Johannes Bayer et al.

Patent Trials and Appeals Board

Sep 19, 2019

14988386 - (D) (P.T.A.B. Sep. 19, 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.
14/988,386 01/05/2016 Johannes BAYER CFLAY.01054 6872
110933 7590 09/19/2019
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
AXTELL, ASHLEY
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
09/19/2019 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 Johannes BAYER, MARTIN BERNHARD DIERL, EDUARD
EDWARDS, NIKLAS GUSTAFSSON, DAVID LESTAGE, SUNITHA
NAIR, BICH-VAN PHAM, STEPHEN TYNER, and
PATRICK RYAN WINDLEY

Appeal 2018-008765
Application 14/988,386
Technology Center 1700
____________

Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and
JAMES C. HOUSEL, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s final decision to reject claims 1–26. 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. Appellant identifies the real party in interest as Frito-Lay
North America, Inc. Appeal Br. 2.
Appeal 2018-008765
Application 14/988,386

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The following rejections are presented for appeal: 2
I. Claims 1–4, 7–15, and 18–22 are rejected under 35 USC § 103 as
unpatentable over Craddock et al. (US 3,079,062, issued Feb. 26, 1963) in
view of Wollen et al. (WO 96/22230, published July 25, 1996) in view of
Unilever (DE 7838633, issued Nov. 7, 1978 (Espacenet Translation))
(“Unilever”) in view of Schneider et al. (US 3,224,640, issued Dec. 21,
1965) in view of Imer (US 5,228,782, issued July 20, 1993).
II. Claims 5, 6, 16, and 17 are rejected under 35 USC § 103 as being
unpatentable over Craddock, Wollen, Unilever, Schneider, Imer, Franic (EP
1103472 A2, published May 30, 2001 (Espacenet Translation)), and Huth et
al. (US 2008/0023534 A1, published Jan. 31, 2008).
III. Claims 23−26 are rejected under 35 USC § 103 as being
unpatentable over Craddock, Wollen, Unilever, Schneider, Imer, and
Chapman (US 2,143,646, issued Jan. 10, 1939).
Appellant’s invention relates to a snack container with a three
dimensional base and a two dimensional top. (Spec. ¶ 2.) Claim 1 is
illustrative of the subject matter on appeal and is reproduced below:
1. A snack container having a base, side walls,
and a top edge, said top edge having a left side and a
right side, wherein said container comprising:
a substantially square base, said base having left,
right, front, and back corners,
wherein the final container is rigid;

2 The complete statement of the rejection on appeal appears in the Final
Office Action. (Final Act. 2–16).
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Application 14/988,386

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a first fold starting at the left corner of said base
and terminating at the left side of the top edge of the
container;
a second fold starting at the right corner of said
base and terminating at the right side of the top edge of
the container;
a first “V” shaped crease starting at the front
corner of said base and terminating at the first and second
folds at points in the same horizontal plane below the top
edge of the container;
a second “V” shaped crease starting at the back
corner of said base and terminating at the first and second
folds at points in the same horizontal plane as the top of
the first “V” shaped crease;
a flat portion defined by the top edge of the
container and extending to a horizontal tear feature
located above the termination points of the “V” shaped
creases, wherein below the termination points of the top
of the “V” shaped creases the folds and “V” shaped
creases define four right-triangle shaped side walls and
two isosceles triangle shaped side walls, wherein further
above the termination points of the top of the “V”
shaped creases the container consists of two side walls
which are in planar contact with each other above the
horizontal tear feature, thus forming a top seal and
forming a front surface and a back surface, both of said
surfaces located above the termination points of the “V”
shaped creases;
a front score line along the front surface running
from the first fold to the second fold;
a back score line along the back surface running
from the first fold to the second fold, wherein the
intersectional positions of the front score line at the first
fold and the second fold corresponds to the intersectional
positions of the back score line at the first fold and the
second fold, wherein further said vertical location of the
intersectional position of each score line at the first fold
Appeal 2018-008765
Application 14/988,386

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is different from the vertical location of the intersectional
position of each score line at the second fold; and
a cut below said front score line and within the
first “V” shaped crease.

OPINION3
We have reviewed each of Appellant’s arguments for patentability.
We will not sustain the Examiner’s rejections for essentially those reasons
expressed by Appellant. (App. Br. 8–20.)
The Examiner finds Craddock describes a tapered container
comprising first and second “V” shaped creases starting at the base and
terminating at the first and second fold points in the same horizontal plane as
the top of the first and second “V” creases. (Final Act. 3; Figs. 1–2.) The
Examiner recognizes Craddock fails to describe several elements including
the horizontal tear feature and a top seal as required by independent claims 1
and 12. (Final Act. 3–4.) Craddock also fails to teach or suggest the
intersectional positions of the first and second score lines as required by
independent claims 1 and 12. The Examiner cites Wollen and Unilever to
suggest modifying Craddock to meet the requirements of independent claim
1 and 12. (Final Act. 4–9.) The Examiner recognizes that the combination
of Craddock, Wollen, and Unilever fails to describe the intersectional
positions of the first and second score lines as required by independent
claims 1 and 12. (Final Act. 9.) The Examiner cites Schneider and Imer for
describing the intersectional positions of the first and second score lines as
required by independent claims 1 and 12. (Final Act. 9.) The Examiner

3 We limit our initial discussion to independent claims 1 and 12.
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Application 14/988,386

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concluded:
It would have been obvious to one of ordinary skill in the art
modify Craddock in view of Wollen in view of Unilever NV in view
of Schneider such that the vertical location of the intersectional
position of each score line at the first fold is different from the vertical
location of the intersectional position of each score line at the second
fold as taught by Imer since Imer teaches it was well known in the art
to reclose an open container by folding the opened top at an angle in
order to secure the opened top into a cut below the fold to prevent
remaining contents of the opened container from spilling out and since
it would have been obvious to use known techniques to improve
similar products in similar ways to obtain predictable results.
(Final Act. 10.)
The prior art references cited by the Examiner alone or in combination
fails to teach or suggest a front score line along the front surface running
from the first fold to the second fold, and a back score line along the back
surface running from the first fold to the second fold, wherein the
intersectional positions of these score lines correspond to each other and
whose vertical locations at the first and second folds are different, as
required by independent claims 1 and 12. The Examiner’s discussion in the
Answer, 8–10, does not adequately explain why the score lines required by
the claimed invention would have been obvious over the cited prior art.
Schneider and Imer do not teach a package having intersectional positions of
score lines at folds as required by the claimed invention because the
containers are flexible packages that do not include folds and are heat sealed.
(Schneider 1, ll. 9–14; Imer 1, ll. 5–11.) The Examiner has not adequately
explained why a person of ordinary skill in the art would have looked to heat
sealed flexible packaging to suggest score lines running between various
folds of cardboard packaging such as described by Craddock and Wollen.
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Application 14/988,386

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Accordingly, a preponderance of the evidence supports Appellant’s
position that the Examiner is using impermissible hindsight to reconstruct
Craddock, Wollen, Unilever, Schneider, and Imer. (App. Br. 15–16.) The
Examiner has not adequately explained why the skilled artisan’s knowledge
or inferences and creativity would have supported the obviousness
determination based on the teachings of the applied references without an
improper hindsight reconstruction. The fact finder must be aware “of the
distortion caused by hindsight bias and must be cautious of arguments reliant
upon ex post reasoning.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421
(2007) (citing Graham v. John Deere Co., 383 U.S. 1, 36 (1966) (warning
against a “temptation to read into the prior art the teachings of the invention
in issue”)).
The Examiner does not establish that the additional references as
applied in the § 103 rejections of dependent claims 5, 6, 16, 17, and 23−26
cure these deficiencies and/or otherwise provides another rationale that cures
these deficiencies.
Accordingly, we reverse the § 103 rejections on appeal.

DECISION
The Examiner’s rejections are reversed.

DECISION SUMMARY
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Application 14/988,386

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Claims
Rejected
Basis  Affirmed Reversed
1–4, 7–15, and
18–22
§ 103 Craddock,
Wollen, Unilevel,
Schneider, and Imer 
1–4, 7–15, and
18–22
5, 6, 16, and 17 § 103 Craddock,
Wollen, Unilevel,
Schneider, Imer,
Franic, and Huth
5, 6, 16, and
17
23–26 § 103 Craddock,
Wollen, Unilevel,
Schneider, Imer, and
Chapman
23–26
Overall Outcome 1–26

REVERSED