Ex Parte Degady et al

Patent Trial and Appeal BoardApr 29, 2016

11469763 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111469,763 0910112006 11632 7590 Hoffmann & Baron, LLP 6900 Jericho Turnpike Syosset, NY 11791 05/02/2016 FIRST NAMED INVENTOR Marc Degady 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 1421-448 RCE 6946 EXAMINER DEES, NIKKI H ART UNIT PAPER NUMBER 1791 MAILDATE DELIVERY MODE 05/02/2016 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 MARC DEGADY, PAULK. BOWERS, and JAMES ANTHONY GL YDON 1 Appeal2014-005365 Application 11/469,763 Technology Center 1700 Before TERRY J. OWENS, MARK NAGUMO, and CHRISTOPHER L. OGDEN, Administrative Patent Judges. OGDEN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1, 2, 5-7, 9-14, 17-19, and 21-23 in the above- identified application. We have jurisdiction pursuant to 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 According to Appellants, the real party in interest is Kraft Foods Global Brands LLC (by change of name Intercontinental Great Brands LLC - Mondelez Global LLC). Appeal Br. 1. Appeal2014-005365 Application 11/469,763 BACKGROUND Appellants' invention relates to a packaged gum product and method of providing a gum product. Spec. 3--4. Independent claim 1 is representative: 1. A packaged gum product, comprising: a plurality of gum pellets, each pellet having a region of gum material and an outer shell of material that is relatively harder than the gum material, the region of gum material forming an inner void that contains liquid material; and a package that contains the plurality of gum pellets, the package having a plurality of separate compartments formed as cavities therein, each of the compartments being sealed off from the exterior by a single layer of metal foil having a thickness of 18 microns, to facilitate each compartment being selectably opened by pushing the liquid-filled gum pellets through the foil layer without cracking the outer shell Of [sic] the liquid-filled gum pellet. Appeal Br. 10 (emphasis added). Claims 9 and 17 are also independent. Id. at 10-12. The Examiner maintains the following ground of rejection: claims 1, 2, 5-7, 9-14, 17-19, and 21-23 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Appellants' admission of the prior art, as further evidenced by U.S. Patent Pub. No. 2005/0205457 Al [hereinafter Iossi] (published Sept. 22, 2005), U.S. Patent No. 5,695,063 [hereinafter Roulin] (issued Dec. 9, 1997), U.S. Patent No. 5,469,968 [hereinafter Matthews] (issued Nov. 28, 1995), U.S. Patent No. 6,978,894 B2 [hereinafter Mundt] (issued Dec. 27, 2005), U.S. Patent No. 6,280,780 Bl [hereinafter DeGady] (issued Aug. 28, 2001), U.S. Patent No. 5,716,652 [hereinafter Barkalow] (issued Feb. 10, 1998), and further in view of U.S. Patent Pub. No. 2006/0231447 Al [hereinafter Fensham] (published Oct. 19, 2006), U.S. 2 Appeal2014-005365 Application 11/469,763 Patent No. 3,689,458 [hereinafter Hellstrom] (issued Sept. 5, 1972), U.S. Patent No. 4,305,502 [hereinafter Gregory] (issued Dec. 15, 1981), U.S. Patent No. 4,911,304 [hereinafter Bunin] (issued Mar. 27, 1990), U.S. Patent Pub. No. 2005/0155991 Al [hereinafter Jackman] (published Jul. 21, 2005), and U.S. Patent No. 6,520,329 Bl [hereinafter Fuchs] (issued Feb. 18, 2003). 2 Answer 2-5. All the claims are argued as a group. See Appeal Br. 4. Therefore, consistent with the provisions of 37 C.F.R. Â§ 41.37(c)(l)(iv) (2013), all the claims stand or fall together, and we limit our discussion to claim 1. DISCUSSION The Examiner finds, based on Appellants' admissions and the disclosures of Iossi, Roulin, Matthews, and Mundt, that "the recited structure and its method of dispensing a product, commonly referred to as a blister pack, was conventional, that it was conventional to employ the blister packs with chewing gum, and that the chewing gum with a liquid center phase was also conventional." Answer 3. Based on DeGady and Barkalow, the Examiner further finds that "three phase chewing gums with liquid centers, and outer harder shells surrounding the gum layer" were conventional in the art at the time of filing Appellants' application, and determines that "to package three phase gum in blister packs, for their art recognized and [A]ppellants' intended function, would therefore have been obvious." Id. The Examiner further finds that Iossi and Fensham teach a blister pack with a foil cover having a range of thickness encompassing the 18 2 In the Answer, the Examiner withdrew a rejection of claims 9-14 and 23 under 35 U.S.C. Â§ 112, first paragraph. See Answer 6. 3 Appeal2014-005365 Application 11/469,763 micron foil recited by claim 1, see Answer 3--4, and determines that "[i]n any case, the particular thickness of the foil is seen to have been an obvious result effective variable, routinely and obviously optimizable," id. at 3. To show that the thickness is a result effective variable, the Examiner cites Fensham, Hellstrom, Gregory, Bunin, Jackman, and Fuchs as teaching a tradeoff between the ease of rupturability and the need to avoid damaging the packaged product. Id. at 4. The Examiner determines that "the art taken as a whole discloses [that] if the product can be damaged in rupturing the aluminum foil, [the person of skill in the art should] employ a thinner foil which is weaker and thus more easily rupturable." Id. Appellants admit that Iossi "encompasses Appellants' claimed thickness." Appeal Br. 6. However, Appellants argue that the teachings in Iossi "fail to tie together that a single layer of metallic foil may have the requisite thickness." Id. at 7; see also Reply Br. 2. Appellants argue that "[t]he Examiner cannot pick and choose from a reference only the portion that will support the rejection and exclude other portions necessary for a full appreciation of what the reference fairly suggests." Appeal Br. 7 (citing Bausch & Lomb, Inc. v. Barnes-Hind Inc., 796 F.2d 443 (Fed. Cir. 1986). In response to the allegation of picking and choosing, the Examiner determines that "Appellant points to no additional teachings in Iossi that would lead one to believe that if a metal foil rupture sheet were selected it would comprise more than a single layer of metal foil." Answer 6. Appellants' arguments do not persuade us that the Examiner has failed to present a prima facie case of obviousness. Referring to sheet 22 of Figure 5, which serves as the cover of the blister pack, Iossi teaches that "[t]he rupture sheet 22 may be made of, for example, a metal (i.e., aluminum) foil, paper, a paper/foil combination, or a variety of other materials." Iossi i-f 19. 4 Appeal2014-005365 Application 11/469,763 Furthermore, Figure 5 shows sheet 22 as a single layer, and Iossi refers to item 22 as a "sheet" in the singular. In light of the above, we find no reversible error in the Examiner's determination, see Answer 6-7, that one of ordinary skill in the art would have understood Iossi to teach that rupture sheet 22 may be a single metal foil cover. Appellants also have not shown reversible error in the Examiner's determination, see Answer 3--4, that the thickness of the metal foil was known in the art to be a result effective variable. See In re Boesch, 617 F.2d, 272, 276 (CCPA 1980) ("[D]iscovery of an optimum value of a result effective variable ... is ordinarily within the skill of the art."). In rebuttal to the Examiner's prima facie case, Appellants argue that use of a foil that is 18 microns thick yields unexpected results. See Appeal Br. 8-9. Appellants have the burden of showing unexpected results, see In re Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir. 1997), and must provide evidence of such results beyond mere conclusory statements or arguments, T T"'\. 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