Ex Parte Hinze et al

Patent Trial and Appeal Board

Oct 31, 2012

11963299 (P.T.A.B. Oct. 31, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/963,299 12/21/2007 Bonita M. Hinze 1410-77646-US 9736
48940 7590 10/31/2012
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
SMITH, CHAIM A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
10/31/2012 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 KRAFT FOODS GLOBAL BRANDS, LLC.
(Inventors: Bonita M. Hinze, Alice Tilson Koehler, and
Rafael Quinones)
____________________

Appeal 2011-007367
Application 11/963,299
Technology Center 1700
____________________

Before RICHARD E. SCHAFER, ADRIENE LEPIANE HANLON, and
KAREN M. HASTINGS, Administrative Patent Judges.

SCHAFER, Administrative Patent Judge.

DECISION ON APPEAL
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Kraft Foods Global Brands (Applicant) appeals the Examiner’s decision
rejecting claims 1-17. 35 U.S.C. §§ 6(b) and 134(a). We affirm.
The Claimed Subject Matter
Applicant’s invention relates to packaging and more specifically to food
packaging. The invention has three aspects: (1) a multiple compartment food
package (Claims 1-15), (2) a method of separating adjacent food compartments
(Claim 16) and (3) a method of forming the multi-compartment packaging (Claim
17).
The packaging includes at least a pair of compartments surrounded by a
flange. At least one of the compartments contains a food product. Each
compartment has side walls forming the periphery of the compartment and a
bottom. The package includes a peripheral flange and flanges between the
compartments. A common air impermeable flexible film is attached to the flanges
hermetically sealing the compartments. A common back panel is adhered to the
bottoms of the compartments. The flanges, film and back panel each have
weakened portions between the compartments to permit separation of individually
sealed compartments.
Claims 1, 16 and 17 illustrate the three embodiments of the invention
(paragraphing and indentation added):
1. A multiple compartment food package comprising:
a rigid tray having a pair of separate compartments with a
peripheral flange surrounding an opening of each compartment,
a portion of the flange between the compartments having
a weakened portion, the compartments having side walls
extending downwardly from the flanges to bottom walls and
at least one of the compartments containing a food
product;
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a common air impermeable flexible film sealed to the
peripheral flanges surrounding each compartment and forming
a generally hermetic seal at least with respect to the
compartments containing food product,
the film having a weakened portion positioned between
the two compartments; and
a common back panel adhered to a portion of the bottom
wall of the compartments and having a weakened area
positioned between the compartments.
16. A method of separating adjacent compartments of a food
package, the method comprising:
separating a common back panel attached to a bottom of
each compartment, a pair of parts each attached to the bottom of
one of the compartments; and
substantially simultaneously separating a common
flexible film sealed to a flange surrounding an opening of each
compartment and
separating the flange between the compartments along
generally aligned weakened portions while maintaining the
seals surrounding the opening of each compartment.
17. A method of forming a multiple compartment food package
containing a food product, the method comprising:
forming a series of connected base trays from a web of
rigid film, the series of connected base trays having a series of
recesses therein connected by flanges about openings of the
recesses;
filling at least some of the recesses of the series of the
connected base trays with the food product;
overlaying a web of flexible film onto the flanges of the
connected base trays to cover the food product contained within
the recesses;
applying a gas flush to the food product inside the
recesses and sealing the flexible film to the flanges of the
connected base trays about the periphery of each opening;
separating the series of connected base trays into
packages having at least two adjacent recesses;
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substantially simultaneously forming lines of weakness
in the flexible film and the flanges between adjacent recesses in
the package; and
attaching a back panel to an exterior bottom surface of
each recess of the package, the back panel having an area of
weakness positioned between the adjacent recesses of the tray.
Rejections
In the Answer, the Examiner maintained the following rejections:
1. Claims 1-17 over the combined teachings of Hustad,1 St. Pierre2 and
Gics,3 (Answer, 3-8).
2. Claims 1, 5-9, 11 and 16 as attempted double patenting of Claims 1-5, 8-
10, 14 and 20 of commonly assigned Application 11/835,696 (Answer, 8-10).
The Examiner also entered a new ground of rejection of Claims 1-17 over
the combined teachings of St. Pierre, Hustad and Wong.4 Answer, 10-15.
The Prior Art
Hustad teaches multiple compartment food packaging that meets all the
limitations of claim 1 except the requirement that the flanges, impermeable film
and common back panel include weakened areas between compartments. Hustad,
6:29-7:6, 8:51-61 and Figure 10.
St. Pierre relates to separable multi-compartment food packaging. St. Pierre,
1:6-9. The packaging includes compartments separated by flanges that are heat
sealed with a common flexible film. St. Pierre, 2:5-14. Both the film and flanges
include weakened areas between compartments to allow separation of individual
sealed compartments. St. Pierre, 1:55-58, 2:14-17, 3:29-37.

1 U.S. Patent 5,657,874 issued Aug. 19, 1997.
2 U.S. Patent 5,904,263 issued May 18, 1999.
3 U.S. Patent 5,900,263 issued May 4, 1999.
4 U.S. Patent Publication 2005/0045503 A1 published Mar. 3, 2005.
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Gics describes multi-pack food containers that use a common sleeve 110 that
includes common front and back panels 112 and 120, respectively. Gics, Figure
10, 4:3-8 and 4:13-15. The common front and back panels include separate
sections corresponding to each container. Figure 10, items 114, 116, 118, 122, 124
and 126; 4:3-8 and 4:13-15. The panel sections are separated by weakened areas –
score lines 119a, 119b, 128 and 129. Gics, 4:7-9 and 4:20-22. The front and back
panel score lines are parallel to facilitate separation of individual containers while
leaving the remaining containers unaffected. Gics, 4:21-24.
Analysis
Claims 1-15
Claim 1
The concept of a packaging having multiple compartments, a common
sealing film hermetically sealing the compartments and a common back panel is
taught by Hustad. Hustad, 6:24-7:6, 8:51-61. The concept of providing weakened
areas in the flanges, common sealing film and common back panel for the purpose
of providing packaging having multiple separable sealed compartments or
containers is also known in the art. Thus, St. Pierre teaches that multiple
compartments sealed with a common film may be made separable while
maintaining a sealed condition of both the removed and remaining compartments.
St. Pierre includes a weakened area in the common sealing film and in the flanges
between compartments. St. Pierre, 1:45-57. Gics teaches the use of a weakened
area in a common back panel associated with separate containers. The weakened
areas are used to allow easy separation of the common back panel. Gics, 4:3-9 and
4:20-25.
Applicant’s claimed subject matter merely combines techniques and
structures known in the art for their known purposes. When an invention “‘simply
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arranges old elements with each performing the same function it had been known
to perform’ and yields no more than one would expect from such an arrangement,
the combination is obvious.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007) quoting Sakraida v. AG Pro, Inc., 425 U. S. 273, 282 (1976). It would have
been obvious to modify Hustad’s packaging by including weakened regions to
allow removal of individual compartments while leaving the remainder unaffected.
Applicant argues that the Examiner has not provided a legally sufficient
motivation to combine the teachings so as to arrive at the subject matter of Claim
1. Brief, 14-17. We disagree.
The reason for combining the teachings of references comes from the
teachings of the references. St. Pierre teaches providing weakened areas in
compartment flanges and cover film provides the benefit of allowing the separation
of individual compartments without affecting the seals on other compartments. St.
Pierre, 1:45-57. Gics similarly shows that those working in the art were aware of
providing weakened areas in a common back panel for the same reason –allowing
separation of individual sealed containers without affecting the other containers.
Gics, 4:3-9 and 4:20-25.
We affirm the Examiner’s decision rejecting Claim 1.
Claims 2-12
Applicant has grouped Claims 1-12 together. Brief, 12-17. We select claim
1 has representative and decide the appeal as to the subject matter of Claims 2-12
on the basis of claim 1. 37 CFR § 41.37(c)(1)(vii).
Claims 13-15
Applicant provides a separate section in its brief directed to these claims.
Brief, 17-18. However, Applicant relies on the same arguments it made with
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respect to Claim 1. Id. We did not find those arguments persuasive. We therefore
affirm the rejection of Claims 13-15.
Claim 16
Claim 16 is directed to the method of separating the package compartments.
Both St. Pierre and Gics describe separating compartments along aligned
weakened areas between the multiple compartments without affecting the sealed
compartments. St. Pierre 3:29-41; Gics 4:21-25. We held that a package having
weakened areas in the flanges, common sealing film and common back panel
would have been obvious. The method of separating the individual compartments
by separating the individual compartments along the weakened areas would also
have been obvious.
Applicant relies on the same “lack of motivation” argument it made with
respect to Claim 1. Brief, 18-19. As we indicated above, the motivation flows
directly from the teachings of the references.
We affirm the Examiner’s decision rejecting the subject matter of Claim 16.
Claim 17
The Examiner relied on the same group of references used in rejecting
Claims 1-16. The Examiner found that St. Pierre did not teach the step of attaching
a back panel to the bottom portion of the packaging. Answer, 8. The Examiner,
relying on Hustad’s teaching of using a backing and Gic’s teaching of using a
backing having weakened areas, held that it would have been obvious to attach a
backing having weakened portions to St. Pierre’s package. Answer, 8.
Applicant again argues that the Examiner has failed to provide adequate
motivation for modifying St. Pierre’s method. Brief, 21.
We disagree. The Examiner found that one skilled in the art would add the
backing “to provide structural reinforcement as well as to allow the package to
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stand upright for display.” Answer, 8. The reason for including a weakened
portion was “to provide structural integrity while allowing the compartments to be
separated one from the other at the time of desired use.” Answer, 5. The
Examiner’s findings are supported by a preponderance of the evidence. See
Hustad, 3:46-49 and Gics, 4:19-24.
Applicant also argues that St. Pierre teaches away from adding additional
components, i.e. a backing panel, to the packaging. Brief, 22. Applicant directs us
to two portions of St. Pierre: Col. 1, ll. 60-63, and Col. 2, ll. 3-4. These teach the
use of peel tabs on the sealing sheet to reduce chances of deformation of the
packaging and that the package is “preferably” made of flexible materials. While
St. Pierre expressed a concern for deformation of the package, we see no support
for an asserted concern “with the package becoming deformed or damaged with
too many components to remove upon separating and opening the easy to open
package” as argued in the Brief. Brief, 22, emphasis added. Indeed, St. Pierre’s
concern with deformation during separation would seem to direct one skilled in the
art to use a backing panel to diminish deformation of the containers during
separation as taught by Gics.
In any event, a reference may be said to teach away when a person of
ordinary skill, upon reading the reference, would be discouraged from following
the path set out in the reference, or would be led in a direction divergent from the
path that was taken by the applicant. Generally, a reference will teach away if it
suggests that the line of development flowing from the reference’s disclosure is
unlikely to be productive of the result sought by the applicant. In re Gurley, 27
F.3d 551, 553 (Fed. Cir. 1994). We see nothing in St. Pierre that would discourage
one skilled in the art from attaching a backing panel to St. Pierre’s packaging.
Indeed, in light of Hustad’s and Gics’, teaching of the use and purpose of backing
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panels (Hustad, 3:46-50, 4:21-24; Gics, 3:31-35), we think one skilled in that art
would have been lead to using a backing panel for the reasons taught by Hustad
and Gics.
Other Arguments
We have considered Applicant’s remaining arguments and find none that
warrant reversal of the Examiner’s decisions. Cf. Hartman v. Nicholson, 483 F.3d
1311, 1315 (Fed. Cir. 2007).
Double Patenting
The Examiner entered a provisional double patenting rejection of Claims 1,
5-9, 11 and 16 as attempted double patenting of Claims 1-5, 8-10, 14 and 20 of
commonly assigned Application 11/835,696. Applicant’s brief does not seek
review of or provide argument directed to that rejection as required by the rules.
See 37 CFR §§ 41.37(1)(vi) and (vii). We therefore affirm the provisional double
patenting rejection.
The Examiner’s New Ground of Rejection
We held that all of Applicant’s claims are unpatentable under 35 U.S.C.
§ 103(a) over the combined teachings of Hustad, St. Pierre and Gics. We also
affirmed the provisional double patenting rejection. Those decisions are
dispositive of the appeal. It is not necessary, therefore, to address the new grounds
of rejection entered by the Examiner. See In re Hyon, 679 F.3d 1363, 1367 (Fed.
Cir. 2012) (Affirmance of rejection of all claims under § 103(a) made it
unnecessary to reach other grounds of rejection); Beloit Corp. v. Valmet Oy, 742
F.2d 1421, 1423 (Fed. Cir. 1984) (Having decided a single dispositive issue, the
ITC was not required to review other matters decided by the presiding officer).
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DECISION
The Examiner’s decisions rejecting Claims 1-17 under 35 U.S.C. § 103(a)
and Claims 1, 5-9, 11 and 16 on the basis of obviousness-type double patenting 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.

AFFIRMED
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