Tessara (Pty) Ltd

Patent Trials and Appeals Board

Dec 22, 2020

2020001189 (P.T.A.B. Dec. 22, 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.
15/529,352 05/24/2017 Alwyn Jacobus Van Jaarsveld 49733-US 9057
23589 7590 12/22/2020
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
12/22/2020 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):
uspatents@hoveywilliams.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ALWYN JACOBUS VAN JAARSVELD
____________

Appeal 2020-001189
Application 15/529,352
Technology Center 1700
____________
Before FRANCISCO C. PRATS, DEBRA L. DENNETT, and LILAN REN,
Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 3–6, 8–10, 12–15, 18, 19, and 23–25
of Application 15/529,352. We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.

1 In our Decision, we refer to the Specification (“Spec.”) of Application No.
15/529,352 (“’352 App.”) filed May 24, 2017; the Final Office Action dated
Dec. 3, 2018 (“Final Act.”); the Appeal Brief filed Aug. 23,2019 (“Appeal
Br.”); the Examiner’s Answer dated Oct. 2, 2019 (“Ans.”); and the Reply
Brief (“Reply Br.”) filed Dec. 2, 2019.
2 We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Tessara (Pty) Ltd. as the real party in
interest. Appeal Br. 4.
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STATEMENT OF THE CASE
The Specification relates to an antimicrobial cover comprising an
antimicrobial agent-generating article for use with a container for transport
or storage of fruit, and a container comprising the antimicrobial cover. Spec.
1, first paragraph. Prevention of fungal growth on fruit during transport is
said to include use of SO2-generating articles. Spec. 2, first full paragraph.
The Specification describes use of SO2-generating articles that are in direct
contact with the fruit as problematic, as the fruit may be bleached as a result.
Spec. 2, first full paragraph.
Claim 1 is representative of the claims on appeal and is reproduced
below from the Claims Appendix of the Brief.
1. A container for transport or storage of fruit having a solid
base, four sides, and an open end comprising:
(i) a plurality of apertures in the sides of the container
that are in the same horizontal plane for air flow, cooling
or both and
(ii) an antimicrobial cover comprising an
uninterrupted sheet of material adapted to fit over the
open end of the container and a plurality of optional slits
at the periphery of the antimicrobial cover positioned to
receive interlocking lugs of the container or stacking feet
of an adjacent container,
said antimicrobial cover comprising or
consisting of a sulphur dioxide (SO2) generating
article, wherein said sulphur dioxide (SO2)
generating article faces inwardly towards and
adjacent to fruit in the container, but is not in
direct contact therewith.
Appeal Br. 22.
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REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Conti US 2,652,335 Sept. 15, 1953
Bloom US 2,660,529 Nov. 24,1953
Slapnik US 3,412,893 Nov. 26, 1968
Clemes et al.
(“Clemes”)
US 2002/0041939 A1 Apr. 11, 2002
Quintanar Santibanez et
al. (“Santibanez”)
US 2004/0131518 A1 July 8, 2004
Baeremaecker et al.
(“Baeremaecker”)
US 2006/0083826 A1 Apr. 20, 2006
Gray et al. (“Gray”) US 2006/0216496 A2 Sept. 28, 2006
Ferguson US 2009/0173740 A1 July 9, 2009
Huang US 2009/0242579 A1 Oct. 1, 2009
Neugarten3 CH 174834 Jan. 31, 1935
Mur4 ES 2188314 A1 June 16, 2006
REJECTIONS
On appeal, the Examiner maintains the following rejections under 35
U.S.C. § 103:5
1. Claims 1, 3–6, 8–10, 12–15, and 23–25 are rejected over Mur in
view of Slapnik, Huang, and in further view of Clemes, Gray,

3 The Examiner relies on a machine translation of Neugarten, to which
Appellant does not object. See Appeal Br. 18.
4 The Examiner relies on a machine translation of Mur, to which Appellant
does not object. See Appeal Br. 8–17.
5 Because this application was filed after the 16 March 2013, effective date
of the America Invents Act, we refer to the AIA version of the statute.
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Santibanez, Baeremaecker, and Neugarten, and in further view of
Bloom or Conti;
2. Claims 18 and 19 over Gray in view of Ferguson, Mur, and
Clemes;
3. Claims 1, 4–6, 8–10, 12, 13, and 23–25 over Gray in view of
Mur, Slapnik, Huang, and further in view of Neugarten, Clemes,
Baeremaecker, and further in view of Bloom or Conti; and
4. Claim 3 over Gray in view of Mur, Slapnik, Huang, Neugarten,
Clemes, Baeremaecker, Bloom or Conti, and further in view of
Santibanez.
Final Act. 3–18.
OPINION
Appellant relies only on the arguments made against the rejection of
claim 1 over Mur as the primary reference for patentability of all rejected
claims. See Appeal Br. 17–20. We select claim 1 as representative. Claims
3–6, 8–10, 12–15, 18, 19, and 23–25 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv).
In the rejection of claim 1 over Mur as the primary reference, the
Examiner finds that Mur teaches a container for transport or storage of fruit
in which the container has a solid base, four sides, and an open end, which is
covered by a protective sheet. Final Act. 4 (citing Mur Figs. 2 and 4). The
Examiner acknowledges that Mur does not teach a plurality of apertures in
the container sides that are in the same horizontal plane. Id. However, the
Examiner finds that Slapnik and Huang teach containers for produce having
apertures for ventilation in the same horizontal plane. Id. (citing Slapnik
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Figs. 1 and 2; Huang Figs. 2–4, ¶ 25). Neugarten teaches containers similar
to Mur for packaging fruit. Id. (citing translation of description in
Neugarten). The Examiner concludes that it would have been obvious to
modify Mur based on Slapnik and Huang to provide ventilation to fruit
packaged in containers. Id.
The Examiner relies on Clemes, Gray, Santibanez, and Baeremaecker
as teaching covers or films comprising antimicrobial agents such as SO2-
generating agents for use in packaging agricultural products, including fruits.
Id. at 5 (citing Clemes ¶ 2; Gray ¶¶ 1, 46, 122, 124; Santibanez Abst., ¶ 28;
Baeremaecker ¶ 17, Figs. 1 and 2). The Examiner concludes that it would
have been obvious to further modify Mur to use a SO2-generating film as
Mur’s protective cover based on these references. Id.
Claim 1 requires that the SO2-generating article “faces inwardly
towards and adjacent to the fruit in the container, but is not in direct contact
therewith.” Appeal Br. 22 (Claims App.). The Examiner finds that Clemes,
Gray, and Baeremaecker all teach an antimicrobial agent-generating article
used as a cover that would face inwardly and not be in direct contact with
the fruit. Final Act. 6. The Examiner finds that Bloom and Conti teach
cover films wherein fruit is adjacent to but not in direct contact with the
cover film. Id. The Examiner concludes that it would have been obvious to
have a SO2-generating article face inwardly on Mur’s modified container to
allow gas to be directed toward the fruit. Id. at 7.
We agree with the Examiner’s findings as to the cited references’
teachings, as well as the Examiner’s conclusion of obviousness as to claim 1
based on those teachings, and adopt them as our own. We address
Appellant’s arguments below.
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Appellant relies on the Declaration of Filicity Vries, an employee of
the assignee, to support the existence of surprising and unexpected results.
Appeal Br. 10–12; see also July 9, 2018 Vries Declaration under 37 C.F.R.
§ 1.132 (“Vries Decl.”) and accompanying Exhibit A (“Ex. A”).
Unexpected results may be used as evidence of nonobviousness. See In re
Soni, 54 F.3d 746, 750 (Fed. Cir. 1995) (“One way for a patent applicant to
rebut a prima facie case of obviousness is to make a showing of ‘unexpected
results,’ i.e., to show that the claimed invention exhibits some superior
property or advantage that a person of ordinary skill in the relevant art would
have found surprising or unexpected.”). Before we reach the issue of
whether Appellant rebuts a prima facie case of obviousness, however, we
evaluate the evidence and arguments to determine if a prima facie case is
made.
Appellant argues that, although Mur, Neugarten, Slapnik, Huang,
Bloom, and Conti are concerned with containers, none of the references
mention use of a gas-generating device. Appeal Br. 10; Reply Br. 2.
Appellant further argues that Baeremaecker and Gray are cited by the
Examiner as supporting a contention that “the art reasonably suggests
ventilated containers which can be successfully used with sulfur dioxide
generating films.” Appeal Br. 13 (quoting Final Act. 19).
Appellant contends that Baeremaecker is inapplicable to the claimed
containers because Baeremaecker’s openings are to allow SO2 to get into the
containers, as the SO2-generarting cover is wrapped outside of the
containers. Id. Appellant urges that “nothing in Baeremaecker recommends
a container with openings for ventilation and airflow where the SO2
generating component is likewise contained inside the container with fruit.”
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Id. Appellant also argues that Baeremaecker’s dual-layer SO[2] cover and
semi-permeable wrap contain the environment within a stack of wrapped
containers, and this is inconsistent with a ventilated container having
apertures for air flow. Id. at 13–14.
Appellant’s argument regarding Baeremaecker is not persuasive, as
the Examiner does not make the finding asserted by Appellant. The
Examiner relies on Baeremaecker as teaching conventional use of SO2
generating films as cover films for agricultural products. Final Act. 5 (citing
Baeremaecker ¶ 17). The Examiner also relies on Clemes, Gray, and
Santibanez for teaching antimicrobial agents such as SO2-generating agents
for packaging fruit, where the cover can include the antimicrobial agent. Id.
The Examiner finds that other references, including Slapnik and Huang,
disclose a ventilated container having apertures for air flow. Id. at 4. Thus,
Appellant’s criticism of Baeremaecker improperly attacks the single
reference individually, but the rejection is based upon the teachings of a
combination of references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). Each reference cited by the Examiner must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole. See id.
Appellant’s argument against Gray is unavailing for similar reasons.
Appellant contends that Gray relies on the accumulation of moisture for
generation of SO2 in the container, therefore Gray, like Baeremaecker, does
not convey a ventilated container with air circulating freely. Appeal Br. 15.
However, Slapnik and Huang teach a ventilated container with apertures,
thus the Examiner does not rely on Gray alone for apertures. See Final Act.
4. Moreover, Gray encompasses a liner or bag having perforations that
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permit moisture to escape and other gases to enter (Gray ¶ 24), meaning the
reference does not exclude air flow.
In addition, claim 1 does not require air circulating “freely,” which is
undefined. See Appeal Br. 22. The claim recites that “a plurality of
apertures in the sides of the container that are in the same horizontal plane
for air flow, cooling or both.” Id. “For air flow” is not a structural element
in this apparatus claim. “[A]pparatus claims cover what a device is, not
what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d
1464, 1468 (Fed. Cir. 1990). “It is well settled that the recitation of a new
intended use for an old product does not make a claim to that old product
patentable.” In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (citations
omitted).
Appellant argues that Mur does not teach an SO2-generating sheet,
Baeremaecker does not recommend positioning an SO2-generating sheet
inside the container, and Gray does not tie Mur and Baeremaecker together
to teach both anSO2-generating article and a container with aligned
apertures. Appeal Br. 16. Here, again, Appellant argues the references
individually, while ignoring the teachings of the combination of references.
See In re Merck, 800 F.2d at 1097.
We disagree with Appellant’s contention that the Examiner relies on
improper hindsight. See Appeal Br. 17. “Any judgment on obviousness is
in a sense necessarily a reconstruction based upon hindsight reasoning, but
so long as it takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made and does not
include knowledge gleaned only from applicant’s disclosure, such a
reconstruction is proper.” In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
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1971). We find nothing improper in the Examiner’s analysis, which
demonstrates that claim 1 recites nothing more than “the predictable use of
prior art elements according to their established functions.” KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007).
For the reasons above, Appellant does not persuade us that the
preponderance of the evidence fails to support a prima facie case of
obviousness as to claim 1. Thus, we turn to the Vries Declaration.
Dr. Vries describes the results of an experiment wherein Crimson
Seedless grapes were packed in punnets, put into cartons with opposed
ventilation holes in the side walls, and subjected to one of following
postharvest treatments during storage: (1) container with cover only and no
SO2-generating device; (2) container with SO2 sheet tucked down the sides
as in conventional practice; (3) container with antimicrobial cover of the
invention; and (4) grapes without cover (control). Vries Decl. 4–5 and Ex.
A. Dr. Vries declares that an ordinarily skilled artisan would not expect that
use of a container that facilitates air flow by means of a plurality of apertures
in the same horizontal place used together with a cover comprising an SO2-
generating material would work as well, i.e., 50% more effective at
preventing decay than the container with an SO2 sheet tucked down the
sides. Id. 3. Appellant relies on Dr. Vries’s declaration in arguing that
surprising and unexpected results were obtained with the invention. Appeal
Br. 11–12; Reply Br. 2–6.
Unexpected results must be established by factual evidence; mere
argument or conclusory statements do not suffice. In re De Blauwe, 736
F.2d 699, 705 (Fed. Cir. 1984). Moreover, “[i]t is well settled ‘that objective
evidence of non-obviousness must be commensurate in scope with the
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claims which the evidence is offered to support.’” In re Graselli, 713 F.2d
731, 743 (Fed. Cir. 1983) (quoting In re Tiffin, 448 F.2d 791 (CCPA 1971));
see also In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) (Unexpected
results must also be “commensurate in scope with the degree of protection
sought by the claims on appeal.”).
Appellant argues that the data demonstrate that increasing airflow
increases decay over time, covering fruit with a cover slip without an SO2-
generating device has the highest level of decay, and covering fruit with an
SO2-generating device tucked around the fruit to increase moisture and
minimize airflow resulted in significant levels of decay. Reply Br. 3.
Appellant concludes that the data demonstrate the unexpectedness that (1) an
SO2-generating device would be able to generate adequate levels of SO2 for
decay prevention in a container having apertures for airflow; (2) leaving a
container with openings for airflow does not result in significant decay
levels; and (3) the combination of an SO2-generating device and openings
for airflow achieve statistically significantly improved decay prevention. Id.
at 3–4. We do not read the data as supporting such broad conclusions.
The evidence provided of unexpected results is limited to one type of
fruit (Crimson Seedless grapes) tested in one type of container under one set
of physical conditions for four or eight weeks, followed by 7 more days of
storage. See Vries Decl. Ex. A. Claim 1, however, encompasses “fruits” of
all kinds, containers of all sizes, two or more apertures of all shapes and
sizes, and all antimicrobial covers that comprise at least an SO2-generating
article. See Appeal Br. 22. Therefore, the evidence of surprising and
unexpected results is not commensurate with the scope of claim 1, and does
not effectively rebut the Examiner’s prima facie showing of obviousness.
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In view of the foregoing, we determine that the Examiner did not
reversibly err in rejecting claim 1 as obvious over the combined references.
Accordingly, we also affirm the rejection of claims 3–6, 8–10, 12–15, 18,
19, and 23–25. 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–6, 8–10,
12–15, 23–
25
103
Mur, Slapnik, Huang,
Clemes, Gray,
Santibanez,
Baeremaecker,
Neugarten, Bloom, Conti
1, 3–6, 8–
10, 12–
15, 18,
19, 23–25

18, 19 103
Gray, Ferguson,
Mur, Clemes

18, 19
1, 4–6, 8–10,
12, 13, 23–
25
103
Gray, Mur, Slapnik,
Huang, Neugarten,
Clemes, Baeremaecker,
Bloom, Conti
1, 4–6, 8–
10, 12,
13, 23–25

3 103
Gray, Mur, Slapnik,
Huang, Neugarten,
Clemes, Baeremaecker,
Bloom, Conti, Santibanez
3
Overall
Outcome
1, 3–6, 8–
10, 12–
15, 18,
19, 23–25

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