Frito-Lay North America, Inc.

Patent Trials and Appeals Board

Jun 25, 2020

2020000020 (P.T.A.B. Jun. 25, 2020)

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.
14/581,110 12/23/2014 Eduard Edwards 2189-300050 1278
23644 7590 06/25/2020
Barnes & Thornburg LLP (CH)
P.O. Box 2786
Chicago, IL 60690-2786
EXAMINER
TAWFIK, SAMEH
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
06/25/2020 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):
Patent-ch@btlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDUARD EDWARDS and CHAD ARTHUR HUEBNER
Appeal 2020-000020
Application 14/581,110
Technology Center 3700
BEFORE HUBERT C. LORIN, NINA L. MEDLOCK, and
MATTHEW S. MEYERS, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 14–30 and 32–44, which are all the
pending claims in the application. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Frito-Lay North
America, Inc. (Appeal Br. 2).
Appeal 2020-000020
Application 14/581,110

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CLAIMED SUBJECT MATTER
The claimed “invention relates to an apparatus and method for settling
products in a package.” (Spec. para. 1). Claim 14 is the sole independent
claim and is reproduced below:
14. An apparatus comprising an improved product settler for
settling product in a partially formed package; wherein the
product settler comprises:
a paddle wheel;
wherein the paddle wheel comprises at least one paddle
that is positioned and configured to cause an impact against the
partially formed package above an unsettled height of the
product in the partially formed package; and
wherein the impact agitates the partially formed package
and thereby settles the product;
wherein the product settler is configured so that the impact
against the partially formed package settles the product from the
unsettled height to a settled height of the product in the partially
formed package, wherein the settled height is lower than the
unsettled height.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Zwight US 3,070,931 Jan. 1, 1963
Bacon US 6,119,438 Sept. 19, 2000
Nishitsuji US 8,640,847 B2 Feb. 4, 2014
REJECTIONS
1. Claims 14, 21–30, 32–34, and 39–42 are rejected under 35 U.S.C.
§ 102(a)(2) as being anticipated by Zwight.2

2 The heading of the rejection lists claims 14, 21–34, and 39–42 (Final
Act. 2). However, claim 31 is canceled and is not rejected.
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Application 14/581,110

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2. Claims 15–19 are rejected under 35 U.S.C. § 103 as being
unpatentable over Zwight and Bacon.
3. Claims 20, 35, 43, and 44 are rejected under 35 U.S.C. § 103 as being
unpatentable over Zwight, Bacon, and Nishitsuji.
4. Claims 36–38 are rejected under 35 U.S.C. § 103 as being
unpatentable over Zwight.
OPINION
The rejection of claims 14, 21–30, 32–34, and 39–42 under 35 U.S.C.
§ 102(a)(2) as being anticipated by Zwight.
Independent claim 14, and thus dependent claims 21–30, 32–34, and
39–42, include the limitation “a paddle wheel” that “comprises at least one
paddle” (Appeal Br. 35).
The Examiner finds said claim limitation disclosed in Zwight, and
makes two alternative findings (Final Act. 2–3). In particular, the Examiner
finds that Zwight discloses a paddle wheel comprising at least one paddle in
Figure 1, reference numeral 148 or, alternatively, reference numeral 172
(id.).
The Appellant disagrees with the Examiner’s finding that Zwight
discloses a paddle wheel (Appeal Br. 10). According to the Appellant,
“Zwight’s strippers 148 and deflators 172 are not a ‘paddle’ of a ‘paddle
wheel’ that is ‘configured to cause an impact’ that ‘settles the product’”
(id.).
Responding to the Appellant’s arguments in the Answer, the
Examiner provides annotated versions of Figure 3B of the application
(Ans. 7) and Figure 1 of Zwight (id. at 8). According to the Examiner, these
annotated figures “show the similarity of the structures between them via
Appeal 2020-000020
Application 14/581,110

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settler agitating packed products by impacting the film (expected results
should be the same of settling the products form [sic] unsettled height to a
lower settled height, especially the packed products are the same of potato
chips or similar)” (id. at 6). The Examiner also states that “according to the
dictionary.com the definition of a paddle wheel is as follow[s]: ‘a wheel for
propelling a ship, having a number of paddles entering the water more or
less perpendicularly’” (id. at 9). According to the Examiner, “Zwight []
indeed uses paddles elements 148 and/or 172 perpendicularly impacting the
web film, therefore they are considered as paddle wheels” (id.).
We have reviewed the cited portions of Zwight and we agree with the
Appellant that the Examiner has not shown by a preponderance of the
evidence that Zwight discloses a paddle wheel comprising at least one
paddle.
With regard to the Examiner’s first finding for the claimed paddle
wheel and paddle in Zwight’s strippers 148, Zwight discloses that “strippers
are provided to clear the product 12 out of the immediate area where the
horizontal seals are to be effected” (Zwight, 11:53–55), and “strippers 148
comprise a grooved or recessed bar 150 which runs the entire length of the
jaws 110 and is reciprocally mounted therein by the shaft 152 at each end of
the bar 150” (id. at 11:62–65). Strippers 148 (including recessed bar 150)
are more clearly shown in Figure 3 of Zwight, reproduced below.
Appeal 2020-000020
Application 14/581,110

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Zwight Figure 3
Figure 3 is an “end view of the reciprocating jaws, stripper and deflators,
showing in dotted lines the movement of the deflators” (Zwight, 5:59–61).
We do not see how, and the Examiner has not adequately explained how,
strippers 148, including grooved or recessed bar 150, are equivalent to a
paddle wheel comprising at least one paddle as required by claim 14. We do
not see that strippers 148 comprise a rotating paddle wheel similar to
paddles 320a or 320b as shown in Figure 3B of the application.3 Nor does
the Examiner attempt to explain how Zwight’s strippers 148, or grooved or
recessed bars 150, are in any way similar to “a wheel for propelling a ship”
as suggested in the Answer (Ans. 9). To the extent that the Examiner
maintains that strippers 148 “are considered as paddle wheels” (Ans. 9)
because they perform the same function as the claimed paddle wheel, the
Examiner misapprehends the law of anticipation. “Invalidity on the ground

3 See Spec. para. 25 (“a rotating paddle wheel with a paddle . . .”); para. 57
(“a paddle (e.g., one of a plurality of paddles 320a,b) that rotates . . .”).
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Application 14/581,110

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of ‘anticipation’ requires lack of novelty of the invention as claimed . . . [,]
that is, all of the elements and limitations of the claim must be shown in a
single prior reference, arranged as in the claim.” Karsten Mfg. Corp. v.
Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001). Even if Zwight’s
strippers 148 perform the claimed function of causing an impact or agitation
of a partially formed package, that does not imply that strippers 148 are
structurally equivalent to a paddle wheel comprising at least one paddle.
The Examiner’s alternative finding for the claimed paddle wheel and
paddle in Zwight’s deflators 172 suffers from the same deficiency discussed
above. Zwight discloses that “deflators 172 comprise elongate rollers 174
mounted in tandem together by the linkage 176, and are pivotally mounted
to the jaws 110” (Zwight, 12:73–13:1). We do not see how, and the
Examiner has not adequately explained how, deflators 172, including
elongate rollers 174, are equivalent to a paddle wheel comprising at least one
paddle as required by claim 14.
The rejection as to claims 14, 21–30, 32–34, and 39–42 is not
sustained.

The rejection of claims 15–19 under 35 U.S.C. § 103 as being unpatentable
over Zwight and Bacon.
Claims 15–19 depend, directly or indirectly, from claim 14 and thus
include the subject matter of claim 14. Because Zwight does not describe
the subject matter of claim 14, and no other prior art or reasoning has been
relied upon, a prima facie case of obviousness for the subject matter covered
by claims 15–19 has not been made out in the first instance by a
preponderance of the evidence. Accordingly, the rejection is not sustained.
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Application 14/581,110

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The rejection of claims 20, 35, 43, and 44 under 35 U.S.C. § 103 as being
unpatentable over Zwight, Bacon, and Nishitsuji.
Claims 20, 35, 43, and 44 depend, directly or indirectly, from
claim 14 and thus include the subject matter of claim 14. Because Zwight
does not describe the subject matter of claim 14, and no other prior art or
reasoning has been relied upon, a prima facie case of obviousness for the
subject matter covered by claims 20, 35, 43, and 44 has not been made out in
the first instance by a preponderance of the evidence. Accordingly, the
rejection is not sustained.

The rejection of claims 36–38 under 35 U.S.C. § 103 as being unpatentable
over Zwight.
Claims 36–38 depend, directly or indirectly, from claim 14 and thus
include the subject matter of claim 14. Because Zwight does not describe
the subject matter of claim 14, and no other prior art or reasoning has been
relied upon, a prima facie case of obviousness for the subject matter covered
by claims 36–38 has not been made out in the first instance by a
preponderance of the evidence. Accordingly, the rejection is not sustained.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
14, 21–30,
32–34,
39–42
102(a)(2) Zwight 14, 21–30,
32–34,
39–42
15–19 103 Zwight, Bacon 15–19
20, 35, 43,
44
103 Zwight, Bacon,
Nishitsuji
20, 35, 43,
44
36–38 103 Zwight 36–38
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Application 14/581,110

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Overall
Outcome
14–30,
32–44

REVERSED