Landau, Steven M.

Patent Trials and Appeals Board

Jun 19, 2020

2019004671 (P.T.A.B. Jun. 19, 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.
14/308,687 06/18/2014 Steven M. Landau Landau-15 1113
32132 7590 06/19/2020
LAMORTE & ASSOCIATES P.C.
P.O. BOX 434
YARDLEY, PA 19067
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
06/19/2020 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):
mail@uspatlaw.com
malamorte@verizon.net
uspatlaw1@verizon.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN M. LANDAU
Appeal 2019-004671
Application 14/308,687
Technology Center 1700
Before LINDA M. GAUDETTE, JULIA HEANEY, and
BRIAN D. RANGE, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1–10 and 12 under 35 U.S.C. § 103 over
Landau (US 6,045,833, iss. Apr. 4, 2000) in view of Gaonkar (US

1 This Decision includes citations to the following documents: Specification
filed June 18, 2014 (“Spec.”); Final Office Action dated Jan. 19, 2018
(“Final”); Appeal Brief filed Aug. 17, 2018 (“Appeal Br.”); Claims
Appendix filed Oct. 19, 2018 (“Claims App’x); and Examiner’s Answer
dated Mar. 8, 2019 (“Ans.”).
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. The Appellant identifies the real party in interest as the
inventor, Steven M. Landau. Appeal Br. 2.
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2011/0143005 A1, pub. June 16, 2011) and Robinson (US 2014/0090655
A1, pub. Apr. 3, 2014).3, 4
We AFFIRM.
CLAIMED SUBJECT MATTER
The invention relates to “plastic objects that alter the perceived taste
and/or aroma of the material being drunk, eaten, or smoked.” Spec. 1:9–12.
The inventive method uses a molded plastic, a first segment of which is
infused with a gustatory perception modifier to trigger a person’s sense of
taste. Id. at 4:9–12. A second segment of the molded plastic contains a scent.
Id. at 6:20–22. For example, if the molded plastic is a closure (e.g., a
threaded cap that attaches to the neck of a bottle designed to hold a
consumable fluid), the segment inserted into the mouth (e.g., a pop-up or
flip-up straw) is infused with the gustatory perception modifier. Id. at 15:1–
15. The segment positioned proximate the nose when the product is
consumed (e.g., the base of the cap) is infused with a scent. Id. at 15:15–17.
When a person experiences the gustatory perception modifier in combination
with the scent, “both the sense of taste and the olfactory sense trick the brain
into believing that the consumable being eaten, drunk or smoked has a
certain flavor that it does not possess in reality.” Id. at 4:18–23.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:

3 See Advisory Action dated Nov. 30, 2018 (entering the Appellant’s
October 19, 2018 after-final amendment cancelling claims 17–20 and
amending claim 9).
4 We have jurisdiction under 35 U.S.C. § 6(b).
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1. A method of inducing modified sensory enhancement
to a person consuming a product, said method comprising the
steps of:
providing a molded object, said molded object being
molded to include a first segment and a second segment,
wherein said molded object enables said product to be
consumed by placing said first segment of said closure molded
object in a person’s mouth while said second segment of said
molded object remains external of the mouth,
wherein said first segment is, at least in part molded from
a first plastic mixture that includes a gustatory perception
modifier added into said first plastic mixture prior to molding,
said gustatory perception modifier being perceived by taste in
the person’s mouth; and
wherein said second segment is, at least in part, molded
from a second plastic mixture that includes a selected scent
added into said second plastic mixture prior to molding; and
wherein said first segment stimulates a sense of taste
while said second segment stimulates a sense of smell, therein
creating said modified sensory enhancement while said product
is being consumed.
Appeal Br. 16 (Claims Appendix).
OPINION
The Appellant argues in support of patentability of independent
claims 1 and 9. However, the Appellant’s arguments are substantially the
same. Compare Appeal Br. 7–12, with id. at 12–13. Accordingly, we focus
our discussion on claim 1.
The Appellant does not dispute the Examiner’s finding (Final 3) that
Landau discloses a method that includes providing a molded object (e.g., a
threaded bottle cap) comprising a first segment (e.g., an integral straw
element in the threaded bottle cap) and a second segment (e.g., a base of the
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bottle cap), each segment being molded from a plastic mixture containing a
scent that stimulates a sense of smell. Appeal Br. 13 (“The Examiner’s
primary prior art reference (the Landau Patent) is made with only one plastic
that alters the sense of smell.”); see Landau 3:66–4:3 (“Since the base
segment and nipple head of the cap element 14 are both molded from a
fragrance impregnated plastic, it will be understood that the air contained
within the receptacle and the air surrounding the exterior of the cap element
contain the aroma of the fragrance impregnated material.”). The Appellant
argues, however, that the Examiner reversibly erred in determining that the
combined teachings of Gaonkar and Robinson would have suggested
including a gustatory perception modifier in Landau’s first segment. See,
e.g., Appeal Br. 14 (“The Examiner takes small pieces from each of the cited
references and joins them together without a proper showing of
motivation.”); see generally id. at 6–15. We address the Appellant’s specific
arguments in detail below.
Gaonkar discloses “[m]ethods of coating the interior surface of . . .
a drinking straw[] with an edible composition to impart a desirable
modification to a beverage that is drunk through the straw.” Gaonkar
Abstract. More specifically, Gaonkar discloses coating the straw’s interior
surface with a lipid layer and incorporating a powdered ingredient, such as a
sweetener or flavoring, into the lipid layer. Id. ¶ 17. Gaonkar discloses that
“[d]uring contact, the beverage either dissolves or dislodges the powdered
ingredient into the beverage stream thus imparting the desired effect or
effects to the beverage.” Id. ¶ 19. The Examiner found that, based on
Gaonkar’s teaching, the ordinary artisan would have included a flavoring
component in Landau’s first segment (e.g., the integral straw) to provide
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additional flavoring to the intended beverage and to further enhance the taste
experience along with the added scent. Final 4.
Robinson discloses a method of manufacturing a flavored mouthguard
comprising preparing a thermoplastic material in molten form, adding a
flavoring agent, such as artificial sweeteners and sugars, to the molten
thermoplastic material, and molding the flavorant-infused, thermoplastic
material. Robinson ¶¶ 27–28. The flavorant is perceptible to the wearer and
reduces the mouthguard’s smell and bad taste. Id. at Abstract. The Examiner
determined that the ordinary artisan would have added Gaonkar’s flavoring
agents directly to Landau’s plastic mixture during molding of the first
segment instead of applying the agents as a coating. Final 4. This
determination is based on Robinson’s disclosure that it was known to flavor
infuse a thermoplastic material. Id.
The Appellant argues that neither Landau, Gaonkar, nor Robinson
discloses “a plastic object with two sections, where the first section contains
a first plastic mixture and the second section contains a second plastic
mixture.” Appeal Br. 9.
Claim 1 recites that the “first segment is, at least in part molded from
a first plastic mixture that includes a gustatory perception modifier” and the
“second segment is, at least in part, molded from a second plastic mixture
that includes a selected scent.” Claim 1, however, does not preclude the
presence of a gustatory perception modifier and a scent in both the first and
second segments; nor does claim 1 require that the first and second plastic
mixtures differ. Rather, the broadest reasonable interpretation of claim 1
encompasses first and second segments molded from plastic mixtures
containing both a gustatory perception modifier and a scent. See Spec. 18:5–
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8 (“The spoon 54 is molded from scented plastic. The tip 56 or entire spoon
54 is fabricated from a flavor modified plastic that is made from a mix of
plastic and gustatory perception modifiers.”); see also id. at 16:10–14,
17:12–17. The Appellant’s argument, therefore, is unpersuasive because it
fails to identify error in the Examiner’s finding (Ans. 11) that Robinson
discloses a molded plastic mixture comprising both a flavor and a scent
(Robinson ¶ 25).
The Appellant argues that the ordinary artisan attempting to alter the
perceived flavor of a consumable product would not have looked to
Robinson, because Robinson’s mouthpiece is not designed to have an effect
on a consumed product. Appeal Br. 9.
“Two separate tests define the scope of analogous prior art: (1)
whether the art is from the same field of endeavor, regardless of the problem
addressed and, (2) if the reference is not within the field of the inventor’s
endeavor, whether the reference still is reasonably pertinent to the particular
problem with which the inventor is involved.” In re Klein, 647 F.3d 1343,
1348 (Fed. Cir. 2011) (quoting In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
2004)). The Federal Circuit counsels us to construe the scope of analogous
art broadly. Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010)
(“[F]amiliar items may have obvious uses beyond their primary purposes,
and a person of ordinary skill often will be able to fit the teachings of
multiple patents together like pieces of a puzzle.” (quoting KSR Int’l Co. v.
Teleflex, Inc., 550 U.S. 398, 402 (2007)). The Appellant has not explained
persuasively why Robinson would not have been reasonably pertinent to the
problem with which the inventor was concerned: improving the flavor and
scent of a molded plastic object that is designed to contact an individual’s
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mouth and is proximate the nose when in use. See, e.g., Appeal Br. 14
(arguing, without further explanation, that “[n]o person attempting to alter
the perceived flavor of a consumable product would turn to the teachings of
protective sports mouthpieces”).
The Appellant argues that modifying Landau to apply the flavorant to
the product’s molded exterior as taught by Gaonkar would result in the user
consuming the flavorant, thereby changing Landau’s principle of operation.
Appeal Br. 10. This argument is not persuasive because it fails to address the
Examiner’s rejection which proposes further modification of Landau to
include the flavorant in the molded product as taught by Robinson.
In sum, the Appellant has not persuaded us of reversible error in the
Examiner’s obviousness conclusion for the reasons stated above. Any
arguments made by the Appellant but not discussed in this Decision have
been addressed by the Examiner and are unpersuasive for the reasons stated
in the Final Office Action and the Answer.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–10, 12 103 Landau, Gaonkar,
Robinson
1–10, 12

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).
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AFFIRMED