Ex Parte Ranganathan et al

Patent Trial and Appeal Board

Sep 15, 2017

13331375 (P.T.A.B. Sep. 15, 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.
13/331,375 12/20/2011 Sumita S. Ranganathan D-44700-01 7925
7590 09/18/2017
Rnnert R Harle.v Tr
EXAMINER
Cryovac, Inc.
P. O. Box 464
YAGER, JAMES C
Duncan, SC 29334 ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
09/18/2017 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 SUMITA S. RANGANATHAN, RODNEY R. HODGSON,
MICHAEL J. ROSINSKI, RICHARD KEITH WATSON,
TERRY LEE TROUTT, DAVID MICHAEL FINLEY, and
DIANA L. HUERTA
Appeal 2017-002254
Application 13/331,375
Technology Center 1700
Before: BRADLEY R. GARRIS, JEFFREY B. ROBERTSON, and
N. WHITNEY WILSON, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL
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Application 13/331,375
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final rejection1 2 3of claims 1—12, 14—19, 22, and 23.2,3 (App. Br. 3.) We have
jurisdiction pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
The Specification states that the invention is directed to, in a first
aspect, a packaged product including an easy-open packaging article of a
multilayer film surrounding and adhered to a cooked meat product. (Spec.
19.) Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A packaged product comprising an easy-open packaging
article including a multilayer film surrounding and adhering to
a cooked meat product, with the packaging article having a heat
seal of the inside surface of the film to itself and a skirt
extending outward from the heat seal with the skirt having a
tear initiator therein, the multilayer film comprising:
(A) a first layer that is an inside seal layer comprising a
thermoplastic polymer comprising at least one
member selected from the group consisting of
polyamide and polyester;
(B) a second layer that bonds to the first layer with a
bond strength of at least 36 grams per inch;
(C) wherein the second layer, or a third layer with the
second layer being between the first layer and the
third layer, comprises a tear-enhancing component
comprising at least one member selected from the
1 Final Rejection (mailed August 26, 2015, hereinafter “Final”.)
2 According to the Appellants, Cryovac Inc. is the real party in interest.
(Appeal Brief (filed May 9, 2016, hereinafter “App. Br.,”) 3.)
3 Claims 13, 20, and 21 have been canceled. (See App. Br. 3.)
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group consisting of an inorganic filler and an
incompatible polymer blend,
wherein:
the filler is present in an amount of at least 5 weight
percent, based on layer weight, and the filler comprises at least
one member selected from the group consisting of silicate,
silica, siloxane, silicone resin, zinc sulfide, wollastonite,
microspheres, glass fiber, metal oxide, calcium carbonate,
sulfate, aluminum trihydrate, feldspar, perlite, gypsum, iron,
fluoropolymer, crosslinked polymethylmethacrylate, talc,
diatomaceous earth, zeolite, mica, kaolin, carbon black, and
graphite, and the second or third layer containing the filler
makes up at least 10 weight percent of the film, based on total
film weight; and
the incompatible polymer blend comprises at least one
member selected from the group consisting of:
(i) a blend of from 90 to 30 weight percent ethylene
homopolymer and/or ethylene/alpha-olefm
copolymer with from 10 to 70 weight percent
ethylene/unsaturated ester copolymer having an
unsaturated ester content of at least 10 weight
percent;
(ii) a blend of ionomer resin with ethylene/unsaturated ester
copolymer, and/or polybutylene, and/or propylene
homopolymer and/or propylene copolymer;
(iii) a blend of homogeneous ethylene/alpha-olefm copolymer
with recycled polymer blend comprising ethylene
homopolymer, propylene homopolymer, ethylene
copolymer, propylene copolymer, polyamide,
ethylene/vinyl alcohol copolymer, ionomer resin,
anhydride-modified ethylene/alpha-olefm copolymer,
and/or anti block;
(iv) a blend of from 10 to 75 weight percent
ethylene/unsaturated ester copolymer with from 90 to 15
weight percent polypropylene and/or propylene/ethylene
copolymer, and/or polybutylene, and/or modified
ethylene/alpha-olefm copolymer, and/or styrene
homopolymer, and/or styrene/butadiene copolymer;
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(v) a blend of ethylene/norbomene copolymer with
ethylene/unsaturated ester copolymer and/or polypropylene
and/or polybutylene;
(vi) a blend of from 90 to 15 weight percent ethylene/alpha-
olefin copolymer with from 10 to 75 weight percent
polypropylene and/or polybutylene and/or
ethylene/norbomene;
(vii) a blend of from 90 to 25 weight percent homogeneous
propylene homopolymer and/or homogeneous propylene
copolymer with from 10 to 75 weight percent homogeneous
ethylene/alpha-olefm copolymer and/or
ethylene/unsaturated ester copolymer;
(viii) a blend of propylene homopolymer and/or
propylene/ethylene copolymer and/or polybutylene with
ethylene/methyl acrylate copolymer and/or ethylene/acrylic
acid copolymer and/or ethylene/butyl acrylate copolymer;
(ix) a blend of polyamide with polystyrene and/or
ethylene/alphaolefm copolymer and/or ethylene/vinyl
acetate copolymer and/or styrene/butadiene copolymer; and
(x) a blend of polyamide 6 and polyamide 616T; and the
incompatible polymer blend is present in at least one layer
of the multilayer film, and the incompatible polymer blend
makes up at least 20 weight percent of the film, based on
total film weight.
THE REJECTIONS
The Examiner rejected the claims under 35 U.S.C. § 103(a) as
follows:
I. claims 1, 2, 4—12, 14—18, 22, and 23 as obvious over Dayrit,4 in
view of Roveda,5 and Oberle;6
4 Dayrit et al., US 2008/0292821 Al, published November 27, 2008
(“Dayrit”).
5 Roveda et al., US 2009/0022860 Al, published January 22, 2009
(“Roveda”).
6 Oberle, US. Patent 4,855,183, issued on August 8, 1989.
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II. claim 3 as obvious over Dayrit in view of Roveda, Oberle, and
Bueker;7 and
III. claim 19 as obvious over Dayrit in view of Roveda, Oberle, and
Bueker.
(Final 3-12.)
DISCUSSION
We confine our discussion to appealed claims 1, 6, 7, 16, and 19,
which contain claim limitations representative of the arguments made by
Appellants, and address other claims only to the extent that Appellants have
argued them separately pursuant to 37 C.F.R. § 41.37(c)(l)(iv).
Rejection I
The Examiner found, inter alia, that Dayrit discloses a heat-shrinkable
packaging article having an inside seal layer, skirt with tear initiators, and a
multilayer film with an incompatible polymer blend layer as recited in claim
1. (Final 3—5; Examiner’s Answer (mailed September 27, 2016, hereinafter
“Ans.”) 3—5.) The Examiner found that Dayrit does not specifically disclose
that the packaged meat is cooked. (Final 6; Ans. 6.) The Examiner found
also that Dayrit does not disclose a first layer comprising the particular
thermoplastic polymers recited in claim 1. (Final 7; Ans. 7.)
The Examiner found that Oberle discloses a multi-layer film for
making a packaging or bag in order to cook meat products, including a first
layer that is a polyamide. (Final 7—8; Ans. 7.) The Examiner concluded that
7 Bueker et al., US 2008/0226853 Al, published September 18, 2008
(“Bueker”).
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it would have been obvious to have used the food contact layer of Oberle as
the inner heat-seal layer of Dayrit in order to provide a package in which
meat could be cooked because the food contact layer of Oberle bonds and
adheres to the contained meat product preventing cook-out of fluids from the
contained meat product. (Final 8; Ans. 8.) In addition, the Examiner stated
that it would have been obvious to package cooked meat “in order to provide
a product that is pre-cooked and therefore attractive to a consumer for time
savings.” (Final 6; Ans. 6.)
The Examiner also found that Dayrit does not disclose a second layer
that bonds to a first layer with a bond strength of at least of 36 grams/inch.
(Final 7; Ans. 6.) The Examiner found that Roveda discloses that multilayer
films are more likely to delaminate when the bond strength between layers is
less than 40 grams/inch. (Final 7; Ans. 7.) The Examiner concluded that it
would have been obvious to have made the second layer bond to the first
layer with a bond strength of greater than 40 grams/inch in order to provide
a package that is less likely to delaminate. (Final 7; Ans. 7.)
Regarding claim 1, Appellants contend that Dayrit does not disclose a
packaged product that surrounds and adheres to a cooked meat product.
(App. Br. 14.) Appellants contend that the Specification establishes
unexpected results because the presence of the incompatible polymer blend
layer in a multilayer film surprisingly and unpredictably solves a film
delamination problem in the opening of packaged products where the film is
adhered to a cooked meat product. (App. Br. 10-11.) Appellants point to
the examples in the Specification as evidence, and in particular, the
comparative examples, which are directed to packages that do not contain an
incompatible polymer blend layer and which delaminated upon being tom
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open. (App. Br. 11—12.) Appellants contend that the unrecognized problem
of delamination upon tearing open and the unrecognized solution of
providing the package with a combination of a film having a layer
comprising incompatible polymer blend and a skirt outward of the heat seal
that has a tear initiator provides a “synergistic result over the applied
references.” (App. Br. 13.) Appellants contend that the Declaration of
Diana Huerta (Declaration Under 37 C.F.R. § 1.132 executed on August 3,
2015, hereinafter “Huerta Declaration”) supports the patentability of the
claims, because the Declaration provides evidence showing that the
delamination problem does not occur unless the package is a cook-in
package containing a cooked meat product. (App. Br. 20.)
Accordingly, the dispositive issue with respect to Rejection I is:
Considering the evidence in this appeal as a whole, have Appellants
shown that the Examiner reversibly erred in rejecting the packaged product
including a multilayer film surrounding and adhering to a cooked meat
product recited in claim 1 as obvious to one of ordinary skill in the art?
Analysis
Claim 1 recites a “packaged product” that includes “a multilayer film
surrounding and adhering to a cooked meat product.” Although Appellants
contend that Dayrit does not disclose a packaged product that surrounds and
adheres to a cooked meat product, Appellants do not dispute the Examiner’s
rationale that it would have been obvious to have used the food contact layer
of Oberle in Dayrit’s packaging in order to provide a package that would be
used to cook meat. (Final 7—8; Ans. 7—8.) In this regard, we are not
persuaded by Appellants’ contention that Dayrit does not disclose a seal
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layer capable of surviving cook-in conditions, because the seal layer recited
in claim 1 contains polyamide and polyester, which are high melting
polymers relative to the ethylene/alpha-olefm copolymers in the Dayrit’s
seal layer. (App. Br. 20—21.) Appellants do not consider the Examiner’s
rejection as a whole. The Examiner pointed to Oberle for the particular first
layer recited in claim 1 and not Dayrit. (Ans. 7—8.) As a result, we have not
been directed to any basis for finding error in the Examiner’s reasoning in
this regard.
Unexpected Results
As discussed above, Appellants argue that the previously
undiscovered delamination problem where the packaging product adhered to
a cooked meat delaminates when the package is tom open was solved
unexpectedly as a result of the presence of a film having a layer comprising
an incompatible polymer blend and a skirt having tear initiators. Appellants
point to results presented in the Specification that increasing the bond
strength between layers does not prevent delamination in comparative films.
(App. Br. 11-13.)
We agree with the Examiner that Appellants’ evidence of unexpected
result is not persuasive.
That is, as the Examiner points out, Dayrit discloses an incompatible
blend layer and a skirt with tear initiators as recited in claim 1. (Ans. 12—
13.) Dayrit specifically discloses that tear initiators and incompatible
polymer films contribute to desirable tear properties of the multilayer heat-
shrinkable film. (Dayrit, || 5, 106, and 107.) Moreover, Roveda recognizes
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that if the bond strength between layers is not sufficient, layers of a
multilayer film will delaminate. (Id. || 89—91.)
Thus, even if Appellants have identified an additional benefit of
preventing delamination in the area of packaged cook-in meats (Huerta
Declaration || 7—9), Dayrit had already identified a reason for applying an
incompatible polymer film and skirt having tear initiators. “The fact that
appellant has recognized another advantage which would flow naturally
from following the suggestion of the prior art cannot be a basis for
patentability when the difference would otherwise have been obvious.” Ex
parte Obiaya, 227 USPQ 58, 60 (BPAI 1985).
Obviousness Conclusion
Accordingly, after weighing the evidence supporting obviousness and
the evidence of unexpected results, we are not persuaded the Examiner
reversibly erred in rejecting the packaged product including a multilayer
film surrounding and adhering to a cooked meat product as obvious to one of
ordinary skill in the art.
As a result, we affirm the Examiner’s rejection of claim 1.
Claims 6 and 7
Claims 6 and 7 recite additional limitations with respect to bond
strength between the second layer and first layer of 36 to 138 grams per
inch, and at least 139 grams per inch, respectively. The Examiner
determined that such bond strengths would have been obvious in view of
Roveda as discussed above. (See Final 6—7; Ans. 7.)
Appellants contend that the Specification contains evidence that
providing a film with a bond strength between 139 and 678 grams/inch will
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not prevent delamination in packaged products in which the film is adhering
to a cooked meat product, which is unexpected over Roveda. (App. Br. 16—
17.) Appellants argue that it would not have been obvious that providing
films with a layer containing a tear enhancing component (incompatible
polymer) would prevent layer delamination during tearing open of a
packaging article surrounding and adhered to a cooked meat product. (App.
Br. 17-18.)
We are not persuaded by Appellants’ argument that the bond strengths
recited in claim 6 and claim 7 provide unexpected results. Appellants
acknowledge that providing a bond strength of at least 40 grams/inch would
have been obvious. (App. Br. 17.) As discussed above, that Appellants may
have identified an additional advantage of the combination of the
incompatible polymer blend film layer and the skirt with tear initiators
disclosed in Dayrit, does not render the claims patentable over the prior art.
Accordingly, Appellants’ arguments in this regard are unpersuasive.
Claim 16
Claim 16 recites a first stabilizing slit on a first side of the tear
initiator and a second stabilizing slit on a second side of the tear initiator.
In rejecting claim 16, the Examiner found that Dayrit does not
disclose first and second stabilizing slits on either side of the tear initiator
and grip assisters, but found that it is well known in the art that
slits/perforations are used to help facilitate the opening of packaging by
making it easier to tear the package along the perforation. (Final 5—6; Ans.
5.) The Examiner concluded that it would have been obvious to have
included more slits/perforations in the skirt of the package to provide a
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package that is more easily opened by the consumer because Dayrit already
discloses slits/perforations for tear initiation and that doing so would be no
more than an obvious duplication of parts. (Final 5—6; Ans. 5—6.) The
Examiner further stated that it would have been to have positioned the
slits/perforations with the tear initiator grip assisters in between them so that
the consumer could open the package at multiple different locations, in the
middle or on either side of the package. (Final 6; Ans. 6.)
Appellants contend that the design and purpose of the stabilizing slits
is to reduce the tendency of the tear initiation slits to open up as the film
shrinks against the meat product and not to propagate tear along any one or
more of the stabilizing slits. (App. Br. 18—19.) Thus, Appellants contend
that the Examiner’s conclusion is based on an erroneous assumption of the
purpose, used and effect of the stabilization slits. (App. Br. 19.)
Although Appellants contend that the Examiner’s obviousness case is
in error because the stabilization slits serve a different purpose than multiple
tear initiators, Appellants do not sufficiently distinguish the structural
characteristics of a stabilization slit versus a tear initiator to demonstrate
error on the part of the Examiner. (App. Br. 19—20.) Appellants’ position
that the grip assisters ensure that the package is opened using the tear
initiators between the grip assisters (App. Br. 19-20) does not demonstrate
error in the Examiner’s rationale of providing additional slits/perforations
for alternative places to open the package. Such positions are not mutually
exclusive of one another. Accordingly, we are not persuaded by Appellants’
arguments.
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Rejection II-Claim 3
Appellants do not set forth any additional arguments beyond those
relied upon for Rejection I. (App. Br. 22.) Accordingly, we affirm the
Examiner’s rejection of claim 3 for similar reasons as discussed above.
Rejection Ill-Claim 19
Regarding claim 19, Appellants contend that the results in the
Specification are particularly supportive where the films contain a
polyamide first layer and anhydride modified ethylene copolymer second
layer as recited in claim 19. (App. Br. 24—25.)
Regarding claim 19, which limits the first layer to polyamide, the
second layer to anhydride-grafted ethylene/alpha-olefm copolymer, and the
third layer comprising a particular incompatible polymer blend, Appellants
make similar arguments with respect to unexpected results as addressed
above, focusing on the particular examples and comparative examples in the
Specification specific to the first, second, and third layer components recited
in claim 19. (App. Br. 23—25.) However, the particular components recited
in claim 19 does not alter the analysis above with respect to claim 1, as the
prior art discloses the particular components recited in claim 19. Thus, for
similar as reasons discussed above with respect to claim 1 in Rejection I, we
find Appellants’ arguments to be unpersuasive.
CONCLUSION
Appellants have failed to demonstrate that the Examiner reversibly
erred in rejecting the packaged product including a multilayer film
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surrounding and adhering to a cooked meat product as obvious to one of
ordinary skill in the art.
DECISION
We affirm the Examiner’s decision rejecting claims 1—12, 14—19, 22,
and 23 under 35 U.S.C. § 103(a).
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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