The Hillshire Brands Company

Patent Trials and Appeals Board

Dec 23, 2021

2020005543 (P.T.A.B. Dec. 23, 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.
14/304,846 06/13/2014 Jeffrey Anthony Czarny G2292-00117 1051
154352 7590 12/23/2021
Duane Morris LLP-HILLSHIRE
505 9th Street
Suite 1000
Washington, DC 20004
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
12/23/2021 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):
HILLSHIRE.USPTO@duanemorris.com
nlvilliard@duanemorris.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEFFREY ANTHONY CZARNY and
BENJAMIN M. CICHOWSKI
____________

Appeal 2020-005543
Application 14/304,846
Technology Center 1700
____________

Before JEFFREY B. ROBERTSON, JENNIFER R. GUPTA, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to finally reject claims 22, 23, 26–28, 30–34, 36–46, and 48–51.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM and designate our affirmance as a NEW GROUND OF
REJECTION pursuant to 37 CFR § 41.50(b) because we rely on findings
and reasoning different from the ones the Examiner provides.

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 the
Hillshire Brands Company. Appeal Br. 3.
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Appellant’s invention “relates generally to the field of
packagings for food products, and more specifically, to packagings for
food products that provide a more convenient means for preparing
(e.g., microwave cooking, etc.) frozen or refrigerated food products
for consumption by consumers.” Spec. ¶ 2. Claim 22, reproduced
below, illustrates the subject matter claimed (formatting added):
22. A packaged food product comprising:
a food product and a package enclosing the food product,
the package comprising a sheet forming a non-hermetic
longitudinal seal, the longitudinal seal comprising:
a first portion of a polymer layer;
a region of a first paper layer;
a region of a second paper layer; and
a second portion of the polymer layer;

wherein the first polymer layer portion is directly bonded
to the second polymer layer portion through the first paper layer
region and the second paper layer region;

the sheet comprising a first general region, a second
general region, and a third general region;

the first general region comprising:
a first section of the polymer layer, which
comprises the first polymer layer portion; and
the first paper layer, which comprises the
first paper layer region;

the second general region comprising:
a second section of the polymer layer, which
comprises the second polymer layer portion; and
the second paper layer, which comprises the
second paper layer region; and

the third general region comprising a third section
of the polymer layer, the first paper layer being spaced apart
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from the second paper layer at the third general region to
expose the third section of the polymer layer therebetween; and

the food product and the package being at a refrigerated
or freezing temperature.

Independent claims 36 and 48 also recite a packaged food
product while independent claim 39 recites a method of making
packaged food product.
Appellant requests review of the following rejections from the
Examiner’s Final Office Action dated September 18, 2019:
I. Claims 22, 23, 27, 30, 32, and 39–45 rejected under 35 U.S.C. §
103 as unpatentable over Matoba (US 4,961,944, issued October 9, 1990),
Sugiyama (US 6,855,356 B2, issued February 15, 2005), Wada (JP
2006151395 A, published June 15, 2006, and relying on an English
translation dated April 2019), Inagaki (JP 05051013 A, published March 2,
1993, and relying on an English machine translation dated May 4, 2019),
and Baldwin Jr. (US 2004/0226834 A1, published November 18, 2004), or
Cichowski (US 2012/0114808, published May 10, 2012), Mir (US
2007/0087096, published April 19, 2007), Owensby (US 2007/0048421 A1,
published March 1, 2007), Tucker (US 2010/0195939 A1, published August
5, 2010), Munson (US 1,868,069, issued July 19, 1932), Harl2 (WO
2007/146640 A2, published December 21, 2007), and Giusti (WO
2008/010147 A2, published January 24, 2008);

II. Claim 26 rejected under 35 U.S.C. § 103 as unpatentable over
Matoba, Sugiyama, Wada, Inagaki, Baldwin, Cichowski, Mir, Owensby,
Tucker, Munson, Harl, Giusti, and Costello (US 3,432,087, issued March 11,
1969);

2 The Examiner refers to the second named inventor Harl instead of the first
named inventor Dorsey when citing to this reference. We continue this
practice to maintain clarity throughout the opinion.
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III. Claim 28 rejected under 35 U.S.C. § 103 as unpatentable over
Matoba, Sugiyama, Wada, Inagaki, Baldwin, Cichowski, Mir, Owensby,
Tucker, Munson, Harl, Giusti, and Savage (US 6,818,873 B2, issued
November 16, 2004);

IV. Claim 31 rejected under 35 U.S.C. § 103 as unpatentable over
Matoba, Sugiyama, Wada, Inagaki, Baldwin, Cichowski, Mir, Owensby,
Tucker, Munson, Harl, Giusti, and either Wantanabe (JP 2001097470 A,
published April 10, 2001, and relying on an English Abstract dated
November 2, 2015) or Johns (US 6,455,084 B2, issued September 24, 2002);

V. Claims 33 and 34 rejected under 35 U.S.C. § 103 as
unpatentable over Matoba, Sugiyama, Wada, Inagaki, Baldwin, Cichowski,
Mir, Owensby, Tucker, Munson, Harl, Giusti, and either Mast (US
6,054,698, issued April 25, 2000) or Savage;

VI. Claims 36–38 and 46 rejected under 35 U.S.C. § 103 as
unpatentable over Matoba, Sugiyama, Wada, Inagaki, Baldwin, Mir,
Owensby, Tucker, Munson, Harl, and Giusti;

VII. Claims 48–50 rejected under 35 U.S.C. § 103 as unpatentable
over Matoba, Sugiyama, Wada, Inagaki, Baldwin, Mir, Owensby, Tucker,
Savage, Munson, Harl, and Giusti; and

VIII. Claim 51 rejected under 35 U.S.C. § 103 as unpatentable over
Matoba, Sugiyama, Wada, Inagaki, Baldwin, Cichowski, Mir, Owensby,
Tucker, Munson, Harl, Giusti, Mitarai (JP 2001171756 A, published June
26, 2001, and relying on an English translation dated May 4, 2019), Mazaki
(JP 11091837 A, published April 6, 1999, and relying on an English
translation dated May 4, 2019), Ueki (JP 2004195757 A, published July 15,
2004, and relying on an English translation dated May 4, 2019), and Komiya
(JP 10152177 A, published June 9,1998, and relying on an English Abstract
dated April 4, 2019).

Appellant presents arguments for claims 22 (Rejection I), dependent
claim 30 (Rejection I), dependent claims 26 (Rejection II), dependent claim
31 (Rejection IV), and dependent claim 51 (Rejection VIII). See generally
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Appeal Br. Appellant relies on these arguments to address the rejections of
the remaining claims. Appeal Br. 41. Accordingly, we select independent
claim 22 as representative of the subject matter claimed. Claims 23, 27, 28,
30, 32–34, 36–46, and 48–50 stand or fall with claim 22. We address the
arguments for claims 26, 30, 31, and 51 separately.

OPINION
Rejection I (claims 22 and 30)
After review of the respective positions Appellant provides in the
Appeal and Reply Briefs and the Examiner provides in the Final Office
Action and the Answer, we AFFIRM the Examiner’s prior art rejections of
claims 22, 23, 27, 30, 32, and 39–45 under 35 U.S.C. § 103 for the reasons
we express below.
Claim 22
The subject matter of independent claim 22 recites a packaged food
product comprising a packaging formed from a sheet and having a non-
hermetic longitudinal seal. The longitudinal seal is formed from two
overlapping portions of the sheet, each portion comprising a polymer layer
portion and a paper layer portion such that the respective polymer layer
portions are directly bonded through the paper layer regions to form the
longitudinal seal.
The Examiner finds that Matoba teaches forming the packaging from
a sheet (laminate) comprising a polymer film and a paper layer. Final Act.
3–4; Matoba Figure 10, col. 8, l. 67–col. 9, l. 10; col. 9, ll. 37–38 (disclosing
a polypropylene-paper laminate). The Examiner finds Matoba discloses
forming a bag-like packaging from a single sheet where the seal is formed
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by sealing overlapping ends of the sheet. Final Act. 3–4; Matoba Figures
1(a), 1(b). Thus, the Examiner finds Matoba teaches making the bag-like
packaging from a sheet comprising first and second overlapping regions
(sealing areas) forming the packaging seal, each comprising a polymer layer
and a paper layer, separated by a third region comprising a polymer layer.
Final Act. 4, 7. While Matoba does not explicitly teach forming the bag-like
packaging with a longitudinal seal, the Examiner finds Sugiyama teaches it
is known to make bag-like packagings using a longitudinal seal. Final Act.
3; Sugiyama Figure 1. Sugiyama also teaches that the longitudinal seal can
comprise a vapor communication means by which one portion of the seal
peels off to release the pressure resulting from the cooking process.
Sugiyama col. 2, ll. 51–56; col. 4, ll. 11–14. Thus, the Examiner finds that
the combined teachings of Matoba and Sugiyama suggest a food packaging
comprising a sheet forming a longitudinal seal as claimed. Final Act. 3.
However, the Examiner finds that the combined teachings of Matoba and
Sugiyama do not teach (1) forming a longitudinal seal by directly bonding a
first polymer layer portion to a second polymer layer portion through a first
paper layer region and a second paper layer region, (2) a non-hermetic seal,
(3) a third general region where a first paper layer is spaced apart from a
second paper layer to expose a third section of a polymer layer
therebetween. Final Act. 4, 6, 7. For difference (1), the Examiner relies on
the teachings of Wada, Inagaki, Baldwin, Mir and Cichowski to teach it is
well known to bond top and bottom polymeric layers to be directly through a
paper or non-woven absorbent material. Final Act. 4–6. For difference (2),
the Examiner relies on the teachings of Tucker, Mir, Owensby, and Inagaki
to teach it is well known to form fin seals that are not hermetic seals. Final
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Act. 6–7. For difference (3), the Examiner relies on the teachings of
Matoba, Munson, Harl, and Giusti to teach a packaging sheet structure
comprising paper portions separated by a third region of polymeric material.
Final Act. 4–6. The Examiner determines that it would have been obvious to
one having ordinary skill in the art to arrive at the claimed invention from
the teachings of the cited art. Final Act. 5–8.
Combined teachings of Matoba and Sugiyama
With respect to the combined teachings of Matoba and Sugiyama,
Appellant argues the seals of Matoba’s packaging are not oriented
longitudinally as claimed. Appeal Br. 19; Matoba Figures (1(b), 5(b), 14.
Appellant further argues a complete reading of Matoba does not describe a
bag with material folded over itself that includes a two-layer material as
claimed because Matoba is silent as to the structure of the seal. Appeal Br.
19. In addition, Appellant contends that Matoba’s food packaging includes
at least one steam controlling opening extending through the thickness of the
receptacle material. Appeal Br. 20; Matoba Figure 1(a); col. 5, ll. 42–44. In
connection with Matoba, Appellant argues, even though Sugiyama teaches
food packagings comprising a longitudinal seal, the material of the
Sugiyama’s packaging is a plastic film and there is no mention of a non-
woven absorbent layer as claimed. Appeal Br. 21–22; Sugiyama col. 4, ll.
39–55. Thus, given this, Appellant asserts the Examiner has not provided an
articulated reasoning why one of ordinary skill in the art would have been
motivated to modify the end seal of Matoba into the longitudinal seal of
Sugiyama. Appeal Br. 21.

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Appellant’s arguments do not identify reversible error in the
Examiner’s determination of obviousness.
First, Matoba describes Figures 1(a), 1(b), 5(a), 5(b), and 14 as
examples of bag-like packaging embodiments of the disclosed invention.
Matoba col. 5, ll. 33–34, col. 13, ll. 37–63, col. 14, ll. 57–65. It is well
settled that a reference may be relied upon for all that it discloses and not
merely the preferred embodiments. See Merck & Co., Inc. v. Biocraft Labs.,
Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“[A]ll disclosures of the prior art,
including unpreferred embodiments, must be considered.”) (quoting In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976)); see also In re Fracalossi, 681
F.2d 792, 794 n.1 (CCPA 1982) (explaining that a prior art reference’s
disclosure is not limited to its examples). The disclosed examples and
preferred embodiments do not constitute a teaching away from a broader
disclosure or non-preferred embodiments. In re Susi, 440 F.2d 442, 446 n.3
(CCPA 1971). Therefore, we decline to limit Matoba’s teachings and
suggestions to the exemplary embodiments comprising non-longitudinal
seals. In addition, as the Examiner explains, Sugiyama teaches a
longitudinal fin seal as a conventional type of seal for packagings. Ans. 4;
Sugiyama Figures 4, 5, 9(a). Appellant fails to explain why one skilled in
the art, using no more than ordinary creativity, would not have been capable
of modifying Manitoba’s bag to comprise a longitudinal seal instead of a
non-longitudinal seal to arrive at the claimed invention. See KSR, 550 U.S.
at 421 (“A person of ordinary skill is also a person of ordinary creativity, not
an automaton.”); see also In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985)

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(presuming skill on the part of one of ordinary skill in the art). Nor has
Appellant explained adequately why a longitudinal seal would not be
suitable for Matoba’s bag-like packaging.
Difference (1): direct bonding through paper layers
The Examiner relies on a plurality of references to address difference
(1). For brevity, we focus on the references to Matoba and Cichowski.3
The Examiner finds Matoba discloses forming a bag-like packaging
from a single sheet where the overlapping ends of the sheet form the seal.
Final Act. 3–4; Matoba Figures 1(a), 1(b). As the Examiner finds, Matoba
discloses forming a bag-like packaging from a single sheet (laminate)
comprising a polymer film and a paper layer where the packaging seal is
formed by sealing the overlapping ends of the sheet. Final Act. 3–4; Matoba
Figures 1(a), 1(b), 10, col. 8, l. 67–col. 9, l. 10; col. 9, ll. 37–38 (disclosing a
polypropylene-paper laminate). One skilled in the art would have
reasonably inferred from this disclosure that folding Matoba’s
polymer/paper laminate would result in the paper layers of each overlapped
end contacting each other. Given that Matoba teaches sealing the
overlapping ends to forms the packaging (Matoba col. 13, ll. 42–54), one
skilled in the art would have also reasonably inferred that the polymer
directly bonds the overlapping sealing areas through the paper layers. See In

3 Cichowski is Appellant’s own prior art. Appellant does not contest the
Examiner’s determination that Cichowski is prior art against the subject
matter of claims 22, 26–28, 30–34, 38–46, and 48–51 in neither the Appeal
or Reply Briefs. Final Act. 5; see generally Appeal Br. and Reply Br. Nor
does Appellant present substantive arguments against Cichowski in the
Appeal and Reply Briefs. See generally Appeal Br. and Reply Br.
However, we address Appellant’s arguments to the extent applicable to
Cichowski.
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re Fritch, 972 F.2d 1260, 1264–65 (Fed. Cir. 1992) (holding that a reference
stands for all of the specific teachings thereof as well as the inferences one
of ordinary skill in the art would have reasonably been expected to draw
therefrom). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(“the [, obviousness] analysis need not seek out precise teachings directed to
the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ”).
In addition, Cichowski discloses forming a packaging by sealing two
films 22, 24 together via seal portion 26 by way of melting a portion of an
intervening absorbent layer 36 that includes a paper side and a polymer
based side. Cichowski Figures 2 and 3, ¶¶ 21–22. Cichowski discloses
forming the seal such that the polypropylene fibers present in absorbent
layer 36 at least partially melt during the heat-sealing process to bond the
films 22, 24 together through the paper-based layer of absorbent layer 36.
Cichowski ¶ 22. Cichowski also discloses that seal 26 can be a non-
hermetic seal that provides a self-venting feature for the packaged food
product. Cichowski ¶25, 30, 31. Thus, Cichowski teaches the technique of
bonding polymer films through a paper layer as a known technique for
forming a packaging. Therefore, we agree with the Examiner’s
determination that it would have been obvious to one of ordinary skill in the
art to modify the packaging from the combined teachings of Matoba and
Sugiyama by sealing overlapped sealing areas having paper layers between
the polymer layers to form the longitudinal seal, as taught by Matoba and
Cichowski, to attain the seal strength that will also provide a self-venting
feature. Final Act. 6; Ans. 11.
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The premise of Appellant’s arguments is that the packaging structures
and materials of the secondary references are different from Matoba’s
structure and materials. Appeal Br. 23. Specifically, Appellant contends
that the prior art packagings are formed from two sheets of different material
and do not have a longitudinal seal comprising a non-woven absorbent layer
and paper regions as claimed. Appeal Br. 23. In view of this, Appellant
asserts the cited art does not teach bonding directly two polymer layer
portions through first and second paper regions as claimed. Appeal Br. 23.
Thus, Appellant argues there is no reason for one of ordinary skill in the art
to modify the structure of Matoba in view of the teachings of the prior art.
Appeal Br. 23.
We have considered Appellant’s arguments with respect to difference
(1) but are unpersuaded of reversible error in the Examiner’s conclusion of
obviousness.
As we discuss above, Matoba suggests a seal from portions of a bag-
like packaging having polymer and paper layers overlapping each other and
Cichowski discloses the technique by which Appellant forms the packaging
seal. While Cichowski uses two layers to form the packaging, Appellant
does not explain why one skilled in the art, using no more than ordinary
creativity, would not have been capable of adapting Cichowski’s technique
to form a longitudinal seal of the packaging from the combined teachings of
Matoba and Sugiyama. See KSR, 550 U.S. at 421; Sovish, 769 F.2d at 743.
Appellant fails to explain sufficiently why the structure of a packaging
would limit the practice of a particular sealing technique. In addition,
Appellant has not explained adequately why Cichowski’s technique would
be unsuitable to form such a longitudinal seal.
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Although Cichowski exemplifies a single paper layer, Manitoba
suggests overlapping the paper layers to from the seal, as we discuss above.
Moreover, Cichowski also discloses “the presence of papers fibers in the
seal area can be increased or decreased to control the strength of the seal.”
Cichowski ¶ 31. Given this disclosure, Appellant fails to explain why one
skilled in the art would not have been capable using additional paper
portions in the seal area as needed. Nor does Appellant direct us to any
objective evidence as to why more than one paper portion is critical for the
invention.
Difference (2): non-hermetic seal
Appellant argues the seal of Matoba’s packaging is a hermetic seal
because steam escapes through steam controlling openings rather than
through the seal and describes the seal as bursting when subjected to an
elevated pressure. Appeal Br. 19–20; Matoba col. 13, ll. 28–32. Appellant
also argues the seal of Sugiyama’s packaging is a hermetic seal because it
has a property of “tight sealing” and a lowered peeling condition because of
the properties of the plastic material at elevated temperatures. Appeal Br.
22; Sugiyama, col. 4, ll. 60–65.
Appellant’s arguments do not persuade us of reversible error in the
Examiner’s determination of obviousness.
We first note that Appellant’s argument that Sugiyama discloses a
hermetic seal misapprehends the reference’s disclosure. As we discuss
above, Sugiyama teaches the longitudinal seal can comprise a vapor
communication means by which one portion of the seal peels off to release
the pressure resulting from the cooking process. Sugiyama col. 2, ll. 51–56;
col. 4, ll. 11–14. Thus, this disclosure is in fact describing a non-hermetic
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seal.
As we also discuss above, Cichowski teaches the benefit of providing
a packaging with a non-hermetic seal. Cichowski ¶ 25. In addition,
Cichowski discloses an embodiment providing one or more perforations
(micro-perforations) to the inner and outer layers of the packaging to provide
vent portions in combination with a seal that provides self-venting features.
Cichowski ¶¶ 41, 44, 47.
Given the disclosures of Sugiyama and Cichowski, Appellant does not
explain why one skilled in the art, using no more than ordinary creativity,
would not have been capable of adapting Cichowski’s technique to form the
non-hermetic longitudinal seal of the packaging of the combined teachings
of Matoba and Sugiyama. See KSR, 550 U.S. at 421; Sovish, 769 F.2d at
743. In addition, Appellant has not explained adequately why Cichowski’s
technique would be unsuitable to form such a longitudinal seal.
Appellant’s argument that Matoba includes steam controlling
openings is also unavailing because the language of claim 22, drafted using
the transitional language “comprising,” does not exclude the presence of
other forms of vents. Appeal Br. 19. In fact, we note that the embodiment
recited in claim 26, which depends from claim 22, includes additional
openings.
Difference (3): sheet structure having a third general region of
exposed polymeric material separating the paper layers

Claim 22 recites a sheet for the packaging comprising the sheet
comprising a first general region comprising a first polymer/paper layered
arrangement defining a first sealing area, a second general region comprising
a second polymer/paper layered arrangement defining a second sealing area,
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and a third general region comprising an exposed polymer layer where the
third region essentially is between the first and second regions separating the
two sealing areas.
As we note above, the Examiner finds Matoba teaches making a bag-
like packaging from a sheet comprising first and second regions (sealing
areas), each comprising a polymer layer and a paper layer, separated by a
third region comprising a polymer layer. Final Act. 4, 7. The only
difference between Matoba’s sheet and the claimed sheet is that Matoba
does not specify a polymeric region that is exposed. That is, Matoba does
not clearly disclose the polymer layer of the third region as not comprising
paper.
The Examiner relies on the teachings of Munson, Harl, and Giusti to
establish that it is known to provide a transparent (exposed) region in a
packaging article to allow viewing into a packaging while also reinforcing
the packaging. Final Act. 8; Munson Figure 12; 1, ll. 81–94; Harl ¶¶ 61, 68;
Giusti 4, ll. 18–25. The Examiner determines that it would have been
obvious to one of ordinary skill in the art to modify the packaging from the
combined teachings of Matoba and Sugiyama to provide a transparent
(exposed) polymer layer between the packaging’s sealing areas to provide
visibility into the interior of the packaging. Final Act. 8.
The premise of Appellant’s arguments against the additionally cited
references is that they involve materials that are different from Matoba’s
material. Appeal Br. 29–30.
Appellant’s arguments do not point to reversible error in the
Examiner’s rejection.

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Contrary to Appellant’s contentions, the Examiner is not seeking to
replace the material from the packaging of the combined teachings of
Matoba and Sugiyama with the materials of the additionally discussed prior
art. Instead, the Examiner cites Munson, Harl, and Giusti as evidence that
the concept of providing a bag-like packaging with a viewing window is
well within the skill of the ordinary artisan. Ans. 6–7. Thus, Appellant does
not address the rejection the Examiner presents. Appellant does not explain
why one skilled in the art, using no more than ordinary creativity, would not
have been capable of modifying the packaging from the combined teachings
of Matoba and Sugiyama to incorporate an exposed section of polyolefin
material as a viewing window, as taught by Munson, Harl, and Giusti, and
reasonably expect that the modified packaging would still be suitable for the
purposes of Matoba and Sugiyama. See KSR, 550 U.S. at 421; Sovish, 769
F.2d at 743.
Claim 30
Claim 30 recites a packaged food product further comprising a tray
disposed within the packaging to support the food product for viewing by an
observer through the third general section.
The Examiner finds the combined teachings of Matoba, Harl,
Munson, and Giusti would have led one skilled in the art to a packaged food
product comprising the subject matter of claim 30. Final Act. 9–10.
In arguing this rejection, Appellant focuses on the reference to
Watanabe. Appeal Br. 36–37. However, the Examiner does not rely on
Watanabe to address the subject matter of claim 30. Final Act. 2–3.
Therefore, Appellant’s arguments do not address the rejection the Examiner
presents and, thus, fail to identify reversible error in the Examiner’s
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conclusion of obviousness.
We have also considered Appellant’s arguments regarding the
Examiner allegedly benefitting from impermissible hindsight in arriving at
the claimed invention. Appeal Br. 30–31. These arguments are, however,
unavailing in view of the teachings of Cichowski and the reasons we provide
above.
Accordingly, we affirm the Examiner’s rejection of claims 22, 23, 27,
30, 32, and 39–45 under 35 U.S.C. § 103 for the reasons the Examiner
presents and we give above.

Rejection II (claim 26)
Claim 26 recites a packaged food product where the sheet defines a
plurality of micro-perforations in the exposed polymer layer of the third
general region.
As we discuss above, Cichowski discloses an embodiment providing
one or more perforations (micro-perforations) to the inner and outer layers of
a packaging to provide vent portions in combination with a seal that
provides self-venting features. Cichowski ¶¶ 41, 44, 47.
We have considered Appellant’s arguments with respect to this
rejection (Appeal Br. 34–35); however, none of these arguments addresses
the teachings of Cichowski. Accordingly, we affirm the rejection of claim
26 under 35 U.S.C. § 103 for the reasons we give above.

Rejection IV (claim 31)
Claim 31 recites further features for the tray of claim 30. In
particular, claim 31 recites the tray as placed over the longitudinal seal.
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The Examiner relies on Matoba and the additional references to
Watanabe and Johns to address these features. Final Act. 13–14.
We have considered Appellant’s arguments for this rejection in full.
Appeal Br. 36–37. The premise of Appellant’s rejection is that Watanabe
and Johns do not suggest placing a tray over a non-hermetic longitudinal
seal because Watanabe already provides vents elsewhere and Johns does not
require vents. Appeal Br. 36–37.
Appellant’s arguments are unpersuasive of reversible error in the
Examiner’s determination of obviousness.
We first note that claim 31 ultimately depends from claim 22. As we
note above, the language of claim 22, drafted using the transitional language
“comprising,” does not exclude the presence of other forms of vents.
Moreover, Appellant does not explain adequately why the presence or
absence of vents necessarily dictates the placement of a tray in a bag-like
packaging. As the Examiner explains, placement of a tray over a
longitudinal seal of a packaging is a well-known arrangement for a packaged
food product. Ans. 27. Appellant has not explained adequately why this
arrangement would be unsuitable for the packaging resulting from the
combined teachings of Matoba and Sugiyama.
Accordingly, we affirm the rejection of claim 31 under 35 U.S.C.
§ 103 for the reasons the Examiner presents and we give above.

Rejection VIII (claim 51)
Claim 51 recites the method of claim 44 comprising the step of
placing the refrigerated or freezing packaged food product in a microwave
oven such that at least a portion of the non-hermetic longitudinal seal is
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disposed directly underneath the food product and microwaving the
packaged food product.4
The Examiner relies on the additional references to Mitarai, Mazaki,
Ueki, and Komiya to teach it is conventional to make a packaged food
product such that a portion of a longitudinal seal of the packaging is
disposed directly underneath the food product when placed in microwave
oven. Final Act. 19. The Examiner finds that it would have been obvious to
one of ordinary skill in the art to modify the packaging from the combined
teachings of Matoba and Sugiyama by arranging the food product over a
portion of a longitudinal seal, as taught by the additional references, for
microwaving the food product. Final Act. 19–20.
Appellant argues that none of the additional references cited describe
a non-hermetic longitudinal seal as claimed. Appeal Br. 38. Appellant’s
remaining arguments address the structure of the packagings disclosed by
the additionally cited references. Appeal Br. 38–39.
Appellant’s arguments are unpersuasive of reversible error in the
Examiner’s determination of obviousness.
The Examiner cited the additional references to establish that the
cooking technique for a packaged food product where a seal from the
packaging is partially disposed underneath a food product is known. Ans.
28–29. Appellant fails to explain adequately why this cooking technique
would be unsuitable for practice with the packaged food product from the
combined teachings of Matoba and Sugiyama where that food product is
packaged by placing it over the longitudinal seal. Appellant also fails to

4 Appellant did not argue the rejection of claim 44 separately. See generally
Appeal Br. Thus, claim 44 stand or falls with claim 22.
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explain why the structure of the prior art packagings would necessarily limit
the orientation of the food product within the packaging.
Accordingly, we affirm the rejection of claim 51 under 35 U.S.C.
§ 103 for the reasons the Examiner presents and we give above.

CONCLUSION
The Examiner’s rejections of claims 22, 23, 26–28, 30–34, 36–46, and
48–51 under 35 U.S.C. § 103 are affirmed.
We designate our affirmance as a NEW GROUND OF REJECTION
pursuant to 37 CFR § 41.50(b) because we rely on findings and reasoning
different from the ones the Examiner provides.

DECISION SUMMARY
In summary:

Claims
Rejected
35 U.S.C.
§ References/Basis Affirmed Reversed
New
Ground
22, 23, 27,
30, 32,
39–45
103 Matoba, Sugiyama, Wada,
Inagaki, Baldwin,
Cichowski, Mir, Owensby,
Tucker, Munson, Harl,
Giusti
22, 23, 27,
30, 32,
39–45
22, 23, 27,
30, 32,
39–45
26 103 Matoba, Sugiyama, Wada,
Inagaki, Baldwin,
Cichowski, Mir, Owensby,
Tucker, Munson, Harl,
Giusti, Costello
26 26
28 Matoba, Sugiyama, Wada,
Inagaki, Baldwin,
Cichowski, Mir, Owensby,
Tucker, Munson, Harl,
Giusti, Savage
28 28

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Claims
Rejected
35 U.S.C.
§ References/Basis Affirmed Reversed
New
Ground
31 Matoba, Sugiyama, Wada,
Inagaki, Baldwin,
Cichowski, Mir, Owensby,
Tucker, Munson, Harl,
Giusti, Watanabe, Johns
31 31
33, 34 Matoba, Sugiyama, Wada,
Inagaki, Baldwin,
Cichowski, Mir, Owensby,
Tucker, Munson, Harl,
Giusti, Mast, Savage
33, 34 33, 34
36–38, 46 Matoba, Sugiyama, Wada,
Inagaki, Baldwin, Mir,
Owensby, Tucker,
Munson, Harl, Giusti
36–38, 46 36–38, 46
48–50 Matoba, Sugiyama, Wada,
Inagaki, Baldwin, Mir,
Owensby, Tucker, Savage,
Munson, Harl, Giusti
48–50 48–50
51 103 Matoba, Sugiyama, Wada,
Inagaki, Baldwin,
Cichowski, Mir, Owensby,
Tucker, Munson, Harl,
Giusti, Mitarai, Mazaki,
Ueki, Komiya
51 51
Overall
Outcome
22, 23,
26–28,
30–34,
36–46,
48–51

22,23,
26–28,
30–34,
36–46,
48–51

TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
Section 41.50(b) also provides:
When the Board enters such a [Final] decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
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(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. The new ground of rejection
is binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the
opinion of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under §41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.

Further guidance on responding to a new ground of rejection can be
found in MPEP § 1214.01.
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) (2018).

AFFIRMED IN PART; 37 C.F.R. § 41.50(b)