Peggy Lynne. Vazzano

Patent Trials and Appeals Board

Oct 9, 2019

12853763 - (D) (P.T.A.B. Oct. 9, 2019)

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.
12/853,763 08/10/2010 Peggy Lynne Vazzano 6305-A1 6484
45848 7590 10/09/2019
MICHAEL W. GOLTRY
10643 North Frank Lloyd Wright Boulevard
Suite 201
Scottsdale, AZ 85259
EXAMINER
CASTRIOTTA, JENNIFER
ART UNIT PAPER NUMBER
3733
NOTIFICATION DATE DELIVERY MODE
10/09/2019 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):
mg@pgpct.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PEGGY LYNNE VAZZANO
____________________

Appeal 2019-002427
Application 12/853,7631
Technology Center 3700
____________________

Before BIBHU R. MOHANTY, PHILIP J. HOFFMANN, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s rejection of claims 1, 8, 14, and 15. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
According to Appellant, the “invention relates generally to food
storage containers, particularly to compartmentalized containers with airtight

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies “Peggy Lynne Vazzano” as the real party
in interest. Appeal Br. 2.
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Application 12/853,763

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sealed lids adapted for storing multiple items separated from each other
within a single container.” Spec. 4. Claims 1 and 14 are the independent
claims on appeal. Below, we reproduce independent claim 1 as
representative of the appealed claims.
1. A food storage container assembly for containing
s’mores ingredients, consisting of:
a food storage container to store s’mores ingredients, the
food storage container includes an outside wall having a
peripheral top edge, and a central dividing wall that divides the
food storage container into compartments;
a lid, the lid includes a center, a perimeter edge, and a
groove, the groove runs along the perimeter edge and the center
of the lid, and a silicon strip is placed in the groove;
the food storage container is open opening the
compartments, when the lid is in an open position detached from
the food storage container;
the food storage container is closed closing the
compartments, when the lid is in a closed position attached to the
food storage container; and
the silicon strip of the lid concurrently abuts the peripheral
top edge of the food storage container and the central dividing
wall airtight sealing the compartments and airtight sealing one of
the compartments from at least another one of the compartments
for keeping foods placed in the compartments fresh, when the lid
is in the closed position.

REJECTION AND PRIOR ART
The Examiner rejects claims 1, 8, 14, and 15 under 35 U.S.C. § 103(a)
as unpatentable over Koo (US 2004/0084464 A1, pub. May 6, 2004), Swett
(US 3,487,972, iss. Jan. 6, 1970), and Huang (US 6,131,760, iss. Oct. 17,
2000).

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ANALYSIS
As set forth above, independent claim 1 recites, in relevant part,
the silicon strip of the lid concurrently abuts the peripheral
top edge of the food storage container and the central dividing
wall airtight sealing the compartments and airtight sealing one
of the compartments from at least another one of the
compartments for keeping foods placed in the compartments
fresh, when the lid is in the closed position.
Appeal Br., Claims App. (emphases added). As set forth in the Examiner’s
Answer, the Examiner’s conclusion that it would have been obvious to
combine Koo, Swett, and Huang to include a silicon strip between a lid and
an interior dividing wall airtight sealing one interior compartment from
another interior compartment, as claimed, relies on the Examiner’s finding
that Huang discloses an “air-tight” seal between a lid and an interior
dividing wall. See, e.g., Answer 4; see also, e.g., Final Action 4–5 (citing
Huang col. 2, l. 48–col. 3, l. 21). More specifically, it appears that the
Examiner proposes to use Huang’s “air-tight” seal that is between Huang’s
lid and interior dividing wall, between Koo’s lid and Swett’s interior
dividing wall, to provide airtight sealing between compartments. See Final
Action 6 (“It would have been obvious . . . to modify the central dividing
wall of the container and the center of the lid of modified Koo with the
teachings of a compressed gasket between the central dividing wall of the
container and the center of the lid of Huang in order to ensure tight
separation between individual compartments.” (citation to Huang omitted)).
However, Huang only describes that as a result of using sealing
ring 30, “the engagement between the upper and the lower cover[s] . . . will
be a water-tight engagement.” Huang col. 3, ll. 16–21 (emphasis added).
Although the Examiner states that “[i]n the field of fluid mechanics, both
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water and air are considered to be liquids. This would lead one of ordinary
skill in the art to consider the container of Huang may be ‘air-tight’”
(Answer 4), for the below reasons, the Examiner does not support
adequately that Huang’s “water-tight” seal provides “airtight sealing,” as
claimed.
A relevant definition of “fluid” is “a substance . . . such as a liquid or
gas.” See https://www.merriam-webster.com/dictionary/fluid (last accessed
October 2, 2019). Such a definition does not support the Examiner’s
statement that “both water and air are considered to be liquids”—rather, both
water and air are fluids. Answer 4. Regardless, Huang does not disclose a
“fluid-tight” or “liquid-tight” seal or engagement, but instead discloses a
“water-tight” seal—i.e., a seal that seals tightly against the specific chemical
compound water. See Huang col. 3, ll. 16–21. Thus, based on the
foregoing, the Examiner does not support adequately that Huang’s teaching
of “water-tight” sealing discloses the claimed “airtight sealing.”
Inasmuch as the Examiner relies on Huang to disclose “a container
with multiple compartments having [a] seal between the container and
lid . . . as well as the top edge of the compartment divider walls,” where the
seal is “air-tight” (Answer 4), but Huang discloses only a water-tight seal i)
between the lid and the container and ii) between compartments, the
Examiner’s proposed combination lacks the disclosure of a strip airtightly
sealing between interior compartments, as claimed. Instead, the Examiner’s
proposed combination includes: Koo disclosing a container without separate
compartments but with an airtight seal between the lid and container (see
Final Action 2–3); Swett that discloses a container with separate
compartments, with “an outer air tight seal between the closure and box
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members and an inner[-]material[-]migration[-]preventing but non-air tight
seal within the box [(i.e., between compartments)]” (Swett col. 1, ll. 15–19
(italics and underlining added)); and Huang disclosing a container with
separate compartments having only a water-tight seal but not air-tight seal i)
between the lid and container and ii) between the lid and the dividing wall
forming the compartments (Final Action 4–5). Restated, of the three
references the Examiner uses in the rejection, only two references disclose
sealing interior compartments, and both of those references expressly
disclose non-airtight sealing between or among the compartments. Thus,
when viewing the disclosures of these particular references together, on this
record, the Examiner does not support adequately that it would have been
obvious to combine the references to provide a seal airtightly sealing one
interior compartment from another interior compartment, as claimed.
Therefore, based on the foregoing, we do not sustain the Examiner’s
obviousness rejection of independent claim 1. We also do not sustain the
Examiner’s obviousness rejection of independent claim 14, which includes a
similar recitation as claim 1, or the rejection of claims 8 and 15 that depend
from the independent claims.

CONCLUSION
We reverse the Examiner’s obviousness rejection of claims 1, 8, 14,
and 15.

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In summary:
Claims
Rejected
35 U.S.C § Basis Affirmed Reversed
1, 8, 14, 15

103 Koo, Swett, and
Huang
1, 8, 14, 15

Overall
Outcome
1, 8, 14, 15

REVERSED