General Mills, Inc.

Patent Trials and Appeals Board

Jun 28, 2021

2020004225 (P.T.A.B. Jun. 28, 2021)

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.
15/869,778 01/12/2018 Aaron Gaylor 8117US02 1012
106306 7590 06/28/2021
DIEDERIKS & WHITELAW, PLC
4196 Merchant Plaza, #815
Woodbridge, VA 22192
EXAMINER
LACHICA, ERICSON M
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
06/28/2021 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):
gmi.mail@dwpatentlaw.com
mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AARON GAYLOR and TODD JENSEN
Appeal 2020-004225
Application 15/869,778
Technology Center 1700

Before JEFFREY B. ROBERTSON, DONNA M. PRAISS, and
JULIA HEANEY, Administrative Patent Judges.

HEANEY, 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 1–5 and 7–13. See Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as General Mills, Inc.
Appeal Br. 3.
Appeal 2020-004225
Application 15/869,778
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CLAIMED SUBJECT MATTER
The claims are directed to a carton having an integrated handle
assembly including multiple openings in the carton. Spec. ¶ 2. Claim 1, the
sole independent claim, is representative of the claimed subject matter:
1. A carton for storing a plurality of products, the
carton comprising:
a main body establishing an enclosure with an interior cavity
for storing the plurality of products, with the enclosure being
formed from a plurality of interconnected panels, the plurality of
interconnected panels including a plurality of side panels and
first and second end panels which collectively form the main
body;
an access flap hingedly connected to the main body and
enabling access to the interior cavity, with the access
flap including a first portion formed from part of one of the
plurality of interconnected panels and a second portion formed
from part of a separate one of the plurality of interconnected
panels, such that the access flap is formed from
and extends across portions of at least two of the plurality of
interconnected panels, wherein the second portion of the access
flap is hingedly connected to another part of the separate one of
the plurality of interconnected panels and the first portion has a
free end portion that is remote from where the second portion of
the access flap is hingedly connected; and
a handle assembly enabling a user to retain the access flap
in a closed position with one hand, the handle assembly being
established, at least in part, by first and second openings, with
the first opening being formed in the free end portion of the
access flap and the second opening being formed in the main
body adjacent the access flap, said first and second openings
being spaced by a distance enabling the carton to be grasped
through the handle assembly with one hand for carrying the
carton while retaining the access flap in the closed position.

Appeal Br. 20 (Claims Appendix).
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Application 15/869,778
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Akers US 5,240,176 Aug. 31, 1993
Mulry US 5,584,430 Dec. 17, 1996
Stringfield US 2004/0031706 A1 Feb. 19, 2004
Kelly US 2011/0233268 A1 Sept. 29, 2011
Maki US 2013/0312369 A1 Nov. 28, 2013

REJECTIONS
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1–5, 7, 9–12 103 Maki, Kelly, Mulry
8 103 Maki, Kelly, Mulry,
Stringfield
13 103 Maki, Kelly, Mulry,
Akers

OPINION
Obviousness of claims 1–5
Appellant argues the rejection of claims 1–5 as a group and does not
separately argue dependent claims 2–5. Appeal Br. 10. We, accordingly,
focus our discussion on claim 1 as representative. 37 C.F.R.
§ 41.37(c)(1)(iv) (2019).
The Examiner finds that Maki discloses food packaging carton 10
capable of storing a plurality of products, the carton comprising a main body
establishing an enclosure formed from a plurality of interconnected panels
(back face 11, first side face 12, front face 13, first side edge back face 14,
top face 16, bottom edge of back face 21). Final Act. 3 (citing Maki Fig. 1,
¶ 30). The Examiner finds that Maki discloses an access flap (opening flap
24) including a first portion (back face 11) and second portion (front face
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Application 15/869,778
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17) such that the access flap is formed from and extends across portions of at
least two of the plurality of interconnected panels (back face 11, front face
17). Id. The Examiner also finds that the second portion (front face 17) of
the access flap is hingedly connected to another part (front face 13) of the
plurality of interconnected panels and the first portion has a free end portion
remote from where access flap is hingedly connected to the main body. Id.
The Examiner finds that Maki is silent as to a handle assembly being
established at least in part by first and second openings with the first opening
being formed in the free end portion of the access flap and the second
opening being formed in the main body adjacent the access flap wherein the
first and second openings are spaced by a distance enabling the carton to be
grasped through the handle assembly with one hand for carrying the carton
while retaining the access flap in a closed position. Id. at 4.
The Examiner finds that Kelly teaches a handle assembly (carry
opening 39 and slot 21), with the first opening (carry opening 39) formed in
the free end portion of the access flap (closing flap 36) and the second
opening (slot 21) being formed in the main body adjacent the access flap.
Final Act. 5 (citing Kelly Fig. 1, ¶¶ 16–17). The Examiner finds that Maki
and Kelly are from the same field of endeavor of storing items having
multiple panels and an opening mechanism. Id. at 6. The Examiner also
finds that Kelly teaches placing a first opening (front carry opening 39) on
the hinged access flap (front closing flap 36) in a panel perpendicular to the
free end portion of the access flap. Id. at 8 (citing Kelly Fig. 1).
The Examiner finds that Mulry teaches a carton having a handle
assembly established at least in part by multiple first openings (thumb
handle 42 or side finger handle 44) and a second opening (top finger handle
40) disposed on perpendicular panels to enable the carton to be grasped
Appeal 2020-004225
Application 15/869,778
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through the handle assembly with one hand. Id. at 7–8 (citing Mulry Fig. 2,
3:6–15). The Examiner finds that Mulry also teaches another configuration
with the first opening (thumb handle 42) and the second opening (top finder
handle 40) are disposed on the same panel. Id. at 8 (citing Mulry Fig. 1).
The Examiner finds that “enabling a user to retain the access flap in a
closed position with one hand” and “enabling the carton to be grasped
through the handle assembly with one hand for carrying the carton while
retaining the access flap in the closed position” are intended use recitations
describing the carton. Id. at 9–10; Ans. 18–19.
The Examiner finds that “the second opening being formed in the
main body adjacent the access flap” does not require the second opening and
access flap to be in the same plane and that Kelly shows second opening
(slot 21) as being formed in top panel 20 adjacent to pull tab 54 of closing
flap 36. Final Act. 10 (citing Kelly Fig. 1, ¶¶ 16–17).
Combination with Kelly
Appellant argues that, given the purpose and size of the packaging of
Kelly, Kelly’s openings 21 and 39 could only be alternatively used for one-
handed carrying, or together for two-handed carrying. Appeal Br. 8.
Appellant argues that one of ordinary skill in the art looking to modify
Maki’s cereal or snack box would not look to Kelly’s handle arrangement of
a beverage dispensing system packaging container. Id.
We are not persuaded by Appellant’s argument against combining
Maki and Kelly. Both Maki and Kelly are directed to multi-paneled food or
beverage cartons. Even if Maki and Kelly differ as a matter of size, a carton
resulting from their combination would not perform differently from the
prior art carton. See In re Rose, 220 F.2d 459, 463 (CCPA 1955) (holding
claims directed to a lumber package “of appreciable size and weight so as to
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require handling by a lift truck” unpatentable over prior art lumber packages
which could be lifted by hand because limitations relating to the size of the
package were not sufficient to patentably distinguish over the prior art).
Appellant acknowledges that the combination allows for one handed
carrying. As such, Appellant has not identified reversible error in the
combination of Maki with Kelly.
Opening in the free end portion
Appellant further argues that Maki in view of Kelly does not teach an
opening in a free end portion of the access flap. Appeal Br. 9. Appellant
argues that Maki has no openings for handles, Mulry does not provide this
structure, and neither of Kelly’s openings are in a free end portion of an
access flap. Id. at 9–10.
The Examiner responds that Mulry teaches the opening formed in the
free end portion of the access flap, while Kelly teaches placing a first
opening (front carry opening 39) onto the hinged access flap (front closing
flap 36) in a panel perpendicular to the free end portion of the access flap.
Ans. 19 (citing Kelly Fig. 1). The Examiner concludes that moving the first
opening from a panel perpendicular to the second opening to the free end
portion of the access flap would have been obvious to one of ordinary skill
in the art, because shifting the position of the first opening with respect to
the second opening would not have modified the operation of the hand
assembly. Id. at 20 (citing In re Japikse, 181 F.2d 1019 (CCPA 1950),
MPEP § 2144.04.VI.C).
Appellant has not identified reversible error. One cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references. See In re Keller, 642 F.2d 413, 425
(CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
Appeal 2020-004225
Application 15/869,778
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1986). The Examiner rejected claim 1 based on a combination of Maki,
Kelly, and Mulry, rather than upon the references individually. Appellant
has otherwise not shown that moving the first opening (as in Kelly) with
respect to the second opening (as in Mulry) would have modified the
operation of the hand assembly.
Operation of the first and second openings
Appellant argues that Kelly does not teach two openings to be used
with a single hand, and nowhere in Kelly or Mulry is there one opening in a
free end of an access flap used in combination with an opening adjacent the
flap for carrying the container with a single hand. Appeal Br. 10.
The Examiner responds that “two openings … to be used with a single
hand” does not have to be explicitly taught by the prior art because
“enabling a user to retain the access flap in a closed position with one hand”
and “enabling the carton to be grasped through the handle assembly with one
hand for carrying the carton while retaining the access flap in the case
position” are merely intended uses of the carton. Ans. 22. The Examiner
further responds that “the prior art must merely be capable of allowing the
user to retain the access flap in a closed position” nevertheless, Mulry
teaches two openings that are capable of being carried with one hand. Id.
(citing Mulry Figs. 1, 2).
Appellant’s argument is not persuasive of reversible error. The
“enabling” recitations in claim 1 describe “how” the hand assembly
functions, which is that it allows “the carton to be grasped through the
handle assembly with one hand . . . while retaining the access flap in the
closed position.” A carton that can be single-handedly grasped through a
handle assembly is sufficient. The openings of the cartons of Kelly and
Mulry alone or together be can be grasped with a single hand.
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We, therefore, affirm the rejection of claims 1–5.

Obviousness of claims 7–9
Claim 7 depends from claim 1, and further requires “perforations
formed in the at least two of the plurality of interconnected panels and
extending about all but one section of the access flap.” Appeal Br. 11. The
Examiner finds that Maki teaches perforations 23 formed in the at least two
of the plurality of interconnected panels, and that perforations 23 do not
extend across the entirety of front face 17 having a portion of opening flap
24. Final Act. 11 (citing Maki Fig. 1, ¶ 30).
Appellant argues Maki’s perforation 23 extends about all sections of
flap 24 such that flap 24 may be removed. Appeal Br. 11 (citing Maki ¶ 31).
We agree that Maki teaches perforations that extend over the entirety
of its access flap and, therefore, reverse the rejection of claim 7. We
likewise reverse the rejections of claims 8 and 9 because they are premised
on the same deficient finding as to Maki.

Appeal 2020-004225
Application 15/869,778
9
Obviousness of claim 10
Claim 10 depends from claim 1, and further requires that the first
opening is smaller than the second opening and the first opening is
configured to receive a thumb of the one hand. Appeal Br. 21.
The Examiner finds that Mulry discloses the first opening (thumb
handle 42) being smaller than the second opening (top finger handle 40) and
the first opening being capable of receiving a thumb of the one hand. Final
Act. 12 (citing Mulry Fig. 1). The Examiner finds that modifying the first
opening of Maki modified with Kelly to have a first opening that is smaller
than the second as taught by Mulry is a matter of choice that a person having
ordinary skill in the art would have found obvious absent evidence that the
particular dimensions of the first opening being smaller than the second
opening were significant. Id. (citing In re Dailey, 357 F.2d 669 (CCPA
1966), MPEP § 2144.04.IV.B). The Examiner further finds that one of
ordinary skill in the art would want one opening to be smaller in order to
accommodate the smaller thumb and one opening to be larger in order to
accommodate four fingers of one hand. Id. at 13.
Appellant argues that openings 39 and 21 of Kelly are similarly sized
and shaped. Appeal Br. 12. Appellant argues that there is no apparent
reason to make opening 39 smaller than opening 21 and doing so would
preclude one-handed carrying by opening 39. Id.
We are not persuaded by Appellant’s argument that Kelly’s openings
are “similarly sized and shaped.” Id. Appellant does not explain where
Kelly discloses similarly-sized openings. Further, the relative size of the
openings is merely a design choice and Appellant has not provided evidence
that the claimed device would perform differently from the prior art device.
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Application 15/869,778
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Gardner, 725 F.2d at 1349. We, accordingly, affirm the rejection of claim
10.

Obviousness of claim 11
Claim 11 depends from claim 10, and further requires that the first
opening is generally circular and the second opening is generally elliptical.
Appeal Br. 12.
The Examiner finds that Kelly discloses first opening (front carry
opening 39) is generally circular and second opening (slot 21) is generally
elliptical. Final Act. 13. (citing Kelly Fig. 1). The Examiner finds that it
would have been obvious to modify Maki and incorporate a generally
circular first opening and generally elliptical second opening taught by Kelly
because the claimed shape of the opening is a matter of choice that a person
of ordinary skill in the art would have found obvious absent persuasive
evidence that the generally circular shape of the first opening is significant.
Id. (citing In re Dailey, 357 F.2d 669 (CCPA 1966), MPEP § 2144.04.IV.B).
The Examiner further finds that one of ordinary skill in the art would want
one opening to be generally circular in order to accommodate the smaller
thumb and one opening to be generally elliptical in order to accommodate
the four fingers of the hand. Id.
Appellant argues that neither Mulry’s thumb handle 42 nor Kelly’s
front carry opening 39 could be said to be “generally circular.” Appeal Br.
12–14 (citing Mulry 3:67 as teaching “generally square” thumb holes 120a–
d; Kelly Fig. 5 as showing non-circular slots 31, 33, 35, 37). Appellant
further argues that opening 39 is not “configured to receive a thumb”
because it is a “top carrying opening,” the opening is large enough to fit
several fingers, and the packaging stores a relatively heavy beverage
Appeal 2020-004225
Application 15/869,778
11
container and dispensing system. Id. at 14 (citing Aspex Eyewear, Inc. v.
Marchon Eyewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir. 2012) as holding
“‘configured to’ in claims means that structures are designed ‘to accomplish
the specified objective, not simply that they can be made to serve that
purpose’”).
The Examiner responds that “‘generally’ circular and ‘generally’
elliptical does not require the shapes of the openings to be exactly circular or
exactly elliptical and rather that the openings have a shape that resemble a
circle and that resemble an ellipse.” Ans. 27. The Examiner finds that the
claimed shape of the first and second openings is a matter of choice and
Appellant has not provided evidence showing the criticality of the claimed
circular and/or elliptical shapes of the openings. Id. The Examiner
determines that one of ordinary skill in the art would have wanted the
openings to be generally circular to accommodate a thumb and to be
generally elliptical to accommodate four fingers of the hand, and would have
recognized that a generally circular opening and a generally elliptical
opening are capable of being carried with one hand, in view of Mulry. Id. at
27–28 (citing Mulry Figs. 1–2).
Appellant’s arguments are unpersuasive. The rejection of claim 11
relied upon Kelly, not Mulry, to teach the shape of the first and second
openings. Claim 11 only requires a “generally circular” opening and a
“generally elliptical” opening, which are respectively met by front carry
opening 39 and slot 21 of Kelly. Appellant has also not provided evidence
of the significance of the first opening’s shape. As for the limitation
“configured to receive a thumb of the one hand,” this is found in claim 10
and pertains to the relative size of the openings, not to their shape.

Appeal 2020-004225
Application 15/869,778
12
Obviousness of claim 12
Claim 12 depends from claim 10, and further requires that the second
opening is formed on the same panel as the first portion of the access flap.
Appeal Br. 14.
The Examiner finds that Kelly discloses the second opening (slot 21)
being formed in the same panel (top panel 20) as the first portion of the
access flap. Final Act. 13 (citing Kelly Fig. 1, ¶ 16).
Appellant argues that the Examiner merely states that Kelly discloses
slot 21 being formed in the same panel as the first portion of the access flap.
Appeal Br. 14–15.
We affirm the rejection of claim 12 because Appellant fails to
specifically identify any reversible error in the rejection.

Obviousness of claim 13
Claim 13 depends from claim 10, and further requires that “the second
opening is also formed in a panel adjacent the one of the at least two of the
plurality of interconnected panels.” Appeal Br. 16.
The Examiner finds that Maki modified with Kelly and Mulry is silent
regarding the second opening being formed in a panel adjacent the one of the
at least two of the plurality of interconnected panels. Final Act. 15. The
Examiner finds that it would have been obvious to one of ordinary skill in
the art to modify Maki’s carton by incorporating an opening formed in a
panel adjacent one of the panels that form the access flap, because Akers
teaches that it was known and conventional to incorporate a handheld
opening in a panel that is disposed on a side adjacent the access flap. Id. at
16.
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13
Appellant argues that there would have been no apparent reason for
one of ordinary skill in the art to turn to Akers, because Maki modified by
Kelly and Mulry already includes a handle assembly. Appeal Br. 17.
Appellant argues that such modification would not enable a user to grasp the
openings with one hand while retaining the access flap closed. Id. at 18.
Appellant does not persuasively show reversible error. Claim 13
allows the second opening to be “formed in a panel adjacent the one of the at
least two of the plurality of interconnected panels,” meaning that the second
opening can be on any panel of the main body. While Appellant proposes a
rendering of Maki’s carton modified by Kelly, Mulry, and Akers, the
relative placement of the openings in the rendering does not reflect any
particular teaching or suggestion from the references of record. Appeal Br.
18. The arguments of counsel cannot take the place of evidence in the
record. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion
of what seems to follow from common experience is just attorney argument
and not the kind of factual evidence that is required to rebut a prima
facie case of obviousness.”). Absent such evidence, Appellant fails to
demonstrate that modification with Akers would prevent a user from
grasping the carton with one hand while retaining the flap closed.
We, consequently, affirm the rejection of claim 13.

CONCLUSION
The Examiner’s rejections are affirmed in part.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7, 9–12 103 Maki, Kelly,
Mulry
1–5, 10–12 7, 9
8 103 Maki, Kelly,
Mulry, Stringfield
8
13 103 Maki, Kelly,
Mulry, Akers
13
Overall
Outcome
1–5, 10–13 7–9

TIME PERIOD FOR RESPONSE
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 IN PART