SKVSG LLC

Patent Trials and Appeals Board

Jun 17, 2021

2020003874 (P.T.A.B. Jun. 17, 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.
15/184,792 06/16/2016 Stephen Kyle van Someren Greve SKVSG155716 1013
26389 7590 06/17/2021
CHRISTENSEN O'CONNOR JOHNSON KINDNESS PLLC
1201 Third Avenue
Suite 3600
Seattle, WA 98101
EXAMINER
YOO, REGINA M
ART UNIT PAPER NUMBER
1799
NOTIFICATION DATE DELIVERY MODE
06/17/2021 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):
efiling@cojk.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEPHEN KYLE VAN SOMEREN GREVE

Appeal 2020-003874
Application 15/184,792
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and
SHELDON M. MCGEE, 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, 3–6, and 8–22. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Appellant’s invention is directed to systems and methods for the
preservation of perishable substances (Spec. 2:5–6). The Specification
describes systems for facilitating the preservation of organic substances that
can be used on the scale of a home, a professional kitchen, or a retail
establishment (id. at 7:20–22).

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as SKVSG LLC. Appeal Br. 3.
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Claim 1 is representative of the subject matter on appeal:
1. A system for preserving perishable substances, the
system comprising:
a first compartment and a second compartment disposed
within a housing, wherein each of the first and second
compartments has an interior portion having a volumetric
capacity of less than or equal to about 35 cubic feet, wherein
the first and second compartments each includes a transparent
portion configured to make at least a portion of the interior
portion viewable from an external viewer when the first and
second compartments are in a closed position;
a preservation gas source;
a control system configured to deliver a preservation gas
from the preservation gas source separately to the interior
portions of each of the first and second compartments such that
the interior portions of each of the first and second
compartments has a gaseous environment with an oxygen level
less than about 20% when the first and second compartments
are in the closed position, wherein the oxygen level in the first
compartment is different from the oxygen level in the second
compartment; and
a housing configured to contain the first and second
compartments, the preservation gas source, and the control
system, wherein the transparent portions of the first and second
compartments are juxtaposed in an open side of the housing.

Appellant appeals the following rejections:
1. Claims 1, 3–6, 8, 9, 11–16, and 18–22 are rejected under 35
U.S.C. § 103 as unpatentable over Herdeman (US 5,333,394,
issued Aug. 2, 1994) in view of McGuire (US 2008/0017045
A1, pub. Jan. 24, 2008).
2. Claims 3, 10, and 17 are rejected under 35 U.S.C. § 103 as
unpatentable over Herdeman in view of McGuire and Bell (US
2012/0294987 A1, pub. Nov. 22, 2012).
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Appellant argues the substantially similar subject matter recited in
independent claims 1 and 14 and raises the same arguments in support of
each claim (Appeal Br. 7–8). Appellant also raises arguments in support of
limitations recited only in claim 1. Id. at 8–9. Therefore, we select claim 1
as representative of the claims argued on appeal. 37 C.F.R.
§ 41.37(c)(1)(iv). Any claim not argued separately will stand or fall with
our analysis of the rejection of claim 1.

FINDINGS OF FACT & ANALYSIS
Claim 1
The Examiner findings and conclusions regarding the combined
teachings of Herdeman and McGuire are located on pages 4–6 of the Final
Office Action.
Appellant does not dispute the Examiner’s finding that Herdeman
“discloses a controlled atmosphere container system for perishable
products,” as required by claim 1 (Appeal Br. 7). Appellant, however,
disputes the finding that Herdeman discloses the claimed housing, which the
Examiner proposes modifying to include the transparent portions of
McGuire’s first and second juxtaposed compartments. Id.
Appellant argues that the Examiner corresponds Herdeman’s housing
30 to the claimed housing, but housing 30 is a metal container for
transporting perishable products on ships, trains, and planes. Id. Appellant
contends that it “would not be reasonable to put openings in such containers
to which a transparent section would be juxtaposed.” Id. Appellant argues
that the Examiner also corresponds Herdeman’s cargo hold 219 to the
claimed housing, but cargo hold 219 is located in a ship’s hull. Id.
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Appellant contends that “there is no rationale why one would” have added
transparent portions “juxtaposed in an open side or in openings of the
‘housing’ of Herdeman considering that the housing . . . is either a shipping
container or [a] ship’s hull.” Id. Appellant argues that one would have no
reason to view items inside a shipping “container within the ship from a
location outside the ship.” Id. at 8.
Appellant’s arguments are unpersuasive because the test for
obviousness is not whether the features of a secondary reference (i.e.,
McGuire) may be bodily incorporated into the structure of the primary
reference (i.e., Herdeman); rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in the art. In
re Keller, 642 F.2d 413, 425 (CCPA 1981).
Here, the Examiner finds that Herdeman teaches the implementation
of a perishable preservation system in ships, trains, planes, or trucks. Ans.
13 (citing Herdeman 12:16–20; 12:34–37). Likewise, the Examiner finds
that McGuire similarly teaches the implementation of a perishable
preservation system in airplanes and trucks. Ans. 13–14 (McGuire ¶¶ 156,
170).
The Examiner finds McGuire teaches, in the event that exposure of
the preserved item to sunlight is not an issue, “the use of ‘an open side’ . . .
and transparent portions . . . in a housing (501) utilized for storing items
(506) that can be located in transportation vehicles such as airplane or trucks
for providing access to place and remove items in the housing.” Ans. 14
(McGuire ¶¶ 158, 168; Fig. 29). Based on these findings the Examiner
reasonably determined that one of ordinary skill in the art would have
modified Herdeman’s housing “so that transparent portions thereof are
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juxtaposed in an open side or in openings . . . such as when items stored
within . . . are not affected by sunlight or where shipping container(s) are not
exposed to sunlight and one desires to view items within a housing.”
Ans. 14. As an example of such a situation, the Examiner reasons that
McGuire’s transparent portions would have been desirable “prior to
removal” of the preserved item from Herdeman’s modified housing “so as to
ascertain that the housing access panel is at a correct location for the desired
item(s) to be placed/removed from the housing.” Id. Appellant does not
contest the Examiner’s rationale as provided on pages 13–14 of the Answer.
Appellant also argues that the Examiner’s determination is conclusory
that it would have been obvious to one of ordinary skill in the art to modify
the size of Herdeman’s container so that the interior portion possesses “a
volumetric capacity of less than or equal to about 35 cubic feet as a matter of
choice depending on factors . . . and/or size of transportation vehicle (for
example, a walk-in storage in a professional kitchen/restaurant, a personal
home, a truck, a personal vehicle.” Appeal Br. 8–9 (citing Final Act. 4).
Appellant contends that Herdeman neither discloses nor suggests reducing
the container size to a scale suitable for walk-in storage in such buildings or
vehicles. Appeal Br. 9. Appellant argues that the Examiner’s modification
would have: (i) changed “the principle of operation of the Herdeman
invention from one being used for shipping to a stationary use” and (ii)
“render[ed] the Herdeman invention unsatisfactory for its intended purpose,
which is to be used in shipping.” Id.
Appellant’s arguments are unpersuasive because Herdeman’s
perishable preservation system is not limited for use in shipping containers.
Appellant does not dispute the Examiner’s findings that: (i) Herdeman’s
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container system can be used in product storage areas and distribution or
ripening facilities (Ans. 14–15 (citing Herdeman 12:16–20; 12:34–37)) and
(ii) McGuire teaches that the perishable preservation systems “are applicable
to refrigeration systems as well as in transportation vehicles that are
concerned with preservation of items such as food and produce.” Ans. 15
(citing McGuire ¶¶ 155, 156, 166, 170–71). Moreover, the Examiner has
made reasoned finding that McGuire’s perishable preservation systems “may
be of various sizes/shapes/configurations to suit the items/objects being
accommodated by the system.” Ans. 15; see McGuire ¶ 156 (disclosing that
“the item storing compartment may be made of various different sizes,
shapes and configurations to accommodate the items having different sizes,
shapes and configurations.”).
Based on these findings, the Examiner reasonably determined that it
would have been within the level of skill in the art to reduce the size of
Herdeman’s container, as modified with McGuire’s transparent portions, to
have a volumetric capacity of less than or equal to about 35 cubic feet.
Ans. 14–15. We agree with the Examiner that it would have been within the
level of the ordinarily skilled artisan to have arrived at the requisite
compartment size depending on the size or quantity of products required to
be retained within the container, the size and area of the storage facility, and
the size of the transportation vehicle. Id.; Final Act. 4.
On this record, we affirm the Examiner’s § 103 rejections (1) and (2).

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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 3–6, 8,
9, 11–16,
18–22
103 Herdeman, McGuire 1, 3–6, 8,
9, 11–16,
18–22

3, 10, 17 103 Herdeman, McGuire, Bell 3, 10, 17
Overall
Outcome
1, 3–6, 8–
22

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