Francesca Sangiacomo

Patent Trials and Appeals Board

Sep 11, 2019

14358384 - (D) (P.T.A.B. Sep. 11, 2019)

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.
14/358,384 05/15/2014 Francesca Sangiacomo BIESLS-PT001 6864
3624 7590 09/11/2019
VOLPE AND KOENIG, P.C.
30 SOUTH 17TH STREET, 18th Floor
PHILADELPHIA, PA 19103
EXAMINER
JACOBSON, MICHELE LYNN
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
09/11/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
eoffice@volpe-koenig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte FRANCESCA SANGIACOMO
____________________

Appeal 2018-000548
Application 14/358,384
Technology Center 1700
____________________

Before ROMULO H. DELMENDO, CHRISTOPHER C. KENNEDY, and
LILAN REN, Administrative Patent Judges.

REN, Administrative Patent Judge.

DECISION ON APPEAL1

1 The record on appeal includes the Specification of May 15, 2014 (“Spec.”),
the Examiner’s Final Action of December 2, 2016 (“Final Act.”), Appeal
Brief of May 30, 2017 (“Br.”), the Examiner’s Answer of August 21, 2017
(“Ans.”), and Reply Brief of October 21, 2017 (“Reply Br.”).
Appeal 2018-000548
Application 14/358,384

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STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134 from a rejection of claims
1, 2, 4–9, 18, and 19. We have jurisdiction under 35 U.S.C. § 6(b). A
hearing was held on July 25, 2019.
We affirm.

CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A food (1) comprising one popcorn grain (2) substantially
entire and included, completely or partially, in at least a first
layer (3) of a first melted cheese directly in contact with the
popcorn grain (2);
wherein:
a) said first melted cheese has an initial moisture content
of less than 35% prior to being melted, and
b) said first melted cheese is also cooked and its moisture
after cooking is lower than 8%, and wherein the food is free of
added fat.
Claims Appendix (Br. 9).
REFERENCE3
The prior art reference relied upon by the Examiner in rejecting the
claims on appeal is known as “Singley” which is a printout provided by the

2 “SAN LUCIO S.R.L.” is the Applicant. Application Data Sheet filed May
15, 2014. “SLB S.R.L. Via Vincenzo Civerchio, 8 Brescia, Italy” is
identified in the Appeal Brief as the real party in interest. Br. 3.
3 A reference known as Plochman is also relied upon for the rejection of
dependent claim 9. Appellant does not argue separately for the rejection of
claim 9. See Br. 4–8. We accordingly do not address separately the rejection
of claim 9. See 37 C.F.R. § 41.37(c)(1)(iv).
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“Wayback Machine” from the web address of http:www.thekitchn.com.
Final Act. 2. The Examiner finds that Singley’s publication date is May 11,
2011. Id.
The record before us includes two copies of Singley. In the Office
Action of June 3, 2016, the Examiner provided a three-page copy of Singley
(“Singley without comments”) with a date of “05.11.11” on the last page.
The Examiner, along with the Examiner’s Answer, provided a ten-page copy
of Singley (“Singley with comments”) with comments and a different page
layout. Both copies are titled “Snack Recipe: Cheesy Spicy Popcorn” and
written by “the Cheesemonger.” Appellant does not argue that the content or
the substance of the two copies of Singley differs in any way4 and for the

4 JUDGE KENNEDY: Counsel, are you just -- are you making a
technical argument about the specific piece of evidence that was used in the
office action as opposed to the new evidence that was attached to the
answer? In other words, would you be making the same argument that
you’re making now if the Examiner had simply attached what he attached to
the answer if he had used that in the office action instead?
MR. SNYDER: Yeah, I think that’s a -- Your Honor, that’s an
excellent question as to where this puts essentially the argument and I
believe because these don’t have the same -- because these documents that
are now being looked at don’t have what appears to be the same printing on
them and I’m trying to match it up on the fly right here. I beg your pardon.
JUDGE DELMENDO: Well, if you felt that there was prejudice and
that the evidence has changed, the proper remedy or course of action you
should’ve taken is to file a petition to have the Examiner designate that as a
new ground of rejection. Did you make any such petition?
MR. SNYDER: No. We did not, Your Honor, and I don’t think it
would change actually the Examiner’s position or our position but to answer
Your Honor’s question, I’m sorry to get off track, I think it is the same
argument.
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purpose of this opinion, we refer to the two copies collectively as the
reference known as Singley – unless we specifically refer to “Singley with
comments” or “Singley without comments.”

REJECTIONS
Claims 1, 2, 4–8, 18 and 19 are rejected under pre-AIA 35 U.S.C.
103(a) as being unpatentable over Singley. Final Act. 2. Claim 9 is rejected
under 35 U.S.C. § 103(a) as unpatentable over Singley in view of Plochman,
id. at 5–6, but, as we stated above, was not separately argued.

OPINION
The sole issue on appeal is the publication date of Singley. See Br. 3,
4. Although Appellant acknowledges that Singley has “the May 11, 2011
date printed on the reference,” Appellant argues that Singley is not prior art
as the Examiner “failed to properly establish the publication date of
Singley.” Id. at 5.5 Appellant argues that the May 11, 2011 date printed on
Singley “is unproven hearsay with no independent corroboration.” Id. at 6.

Transcript for Oral Hearing for Appeal No. 2018-000548 (July 25, 2019),
10:3–24.
5 For the first time on appeal, Appellant raises in the Reply Brief the
argument that Singley does not teach or suggest certain claim limitations.
Reply Br. 5–6. We decline to reach this argument absent a showing of good
cause as to why it could not have been raised in the opening brief. See Ex
parte Nakashima, 93 USPQ2d 1834 (BPAI 2010) (informative) (explaining
that arguments and evidence not timely presented in the opening Brief will
not be considered when filed in a Reply Brief, absent a showing of good
cause explaining why the argument could not have been presented in the
opening brief); Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010)
(informative) (“Properly interpreted, the Rules do not require the Board to
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Application 14/358,384

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The Examiner, however, finds that Singley “includes comments that
begin on the publication date of the disclosure, 11 May 2011” evidencing the
publication date of Singley. Ans. 8. Singley indeed shows multiple
comments each of which is accompanied by a name (e.g., “Rosebud”) and a
“POSTED BY” date of “05.11.11.” Singley with comments, 5 (section titled
“Comments (13)”).6 This finding is consistent with the evidence and
Appellant does not dispute that Singley includes these comments with the
“POSTED BY” dates of May 11, 2011. See e.g., Reply Br. 2–4.7 No
reversible error has therefore been identified in the Examiner’s finding of the
May 11, 2011 publication date of Singley which we accept as fact. See In re
Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964).
Appellant additionally presents certain “extrinsic evidence” showing
that when Appellant used the Wayback machine to retrieve Singley, “the
earliest cached page for the Singley webpage cited by the examiner is
February 27, 2012.” Br. 7. We are not persuaded by this argument because
Appellant does not explain why the cached date supports the speculation that
the earlier publication date is incorrect – or that the earlier publication date is
unreliable. As the Examiner points out, “Appellant’s noting the frequency
with which the main page of www.thekitchn.com was cached is not relevant
to show how much less frequently the subpages on this webpage were

take up a belated argument that has not been addressed by the Examiner,
absent a showing of good cause.”). 37 C.F.R. § 41.41(b)(2).
6 Singley is not paginated and we therefore provide our own.
7 During hearing, counsel for Appellant argued that “I don’t think the issue
is when they were commenting on it” but one of “issue of proof and
reliability.” Transcript for Oral Hearing for Appeal No. 2018-000548 (July
25, 2019), 7:8–10.
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cached compared to the main page.” Ans. 8. We further note that the record
does not show how Appellant used the Wayback machine and whether
Appellant’s method of use differs from that of the Examiner. In any event,
Appellant is not asserting that the Examiner incorrectly used the Wayback
machine to retrieve Singley.8
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence
produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections.”)). The Examiner, as
the fact finder, finds that the evidence supports a publication date of May 11,
2011 for Singley.9 Appellant’s argument on appeal does not identify error in

8 JUDGE REN: Counsel, in this case, are you -- I don’t think
you’re saying it, but I just wanted to make sure. You’re not saying
that the Examiner incorrectly somehow the method in which the
Examiner used the Wayback machine is incorrect? That the Examiner
didn’t know how to use the Wayback machine as a tool.
MR. SNYDER: That is absolutely true and by the way, I just
want to make clear, there’s no indication that the original document
that was cited in the June 3, 2016 office action came from the
Wayback machine.
Transcript for Oral Hearing for Appeal No. 2018-000548 (July 25,
2019), 12:4–13.
9 JUDGE DELMENDO: Okay. So the critical date -- there’s no
dispute as to the critical date as November 22, 2011?
MR. SNYDER: That is correct. No dispute as to that date.
Transcript for Oral Hearing for Appeal No. 2018-000548 (July 25, 2019),
4:17–19.
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Application 14/358,384

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the Examiner’s evaluation of the evidence and we accordingly sustain the
rejection.

DECISION
The Examiner’s decision is 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED