, we reverse the rejections of claims 1-9, 11-13, 15, 16, and 19-23.

REVERSED

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