The Hillshire Brands Company

Patent Trials and Appeals Board

Jan 14, 2022

2020006665 (P.T.A.B. Jan. 14, 2022)

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. 15/994,912 05/31/2018 Benjamin M. Cichowski G2292-00150 1416 154352 7590 01/14/2022 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 01/14/2022 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 BENJAMIN M. CICHOWSKI and JEFFREY ANTHONY CZARNY ____________ Appeal 2020-006665 Application 15/994,912 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 1-20, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 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. Appeal 2020-006665 Application 15/994,912 2 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 1, reproduced below, illustrates the subject matter claimed (formatting added): 1. A microwavable food packaging configured to absorb fluid, the packaging comprising: a first sheet comprising a first polymeric layer, the first sheet defining an upper portion of a food pocket; a flexible second sheet comprising an absorbent layer, the absorbent layer comprising a paper-based side and a polymer- based side, the paper-based side comprising paper fibers, the paper-based side defining a bottom of the food pocket and being configured to absorb fluid released from food disposed within the food pocket; the first polymeric layer being bonded to the polymer- based side through the paper-based side to form a non-hermetic seal, the non-hermetic seal enabling passage of fluid therethrough; and wherein the non-hermetic seal comprises stronger portions and weaker portions disposed in an alternating relationship such that each stronger portion is disposed between two weaker portions. Independent claim 11 recites a method of making the packaging of claim 1. Appeal 2020-006665 Application 15/994,912 3 Appellant requests review of the following rejections from the Examiner’s Final Office Action dated November 27, 2019: I. claims 1-4, 9-15, and 18-20 rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Wada (JP 2006151395 A, published June 15, 2006, and relying on an English translation dated April 2019), Matoba (US 4,961,944, issued October 9, 1990), Inagaki (JP 05051013 A, published March 2, 1993, and relying on an English machine translation dated April 4, 2019), Darnett (US 6,270,873 B1, issued August 7, 2001), Roberts (US 2005/0004541 A1, published January 6, 2005), Yamada (JP 08040466 A, published February 13, 1996, and relying on an English machine translation dated August 5, 2019), Jones (US 2009/0202756 A1, published August 13, 2009), and Frenzel (EP 1422164 Al, published May 26, 2004, and relying on an English machine translation dated August 5, 2019); II. claims 5-8 rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Wada, Matoba, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Monforton (US 2003/0044491 A1, published March 6, 2003), Thomas (US 2010/0266732 A1, published October 21, 2010), Madai (US 2012/0205381 A1, published August 16, 2012), Sakurai (WO 2008056690 A1, published May 15, 2008 and relying on an English machine translation dated May 9, 2019), Fensham (US 6,076,673, issued June 20, 2000), and Fujimura (WO 2007/018300 A1, published February 15, 2007, and relying on US 2009/0250466 A1 to Fujimira, published October 8, 2009, as the English equivalent); and III. claims 16 and 17 rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Wada, Matoba, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, and Wright (US 2005/0133501 A1, published June 23, 2005). In addition, the Examiner maintains the following rejection from the Examiner’s Final Office Action:2 IV. claims 1-4, 9-15, and 18-20 rejected on the ground of nonstatutory double patenting as unpatentable over claims 1 and 2 of 2 In the Answer, the Examiner states “[e]very ground of rejection set forth in the Office action dated November 27, 2019 from which the appeal is taken is being maintained by the [E]xaminer.” Ans. 3. Appeal 2020-006665 Application 15/994,912 4 Cichowski (US 9,988,200 B2, issued June 5, 2018) in view of Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel. V. claims 5, 6, and 8 rejected on the ground of nonstatutory double patenting as unpatentable over claims 1 and 2 of Cichowski in view of Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Monforton, Thomas, Madai, Sakurai, Fensham, and Fujimura; VI. claim 7 rejected on the ground of nonstatutory double patenting as unpatentable over claims 1 and 2 of Cichowski in view of Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Monforton, Thomas, Madai, Sakurai, Fensham, and Fujimura; VII. claims 16 and 17 rejected on the ground of nonstatutory double patenting as unpatentable over claims 1 and 2 of Cichowski in view of Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, and Wright; VIII. claims 1, 3, 4, 9-15, and 18-20 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 1-12, 15-17, 19, and 21-30 of copending Application No. 15/785,194, in view of Yamada, Jones, and Frenzel; IX. claim 2 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 1-12, 15-17, 19, and 21-30 of copending Application No. 15/785,194, in view of Wada and Inagaki; X. claims 5, 6, and 8 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 1-12, 15-17, 19, and 21-30 of copending Application No. 15/785,194, in view of Monforton, Thomas, Madai, Sakurai, Fensham, and Fujimura; XI. claim 7 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 1-12, 15-17, 19, and 21-30 of copending Application No. 15/785,194, in view of Yamada, Jones, and Frenzel; Appeal 2020-006665 Application 15/994,912 5 XII. claims 16 and 17 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 1-12, 15-17, 19, and 21-30 of copending Application No. 15/785,194, in view of Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, and Wright; XIII. claims 1-4, 9-15, 18, and 19 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 36 and 48-50 of copending Application No. 14/304,846, in view of Wada, Inagaki, Darnett, Roberts, Yamada, Jones, and Frenzel; XIV. claims 5, 6, and 8 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 36 and 48-50 of copending Application No. 14/304,846, in view of Monforton, Thomas, Madai, Sakurai, Fensham, and Fujimura; XV. claim 7 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 36 and 48-50 of copending Application No. 14/304,846, in view of Yamada, Jones, and Frenzel; XVI. claims 16 and 17 provisionally rejected on the ground of nonstatutory double patenting as unpatentable over claims 36 and 48-50 of copending Application No. 14/304,846, in view of Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, and Wright. For Rejection I, Appellant presents arguments for claims 1, 3, 15, and 20. See generally Appeal Br. Appellant also presents arguments for separately rejected claims 5-8 (Rejection II). Id. Appellant relies on these arguments to address the prior art rejections of the remaining claims. Id. Accordingly, we select independent claim 1 as representative of the subject matter claimed. Claims 2, 4, 9-14, and 16-19 stand or fall with claim 1. We address the arguments for claims 3, 5-8, 15, and 20 separately. Appeal 2020-006665 Application 15/994,912 6 OPINION Rejection I (claims 1, 3, 15, 20) 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 rejection of claims 1-4, 9-15, and 18-20 under 35 U.S.C. § 103(a) for the reasons the Examiner presents and we express below. Claim 1 The subject matter of independent claim 1 recites a microwavable food packaging configured to absorb fluid, the packaging comprising a first sheet comprising a first polymeric layer and a flexible second sheet comprising an absorbent layer having a paper-based side and a polymer- based side. Claim 1 also recites that the first polymeric layer and the second sheet are bonded through the paper-based side to form a non-hermetic seal that enables passage of fluid therethrough. In addition, claim 1 recites the seal as a non-hermetic seal comprising stronger portions and weaker portions disposed in an alternating relationship such that each stronger portion is disposed between two weaker portions. The Examiner finds that the combined teachings of Wada, Inagaki, Matoba, Darnett, and Roberts suggest a food package formed by sealing a first sheet having food pocket and a second sheet including an absorbent layer with a paper-based side and a polymer-based side. Final Act. 3-5. The Examiner finds that the combined teachings of Wada, Inagaki, Matoba, Darnett, and Roberts also suggest a package having a non-hermetic seal. Id. at 5-6. The Examiner finds that the combined teachings of Wada, Inagaki, Matoba, Darnett, and Roberts do not suggest a non-hermetic seal comprising Appeal 2020-006665 Application 15/994,912 7 alternating stronger and weaker portions as claimed. Id. at 6. The Examiner relies on the individual teachings of Yamada, Jones, and Frenkel to teach it is well-known to provide a packaging with a seal comprising the claimed alternating stronger and weaker portions. Id. at 6-7. The Examiner determines it would have been obvious to one skilled in the art to arrive at the claimed invention from the teachings of the cited art to control the venting of steam and pressure during microwave cooking. Id. at 6. Appellant argues the Examiner fails to provide a pinpoint citation to any portion of Wada that supports the position that Wada describes the claimed non-hermetic seal. Appeal Br. 18-19. According to Appellant, there is no contemplation or mention of a seal that includes stronger and weaker portions disposed in an alternating relationship absent impermissible hindsight. Id. at 19-20. Appellant’s arguments do not identify reversible error in the Examiner’s determination of obviousness because the arguments principally attack Wada individually and, therefore, do not address adequately the rejection the Examiner presents. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“[T]he test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”); 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”). The Examiner did not rely on Wada to teach the claimed seal structure of alternating weaker and stronger portions. Final Act. 6. Instead, the Appeal 2020-006665 Application 15/994,912 8 Examiner explains Wada teaches a packaging comprising a film layer 31 and front film 2 sealed together, where the sealed films 31 and 2 separate from each other to form a gap that allows steam to escape from the package. Ans. 4; Wada ¶ 22. In fact, Wada discloses the fiber of the middle non-woven film 32 remains adhered to the film layer 31 and the front surface film 2 to provide a gap sufficient to maintain the internal pressure at a moderate level. Wada ¶ 22. One skilled in the art would have reasonably inferred from Wada’s disclosure that the disclosed seal is a non-hermetic seal. See In 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”). Further, one skilled in the art would also infer that the gap is defined by a weaker portion of the seal flanked by two stronger portions. Thus, the Examiner relies on Wada to teach a packaging similar to the claimed invention except for the non-hermetic seal structure. As we note above, the Examiner relies on the additional references to Jones, Yamada, and Frenkel to address the feature of the claimed seal structure. For brevity, we focus on the reference to Jones as representative of the teachings of the additional references. Appellant argues Jones is directed to a packaging with a vent region. Appeal Br. 22. According to Appellant, Jones teaches a hermetic seal having a film-to-film seal portion and a lacquered portion. Appeal Br. 22; Appeal 2020-006665 Application 15/994,912 9 Jones ¶ 4. Appellant also contends that Jones discloses the overall seal has a seal strength between the film-to-film portions comparable to the seal strength at the lacquered portions at storage temperatures. Appeal Br. 22- 23. Appellant’s arguments do not persuade us of reversible error in the Examiner’s determination of obviousness. While Appellant argues that Jones teaches a hermetic seal, Appellant also recognizes that Jones discloses the lacquered portions of the seal peel to vent the enclosure when the packaging is heated to allow pressurized steam and gases to escape from within the packaging. Appeal Br. 22-23; Jones ¶¶ 4, 12. Thus, one skilled in the art would have reasonably inferred from Jones’s disclosure that the seal described is a non-hermetic seal. See Fritch, 972 F.2d at 1264-65; KSR, 550 U.S. at 418. Thus, Appellant fails to explain adequately why one skilled in the art would not understand Jones’s packaging seal to be non-hermetic. Appellant’s arguments also fails to address the Examiner’s specific findings with respect to Jones suggesting a seal structure comprising alternating stronger (film-to-film seal) and weaker (lacquered) portions where the weaker portions provide venting passages when heated. Final Act. 6; Ans. 4-5. Nor does Appellant explain why Jones’s seal structure would be unsuitable for Wada’s packaging and purposes. Claims 3, 15, and 20 Article claim 3 recites that the stronger portions comprise a lesser density of paper fibers than the weaker portions. Method claims 15 and 20 Appeal 2020-006665 Application 15/994,912 10 recite limitations substantially similar to the subject matter of claim 3.3 We therefore limit our discussion to claim 3 as representative of the subject matter claimed. In essence, the subject matter of claim 3 recites a seal formed by providing an intervening material between the first and second sheets that will result in sealing regions of weaker strength in certain portions of the seal while leaving other regions of stronger strength in the remaining portions of the seal. We first note that Jones teaches the concept of providing a weakened portion of a package seal by using an intervening material (lacquer) between the films forming the package while not providing the intervening material to the remaining portions of the seal. Jones ¶¶ 4, 13. Thus, Jones provides the skilled artisan with guidance on how to vary the strength of different regions of a seal in an alternating arrangement. Appellant’s arguments do not explain why Jones’s teachings would not have led one skilled in the art to modify the seal of Wada to provide regions with higher or lesser density of other intervening materials, such as paper fibers, to ensure that the package seals strongly in some regions while having portions of weaker strength to provide venting mechanisms. Even more so given both Wada and Jones desire to control the internal pressure within the package when heated. Wada ¶ 22; Jones ¶ 12. 3 We note that claims 15 and 20 depend ultimately from independent method claim 11. Appellant relies on the arguments presented for claim 1 to address the rejection of claim 11. Appeal Br. 18. Thus, claim 11 stand or falls with claim 1. Appeal 2020-006665 Application 15/994,912 11 We have also considered Appellant’s arguments regarding the Examiner allegedly benefitting from impermissible hindsight in arriving at the claimed invention. Appeal Br. 27-28. These arguments are, however, unavailing for the reasons the Examiner provides and we give above. Ans. 6-7. Accordingly, we affirm the Examiner’s rejection of claims 1-4, 9-15, and 18-20 under 35 U.S.C. § 103(a) for the reasons the Examiner presents and we give above. Rejection II (claims 5-8) Claim 5 recites a packaging having two non-hermetic seals, with one enclosing the other. Claims 6-8 recite different arrangement configurations for the two non-hermetic seals. The Examiner relies on the teachings of Monforton, Thomas, Madai, Sakurai, Fensham, and Fujimura to address the features of claims 5-8. Final Act. 10-13. We have considered Appellant’s arguments with respect to the rejection of claims 5-8 in full. Appeal Br. 28-31. However, Appellant’s arguments do not persuade us of reversible error in the Examiner’s determination of obviousness. Appellant’s arguments attack the additionally cited references individually and, therefore, do not address adequately the rejection the Examiner presents. Merck, 800 F.2d at 1097 (Fed. Cir. 1986); Keller, 642 F.2d at 425; KSR, 550 U.S. at 418. The Examiner relies on the additionally cited references to establish that it is conventional to provide microwavable packaging with multiple seals where one seal encloses another seal. See Appeal 2020-006665 Application 15/994,912 12 Sakurai Figure 1; see also Fensham Figures 1, 4. Appellant fails to explain why the sealing arrangement taught by the additionally cited art would have been unsuitable for the packaging from the combined teachings of Wada and Jones discussed above. Accordingly, we affirm the rejection of claims 5-8 under 35 U.S.C. § 103(a) for the reasons the Examiner presents and we give above. Rejections IV-XVI Appellant does not present arguments for Rejections IV-XVI in the Appeal or Reply Briefs. However, we note that Appellant requested to defer these rejections to a later time. Appellant Response dated August 13, 2019 (hereinafter “Appellant Resp.”), 13-15. We also note that Appellant appears to have filed a terminal disclaimer to address some of these rejections. Appellant Resp., 13. However, the prosecution history does not include any record of such terminal disclaimer or of its handling by the USPTO. In view of the above, we summarily sustain these rejections. See Manual of Patent Examining Procedure (MPEP) § 1205.02 (2017) (“If a ground of rejection stated by the examiner is not addressed in the appellant’s brief, appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it.”); see also Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to present arguments on a particular issue-or more broadly, on a particular rejection-the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.”). Appeal 2020-006665 Application 15/994,912 13 CONCLUSION The Examiner’s prior art rejections of claims 1-20 under 35 U.S.C. § 103(a) are affirmed. The Examiner’s prior art rejections on the grounds of nonstatutory double patenting and provisional nonstatutory double patenting are summarily affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1-4, 9-15, 18-20 103 Wada, Matoba, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel 1-4, 9-15, 18-20 5-8 103 Wada, Matoba, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Monforton, Thomas, Madai, Sakurai, Fensham, Fujimura 5-8 16, 17 103 Wada, Matoba, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Wright 16, 17 1-4, 9-15, 18-20 Cichowski, Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel. 1-4, 9-15, 18-20 Appeal 2020-006665 Application 15/994,912 14 5, 6, 8 Cichowski, Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Monforton, Thomas, Madai, Sakurai, Fensham, Fujimura 5, 6, 8 7 Cichowski, Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Monforton, Thomas, Madai, Sakurai, Fensham, Fujimura 7 16, 17 Cichowski, Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Wright 16, 17 1, 3, 4, 9- 15, 18-20 A. N. 15/785,194, Yamada, Jones, Frenzel 1, 3, 4, 9- 15, 18-20 2 A. N. 15/785,194, Wada, Inagaki 2 5, 6, 8 A. N. 15/785,194, Monforton, Thomas, Madai, Sakurai, Fensham, Fujimura 5, 6, 8 7 A. N. 15/785,194, Yamada, Jones, Frenzel 7 16, 17 A. N. 15/785,194, Wada, Inagaki, 16, 17 Appeal 2020-006665 Application 15/994,912 15 Darnett, Roberts, Yamada, Jones, Frenzel, Wright 1-4, 9-15, 18, 19 A. N. 14/304,846, Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel 1-4, 9-15, 18, 19 5, 6, 8 A. N. 14/304,846, Monforton, Thomas, Madai, Sakurai, Fensham, Fujimura 5, 6, 8 7 A. N. 14/304,846, Yamada, Jones, Frenzel 7 16, 17 A. N. 14/304,846, Wada, Inagaki, Darnett, Roberts, Yamada, Jones, Frenzel, Wright 16, 17 Overall Outcome 1-20 Appeal 2020-006665 Application 15/994,912 16 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