Juan Carlos. Tinoco

Patent Trials and Appeals Board

Feb 27, 2020

14928123 - (D) (P.T.A.B. Feb. 27, 2020)

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.
14/928,123 10/30/2015 Juan Carlos Tinoco Lasx-17microwave package 2219
74162 7590 02/27/2020
Law Office of Scott C Harris Inc
PO Box 1389
Rancho Santa Fe, CA 92067
EXAMINER
PASCUA, JES F
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
02/27/2020 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):
harris@schiplaw.com
uspto@schiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUAN CARLOS TINOCO
Appeal 2019-002898
Application 14/928,123
Technology Center 3700
Before CHARLES N. GREENHUT, BRETT C. MARTIN, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 18, and 20. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as LaserSharp FlexPak
Services, LLC. Appeal Br. 2.
Appeal 2019-002898
Application 14/928,123

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CLAIMED SUBJECT MATTER
The claims are directed to sealable packages that can be used to hold
food and other items. Spec. ¶ 1.
Claim 1, reproduced below with emphasis added, is illustrative of the
claimed subject matter.
1. A microwavable package, comprising
a package, formed of a packaging film having an outer surface
facing an outside of the package and an inner surface facing an
inside of the package, said package having a vent area defining
at least one venting mechanism , where the venting mechanism
is laser scored on the inner surface to define a perimeter of the
venting mechanism, where the perimeter is not scored on the
outer surface and where the outer surface is a continuous
surface in the area of the perimeter, and the vent area having a
central area defined inside the perimeter, the central area having
an outer surface facing the outside of the package, and the
central area being connected to the packaging film and integral
with the packaging film;
a pressure sensitive adhesive label, covering at least the
vent area, said pressure sensitive adhesive label adhered to the
outer surface, and the pressure sensitive adhesive adhered to the
outer surface of the central area,
and said pressure sensitive adhesive label having a first
width along the vent area, and having a tab having a second
width narrower than the first width, said tab for allowing a user
to peel the adhesive label off from the packaging film, and
where the pressure sensitive adhesive label includes adhesive
on a back surface of the label that adheres to the outer surface
and to the outer surface of the central area,
and where the adhesive on the back surface of the
pressure sensitive adhesive label adheres to the area of the outer
surface opposite the laser scored perimeter on the inner surface,
and wherein the pressure sensitive adhesive label is
removed from the vent area to separate the central area from the
packaging film to open said at least one laser scored venting
mechanism in said package, wherein the pressure sensitive
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Application 14/928,123

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adhesive label surrounds the vent area, and where the packaging
film remains hermetically sealed in the venting area when the
pressure sensitive adhesive label is attached to the package, and
removal of the pressure sensitive adhesive label from the
package opens the laser scored venting mechanism to open the
hermetic seal and which causes the package to vent when being
cooked in a microwave oven.
Appeal Br. 2–3 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Lin US 2008/0220212 A1 Sept. 11, 2008
Ziolkowski US 2010/0247822 A1 Sept. 30, 2010
Bosman US 2011/0103718 A1 May 5, 2011

REJECTIONS
I. Claim 18 is rejected under 35 U.S.C. § 112(a) as failing to
comply with the written description requirement.
II. Claims 1, 3–7, and 20 are rejected under 35 U.S.C. § 103 as
unpatentable over Bosman and Ziolkowski.
III. Claim 2 is rejected under 35 U.S.C. § 103 as unpatentable over
Bosman, Ziolkowski, and Lin.

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OPINION
Rejection I–Written Description
With respect to claim 18, the Examiner finds “[t]he specification, as
originally filed, lacks antecedent basis for material having an uncut, inner
barrier layer and an outer layer, wherein only the inner surface of the outer
layer and not the outer surface thereof has multiple scored shapes.” Final
Act. 4. Appellant indicates that this rejection is not being appealed. Br. 14.
Accordingly, we sustain the rejection of claim 18 as failing to comply with
the written description requirement. See In re Berger, 279 F.3d 975, 984,
985 (Fed. Cir. 2002) (holding that the Board did not err in sustaining a
rejection under 35 U.S.C. § 112, second paragraph, when the applicant failed
to contest the rejection on appeal).
Rejection II—Bosman and Ziolkowski
The Examiner finds that Bosman discloses many of the elements
recited in claim 1, including a venting mechanism 16 that is laser scored (at
lines of weakness 36) on the inner surface of a packaging film (second layer
26) to define a perimeter of the venting mechanism. Final Act. 4–5; Ans. 5.
The Examiner finds that it is unclear whether the laser scoring for Bosman’s
vent mechanism goes all of the way through second layer 26. Id. at 5. To
address this apparent deficiency, the Examiner turns to Ziolkowski, which,
the Examiner finds, “teaches that it is known in the art to provide a laser
scored line of weakness that extends from an inner surface of an inner layer
(‘sealant layer’), but not to the outer layer (‘abuse layer’).” Id. (citing
Ziolkowski ¶ 35). The Examiner finds that Ziolkowski teaches the selection
of the depth of laser scoring based on the desired tensile strength of the
weakened portion of the film. Id. (citing Ziolkowski ¶¶ 32, 36). The
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Examiner determines that a person of ordinary skill in the art would have
found it obvious to modify the laser scoring disclosed by Bosman for the
reasons disclosed by Ziolkowski. Id.
Appellant contends “Bosman does not have an outer surface of his
package which is completely continuous and unscored prior to opening the
PSA film[, and, i]n fact, Bosman’s outer surface has holes in it as can clearly
be seen in figures 3, 4 and 5.” Br. 8. According to Appellant, the holes in
the outer surface of Bosman’s package “are filled with plugs that are
attached to Bosman’s removable label. See figure 3 which shows that
removable layer having the plugs thereon, and figure 5 showing the cross-
section of the package with the label attached.” Id.
This argument does not apprise us of Examiner error because the
Examiner acknowledges that Bosman fails to clearly disclose that the
scoring that creates the “plugs” referred to by Appellant goes only part of the
way through second layer 26. See Final Act. 5. The Examiner addresses
this deficiency by modifying lines of weakness 36, based on the teachings of
Ziolkowski, such that they do not reach the outer surface of second layer 26.
See id. Accordingly, Appellant’s argument on this point does not address
the Examiner’s proposed combination of the prior art.
Appellant next argues, “[c]laim 1 also recites ‘where the adhesive on
the back surface of the pressure sensitive adhesive label adheres to the area
of the outer surface opposite the laser scored perimeter on the inner surface’.
No prior art shows or suggests this.” Br. 8–9.
This argument does not identify Examiner error inasmuch as a
preponderance of the evidence supports the Examiner’s finding that
adhesives 32 and 38 cover the disclosed vent area, thus attaching removable
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tab 14 (which the Examiner finds correlates to the recited label) over the
venting area. See Bosman, Figs. 2, 4, 5; Ans. 5.
Appellant also argues that “[t]here is a first line of weakness 34
formed in Bosman’s outer layer 24. This first line of weakness allows the
outer surface of the package to be removed from the inner surface of the
package. There is also a second line of weakness 36 formed in Bosman's
inner layer, see paragraph 22.” Br. 9. Appellant states, “as shown
in figure 3 of Bosman, a layer of the package is removed, to remove both
that layer of the package and also to remove plugs in the other layer of the
package.” Id.
We do not agree with Appellant’s argument because line of weakness
34 of Bosman defines the area of removable tab 14, which the Examiner
finds corresponds to the recited removable label (a finding Appellant
appears to acknowledge on page 8 of the Appeal Brief). Thus, the presence
of line of weakness 34 separating removable tab 14 from first layer 24 does
not impair the Examiner’s rejection because line of weakness 34 does not
amount to a perimeter of the venting mechanism scored on the outer surface.
Appellant next argues, “Ziolkowski says nothing about the limitations
of the adhesive on the back surface of the pressure sensitive adhesive layer
label adhering to the layer of the surface opposite the laser scored perimeter
as claimed herein.” Br. 10.
This argument is unavailing because the Examiner relies on
Ziolkowski to teach that lines of weakness, i.e., scoring, may be extend
either through full thickness of the material in which they are located, or
partially through this thickness. Final Act. 5; Ans. 6. This finding is
supported by a preponderance of the evidence. See Ziolkowski ¶ 32.
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Appellant’s contention regarding Ziolkowski’s alleged failure to disclose an
adhesive on the back surface of a label is an attack on Ziolkowski for failing
to disclose an element the Examiner does not find in Ziolkowski (and,
instead, finds is taught by Bosman). See Ans. 5.
Appellant argues that Ziolkowski forms a line of weakness for a
purpose other than removing the area that is scored, in contrast to Bosman,
which teaches removal of plugs defined by scoring. Br. 10–11. Thus,
according to Appellant, the Examiner’s proposed combination of the
teachings of these two references results in contradicting the teachings of
Bosman. Id.
We do not agree that the Examiner’s proposed combination of
teachings contradicts the teachings in Bosman because Bosman, in its
unmodified state, uses scoring to define tab portion 14. See Bosman ¶ 23.
The Examiner’s proposed modification merely changes the depth of this
scoring. See Final Act. 5. In other words, the Examiner’s proposed
modification to Bosman merely reduces the dimension of a structure that
results from a function already performed in Bosman, namely, scoring.
Appellant also argues that the Examiner “gives no reason why the
references should be combined other than that it would produce the results
with which we are now claiming.” Br. 12.
This argument is without merit because the Examiner refers to the
reason taught by Ziolkowski (providing a package with a desired tensile
strength for tearing) as providing motivation for a person of ordinary skill in
the art to modify the scoring disclosed by Bosman. See Final Act. 5. This
motivation is supported by Ziolkowski’s explicit teachings. See Ziolkowski
¶¶ 32, 36.
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We have considered all of Appellant’s arguments in support of the
patentability of claim 1, but find them unavailing. Accordingly, we sustain
the rejection of claim 1, and claims 3–7 and 20 depending therefrom, as
unpatentable over Bosman and Ziolkowski.
Rejection III— Bosman, Ziolkowski, and Lin
Appellant does not make arguments for the patentability of claim 2
aside from those discussed above regarding claim 1. See Appeal Br. 13–14.
Accordingly, for the same reasons, we sustain the rejection of claim 2 as
unpatentable over Bosman, Ziolkowski, and Lin.

CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
18 112(a) Written Description 18
1, 3–7, 20 103 Bosman, Ziolkowski 1, 3–7, 20
2 103 Bosman, Ziolkowski,
Lin
2
Overall
Outcome
1–7, 18, 20

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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