Ex Parte Lipinski et al

Patent Trial and Appeal Board

Oct 31, 2012

11835696 (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.
11/835,696 08/08/2007 Jeffrey Matthew Lipinski 1410-77601-US 1901
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: Jeffrey Matthew Lipinski and Raymond Scott Manis)
____________________

Appeal 2011-007541
Application 11/835,696
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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Application 11/835,696

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Kraft Foods Global Brands (Applicant) appeals the Examiner’s decision
rejecting claims 1-20. 35 U.S.C. §§ 6(b) and 134(a). We affirm.
The Claimed Subject Matter
The invention relates to food packaging. The packaging includes at least
two trays, each tray having multiple compartments. A tray is defined by the
individual compartments, a peripheral flange surrounds the compartments and
internal flanges that separate each of the compartments. The trays are covered
with a single or common film that attaches to the flanges and seals the
compartments. The packaging also includes a common back panel attached to the
bottom of the compartments of adjoining trays. The film and the back panel
include a weakened area located between the trays that allows the trays to be easily
separated.
Applicant also claims the method of separating the trays by removing the
weakened area on the back panel and separating the film along the weakened area.
Claims 1 and 20, as they appear in Applicant’s Claim Appendix, illustrate
the invention:
1. A food package comprising:
at least two rigid, unconnected trays, each tray having at
least two compartments and peripheral and internal flanges, the
compartments defined by side walls extending downwardly
from the flanges to bottom walls and at least one of the
compartments of each tray containing a food product;
a common air impermeable flexible film affixed to each
tray at the peripheral and internal flanges of each tray and
forming air-tight seals at least with respect to the compartments
containing food product, the film having a weakened portion
positioned between the two trays; and
a common back panel adhered to a portion of the bottom
wall of at least one compartment of each tray, the back panel
having an area of weakness positioned between the two trays.

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20. A method of separating a multi-tray food package, the
method comprising:
removing an area of weakness along a common back
panel attached to a bottom of each tray of the multi-tray food
package to separate the back panel into multiple parts, one part
along each tray and to separate the trays along a bottom plane;
separating a common flexible film attached to an upper
portion of the food package along a weakened portion where
the multiple trays are connected to each other along the
weakened portion and further dividing the flexible film into
multiple films, a separate film for each tray; and
providing for multiple individually singulated trays
obtained from the food package, and each tray having at least
two compartments.
Rejections
The Examiner maintained the following rejections in the Answer:
1. Claims 1-20 under 35 U.S.C. § 103(a) as unpatentable over the combined
teachings of Hustad,1 Mueller,2 Whiteford,3 and Gics.4 (Answer, 4-8) and
2. Claims 1-5, 8-10, 14 and 20 as attempted obviousness-type double
patenting of Claims 1, 5-9, 11 and 16 of commonly assigned application
11/963,299 (Answer 8-10).
In the Answer, the Examiner also entered a new ground of rejection of
Claims 1-20 under 35 U.S.C. § 103(a) over the combined teachings of Sooky5,
Mueller, Whiteford, Hustad and Wong.6 Answer, 10-16.

1 US Patent 5,657,874 issued Aug. 19, 1997.
2 US Patent 3,976,196 issued Aug. 24, 1976.
3 US Patent 6,086,931 issued July 11, 2000.
4 US Patent 5,900,263 issued May 4, 1999.
5 EP 0677454 A1 published Apr. 10, 1995.
6 U.S. Patent Publication 2005/0045503 A1 published Mar. 3, 2005.
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Application 11/835,696

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Prior Art
Whiteford, Muller and Gics, each relate to packaging that includes multiple
separate containers.
Specifically, Whiteford teaches a package having multiple adjacent separate
containers 10, sealed with a common cover film 30. Whiteford, Figure 3, 2:12-19.
In addition to sealing the container, the common cover sheet provides space for
textual information about the product. Whiteford 2:12-19. The cover film has
scored or perforated lines 32, 34 and 36 between the containers. The lines
facilitate separation of a single container and its contents from the remaining
containers without breaking the seals on the other containers. Whiteford, Figure 3
and 3:46-63.
Mueller also describes packaging having multiple adjacent separate
containers sealed with a common cover film 144. The use of the common cover
film simplifies automatic manufacturing of the containers (Mueller, 11:59-68) and
provides a place for product information (Mueller, 6:65-68). The cover film may
include partially severed areas 358 and 366. Muller, Figures 15 and 16, 12:51-53,
13:10-12 and 21-27. The partially severed areas facilitate the removal of
individual containers while maintaining the remaining containers in a sealed
condition. Muller, 14: 36-38.
Gics describes multi-container packaging having 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 back panel allows the packaging to be positioned in a
vertical orientation and provides a location for product information. Gics, Fig. 11
and 3:25-35. The front and back panels include separate sections corresponding to
each container. Gics, 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,
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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 compartments and sleeves. Gics,
4:21-24.
Hustad teaches a food container or tray having multiple food compartments.
The multiple compartments provide space for different foods or eating utensils
within a single container. Hustad, 6:65-7:6. The compartments are sealed with a
common film. The common film provides a place for labeling. Hustad, 2:37-3:34.
The container also includes a back panel attached to the bottoms of the
compartments. The back panel provides the ability for the package to stand
vertically, protects the structural integrity of the tray, and provides a space for a
label or other textual information. Hustad, 3: 35-50; 4: 21-25.
Analysis
Claims 1-17
Claim 1
The Examiner rejected the subject matter of Claims 1-20 as obvious within
the meaning of § 103(a) in view of the combined teachings of Hustad, Mueller,
Whiteford and Gics. Those references establish that each of the concepts and
structures employed in Applicant’s invention, as well as the functions of each,
were known to and used by those working in the food packaging art. For example,
Whiteford and Mueller teach packaging having multiple separate containers sealed
and connected by a common cover film having weakened regions to facilitate
separation into individual sealed containers. Whiteford, Figure 3, 2:12-19;
Mueller, Figs. 15 and 16, 12:51-53, 13:10-12 and 21-27, 14:36-38. The common
cover sheet seals the individual containers, provides space for labels or other
textual information and simplifies manufacturing of the sealed packages.
Whiteford, 2:12-19; Mueller, 6:65-68, 11:59-68. Gics and Hustad teach the use of
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back panels. Gics, Fig. 10, 4:3-15; Hustad, Fig. 10, 8:52-55. The back panels
facilitate orienting the packages vertically and provide a space for advertising as
well as protecting the package. Gics, Fig. 11 and 3:25-35; Hustad, 3:35-50. Gics
teaches a common back panel having weakened regions that allow separation of
separate containers. Gics, 4:21-24. Hustad teaches containers having multiple
compartments for holding different foods within a single tray. Hustad, 6:65-7:6.
Combining these various known structures for their known functions would
have been obvious. When an invention “‘simply 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). Applicant’s invention is no more than the
predictable use of prior art elements for their established functions. Id.
Applicant argues that there was no legally sufficient motivation to combine
the teachings of the references. Brief, 12-15.
We disagree. One skilled in the art would have combined the teachings of
the references for the reasons and functions stated in the references, as we detailed
above.
Applicant also argues that Hustad teaches away from combining the
teachings of the references. Brief, 15-16. We again disagree.
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.
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1994). We see nothing in Hustad or any of the other references that would
discourage one skilled in the art from combining the various concepts and
structures taught in those references to obtain the functions also stated in the
references.
We have considered Applicant’s remaining arguments and find none that
warrant reversal of the Examiner’s rejections. Cf. Hartman v. Nicholson, 483 F.3d
1311, 1315 (Fed. Cir. 2007).
The Examiner’s decision rejecting Claim 1 is affirmed.
Claims 2-17
Applicant has grouped Claims 1-17 together. Brief, 10-16. We select
claim 1 has representative of this group and decide the appeal as to the subject
matter of claims 2-17 on the basis of claim 1. 37 CFR § 41.37(c)(1)(vii).
The Examiner’s decision rejecting Claims 2-17 is affirmed
Claims 18-20
Applicant provides separate sections in its brief addressing Claims 18-19
and 20, respectively. Brief, 17-18. Applicant, however, does not provide an
argument different than the “lack of motivation” argument and provided with
respect to Claim 1. We affirm the rejection of Claims 18-20 for the reasons we
stated with respect to Claim 1.
The Double Patenting Rejection
Applicant has not challenged the merits of the provisional rejection of
Claims 1-5, 8-10, 14 and 20 as attempted obviousness-type double patenting of
Claims 1, 5-9, 11 and 16 of commonly assigned Application 11/963,299. Brief,
10, note 3. We therefore affirm the provisional double patenting rejection. See
37 CFR §§ 41.37(c)(1)(vi) and (vii).
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Application 11/835,696

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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, Mueller, Whiteford 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).
DECISION
The Examiner’s decisions rejecting Claims 1-20 under 35 U.S.C. § 103(a)
and Claims 1-5, 8-10, 14 and 20 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(a)(1)(iv).

AFFIRMED
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