Ex Parte Glydon et al

Patent Trial and Appeal Board

Sep 26, 2017

11897117 (P.T.A.B. Sep. 26, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/897,117 08/29/2007 James A. Glydon 1421-157 RCE III 3889
23869 7590 09/26/2017
Hoffmann & Baron LLP
6900 Jericho Turnpike
Syosset, NY 11791
EXAMINER
PAGAN, JENINE MARIE
ART UNIT PAPER NUMBER
3728
MAIL DATE DELIVERY MODE
09/26/2017 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES A. GLYDON, SIMON RICHARD GAINEY,
and THOMAS E. WELLS
____________

Appeal 2017-0001411
Application 11/897,1172
Technology Center 3700
____________

Before ANTON W. FETTING, PHILIP J. HOFFMANN, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 1, 4, 5, 7–19, and 21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Our decision references the Appeal Brief (“Appeal Br.,” filed Jan. 12,
2016) and Reply Brief (“Reply Br.,” filed Sept. 19, 2016), and the
Examiner’s Answer (“Ans.,” mailed July 27, 2016) and Final Office Action
(“Final Act.,” mailed Aug. 13, 2015).
2 According to Appellants, “[t]he real party in interest is Intercontinental
Great Brands LLC (also formerly known as Kraft Foods Global Brands
LLC/Mondelez Global LLC/Cadbury Adams USA LLC). Appeal Br. 1.
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Application 11/897,117

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BACKGROUND
“The present invention relates generally to consumer product
packaging. More particularly, the present invention relates to packaging of
confectionary products, pharmaceutical products, or the like.” Spec. 1,
ll. 10–12.
CLAIMS
Claims 1 and 12 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A blister package assembly for consumable products
comprising:
a housing comprising a plurality of sleeves having
opposed open ends which are removably attached to form said
housing to define an attached and a detached condition; and
a plurality of blister trays supporting said consumable
products, said blister trays being slidably removably insertable
into each of said sleeves through said open ends in both the
attached and the detached conditions for removable retentive
support therein, said plurality of sleeves are attached by a
detachable perforation line so as to allow said removable
attachment.
Appeal Br. 7.
REJECTION
The Examiner rejects claims 1, 4, 5, 7–19, and 21 under 35 U.S.C.
§ 103(a) as unpatentable over Wolf3 in view of Chacko4 and Wysocki.5

3 Wolf et al., US 3,429,426, iss. Feb. 25, 1969.
4 Chacko et al., US 6,932,219 B2, iss. Aug. 23, 2005.
5 Wysocki, US 4,228,945, iss. Oct. 21, 1980.
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DISCUSSION
With respect to claim 1, the Examiner finds that Wolf discloses a
blister package assembly including a housing that is a sleeve and a blister
tray supporting consumable products. Final Act. 2 (citing Wolf Fig. 3). The
Examiner acknowledges that Wolf does not disclose that the housing
includes a plurality of sleeves and a plurality of blister trays, for which the
Examiner relies on Chacko. Final Act. 2. In particular, the Examiner finds
that “Chacko teaches that it was known in the art to have a housing comprise
a plurality of opposed open ended sleeves capable of holding a plurality of
packs in each sleeve.” Id. Still further, the Examiner acknowledges that
Wolf and Chacko do not disclose sleeves that are removably attached by a
detachable perforation line. Id. at 3. For this limitation, the Examiner relies
on Wysocki, and finds that Wysocki “teaches that it was known in the art to
have a housing have sleeves define an attached and a detached condition . . .
[in which the] sleeves are attached by a detachable perforation line.” Id.
We agree with and adopt the Examiner’s findings and conclusions
regarding the rejection of claim 1. See Final Act. 2–3; see also Ans. 2–3.
As discussed below, we are not persuaded of reversible error by Appellants’
arguments.
Appellants first argue that Chacko does not disclose two sleeves that
are attached by a perforation line; that it is critical to Chacko’s display rack
that Chacko’s “pockets remain together,” and thus, “it would not be obvious
from the Chacko reference to provide such [a] removable attachment.”
Appeal Br. 3–4. We are not persuaded at least because this argument against
Chacko individually is not commensurate with the scope of the rejection
before us, which relies on Wysocki as teaching that it was known to provide
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Application 11/897,117

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removably attached pockets; relies on Chacko only insofar as Chacko
teaches that it was known to have a housing with a plurality of sleeves
carrying a plurality of packages; and does not rely on the bodily
incorporation of Chacko’s particular device into Wolf.
Second, Appellants argue that although Wysocki “does disclose the
use of separate compartments, it fails to show the ability to allow for
insertability and removability of product from the compartments in both the
attached and detached conditions.” Appeal Br. 4. However, this argument
is not commensurate with the scope of the rejection before us because the
Examiner relies on Wysocki only to show that it was known in the art to
provide a housing with compartments that are removably attached at a
detachable perforation line. Thus, the Examiner relies on the teachings of
the combination of art to show that it would have been obvious to provide a
device that allows “for insertability and removability of product from the
compartments in both the attached and detached conditions.” Id.
Appellants’ argument against Wysocki individually with respect to this
claim requirement is not persuasive.
Next, Appellants argue that “[o]ne skilled in the art of making blister
packages for consumable products would not look to a microwavable
container [as in Wysocki] as relevant prior art.” Appeal Br. 5. This appears
to be an argument that Wysocki is non-analogous art. Our reviewing court
has set forth a two-prong test for determining whether a prior art reference is
analogous: (1) whether the reference is from the same field of endeavor as
the claimed invention, and (2) if the reference is not within the same field of
endeavor, whether the reference is reasonably pertinent to the particular
problem with which the inventor is involved. In re Klein, 647 F.3d 1343
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(Fed. Cir. 2011). We agree with the Examiner’s response that “Wysocki is
relevant and pertinent to providing a solution of detaching a plurality of
sleeves and is therefore relevant to the particular problem with which
appellant[s were] concerned.” Ans. 3.
Finally, Appellants argue that the “Examiner has engaged in hindsight
selection of prior art, by combining elements from non-analogous sources.”
Appeal Br. 5. However, as discussed above, we are not persuaded that the
Examiner relies on non-analogous art in the rejection. Further, we are not
persuaded that the Examiner has relied on “knowledge gleaned only from
[Appellants’] disclosure” in arriving at the conclusion that the claims are
obvious. In re McLaughlin, 443 F.2d 1392, 1395, (CCPA 1971).
Accordingly, for the reasons set forth above, we are not persuaded of
error and we sustain the rejection of claim 1. We also sustain the rejection
of claims 4, 5, and 7–11, for which Appellants do not provide separate
arguments. Further, we sustain the rejection of claims 12–19 and 21, for
which Appellants rely on the same arguments addressed above. See Appeal
Br. 5.
CONCLUSION
We affirm the rejection of claims 1, 4, 5, 7–19, and 21 for the reasons
set forth herein.
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