Ex Parte Lipinski et al

Patent Trial and Appeal Board

Nov 13, 2017

11835696 (P.T.A.B. Nov. 13, 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.
11/835,696 08/08/2007 Jeffrey Matthew Lipinski 1410-77601-US 1901
48940 7590 11/13/2017
FITCH EVEN TAB IN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
SMITH, CHAIM A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
11/13/2017 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 KRAFT FOODS GROUP BRANDS, LLC.
(Inventors: Jeffery Matthew Lipinski, and
Raymond Scott Manis)
Appeal 2015-005976
Application 11/835,696
Technology Center 1700
Before RICHARD E. SCHAFER, ADRIENE LEPIANE HANLON, and
TERRY J. OWENS, Administrative Patent Judges.
SCHAFER, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-005976
Application 11/835,696
Kraft Foods Group Brands (Applicant) appeals the Examiner’s
decision rejecting claims 1, 2, and 4-23. 35 U.S.C. §§ 6(b) and 134(a). We
affirm.
I.
A.
The invention relates to food packaging. The packaging includes at
least two unconnected individual trays, each tray having multiple
compartments and peripheral and internal flanges. Each compartment is
defined by sidewalls extending from the flanges to bottom walls. At least
one of the compartments in each tray must contain a food product. The
compartments in each tray are symmetrical to the compartments in the other
tray. The trays are covered with a single or common air impermeable film
that attaches to the flanges and seals the compartments. The packaging also
includes a common back panel attached to the bottom of the compartments
of adjoining trays. The film and the back panel each include a weakened
area located between the trays that allows the trays to be easily separated.
The back panel includes a lower edge that extends beyond the compartment
sidewalls such that the lower edge and peripheral flange form a pair of edges
that allow the package to stand upright.
Applicant also claims the method of separating the trays in a multiple
tray package where two compartments in one of the trays are identical to at
least two compartments in another tray. The steps include removing the
weakened area on the back panel and separating the film along the weakened
area providing separate trays with each tray having a separate back panel
and film.
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Application 11/835,696
B.
Claims 1 and 20, as they appear in Applicant’s Claim Appendix,
illustrate the invention:
Claim 1
A food package comprising:
at least two rigid, unconnected trays, each tray
being independent of the other having at least two
compartments and peripheral and internal flanges, the
compartments defined by side walls extending
downwardly from the flanges to bottom walls and at least
one of the compartments of each tray containing a food
product wherein the compartments on one tray are
symmetrical to the compartments on the other tray;
a common air impermeable flexible film affixed to
each tray at the peripheral and internal flanges of each
tray and forming air-tight seals at least with respect to the
compartments containing food product, the film having a
weakened portion positioned between the two trays; and
a common back panel adhered to a portion of the
bottom wall of at least one compartment of each tray, the
back panel having an area of weakness positioned
between the two trays, the back panel having a lower
edge that extends beyond the edges of the sidewall of at
least one of the compartments and that together with a
lower edge of the peripheral flange forms a pair of edges
that are generally within a line in the same plane
upon which to stand the package upright.
Claim 20
A method of separating a multi-tray food package, the
method comprising:
removing an area of weakness along a common
back panel attached to a bottom of each tray of the multi­
tray food package to separate the back panel into multiple
parts, one part along each tray and to separate the trays
along a bottom plane;
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Application 11/835,696
separating a common flexible film attached to an
upper portion of the food package along a weakened
portion where the multiple trays are connected to each
other along the weakened portion and further dividing the
flexible film into multiple films, a separate film for each
tray; and
providing for multiple individually singulated trays
obtained from the food package, and each tray having at
least two compartments,
wherein the at least two compartments of one tray
are identical with respect to the at least two
compartments of another tray.
Brief, 15, 19 (Claims Appendix).
II
The Examiner maintained the following rejection in the Answer:1
Claims 1-2 and 4-23 under 35 U.S.C. 103(a) as unpatentable over the
combined teachings of Sooky (EP 0677 454 Al, published Oct. 18, 1995),
Mueller (US 3,976,196, issued Aug. 24, 1976), Whiteford (US Patent
6,086,931, issued Jul. 11, 2000), Hustad (US Patent 5,657,874, issued Aug.
19, 1997) and Wong (US 2005/0045503 Al, Mar. 3, 2005). Final Rejection,
2-9.
III.
The Examiner has made findings on the teachings of each of the relied
upon references. Final Rejection, 2-9. Except for the limitations of claims
21 and 23, Applicant does not appear to challenge the Examiner’s findings
as to what is taught by each of the references. We adopt the Examiner’s
findings as our own.
1 The Examiner also entered an obviousness-type double patenting rejection
over certain claims in application 11/963,299. PTO records show that the
299 application was abandoned and that no continuing application was filed.
It is therefore unnecessary for us to reach the double patenting rejection.
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Application 11/835,696
Applicant argues that a limitation in claims 21 and 23 is not disclosed.
App. Brief, pp. 12-13. The limitation relates to portions of the tray that are
deeper than other portions. Specifically, claim 21 requires that
21. The food package of claim 1 wherein at least one
of the compartments of each tray has a different depth
than another one of the compartments so that the bottom
walls thereof are not aligned,
the at least one of the compartments including a
projection extending from the bottom wall thereof and
having a bottom surface, the projection sized so that the
bottom surface thereof is generally planar with at least a
portion of the bottom wall of the other one of the
compartments ....
App. Brief, pp. 18, 19 (Claims Appendix, emphasis added). Claim 23
contains essentially the same limitation and is not separately argued.
Applicant points to paragraph 22 of its specification as describing the
possible embodiments covered by claims 21 and 23. App. Brief, p. 6-7.
The specification describes one of those embodiments as follows:
[Sjtill alternatively, all the compartments may be at the
same depth but still contain a first and second portion
with two depths that may be similar. Such bottom wall
projections can be shaped in many ways, and can span
the entire cross-section of the bottom wall or only a
portion thereof.
Spec., 122.
The Examiner finds that Sooky Figure 3, which is a cross section
through the compartments in the tray shown in Sooky Figure 2, teaches the
claimed limitation. As shown in Fig. 3 the bottom 40 of the compartment
14 includes portions having less depth compared to the bottom of
compartment 12. The compartment 14 also has other portions that are
generally planar with the bottom of adjacent compartment 12. Sooky
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Application 11/835,696
Figure 3 appears to show the above-quoted embodiment. We agree with the
Examiner that Sooky reasonably describes the limitations of claims 21 and
23.
IV.
Applicant makes two additional arguments: (1) ‘Tt]he proposed
combination of references fails to disclose a food package that includes
unconnected trays that are configured to stand upright” (App. Brief, pp. 10-
12) and (2) the Wong reference “teaches away from the proposed
combination and the proposed modification would render Wong
unsatisfactory for its intended purpose” (App. Brief, p. 12).
A.
With respect to the first argument, Applicant contends that the
“combination of references fails to disclose a food package that includes
unconnected trays that are configured to stand upright.” App. Brief, p. 10.
We conclude that a food package that includes unconnected trays and
includes a backing panel configured to allow the package to stand upright
would have been obvious. We focus our attention on the subject matter of
claim 1.
The references relied upon by the Examiner establish that each of the
concepts, structures employed in Applicant's invention, as well as the
functions and benefits of each, were known to and used by those working in
the food packaging art. Turning to the “unconnected trays” and “standing
upright” requirements, the cited references establish that those working in
the field where aware that packaging including multiple trays could be
provided either with separably connected trays or with individual trays.
Sooky teaches packaging that is formed in multiple rows of trays which are
filled and sealed and that are separable along a perforation line formed
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between the trays. Sooky, Fig. 7, 4:32-49. Whitford describes multiple tray
packaging where each tray is separately made so they can be grouped in a
desired array. Whitford, Fig. 3, 3:46-60. Those of ordinary skill would
recognize that the two techniques are available alternatives. The selection of
one known alternative over another would have been obvious.
Applicant does not assert that both techniques were not known to
those working in the art. Rather, it argues that the Sooky, Mueller or
Whitford packages are neither configured to nor can stand upright as
required by the claim 1. App. Brief, p. 11. We understand “upright” to
mean “on edge” as shown in Applicant’s Fig. 4.
Applicant does not direct us to evidence supporting this argument. In
any event, Hustad teaches the use of a back panel or rigid base attached to
the bottom of a compartmentalized tray to preserve structural integrity of the
tray and to allow the package to be displayed in an upright position. Hustad,
1:54-64. The back panel includes a lower edge that extends beyond the
edges of the sidewall of at least one of the compartments and that together
with a lower edge of the peripheral flange forms a pair of edges that are
generally within a line in the same plane that allows the package to stand
“upright,” i.e., on edge. Figs. 12-14, 17, 18, 20 and 21. One skilled in the
art would have recognized the benefits of incorporating such back panels to
obtain the benefits of increased structural integrity and upright display as
taught by Hustad. One having ordinary skill in the art would have
recognized that the increased structural integrity from the back panel would
have resulted whether the trays were separably connected as, for example, in
Sooky or were separate trays as exemplified by Whitford. It would have
been obvious to employ back panels on the trays to obtain the benefits of
upright display and increased integrity as taught by Hustad.
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Applicant seems to argue that obviousness requires a single reference
with a complete disclosure of the structure claimed and that no reference
discloses the specific recited structure. App. Brief, p. 11. Obviousness does
not require such a reference. Rather, obviousness is determined by looking
to interrelated teachings of multiple patents; the effects of
demands known to the design community or present in
the marketplace; and the background knowledge
possessed by a person having ordinary skill in the art, all
in order to determine whether there was an apparent
reason to combine the known elements in the fashion
claimed by the patent at issue.
KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). All the elements of
Applicant’s food package, as well as the functions and benefits of each are
taught in the cited references. Where an invention ‘“simply arranges old
elements with each performing the same function it had been known to
perform and yields no more than one would expect from such an
arrangement, the combination is obvious.” KSR, 550 U.S. at 417. Applicant
has not directed us to evidence that tends to show that one skilled in the art
would have been unable to combine the old elements as required by the
claims. “[I]f a technique has been used to improve one device, and a person
of ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.” KSR, 550 U.S. at 417.
B.
Applicant argues that Wong teaches away from the proposed
modification using the package closure taught by Wong and that the
proposed use of the closure would make Wong unsatisfactory for its
intended purpose. App. Brief, 12. Wong teaches a package closure that
includes a weakened or tear-away portion that secures the package and
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facilitates opening by the purchaser. Wong, Figs. 3, 4 and 9; 1 [0030].
Wong also teaches placing the closure weakened portion at a location that
best facilitates opening the package. Wong, Figs. 3, 4 and 9. It would have
been obvious to place the weakened portion where appropriate to facilitate
opening the package.
Applicant explains that Wong teaches away from the proposed use of
the closure because Wong
describes in detail the type of package and packaging that
it is created for. The use proposed in the Office action is
inapposite to all of Wong’s stated functions.
App. Brief, 12.
We do not agree. Wong specifically teaches that “[pjackage closure
labels according to the present invention could also be applied to differently-
shaped packages.” Wong, | [0043]. See also ^[ [0027] . Thus, we fail to see
anything in Wong that would indicate that such a closure is inappropriate
with respect to the food packaging of the type shown in the other cited
references. Indeed, the purpose of the closure—to provide an attractive and
secure, but easily opened closure that did not require the use of a knife or
other implement (Wong, | [0016])—is directly applicable to the consumer
food packaging described in the other references. It would have been
obvious to incorporate such a closure and its benefits into the packaging of
the type shown in Sooky, Mueller, Whiteford, and Hustad.
V.
We affirm the rejections of claims 1,21 and 23. Because Applicant
has not presented arguments on the separate patentability of the remaining
claims, we treat claim 1 as representative and affirm the rejection of the
remaining claims as well. 37 C.F.R. § 41.37(c)(l)(vii).
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DECISION
The Examiner’s final decision to reject claims 1, 2 and 4 — 23 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).
AFFIRMED
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