Ex Parte 6,231,905 et al

Patent Trials and Appeals BoardAug 16, 2013

90011132 - (D) (P.T.A.B. Aug. 16, 2013)

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. 90/011,132 08/03/2010 6,231,905 91943.000577 7442 56356 7590 08/16/2013 PACTIV CORPORATION c/o NIXON PEABODY LLP 300 S. Riverside Plaza 16TH FLOOR CHICAGO, IL 60606 EXAMINER JASTRZAB, KRISANNE MARIE ART UNIT PAPER NUMBER 3991 MAIL DATE DELIVERY MODE 08/16/2013 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 ____________ PACTIV LLC Patent Owner and Appellant ____________ Appeal 2013-003339 Reexamination Control 90/011,132 Patent U.S. 6,231,905 B1 Technology Center 3900 ____________ Before LORA M. GREEN, RICHARD M. LEBOVITZ, and JEFFREY B. ROBERTSON, Administrative Patent Judges. LEBOVITZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on the appeal by Patent Owner Pactiv LLC, from the Patent Examiner‟s rejections of claims 1-22 in this ex parte reexamination proceeding. The Board‟s jurisdiction for this appeal is under 35 U.S.C. §§ 6(b), 134(b), and 306. We affirm. Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 2 I. STATEMENT OF CASE This appeal involves US 6,231,905 B1 (“the „905 patent”) which issued May 15, 2001. The named inventors are Gary R. DelDuca, Alan E. Deyo, Vinod K. Luthra, and Wen P. Wu. A Request for Ex Parte Reexamination of the „905 patent was made by a third-party requester, Multisorb Technologies, on August 3, 2010. Reexamination of the „905 patent was subsequently ordered (Order Granting Request for Reexamination, September 20, 2010). An oral hearing was held April 10, 2013. A transcript was into the record on July 23, 2013. The real party in interest in this ex parte reexamination proceeding is the patent owner, Pactiv LLC (Appeal Br. 2, dated February 28, 2012). Patent Owner states that it is involved in litigation against Multisorb in Civil Action No. 10-cv-07609 (Pactiv Corporation v. Multisorb Technologies, Inc.) in the United States District Court, Northern District of Illinois in which U.S. Patent Nos. 6,183,790, 5,698,250, 5,948,457, 5,811,142, 6,231,905, 6,315,921 and 6,395,195 have been asserted. The present reexamination proceeding is related to the following ex parte reexaminations: (1) Control No. 90/011,128 (US 6,183,790) (Appeal 2013-002087). (2) Control No. 90/011,131 (US 5,948,457) (Appeal 2013-003338). (3) Control No. 90/011,130 (US 5,811,142) (Appeal 2013-003324). (4) Control No. 90/010,976 (US 5,698,250) (Appeal 2013-001728). (5) Control No. 90/011,596 (US 6,315,921). (6) Control No. 90/011,597 (US 6,395,195). Reexaminations (1) to (4) are decided concurrently with this appeal. Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 3 The technology in the „250 patent involves packaging for meat. The „250 patent teaches that “[p]ackaging systems which provide extremely low levels of oxygen are generally preferable because it is well known that the fresh quality of meat can be preserved longer under anaerobic conditions than under aerobic conditions.” (Col. 1, ll. 36-39.) The „250 patent describes prior art systems in which the atmosphere is evacuated of oxygen and optionally filled with gases other than oxygen to preserve the meat (col. 1, ll. 40-61). “The meat in the modified atmosphere package takes on a less desirable purple-red color which few consumers would associate with freshness. This purple-red color, however, quickly „blooms‟ to a bright red color generally associated with freshness when the package is opened to oxygenate the fresh meat by exposure to air.” (Col. 1, ll. 61-66.) The „250 patent describes the invention as a packaging system which comprises an oxygen scavenger to substantially absorb residual oxygen in the package that remains after the package is flushed with gases to substantially eliminate the oxygen in the package atmosphere (col. 2, ll. 36-56). The claims are drawn to packaging systems, and methods of making them, comprising an oxygen scavenger and also a predetermined amount of an activator to increase the rate of oxygen absorption (claims 1, 12, 21, 23; col. 4, ll. 35-39). As explained in the patent, the retail meat is stored in the package, and just prior to display at the grocery store to the consumer, the package is opened and the meat exposed to air (col. 2, ll. 31-33; col. 4, ll. 55-58). The meat is oxygenated and quickly changes or “blooms” to a bright red color (id.). Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 4 II. REJECTIONS Claims 1-22 are original claims pending. Claims 1, 10, and 14 are independent and were amended during the reexamination proceeding (Appeal Br. 2). Patent Owner appeals the Examiner‟s decision to reject the claims. The claims stand rejected by the Examiner as follows: 1. Claims 1-3, 5, 9-16, 18 and 22 are unpatentable under 35 U.S.C. § 103(a) as obvious over U.S. Patent No. 3,574,642 to Weinke ("Weinke") in view of JP 58-158129 to Sakai 1 ("Sakai") and GB 1,556,853 ("GB '853"). 2. Claims 1-3, 5, 9-16, 18 and 22 are unpatentable under 35 U.S.C. § 103(a) as obvious over Weinke in view of Sakai and EP 468,880 to Hamon 2 ("Hamon"). 3. Claims 4, 6-8, 17 and 19-21 are unpatentable under 35 U.S.C. § 103(a) as obvious over Weinke, Sakai, GB '853 and further in view of admitted prior art. 4. Claims 4, 6-8, 17 and 19-21 are unpatentable under 35 U.S.C. § 103(a) as obvious over Weinke, Sakai, Hamon and further in view of admitted prior art. 1 Citations to English Translation of Record. 2 Citations to English Translation of Record. 3 “Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. . . . Whether the rejection is based on “inherency” under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO‟s inability to manufacture products or to obtain and compare prior art products.” In re Best, 562 F.2d 1252, 1255 (CCPA 1977) 2 Citations to English Translation of Record. Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 5 III. REPRESENTATIVE CLAIM Claim 1 is representative and reads as follows (underlining and brackets delineating added and removed subject matter, respectively relative to the originally issued claim): 1. A method of manufacturing a modified atmosphere package, comprising: supplying a first package including a non-barrier portion substantially permeable to oxygen; placing a retail cut of raw meat within said first package; sealing said first package; supplying a second package substantially impermeable to oxygen; covering said first package with said second package without sealing said second package so as to create a pocket between said first and second packages; supplying an oxygen scavenger; activating said oxygen scavenger with [an] a predetermined amount of oxygen scavenger accelerator; positioning said oxygen scavenger external to said first package such that said oxygen scavenger is capable of absorbing oxygen within said pocket; removing oxygen from said pocket so as to reduce an oxygen level therein to a non-zero level; and sealing said second package, said activated oxygen scavenger aggressively absorbing any residual oxygen in said modified atmosphere package so as to reduce the oxygen level from said non-zero level to approximately zero percent, wherein the activated oxygen scavenger lowers the oxygen level in said package to about 0 percent in less than about 24 hours. Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 6 IV. SNQ ISSUE In the Reply Brief, Patent Owner newly cites the Federal Circuit decision Belkin Int'l Inc. v. Kappos, 696 F.3d 1379 (Fed. Cir. 2012) which issued on October 2, 2012, after their Appeal Brief was filed on February 28, 2012. According to Patent Owner, Belkin affirmed the Board‟s decision not to consider any references that the Director had decided did not form a substantial new question (SNQ) of patentability and they should not be considered here (Reply Br. 2). We addressed this SNQ issue in the related Appeal 2013-1728 (“the „1728 Appeal”). Since we have fully addressed these arguments in the decision in the „1728 Appeal (“the „1728 Decision”), rather than repeat the reasoning again as to why we found the arguments unpersuasive, we incorporate by reference that part of the decision here. V. OBVIOUSNESS IN VIEW OF WEINKE, SAKAI, & GB „853 V.A. Claims 1, 10 and 14 There are three independent claims, claims 1, 10, and 14. Claim 1 is directed to a method of manufacturing a modified atmosphere package. The package is supplied with (1) an oxygen scavenger which (2) is activated with a predetermined amount of oxygen scavenger accelerator. The “oxygen scavenger” serves the purpose to absorb oxygen from the package to reduce the oxygen level („905 patent, col. 2, ll. 54-57). The “oxygen scavenger accelerator” is used to activate the scavenger to increase the rate at which the oxygen is absorbed (id. at col. 2, ll. 57-61). The claim requires that the “activated oxygen scavenger lowers the oxygen level in said package to about 0 percent in less than about 24 hours.” Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 7 Independent claim 10 is a method claim similar to claim 1 with the same limitation that the “activated oxygen scavenger lowers the oxygen level in said package to about 0 percent in less than about 24 hours.” Independent claim 14 is directed to a “system for removing oxygen from a modified atmosphere package.” The package has an oxygen scavenger and oxygen scavenger accelerator “for aggressively absorbing any residual oxygen in said modified package after sealing said second package so as to reduce the oxygen level from said non-zero level to approximately zero percent.” The Examiner found that Weinke describes a packaging system and process for preparing one as recited in claims 1, 10, and 14, but not comprising an oxygen scavenger and oxygen scavenger accelerator. For the latter limitations, the Examiner cited Sakai for its teaching of utilizing a deoxidizer (“oxygen scavenger”) “to prevent the oxidation of oxymyoglobin and prevent the meat from becoming brown.” (Answer 5.) The Examiner found that that Sakai teaches “oxygen is reduced to 0.1 % or less within 12 hours after closely sealing the meat together with the deoxidizers.” (Answer 5; Sakai, p. 4, ll. 7-10 (“The present invention requires as its element to reduce oxygen concentration in the container to 5 % or less within a specified interval of time, i.e., within 24 hours, preferably to 0.1 % or less within 12 hours, after closely-sealing the meat together with the deoxidizers.”).) For the “oxygen scavenger accelerator,” the Examiner cited GB „853 which describes an accelerator “to improve the oxygen absorption ability of oxygen absorbing agent by 5 to 10 times.” (Answer 5; GB „853, p. 1, col. Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 8 55-60 (“Surprisingly, we have found that the agent according to the present invention, in comparison with the mixture described in J. Clin. Microbiol., possesses a 5 to 10 times better oxygen absorption ability.”).) The Examiner concluded: Therefore, it would have been obvious to a person of ordinary skill in the art at the time of the invention to include an oxygen scavenger as taught in Sakai in the packaging of Weinke to further ensure optimized prevention of oxidative deterioration resulting from residual oxygen presence. It further would have been obvious to add a predetermined amount of activator (accelerator) to the oxygen scavenger to improve the scavenger's oxygen absorbing ability as disclosed by GB '853 in light of the teachings in Weinke of the importance of rapidly reducing the O2 concentration of the sealed packaged meat in order to preserve color. (Answer 5-6.) As to the specific values of oxygen recited in claims 1, 10, and 14, the Examiner relied upon Sakai‟s teaching of 0.1% or less in 12 hours and the 5 to 10-fold in improvement described in GB „853 (Answer 6). On pages 12-17 of the Appeal Brief and pages 5-11 of the Reply Brief, Patent Owner argues that the combination of Weinke, Sakai, and GB „853 is improper. The arguments set forth in the Appeal Brief and Reply Brief appear to be substantially the same as those in related Appeal 2013- 1728 (“the „1728 Appeal”). Since we have fully addressed these arguments in the „1728 Decision, rather than repeat the reasoning again as to why we found the arguments unpersuasive, we incorporate by reference that part of the decision here, specifically, pages 9-21. Patent Owner also contends “there is no disclosure, teaching or suggestion that the proposed combination of GB '853 and Sakai would Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 9 obtain the claimed activity levels.” (Appeal Br. 17.) Patent Owner argues that the scavenger in Sakai worked poorly and the “process in GB '853 uses an anaerobic vessel so work required by the oxygen absorbing agent is very minimal to reach the desired oxygen content.” (Id.) Patent Owner also states that “it is not clear whether the oxygen scavenger system of GB '853, which works for a few minutes in an anaerobic container, would work as claimed in the poorly performing system of Sakai.” Patent Owner cites testimony by Mr. DelDuca to support this position. See Third DelDuca Decl. ¶ 16. Mr. DelDuca is a co-inventor of the „250 patent. From 1995, Mr. DelDuca was Technical Manager and/or Technical Sales Manager for the Patent Owner in the area of modified atmosphere packaging (MAP) for meats (First DelDuca Decl. ¶ 2). His responsibilities have included designing, developing, and implementing such modified atmosphere packaging for meat and processes using the same (id.). Mr. DelDuca possesses the requisite knowledge expected of one of ordinary skill in the art and thus us is qualified to testify as to the matters in his declaration. Mr. DelDuca did not provide evidence that the system in GB „853 would not work in a meat package. The PTO does not have the facilities to perform testing. 3 Consequently, all an Examiner can do is provide a 3 “Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. . . . Whether the rejection is based on “inherency” under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 10 reasonable basis upon which to believe that prior art would perform as claimed, shifting the burden to patent owner to show that it would not. In this case, the specific teachings in GB „853 about the efficacy of its system are adequate to provide the Examiner with a reasonable basis to believe it would work in Weinke and Sakai‟s meat packing systems, shifting the burden to Patent Owner to show otherwise. These teachings include: Surprisingly, we have found that the agent according to the present invention, in comparison with the mixture described in J. Clin. Microbiol., possesses a 5 to 10 times better oxygen absorption ability, referred to the amount of iron. (GB „853, p. 1, ll. 55-60.) For the production of an oxygen-poor or oxygen-free atmosphere, such as is necessary, for example, for culturing anaerobic bacteria, the dry mixture according to the present invention is brought into contact with a reaction mediator. (GB „853, p. 2, ll. 18-23.) After only a few minutes [using a mixture comprising iron powder as an oxygen absorbing agent and citric acid as an activator], a practically oxygen-free atmosphere is produced in the anaerobic vessel. (GB ‟853, p. 2, ll. 43-56; p. 1, ll. 69-81). Patent Owner did not provide adequate rebuttal arguments or evidence. Mr. DelDuca made the statement that there is no “evidence” that GB „853 would achieve the claimed activity levels. We do not agree. To the contrary, the evidence cited above, provides an adequate basis that an evidenced by the PTO‟s inability to manufacture products or to obtain and compare prior art products.” In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (footnote omitted). Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 11 oxygen-free or a practically oxygen-free atmosphere could be accomplished in “only a few minutes.” Mr. DelDuca appeared to imply that the system in GB „853 work[ed] for a few minutes” (Third DelDuca ¶ 16), but there is no indication that the mixture in the GB „853 system depleted the container of oxygen and then stopped working. Mr. DelDuca also did not provide evidence, or a reason with factual underpinnings, as to why a system that worked in anaerobic culture container would not work as well in a sealed meat packaging system. His opinion was that GB „853 would not work in Weinke, but he did not provide a factual basis or reason for holding this opinion. We credit his opinion little weight. Consequently, we do not find Patent Owner‟s arguments persuasive as to claim 1, or dependent claims 9 and 15 which recite similar limitations. (See Appeal Br. 19.) V.B. Secondary considerations In making an obviousness determination, secondary considerations must be considered if present. Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 17-18 (1966); TriMed, Inc. v. Stryker Corp., 608 F.3d 1333, 1343 (Fed. Cir. 2010). Evidence rebutting a prima face case of obviousness can include evidence of secondary considerations, such as commercial success, long-felt but unresolved needs, and unexpected results. WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1359 (Fed. Cir. 1999); In re Soni, 54 F.3d 746, 750-51 (Fed. Cir. 1995). “When a patent applicant puts forth rebuttal evidence, the Board must consider that evidence.” In re Sullivan, 498 F.3d 1345, 1351 (Fed. Cir. 2007). Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 12 The evidence of secondary considerations put forth in this appeal is the same as in the „1728 Appeal. We fully considered this evidence and found it inadequate to rebut the Examiner‟s strong case of prima facie obviousness. Rather than repeat our analysis, we refer to the discussion in the ‟1728 Decision on pages 28-33. V.C. Summary After considering the totality of the evidence, we conclude that the preponderance of the evidence establishes that claims 1, 10, and 14 are obvious in view of Weinke, Sakai, and GB „853. The rejection of claims 1, 9, 10, 14, and 15 is affirmed for the reason described above, those of the „1728 Decision, and those given by the Examiner. Patent Owner argued that the dependent claims are patentable for same unpersuasive arguments as for claim 1 and/or did not present separate patentability arguments (Appeal Br. 24-27). We therefore affirm the rejection of claims 2, 3, 5, 11-13, 16, 18 and 22 as obvious in view of Weinke, Sakai, and GB „853. VI. OBVIOUSNESS IN VIEW OF WEINKE, SAKAI, GB „853, AND ADMITTED PRIOR ART The Examiner found that Weinke in view of Sakai and GB '853 “are silent on teaching the claimed method and apparatus for evacuating and/or flushing the pocket and sealing the package as recited in claims 4, 6-8, 13, 17 and 19-21.” (Answer 7.) However, the Examiner found that the „905 patent admitted such features were known in the art, and concluded that it would have been obvious to one of ordinary skill in the art to apply these Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 13 known features for their known and intended purpose (id. at 7-8.) The Examiner‟s reasoning is fact-based and supported by a preponderance of the evidence. Patent Owner has not identified a deficiency in it, and we find none. As indicated above, the evidence of secondary consideration is insufficient to rebut the strong case of obviousness. We therefore affirm the rejection of claims 4, 6-8, 17, and 19-21 for the reasons set forth by the Examiner (id.). VII. OBVIOUSNESS IN VIEW OF WEINKE, SAKAI, AND HAMON The Examiner applied the same rationale for combining Weinke and Sakai as in Rejection 1 (Answer 8-9). The Examiner further found: Regarding claims 1, 9-10 and 15, Sakai further discloses that oxygen is reduced to 0.1 % or less within 12 hours after closely sealing the meat together with the deoxidizers. Hamon teaches that the addition of a predetermined amount of activator (accelerator), such as ascorbic acid, to the iron oxygen scavenger improves the oxygen absorption ability of oxygen absorbing agent (See translation). Thus, the addition of the oxygen accelerator and activator suggested by Sakai and Hamon will improve the rate and percentage of oxygen reduction to within those ranges claimed in claims 1, 9-10 and 15. (Answer 9-10.) Claims 1 and 10 recites “wherein the activated oxygen scavenger lowers the oxygen level in said package to about 0 percent in less than about 24 hours.” As found by the Examiner, the teachings in Sakai and Hamon provide a reasonable basis on which to believe that the Hamon‟s activated scavenger would achieve the claimed oxygen levels in the recited amount of Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 14 time. The following teaching of Sakai is pertinent because it teaches a range which overlaps with the claimed value: The present invention requires as its element to reduce oxygen concentration in the container to 5 % or less within a specified interval of time, i.e., within 24 hours, preferably to 0.1 % or less within 12 hours, after closely-sealing the meat together with the deoxidizers. (Sakai, p. 4, ll. 7-10.) Hamon provides further evidence that the claimed values would have been reasonably expected by one of ordinary skill in combination with Weinke and Sakai. Patent Owner does not dispute the Examiner‟s finding that Hamon discloses an oxygen scavenger and activator (Answer 9-10). The Examiner‟s finding that Hamon‟s system “will improve the rate and percentage of oxygen reduction” is supported by the evidence (id.). The following disclosure in Hamon is pertinent: When one is for very sensitive products to oxygen, especially fats or wet products such as mayonnaise, fruit, power solutions, or even glue, this type of absorber is inadequate. Indeed, sensitive products in the development of microorganisms must quickly be in a low oxygen atmosphere. Absorbers must have a rate of absorption of oxygen higher, and in this case a too long residence time in the air can affect their subsequent absorption and thus the system reliability. Therefore it is advantageous to use oxygen absorbers activated. (Hamon, p. 1, ll. 39-45) The components may be more or less intimately mixed at the time of rupture of the septum, which has the effect of changing the speed of the reaction. The implementation can be automated, allowing the production of an enhanced rate of reaction. (Hamon, p. 2, ll. 26-29.) Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 15 Patent Owner contends that Weinke combined with Sakai is deficient for substantially the same reasons (Appeal Br. 18-19) argued in the „1728 Appeal. We incorporate by reference the reasoning in the „1728 Decision as to why these arguments are not persuasive (see pages 9-21 of the „1728 Decision). Patent Owner provided evidence of secondary consideration which is the same as in the „1728 Appeal. We fully considered this evidence and found it inadequate to rebut the Examiner‟s strong case of prima facie obviousness. Rather than repeat our analysis, we refer to the discussion in the ‟1728 Decision on pages 28-33. After considering the totality of the evidence, we conclude that the preponderance of the evidence establishes that claims 1, 10, and 14 are obvious in view of Weinke, Sakai, and Hamon. The rejection of claims 1, 10, and 14 is affirmed for the reason described above, those of the „1728 Decision, and those given by the Examiner. Patent Owner argues that the dependent are patentable for same unpersuasive arguments as for claim 1 (Appeal Br. 24-27). We therefore affirm the rejection of claims 2, 3, 5, 9, 11-13, 15, 16, 18 and 22 as obvious in view of Weinke, Sakai, and Hamon. VIII. OBVIOUSNESS IN VIEW OF WEINKE, SAKAI, HAMON, AND ADMITTED PRIOR ART The Examiner found that Weinke in view of Sakai and Hamon “are silent on teaching the claimed method and apparatus for evacuating and/or flushing the pocket and sealing the package as recited in claims 4, 6-8, 13, 17 and 19-21.” (Answer 10.) However, the Examiner found that the „905 Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 16 patent admitted such features were known in the art, and concluded that it would have been obvious to one of ordinary skill in the art to apply these known features for their known and intended purpose (id. at 11.) The Examiner‟s reasoning is fact-based and supported by a preponderance of the evidence. Patent Owner has not identified a deficiency in it, and we find none. As indicated above, the evidence of secondary consideration is insufficient to rebut the strong case of obviousness. We therefore affirm the rejection of claims 4, 6-8, 13, 17 and 19-21 for the reasons set forth by the Examiner (id.). TIME PERIOD FOR RESPONSE Requests for extensions of time in this ex parte reexamination proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f). AFFIRMED alw Appeal 2013-003339 Reexamination Control 90/011,132 Patent 6,231,905 B1 17 PATENT OWNER: PACTIV CORPORATION C/O NIXON PEABODY LLP 300 S. Riverside Plaza, 16 th Floor Chicago, IL 60606 THIRD PARTY REQUESTER: Stephen B. Salai, Esq. HARTER SECREST & EMERY LLP 1600 Bausch & Lomb Place Rochester, NY 14604-2711