Jeanne CHENG

Patent Trials and Appeals Board

Aug 10, 2021

2020006280 (P.T.A.B. Aug. 10, 2021)

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.
13/921,372 06/19/2013 Jeanne CHENG 8061-0001 3606
466 7590 08/10/2021
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD
11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
NGUYEN, THANH H
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/10/2021 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):
pair_nixon@firsttofile.com
ptomail@nixonvan.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEANNE CHENG

Appeal 2020-006280
Application 13/921,372
Technology Center 1700
____________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
JENNIFER R. GUPTA, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–10. We have jurisdiction under
35 U.S.C. § 6(b). Oral arguments were heard in this appeal on July 19,
2021.
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Jeanne Cheng. Appeal Br. 3.
Appeal 2020-006280
Application 13/921,372

2
Appellant’s invention is directed to a packaged food product that
includes an edible sheet-like layer enclosing edible contents as a roll, the
edible sheet-like layer and the edible contents separated from each other by a
removable vapor barrier for maintaining the freshness of the sheet material
until the food product is ready to be consumed, the removable vapor barrier
extending past the end of the roll to be graspable by the consumer for
removal. (Claim 1; Spec. 1:5-13).
Claim 1 is representative of the subject matter on appeal:
1. A packaged food product (1), comprising:
a non-edible first layer of sheet-like material (11) ;
an edible, sheet-like second layer (21) on a surface of the first layer (11);
a non-edible third layer of sheet-like material
(31), the third layer delimited by opposite first and second longitudinal
edges, and by first and second side edges opposite each other and extending
between the first and second longitudinal edges, the third layer positioned on
a surface of the second layer (21) facing opposite the surface of the
first layer (11);
an edible fourth layer of an edible substrate (41) on a surface of the third
layer (31) facing opposite the surface of the second layer (21), the fourth
layer (41) extending from the first longitudinal edge of the third layer (31)
toward the opposite second longitudinal edge of the third
layer (31), an extended region (33) of the third layer at the
second longitudinal edge being free of the edible substrate of the fourth layer
(41); and
a fifth layer of edible ingredients (51) on the fourth layer (41), the edible
ingredients (51) provided on a wherein, facilitated by the oil, the rolled third
layer (31) is slideable against the rolled second and fourth layers (21, 41)
such that the rolled third layer (31), upon being pulled by grasping the
extended region and pulling the extended region in an axial direction away
from the rolled assembly while the outermost layer of the rolled assembly
is held at a location along the longitudinal length, slides out from between
the rolled second and fourth layers so as to become completely removed
from the rolled assembly without removing the contents of any of the fourth
and fifth layers (41, 51) from the rolled assembly.
Appeal 2020-006280
Application 13/921,372

3

Appeal Br. 30–31 (Claims App.).

Appellant appeals the following rejections:
1. Claims 1–5, 10, and 11 are rejected under 35 U.S.C. § 103 as
unpatentable over Kapadia (5 Burritos That Go Beyond Rice and
Beans, Food Republic) in view of Jurado (US 7,112,347 B2;
issued Sept. 26, 2006), Fujimori (US 2011/0256270 A1;
published Oct. 20, 2011), Suzuki (US 4,623,568; issued Nov. 18,
1986), and Needles Marketing (ʻNeedlesʼ, How to Travel Wrap
a Hoagie, Youtube.com).
2. Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over
Kapadia in view of Jurado, Fujimori, Suzuki, Needles and
Nussinow (Vegan Burrito, The Veggie Queen).
3. Claim 7 is rejected under 35 U.S.C. § 103 as unpatentable over
Kapadia in view of Jurado, Fujimori, Suzuki, Needles, and
Denny (Egg Burritos to Die For, Kalyn’s Kitchen).
4. Claim 8 is rejected under 35 U.S.C. § 103 as unpatentable over
Kapadia in view of Jurado, Fujimori, Suzuki, Needles, and
Brianzajac (Godzilla Burrito at Chef Brooke’s Natural Café in
Fort Myers, 100 Percent Health).
5. Claim 9 is rejected under 35 U.S.C. § 103 as unpatentable over
Kapadia in view of Jurado, Fujimori, Suzuki, Needles, and
Shatkin (Food Truck Friday: Jokasaki, The Sushi Burrito Truck,
LA WEEKLY).
Appeal 2020-006280
Application 13/921,372

4
Appellant’s arguments focus on the subject matter of claim 1 (Appeal
Br. 13–24). Appellant relies on arguments made regarding claim 1 in
traversing rejections (2) to (5) (Appeal Br. 25–29). Accordingly, all the
claims will stand or fall with claim 1.

FINDINGS OF FACT & ANALYSIS
We review the appealed rejection for reversible error based on the
arguments and evidence presented by Appellant. 37 C.F.R.
§ 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (explaining that even if the Examiner had failed to make a prima
facie case, “it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”). We have fully
considered the Declaration made of record in our assessment of the
rejections.
The Examiner’s findings and conclusions regarding Kapadia, Jurado,
Fujimori, Suzuki and Needles are located on pages 3 to 6 of the Final
Action.
Appellant argues that the applied secondary references (i.e., Jurado,
Needles, Fujimori, Suzuki) do not support a conclusion that it would have
been obvious to modify a rolled food product to include a separating
material (i.e., third non-edible layer) between an edible second layer and an
edible fourth layer (Appeal Br. 15). Appellant contends modifying
Kapadia’s rolled material to include a third non-edible layer would lead to
an unsatisfactory result in Kapadia’s product (Appeal Br. 15). Appellant
argues that Jurado’s and Needle’s stacked sandwiches are not rolled
Appeal 2020-006280
Application 13/921,372

5
sandwiches and thus are fundamentally different than Kapadia’s rice roll
(Appeal Br. 17, 18). Appellant argues that Needles is directed to keeping the
sandwich filling contents separate from the bread to better preserve the
sandwich for later consumption (Appeal Br. 17). Appellant argues Jurado is
directed to ingredients that are extruded from a pouch into a hollowed-out
bread product which is different than Needles’ layer-by-layer filling in the
sandwich (Appeal Br. 17). Appellant contends that Needles’ layers of meat,
cheese, and lettuce could not be extruded out of a bag as in Jurado (Appeal
Br. 17, 18). Appellant argues that Needles and Jurado use bread, not laver
(seaweed) as an edible layer (Appeal Br. 19). Appellant contends that bread
has a stronger structure than laver/seaweed as disclosed by Kapadia such
that there would have been no reasonable expectation of success in using an
inedible barrier layer between a laver layer and rice layer in Kapadia
(Appeal Br. 19). Appellant refers to the declaration of Jeanne Cheng (Cheng
Declaration) as establishing that a person of ordinary skill in the art would
have expected failure when combining a vapor barrier with Kapadia’s rolled
structure (Appeal Br. 19). Appellant argues that Jurado and Needles are not
directed to rolled sandwich structures (Appeal Br. 20). Appellant argues
Jurado requires an extrusion mechanism to operate that includes tab 120 on
the extended portion through which the pouch 30 must be pulled (Appeal Br.
21). Appellant contends that Needles’ sandwich materials are incompatible
with Jurado’s extrusion requirement (Appeal Br. 21). Appellant argues the
art does not address the foreseeable problem that the stickiness of Kapadia’s
rice would cause Kapadia to come apart in attempting to remove a non-
edible layer from an interior thereof (Appeal Br. 23).
Appeal 2020-006280
Application 13/921,372

6
Appellant’s arguments are not persuasive of reversible error in the
Examiner’s obviousness determination. The Examiner is not proposing to
bodily incorporate the entirety of Jurado’s extruded sandwich filling encased
in an inner pouch 30 or Needles’ layered sandwich filling on wax paper into
Kapadia. Rather, the Examiner’s rejection is based on these references
teaching that it was known to provide a vapor barrier between moist filling
ingredients and drier, outer sandwich materials to prevent the drier materials
from becoming soggy (Final Act. 4, 5). Jurado’s sandwich and Needles’
sandwich may not be rolled, but Jurado’s inner pouch 30 has a tubular
structure for holding ingredients (Jurado Fig. 1). In other words, encasing
moist filling in a vapor barrier to prevent the moist contents from degrading
the drier wrap would have been obvious. That Jurado and Needles do not
teach a rolled sandwich is not determinative because a person of ordinary
skill in the art is a person of ordinary creativity, not an automaton. KSR Int’l
Co. v. Teleflex, Inc., 550 US 398, 420 (2007). In other words, a person of
ordinary skill in the art would have understood how to isolate moist contents
from a drier layer made of seaweed or bread based upon the teachings in
Kapadia, Jurado, Needles, Suzuki, and Fujimori.
Appellant’s argument that if Jurado’s structure were placed in
Kapadia roll, the vapor barrier would stick to the rice fails to address the
Examiner’s findings with regard to Fujimori. In particular the Examiner
finds that Fujimori teaches applying oil to a plastic film to permit the film to
more easily slide out from between rice and seaweed (Final Act. 6). We are
unpersuaded by Appellant’s argument.
On this record, we affirm the Examiner’s § 103 rejections of record.

Appeal 2020-006280
Application 13/921,372

7
DECISION
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 10 103 Kapadia, Jurado,
Fujimori, Suzuki,
Needles
1–5, 10
6 103 Kapadia, Jurado,
Fujimori, Suzuki,
Needles, Nussinow
6
7 103 Kapadia, Jurado,
Fujimori, Suzuki,
Needles, Denny
7
8 103 Kapadia, Jurado,
Fujimori, Suzuki,
Needles,
Brianzajac
8
9 103 Kapadia, Jurado,
Fujimori, Suzuki,
Needles, Shatkin
9
Overall Outcome 1–10

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED