Jeanne CHENG

Patent Trials and Appeals BoardAug 10, 2021

2020006280 (P.T.A.B. Aug. 10, 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. 13/921,372 06/19/2013 Jeanne CHENG 8061-0001 3606 466 7590 08/10/2021 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD 11TH FLOOR ARLINGTON, VA 22203 EXAMINER NGUYEN, THANH H ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 08/10/2021 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): pair_nixon@firsttofile.com ptomail@nixonvan.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEANNE CHENG Appeal 2020-006280 Application 13/921,372 Technology Center 1700 ____________ Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and JENNIFER R. GUPTA, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–10. We have jurisdiction under 35 U.S.C. § 6(b). Oral arguments were heard in this appeal on July 19, 2021. We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Jeanne Cheng. Appeal Br. 3. Appeal 2020-006280 Application 13/921,372 2 Appellant’s invention is directed to a packaged food product that includes an edible sheet-like layer enclosing edible contents as a roll, the edible sheet-like layer and the edible contents separated from each other by a removable vapor barrier for maintaining the freshness of the sheet material until the food product is ready to be consumed, the removable vapor barrier extending past the end of the roll to be graspable by the consumer for removal. (Claim 1; Spec. 1:5-13). Claim 1 is representative of the subject matter on appeal: 1. A packaged food product (1), comprising: a non-edible first layer of sheet-like material (11) ; an edible, sheet-like second layer (21) on a surface of the first layer (11); a non-edible third layer of sheet-like material (31), the third layer delimited by opposite first and second longitudinal edges, and by first and second side edges opposite each other and extending between the first and second longitudinal edges, the third layer positioned on a surface of the second layer (21) facing opposite the surface of the first layer (11); an edible fourth layer of an edible substrate (41) on a surface of the third layer (31) facing opposite the surface of the second layer (21), the fourth layer (41) extending from the first longitudinal edge of the third layer (31) toward the opposite second longitudinal edge of the third layer (31), an extended region (33) of the third layer at the second longitudinal edge being free of the edible substrate of the fourth layer (41); and a fifth layer of edible ingredients (51) on the fourth layer (41), the edible ingredients (51) provided on a wherein, facilitated by the oil, the rolled third layer (31) is slideable against the rolled second and fourth layers (21, 41) such that the rolled third layer (31), upon being pulled by grasping the extended region and pulling the extended region in an axial direction away from the rolled assembly while the outermost layer of the rolled assembly is held at a location along the longitudinal length, slides out from between the rolled second and fourth layers so as to become completely removed from the rolled assembly without removing the contents of any of the fourth and fifth layers (41, 51) from the rolled assembly. Appeal 2020-006280 Application 13/921,372 3 Appeal Br. 30–31 (Claims App.). Appellant appeals the following rejections: 1. Claims 1–5, 10, and 11 are rejected under 35 U.S.C. § 103 as unpatentable over Kapadia (5 Burritos That Go Beyond Rice and Beans, Food Republic) in view of Jurado (US 7,112,347 B2; issued Sept. 26, 2006), Fujimori (US 2011/0256270 A1; published Oct. 20, 2011), Suzuki (US 4,623,568; issued Nov. 18, 1986), and Needles Marketing (ʻNeedlesʼ, How to Travel Wrap a Hoagie, Youtube.com). 2. Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over Kapadia in view of Jurado, Fujimori, Suzuki, Needles and Nussinow (Vegan Burrito, The Veggie Queen). 3. Claim 7 is rejected under 35 U.S.C. § 103 as unpatentable over Kapadia in view of Jurado, Fujimori, Suzuki, Needles, and Denny (Egg Burritos to Die For, Kalyn’s Kitchen). 4. Claim 8 is rejected under 35 U.S.C. § 103 as unpatentable over Kapadia in view of Jurado, Fujimori, Suzuki, Needles, and Brianzajac (Godzilla Burrito at Chef Brooke’s Natural Café in Fort Myers, 100 Percent Health). 5. Claim 9 is rejected under 35 U.S.C. § 103 as unpatentable over Kapadia in view of Jurado, Fujimori, Suzuki, Needles, and Shatkin (Food Truck Friday: Jokasaki, The Sushi Burrito Truck, LA WEEKLY). Appeal 2020-006280 Application 13/921,372 4 Appellant’s arguments focus on the subject matter of claim 1 (Appeal Br. 13–24). Appellant relies on arguments made regarding claim 1 in traversing rejections (2) to (5) (Appeal Br. 25–29). Accordingly, all the claims will stand or fall with claim 1. FINDINGS OF FACT & ANALYSIS We review the appealed rejection for reversible error based on the arguments and evidence presented by Appellant. 37 C.F.R. § 41.37(c)(1)(iv); 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) (explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”). We have fully considered the Declaration made of record in our assessment of the rejections. The Examiner’s findings and conclusions regarding Kapadia, Jurado, Fujimori, Suzuki and Needles are located on pages 3 to 6 of the Final Action. Appellant argues that the applied secondary references (i.e., Jurado, Needles, Fujimori, Suzuki) do not support a conclusion that it would have been obvious to modify a rolled food product to include a separating material (i.e., third non-edible layer) between an edible second layer and an edible fourth layer (Appeal Br. 15). Appellant contends modifying Kapadia’s rolled material to include a third non-edible layer would lead to an unsatisfactory result in Kapadia’s product (Appeal Br. 15). Appellant argues that Jurado’s and Needle’s stacked sandwiches are not rolled Appeal 2020-006280 Application 13/921,372 5 sandwiches and thus are fundamentally different than Kapadia’s rice roll (Appeal Br. 17, 18). Appellant argues that Needles is directed to keeping the sandwich filling contents separate from the bread to better preserve the sandwich for later consumption (Appeal Br. 17). Appellant argues Jurado is directed to ingredients that are extruded from a pouch into a hollowed-out bread product which is different than Needles’ layer-by-layer filling in the sandwich (Appeal Br. 17). Appellant contends that Needles’ layers of meat, cheese, and lettuce could not be extruded out of a bag as in Jurado (Appeal Br. 17, 18). Appellant argues that Needles and Jurado use bread, not laver (seaweed) as an edible layer (Appeal Br. 19). Appellant contends that bread has a stronger structure than laver/seaweed as disclosed by Kapadia such that there would have been no reasonable expectation of success in using an inedible barrier layer between a laver layer and rice layer in Kapadia (Appeal Br. 19). Appellant refers to the declaration of Jeanne Cheng (Cheng Declaration) as establishing that a person of ordinary skill in the art would have expected failure when combining a vapor barrier with Kapadia’s rolled structure (Appeal Br. 19). Appellant argues that Jurado and Needles are not directed to rolled sandwich structures (Appeal Br. 20). Appellant argues Jurado requires an extrusion mechanism to operate that includes tab 120 on the extended portion through which the pouch 30 must be pulled (Appeal Br. 21). Appellant contends that Needles’ sandwich materials are incompatible with Jurado’s extrusion requirement (Appeal Br. 21). Appellant argues the art does not address the foreseeable problem that the stickiness of Kapadia’s rice would cause Kapadia to come apart in attempting to remove a non- edible layer from an interior thereof (Appeal Br. 23). Appeal 2020-006280 Application 13/921,372 6 Appellant’s arguments are not persuasive of reversible error in the Examiner’s obviousness determination. The Examiner is not proposing to bodily incorporate the entirety of Jurado’s extruded sandwich filling encased in an inner pouch 30 or Needles’ layered sandwich filling on wax paper into Kapadia. Rather, the Examiner’s rejection is based on these references teaching that it was known to provide a vapor barrier between moist filling ingredients and drier, outer sandwich materials to prevent the drier materials from becoming soggy (Final Act. 4, 5). Jurado’s sandwich and Needles’ sandwich may not be rolled, but Jurado’s inner pouch 30 has a tubular structure for holding ingredients (Jurado Fig. 1). In other words, encasing moist filling in a vapor barrier to prevent the moist contents from degrading the drier wrap would have been obvious. That Jurado and Needles do not teach a rolled sandwich is not determinative because a person of ordinary skill in the art is a person of ordinary creativity, not an automaton. KSR Int’l Co. v. Teleflex, Inc., 550 US 398, 420 (2007). In other words, a person of ordinary skill in the art would have understood how to isolate moist contents from a drier layer made of seaweed or bread based upon the teachings in Kapadia, Jurado, Needles, Suzuki, and Fujimori. Appellant’s argument that if Jurado’s structure were placed in Kapadia roll, the vapor barrier would stick to the rice fails to address the Examiner’s findings with regard to Fujimori. In particular the Examiner finds that Fujimori teaches applying oil to a plastic film to permit the film to more easily slide out from between rice and seaweed (Final Act. 6). We are unpersuaded by Appellant’s argument. On this record, we affirm the Examiner’s § 103 rejections of record. Appeal 2020-006280 Application 13/921,372 7 DECISION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–5, 10 103 Kapadia, Jurado, Fujimori, Suzuki, Needles 1–5, 10 6 103 Kapadia, Jurado, Fujimori, Suzuki, Needles, Nussinow 6 7 103 Kapadia, Jurado, Fujimori, Suzuki, Needles, Denny 7 8 103 Kapadia, Jurado, Fujimori, Suzuki, Needles, Brianzajac 8 9 103 Kapadia, Jurado, Fujimori, Suzuki, Needles, Shatkin 9 Overall Outcome 1–10 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