Kristy Safarik

Patent Trials and Appeals BoardJun 29, 2021

2020006535 (P.T.A.B. Jun. 29, 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. 13/884,644 05/10/2013 Kristy Safarik PLTPRFPAK 4713 29822 7590 06/29/2021 WM. WRIGLEY JR. COMPANY Patent Department 1132 WEST BLACKHAWK STREET CHICAGO, IL 60642 EXAMINER VAN BUSKIRK, JAMES M ART UNIT PAPER NUMBER 3735 NOTIFICATION DATE DELIVERY MODE 06/29/2021 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): WRIGLEYPATENTS@WRIGLEY.COM lisa.becker1@effem.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KRISTY SAFARIK Appeal 2020-006535 Application 13/884,644 Technology Center 3700 Before STEFAN STAICOVICI, BRETT C. MARTIN, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, 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 1–8, 12, and 13. 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 WM. Wrigley Jr. Company. Appeal Br. 1. Appeal 2020-006535 Application 13/884,644 2 CLAIMED SUBJECT MATTER The claims are related to a multi-compartment package for storing and dispensing a consumable product. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A package for storing and dispensing a consumable product comprising: a first compartment sized to receive a first quantity of consumable product; a second compartment folded together with the first compartment and sized to receive a second quantity of consumable product; a first connection member at a first end of the package comprising a hinge operatively coupled to each of the first compartment and the second compartment that facilitates manual detachment of the first compartment from the second compartment at the first connection member, wherein the first compartment and the second compartment are open at the first end of the package such that the first quantity and second quantity of consumable product is visible at the first end of the package; and a second connection member at a second end of the package coupling the first compartment to the second compartment while folded together, wherein the second connection member comprises at least one line of weakening that facilitates manual detachment of the first compartment from the second compartment at the second connection member, wherein detachment of the first compartment from the second compartment at the second connection member makes the first quantity and second quantity of consumable product visible at the second end of the package, and wherein separated first and second compartments enclose and protect consumable products contained therein. Appeal 2020-006535 Application 13/884,644 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Petzelt US 4,838,424 June 13, 1989 Glydon US 2007/0048414 A1 Mar. 1, 2007 Shin US 8,640,874 B2 Feb. 4, 2014 REJECTIONS Claims 1–8, 12, and 13 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. Claims 1–8, 12, and 13 are rejected under 35 U.S.C. § 112, second paragraph, as being indefinite. Claims 1–8 and 12 are rejected under 35 U.S.C. § 103(a) as being un- patentable over Shin and Petzelt. Claim 13 is rejected under 35 U.S.C. § 103(a) as being un-patentable over Shin, Petzelt, and Glydon. OPINION Written Description The Examiner rejects the claims for lacking written description support because “[t]he feature, ‘the first compartment and the second compartment are open at the first end of the package such that’ in claim 1 was not in the original disclosure.” Final Act. 4. There is no further explanation provided in the Final Action. Appellant provides an annotated version of its Figure 1, reproduced below, to address the rejection. Appeal 2020-006535 Application 13/884,644 4 The figure reproduced above is Appellant’s Figure 1, which “depicts an unassembled multi-compartment package for a consumable product” (Spec. ¶ 15), along with Appellant’s annotation indicating the “cut line.” Appeal Br. 4. Appellant contends that “the blank that forms the package (10) clearly includes a cut line at a first end that separates the first compartment (20) from the second compartment (30).” Id. Appellant additionally provides an annotated view of its Figure 4, reproduced below. Appeal 2020-006535 Application 13/884,644 5 The figure reproduced above is Appellant’s Figure 4, which “depicts a first view of a partially disassembled multi-compartment package for a consumable product, wherein a tear-strip has been partially removed” (Spec. ¶ 18), along with Appellant’s annotation indicating the “(open) first end” and the “(open) second end.” Appeal Br. 5. In the Answer, the Examiner responds that “there is nothing disclosed in the specification that teaches that reference number 30 has an open end that would be opened after tear strip 52 is removed (Fig. 4).” Ans. 7. The Examiner further states that “the Office does not understand why the Appellant would have an open end at 30, when, looking at Appellant’s Fig. 8” and “if when the two packages are separated at 40 (Fig. 1) leaving two open ends at 80 that include pull tabs why design a package with an additional opening.” Id. Notably, the Examiner does not dispute Appellant’s contention that one skilled in the art would understand the feature indicated above as a “CUT LINE” in Appellant’s annotated Figure 1. Once the package is manipulated from the state shown in Figure 1 to that in Figure 4, there is no structure covering what Appellant labels the “first end” in the annotated Figure 4 above. The Examiner provides no reason why one skilled in the art Appeal 2020-006535 Application 13/884,644 6 would not appreciate Appellant had possession of the package having the first and second compartments being open at that first end. We do not sustain the Examiner’s decision to reject claims 1–8, 12, and 13 as lacking written description support. Indefiniteness The Examiner rejects the claims as indefinite because, [t]he feature, “the first compartment and the second compartment are open at the first end of the package such that” in claim 1 was not described in the specification in such a way as to allow one of ordinary skill in the art to determine the metes and bounds of the claim. Final Act. 4–5. There is no further explanation provided in the Final Action. Appellant contends that “[o]ne of ordinary skill in art . . . would readily understand the meaning of ‘open’ as the term is used in Claim 1.” Appeal Br. 6. In the Answer, the Examiner responds that “[t]here is no disclosure of a cut line in paragraphs 36-38. Paragraph 37 does disclose ‘Once compartments 20, 30 are at least partially unfolded, the two compartments may be separated by tearing of the perforation or score-line that forms hinge 40’. Emphasis added.” Ans. 8. The Examiner fails to identify sufficient ambiguity in the claims to rise to the level of indefiniteness. Indeed, the Examiner fails to articulate anything unclear about the claim language, itself. Moreover, as explained above with respect to the written description rejection, we agree that one skilled in the art would understand the meaning of language the Examiner indicates is indefinite so as to determine the metes and bounds of the claim. We do not sustain the Examiner’s decision to reject claims 1–8, 12, and 13 as indefinite. Appeal 2020-006535 Application 13/884,644 7 Obviousness The Examiner finds that Shin teaches “a first compartment (Shin, 32a, Fig. 8),” “a second compartment (Shin, 32b, Fig. 8),” and “a first connection member (Shin, 28, Fig. 3) at a first end of the package comprising a hinge (Shin, 20, Fig. 4) operatively coupled to each of the first compartment and the second compartment.” Final Act. 5. Appellant responds that “in Shin, element 28 is a perforation in a product tray 14 placed within the sleeve compartments 32a, 32b” and “element 20 is merely a top cover of the product tray.” Appeal Br. 7 (citing Shin, 3:56–67, 3:52–55). Appellant has the better position. Figures 3, 4, and 8 from Shin are reproduced below. Figure 3 is a top view of a tray embodiment from Shin. Shin, 2:18. Appeal 2020-006535 Application 13/884,644 8 Figure 4 is a top view of another of Shin’s tray embodiments with a cover. Id. at 2:19. Figure 8 is a perspective view of another embodiment of Shin’s package. Id. at 2:25–26. Initially, we note that the Examiner combines teachings from various embodiments of Shin without providing any rationale for the combination. See Shin, 2:15–16 (“FIG. 1 is a perspective view of an embodiment of a package.”), 2:18 (“FIG. 3 is a top view of another tray embodiment.”), 2:19 Appeal 2020-006535 Application 13/884,644 9 (“FIG. 4 is a top view of the tray of FIG. 2 with a cover.”), 2:25–26 (“FIGS. 8 to 10 illustrate further embodiments of the package.”). Shin explains that “package 10 may include a sleeve 12 surrounding the tray 14” and “sleeve 12 may have one or more compartments 32a, 32b, 32c, 32d.” Shin, 5:49–51. With respect to Figure 8, cited by the Examiner, Shin explains that “FIG. 8 has 2 compartments 32a, 32b that are on top of each other.” Id. at 55–56. Consistent with Appellant’s contentions, we do not see, nor does the Examiner explain, how Shin’s perforation 28 connects compartments 32a, 32b, or how cover 20 forms a hinge coupled to those compartments. The Examiner has failed to provide sufficient basis to support those findings. The Examiner’s use of the Petzelt and Glydon disclosures does not remedy the deficiency of Shin discussed above. See Final Act. 6–9. For at least these reasons, we do not sustain the Examiner’s decision to reject claims 1–8, 12, and 13. CONCLUSION The Examiner’s rejections are reversed. Appeal 2020-006535 Application 13/884,644 10 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–8, 12, 13 112 ¶ 1 Written Description 1–8, 12, 13 1–8, 12, 13 112 ¶ 2 Indefiniteness 1–8, 12, 13 1–8, 12 103(a) Shin, Petzelt 1–8, 12 13 103(a) Shin, Petzelt, Glydon 13 Overall Outcome 1–8, 12, 13 REVERSED