Ex Parte Bezek et alDownload PDFPatent Trial and Appeal BoardOct 26, 201714153810 (P.T.A.B. Oct. 26, 2017) Copy Citation 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. 14/153,810 01/13/2014 Edward Anthony BEZEK CFLAY.00919 1064 110933 7590 Carstens & Cahoon, LLP PO Box 802334 Dallas, TX 75380 EXAMINER LAN, YAN ART UNIT PAPER NUMBER 1782 MAIL DATE DELIVERY MODE 10/27/2017 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 EDWARD ANTHONY BEZEK, ANTHONY ROBERT KNOERZER, and STEVEN KENNETH TUCKER Appeal 2017-002013 Application 14/153,810 Technology Center 1700 Before: ROMULO H. DELMENDO, JENNIFER R. GUPTA, and DEBRA L. DENNETT, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL1 1 In our Opinion, we refer to the Specification filed January 13, 2014 (“Spec.”); the Final Action mailed November 12, 2015 (“Final Act.”); the Advisory Action mailed January 21, 2016 (“Adv. Act.”); the Appeal Brief filed April 7, 2016 (“Appeal Br.”); the Examiner’s Answer mailed September 22, 2016 (“Ans.”); and the Reply Brief filed November 18, 2016 (“Reply. Br.”). Appeal 2017-002013 Application 14/153,810 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1—3 and 5.3 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The claims are directed to food packages made from partially metallized packaging film. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A food package made from a partially metallized packaging film comprising: product viewing window comprising a section of unmetallized transparent packaging film and defined by two partially metallized translucent film strips on opposite sides of said product viewing window, and two product package graphics on opposite sides of said product viewing window. Appeal Br. 12 (Claims App’x) (some paragraphing and indentation added for clarity). REFERENCES The Examiner relies on the following prior art in rejecting the claims on appeal: Tomita et al. (“Tomita”) US 3,887,744 June 3, 1975 Knigge et al. (“Knigge”) US 2003/0044492 Al Mar. 6, 2003 Ramchandra et al. (“Ramchandra”) US 2005/0170161 Al Aug. 4, 2005 2 Appellant is the applicant, Frito-Lay North America, Inc. , which according to the Appeal Brief, is also the real party in interest. Appeal Br. 2. 3 Claims 6—15 are withdrawn by the Examiner pursuant to 37 C.F.R. § 1.142(b) as drawn to nonelected inventions. Final Act. 2. 2 Appeal 2017-002013 Application 14/153,810 REJECTIONS The Examiner maintains and Appellant seeks review of the rejections under 35 U.S.C. § 103(a) of (1) claims 1 and 5 over Ramchandra in view of Knigge; and (2) claims 2 and 3 over Ramchandra in view of Knigge and Tomita. Final Act. 4 and 9; Appeal Br. 4. OPINION Appellant argues for the reversal of the obviousness rejection of claims 1—3 and 5 on the basis of limitations present in independent claim 1. See Appeal Br. 5—10. We, therefore, limit our analysis to claim 1. Claims 2, 3, and 5 will stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). With respect to claim 1, the Examiner finds that Ramchandra teaches a food package made from a partially metallized packaging film comprising partially metallized translucent films. Final Act. 5. The Examiner finds that Knigge teaches a food package comprising unmetallized transparent packaging film. Id. The Examiner also finds that Knigge teaches inclusion of package graphics for product identification. Id. at 7. The Examiner determines that it would have been obvious to one of ordinary skill in the art at the time of the invention to (1) modify the package of Ramchandra to include a product viewing window provided with Knigge’s transparent film for the benefit of providing the consumer with improved view and visibility to view the package product; (2) place the viewing window in the center of the package, as taught by Knigge, such that two partially metallized translucent film strips are on opposite sides of the product viewing window; and (3) include package graphics to provide necessary product identification and meet the aesthetic design need. Id. at 6—7. 3 Appeal 2017-002013 Application 14/153,810 Appellant makes several arguments for patentability of claim 1. Appeal Br. 7—10. We address these arguments in turn. Appellant argues that Knigge teaches away from use of a transparent viewing window in any package other than an opaque package. Id. at 7. Appellant contends that Knigge’s disclosure of a transparent viewing window is only in the context of an opaque bag, and the Examiner goes beyond the disclosure to suggest a bag that is even in-part translucent when a product viewing window is present. Id. at 7—8. Teaching away requires that a reference “criticize, discredit, or otherwise discourage the solution claimed” by Appellant. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). As the Examiner points out, no such discouragement is found in Knigge. See Ans. 10. One of ordinary skill in the art at the time of the invention reading Knigge would have reasonably inferred that the disclosed transparent viewing window could be used in combination with a translucent bag. In re Preda, 401 F.2d 825, 826 (CCPA 1968) (“[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.”); see also KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[T]he [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”). In the same vein, Appellant argues that Ramchandra teaches away, i.e., suggest that a transparent viewing window is unnecessary7 because 4 Appeal 2017-002013 Application 14/153,810 Ramchandra’s translucent film already allows the packaged product to be visible from the outside. Appeal Br. 8. Appellant’s argument is not persuasive. One of ordinary skill in the art at the time of the invention would have understood that a translucent bag, as taught by Ramchandra, may not provide as clear a view of an enclosed product as would a transparent window in the bag. “If a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” KSR, 550 U.S. at 417. Appellant also argues that Knigge discloses a viewing window bound on all sides by opaque film, thus two of the sides of opaque film that define the viewing window of Knigge must be replaced with preprinted product information in order to arrive at the claimed product window. Appeal Br. 8— 9. Appellant states that omission of an element and retention of its function is an indication of unobviousness. Id. at 9. Appellant’s statement regarding omission of an element is correct, as far as it goes. See In re Fleissner, 264 F.2d 897, 900 (CCPA 1959); In re Edge, 359 F.2d 896, 900 (CCPA 1966). However, Appellant fails to articulate adequately how the statement applies to the facts of this case to result in patentability of claim 1. To the extent that Appellant contends that opaque films sections in Knigge are omitted and their function is replaced by the claimed partially metallized translucent film strips, we disagree. The Specification defines “partially metallized packaging film” as “a polymer film with at least one surface that has at least one area fully coated with a thin metal layer and at least one area that is either not coated with a thin 5 Appeal 2017-002013 Application 14/153,810 metal layer or that is partially coated with a thin metal layer.” Spec. 147. Given this definition, claim 1 merely requires, at most, slight modification of Knigge’s opaque portions, not replacement. It would have been obvious and within the skill in the art to metallize a portion of a package and leave other portions transparent. Appellant also argues that nothing in Knigge or Ramchandra teaches or suggests how to produce the presently claimed product package. Appeal Br. 9. This argument is not persuasive of reversible error. The cited prior art need not teach how to produce the claimed product package, as no method of manufacture is claimed. Appellant contends that the arrangement of the elements that define the claimed product viewing window are not merely aesthetic or design choices. Id. Appellant argues that “[t]he partially metallized translucent strips that frame two opposing sides of the product viewing window still resist moisture and oxygen migration through the package, just not quite as well as the fully metalized opaque film.” Id. The Examiner finds that Appellant does not show any results that are improved compared to the prior art. Ans. 14. The Specification states that product packages made using partially metallized films, wherein approximately 80% of the area of the film was metallized, resulted in vastly improved barrier properties over unmetallized films. Spec. 1 67. In addition, Ramchandra teaches that metallization of films imparts additional water vapor, gas and UV barrier properties to the film. Ramchandra 16. It would have been obvious and within the ordinary skill in the art at the time of the invention to include a window in a partially metallized package in order to have some transparency so a consumer could 6 Appeal 2017-002013 Application 14/153,810 view the enclosed product, while retaining barrier properties to preserve freshness of the package contents. “[T]he [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418. Appellant contends that a sharp transition between transparent film and opaque film will show a distinct, distracting line behind the graphics that are printed on the film. Appeal Br. 5—6. Appellant allegedly solved this problem by providing a gradual transition from transparent film to opaque film at the product viewing window boundary. Id. at 6. Appellant argues that the lack of a distracting line running through the product package graphics can prevent confusion on the part of a consumer trying to read text on the printed package, thus the arrangement of elements is not merely aesthetic. Id. at 10. However, claim 1 does not require any gradual transition from transparent film to opaque film at the product viewing window boundary. Id. at 12. Appellant’s definition of “partially metallized packaging film” does not require any gradual transition. See Spec, f 47. Nor does claim 1 exclude a package with a sharp transition between the opaque and transparent film, and Appellant’s argument otherwise is unpersuasive. We do not consider the Examiner’s findings regarding Hirotsu, as the Examiner introduced the reference for the first time after the Final Action was mailed. Hirotsu is not properly of record in the case. On the record before us, Appellant does not show reversible error in the Examiner’s rejection of claims 1—3 and 5. 7 Appeal 2017-002013 Application 14/153,810 DECISION For the above reasons, the Examiner’s rejections of claims 1—3 and 5 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation