Sugar Beets, LLC

Patent Trials and Appeals Board

Jan 29, 2021

2020003917 (P.T.A.B. Jan. 29, 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.
15/054,564 02/26/2016 Jane Casey SUGAR-57078 2480
26252 7590 01/29/2021
KELLY & KELLEY, LLP
6320 CANOGA AVENUE
SUITE 1650
WOODLAND HILLS, CA 91367
EXAMINER
NEWAY, BLAINE GIRMA
ART UNIT PAPER NUMBER
3735
MAIL DATE DELIVERY MODE
01/29/2021 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 JANE CASEY and CHARLENE YEAGER
Appeal 2020-003917
Application 15/054,564
Technology Center 3700
Before JEREMY M. PLENZLER, LISA M. GUIJT, and LEE L. STEPINA,
Administrative Patent Judges.
PLENZLER, 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 1–5, 8–10, and 13–21. 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(a). Appellant identifies the real party in interest as Sugar Beets, LLC.
Appeal Br. 2.
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Application 15/054,564

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CLAIMED SUBJECT MATTER
The claims are directed to a container. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A decorative holder for serving trays and tins, comprising:
a receptacle for a serving tray or tin, the receptacle
including a generally horizontal bottom surface and a contiguous
upwardly extending wall terminating in a generally horizontal
lip; and
a lid which is pivotally attachable to the lip of the
receptacle, the lid defining a central opening or aperture
providing access to an interior of the decorative holder when
disposed atop the receptacle;
at least one hinge which pivotally attaches the lid to the
receptacle, the hinge permitting the lid to be pivoted between an
open position and a closed position where the lid overlies and
engages the lip; and
a snap clamp generally opposite the hinge, for releasably
securing the lid to the receptacle when the lid is in the closed
position;
wherein the receptacle and lid are configured to securely
hold and generally encapsulate a serving tray or tin therebetween
when the lid is in the closed position.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
McClure US 5,307,647 May 3, 1994
Harl US 7,131,289 B2 Nov. 7, 2006
Meeks US 7,997,439 B2 Aug. 16, 2011
Miller US 8,887,943 B1 Nov. 18, 2014
Frank US 2015/0014311 A1 Jan. 15, 2015

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REJECTIONS
Claims 1, 5, and 9 are rejected under 35 U.S.C. § 103 as being
unpatentable over Miller and Meeks.
Claim 2 is rejected under 35 U.S.C. § 103 as being unpatentable over
Miller, Meeks, and Frank.
Claims 3 and 4 are rejected under 35 U.S.C. § 103 as being
unpatentable over Miller, Meeks, and Harl.
Claims 8, 10, and 14–18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Miller, Meeks, Frank, and McClure.
Claims 13 and 19–21 are rejected under 35 U.S.C. § 103 as being
unpatentable over Miller, Meeks, Frank, McClure, and Harl.
OPINION
Claims 1, 5, and 9
Appellant’s Figures 3 and 6, which generally illustrate the features
recited in claim 1, are reproduced below with our annotations added.
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The figure reproduced above is Appellant’s Figure 3, which is an exploded
view of its tray and tin holder, with the addition of our annotations labeling
the cover, lid, serving tray, and receptacle.
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The figure reproduced above is Appellant’s Figure 6, which is a perspective
view of another embodiment of the tray and tin holder in Figure 3 having a
hinge connecting the lid to the receptacle, with our annotation labeling the
hinge.
The Specification explains, for example, that “the bottom holder/
receptacle 12 is configured to receive the lid 20,” which “includes an
opening or aperture 24 which receives the cover 22 so that the decorative
holder 10 may completely enclose the serving tray or tin 14.” Spec. ¶ 27.
The Specification explains that Figure 6 depicts an “embodiment of the
invention wherein the lid 20 is pivotally attached to the bottom
holder/receptacle 12 at a pair of hinges 32,” which “allows the lid 20 to be
pivoted about the hinge 32 relative to the upper lip of the bottom
holder/receptacle 12 for convenient insertion of serving trays or tins 14
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within the bottom holder/receptacle 12 and then securely enclosing the
serving tray or tin 14 beneath the closed lid 20.” Id. ¶ 29.2
The Examiner finds that Miller teaches each element of claim 1, other
than the “hinge which pivotally attaches the lid to the receptacle.” Non-
Final Act. 3. The Examiner finds that Meeks teaches the recited hinge, and
proposes modifying Miller’s teachings accordingly. Id.
Appellant does not dispute the Examiner’s findings related to Miller,
or that Meeks teaches a hinge. Rather, Appellant contends that “Meeks is
for a completely different design and purpose than either that of Miller or the
present invention.” Appeal Br. 8. Appellant explains that “Meeks is
directed to a carrier 2815 adapted to carry flexible baking containers 2813”
(id.), while “both the present invention and the Miller reference are directed
to decorative holders for serving trays and tins . . . intended to hold and
mask the otherwise unappealing appearance of the typically tin foil serving
tray, while providing access to the contents of the serving tray” (id. at 9).
Appellant contends that “Meeks, on the other hand, is directed to a carrier
which does not conceal the flexible containers it is used to carry
whatsoever.” Id.
Appellant’s sole argument concerns the rationale provided for the
proposed modification. Appellant contends that “[t]he Examiner has not set
forth or identified any convincing reasons which would have prompted a
person of ordinary skill in the relevant field to combine the elements in the
way the claimed new invention does,” but acknowledges that “[t]he
Examiner has stated that it would have been obvious at the time of the

2 That is the extent of the description of the hinges.
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invention to combine the teachings of Miller and Meeks ‘for the predictable
result of allowing a user to store the receptacle and the lid together.’”
Appeal Br. 10. Appellant concludes that “the Examiner has not articulated
an adequate rationale as to why, absent hindsight gleaned from Applicant’s
disclosure, a person of ordinary skill in the art would have been prompted to
combine the teachings of Miller and Meeks.” Id. Appellant additionally
contends that “the cited prior art does not recognize the problem solved by
the invention of avoiding having to remove a cover and lid and place these
items on valuable counter space in order to remove or insert a tin tray,”
which “is, in itself, strong evidence of the non-obviousness of the
invention.” Id. at 11. Appellant’s contentions are not persuasive.
The Examiner provides a straightforward reason for the proposed
modification as noted above, which Appellant acknowledges, and is beyond
dispute. There can be no reasonable argument as to whether putting a hinge
on Miller’s container would have been obvious to one skilled in the art. It is
clear that there is nothing unpredictable about putting a hinge on Miller’s
container and that it is well within the level of skill in the art to make such a
modification. Indeed, Appellant relies on the “hinge” being well known to
one skilled in the art in order to meet the written description and enablement
requirements of 35 U.S.C. § 112. This is evident from the fact that there is
no detail whatsoever in Appellant’s Specification regarding the hinge
structure, meaning one skilled in the art is well-aware of such known hinge
structures and the predictable results associated therewith. See, e.g., Spec.
¶¶ 23, 29 (the only places where the “hinge” is referenced).
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Appellant does not provide separate argument for dependent claims 5
and 9. We are not apprised of error in the Examiner’s decision to reject
claims 1, 5, and 9.
Claim 2
Claim 2 depends from claim 1, and adds “a generally planar cover
attachable to the lid by engaging a peripheral surface of the central opening.”
The Examiner finds that “Miller further discloses a cover 240 attachable to
the lid 230 by engaging a peripheral surface of the central opening (figs. 2-9)
but the modified Miller fails to disclose the cover 240 being generally
planar.” Non-Final Act. 4. The Examiner finds that “Frank teaches a
generally planer cover 130 (fig. 5),” and reasons that “[i]t would have been
obvious . . . to have made the cover 240 of the modified Miller, generally
planar” because “a change in form or shape is generally recognized as being
within the level of ordinary skill in the art, absent any showing of
unexpected results.” Id.
Appellant does not dispute the Examiner’s findings related to Miller
or Frank. Rather, Appellant argues only whether it would have been
obvious to make the shape of Miller’s cover “planar.” Appeal Br. 12–13.
Appellant contends that “the flip-tray system of Frank has a completely
different configuration and purpose than either that of the present invention
or the Miller reference,” “obvious design choice is precluded where the
claimed structure and the function it performs are different from the prior
art,” “the Examiner has not set forth any reasons why one of ordinary skill in
the art would have been motivated to combine the prior art in the way
claimed by the claims at issue and had a reasonable expectation of success in
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doing so,” and alleges impermissible hindsight. Id. at 13. Appellant’s
contentions are unpersuasive.
A change in shape is obvious as a matter of design choice where an
appellant does not show the shape was significant or beyond what was
obvious to perform the same function. In re Dailey, 357 F.2d 669, 672–73
(CCPA 1966). Appellant fails to identify any particular significance
attached to the “generally planar” shape of the cover. Appellant’s
Specification makes no reference to any particular shape of cover 22, let
alone a “generally planar” shape. Appellant fails to apprise us of any
persuasive reason as to why the proposed modification is anything more than
design choice.
Claims 3 and 4
Claim 3 depends from claim 1. Claim 4 depends from claim 3.
Appellant does not present argument for claim 3 or 4. Accordingly, we are
not apprised of error in the Examiner’s decision to reject claims 3 and 4.
Claims 8, 10, and 14–18
Appellant argues claims 8, 10, and 14–18 as a group. We select claim
8 as representative. Claims 10 and 14–18 stand or fall with claim 8. See 37
C.F.R. § 41.37(c)(1)(iv).
Claim 8 depends from claim 2, and adds that “an exterior bottom
surface of a first receptacle comprises a recess configured to at least partially
receive the cover of an underlying second decorative container to permit
vertical stacking of a plurality of decorative holders while inhibiting
horizontal relative movement therebetween.” The Examiner finds that
“McClure teaches stacking a plurality of holders by having a receptacle
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engage a lid of decorative container (fig. 5).” Non-Final Act. 5. The
Examiner reasons that “[i]t would have been obvious . . . to have made the
modified device of Miller, stackable, for the predictable result of easily
transporting and/or storing a stack of multiple holders as taught by McClure
in the abstract.” Id. The Examiner further explains that “[r]egarding the
recess being on the receptacle, it has been held that rearranging parts of an
invention involves only routine skill in the art.” Id. at 6.
Appellant acknowledges that “McClure does disclose stacking its food
serving refrigerant devices,” but contends that it “does so in a significantly
different manner than that of the present invention.” Appeal Br. 14.
Appellant contends that “the Examiner has not shown how the combination
of references is supposed to work with a clear, evidence-supported account
of the contemplated workings of the combination” and “has [not] provided
any explanation or support to why one would have been motivated to make
the combination and reasonable expectation of success in doing so.” Id. at
15.
The problem with Appellant’s contentions is that they ignore the fact
that, as noted above, the Examiner provides findings supported by the
references and adequate explanation for the proposed combination.
Appellant does not identify, with specificity, any error in the findings and
rationale actually relied on by the Examiner. Appellant’s general allegations
do not identify reversible error.
Claims 13 and 19–21
Claim 13 depends from claim 10. Claim 20 depends from claim 13.
Claim 19 depends from claim 18. Claim 21 depends from claim 19.
Appellant does not provide separate argument for those claims.
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CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 5, 9 103 Miller, Meeks 1, 5, 9
2 103 Miller, Meeks,
Frank
2
3, 4 103 Miller, Meeks,
Harl
3, 4
8, 10, 14–18 103 Miller, Meeks,
Frank, McClure
8, 10, 14–18
13, 19–21 103 Miller, Meeks,
Frank, McClure,
Harl
13, 19–21
Overall
Outcome
1–5, 8–10,
13–21

TIME PERIOD FOR RESPONSE
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