Timothy H. Bohrer

Patent Trials and Appeals Board

Aug 9, 2019

13454511 - (D) (P.T.A.B. Aug. 9, 2019)

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.
13/454,511 04/24/2012 Timothy H. BOHRER R029 16660US.1 7790
26158 7590 08/09/2019
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
EXAMINER
CHEN, KUANGYUE
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
08/09/2019 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):
BostonPatents@wbd-us.com
IPDocketing@wbd-us.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TIMOTHY H. BOHRER
____________

Appeal 2017-010044
Application 13/454,511
Technology Center 3700
____________

Before JILL D. HILL, GEORGE R. HOSKINS, and SEAN P. O’HANLON,
Administrative Patent Judges.

HOSKINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Timothy H. Bohrer (“Appellant”)1 appeals under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 33–64 in this application,
after claims 1–32 were withdrawn. See Final Act., Form PTOL-326 (#5);
Appeal Br. (Claims App.). The Board has jurisdiction over the appeal under
35 U.S.C. § 6(b).
We REVERSE.

1 Graphic Packaging International, Inc. is identified as the real party in
interest. Appeal Br. 1.
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Application 13/454,511

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CLAIMED SUBJECT MATTER
The independent claims are claims 33, 42, 52, and 60. Claim 33
illustratively recites, with our emphasis added:
33. A package for use with microwave heating, the package
comprising:
a first panel, a second panel, and a third panel; at least a
portion of each of the first panel, the second panel, and the third
panel being formed from a barrier material that is substantially
transparent to microwave energy;
the first panel and the second panel being joined in a facing
relationship and being joined together along upper edges and side
edges;
the third panel being joined to the first panel and the
second panel along lower edges of the first panel and the second
panel; and
the first panel, the second panel, and the third panel
together defining an interior space having a lower region
proximate the third panel and an upper region distal from the
third panel,
wherein the first panel and the second panel each include
a microwave energy interactive area that is spaced from the third
panel, the microwave energy interactive area being formed of a
second material that is adapted to reflect substantially all
microwave energy.
Appeal Br. 36 (Claims App.) (emphasis added).
REJECTIONS ON APPEAL
Claims 33–40, 42–47, 49–55, 57–62, and 64 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Cole (US 2009/0272736 A1, pub.
Nov. 5, 2009) and Fitzwater (WO 2009/023286 A1, pub. Feb. 19, 2009).
Claims 41 and 48 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Cole, Fitzwater, and Peterson (US 2002/0100755 A1, pub.
Aug. 1, 2002).
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Claims 56 and 63 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Cole, Fitzwater, and Brown (US 4,626,641, iss. Dec. 2,
1986).
OPINION
A. Obviousness over Cole and Fitzwater
In rejecting claim 33 as unpatentable over Cole and Fitzwater, the
Examiner cites Cole’s Figure 8 as disclosing package 10ʹʹ comprising first
panel 30, second panel 35, and third panel 75. Final Act. 3; see Cole ¶ 26
(describing package 10ʹʹ). The Examiner finds first and second panels 30
and 35 both include a microwave energy interactive area formed from a
material that reflects microwaves, which is spaced from third panel 75.
Final Act. 3–4, 31 (citing Cole ¶¶ 29, 41). In particular, the Examiner
“interprets ‘microwave energy interactive material may be applied to the
substrate in any pattern - as a [discontinuous] layer or coating, islands, and
so forth’ under” Cole ¶ 41. Id. at 3–4, 31 (citing In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)). The Examiner determines
Cole’s panels 30, 35, and 75 do not include, as is required by claim 33, a
barrier material that is substantially transparent to microwave energy, and
relies on Fitzwater for that disclosure, concluding that a combination of Cole
and Fitzwater would have been obvious. Id. at 4, 30–31.
Appellant contends the Examiner errs in finding Cole’s first and
second panels 30 and 35 include a microwave energy interactive area that is
spaced from third panel 75. Appeal Br. 23–25. According to Appellant,
Cole discloses that the “entire package” 10ʹʹ — that is, all three panels 30,
35, and 75 — “is formed from the microwave energy interactive material,”
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even though the material in any given panel 30, 35, or 75 may be provided in
a continuous layer or a discontinuous pattern. Id. at 19–20, 24–25. Thus,
Appellant argues Cole does not disclose the microwave energy interactive
area being “spaced apart from” third panel 75, as claimed. Id. at 24–25;
Reply Br. 2–4. Appellant contends the Examiner’s finding to the contrary
rests upon an unreasonably broad claim construction of the term “spaced
apart from,” when viewed in light of Appellant’s Specification. Appeal
Br. 24–25.
The Examiner answers by paraphrasing and adding emphases to the
cited disclosures in Cole. Ans. 22–23. Thus, the Examiner quotes
paragraph 29 of Cole as disclosing that “[a]ny of the packages may be
formed from one or more microwave energy interactive materials.” Id. at
23 (emphases added by Examiner). Further, the Examiner quotes
paragraph 41 of Cole as disclosing: “The microwave energy interactive
material may be applied to the substrate in any suitable manner . . . The
microwave energy interactive material may be applied to the substrate in
any pattern, and using any technique, to achieve the desired heating effect
of the food item,” for example “as a continuous or discontinuous layer or
coating, circles, loops, hexagons, islands, squares, rectangles, octagons, and
so forth.” Id. (emphasis added by Examiner). Thus, the Examiner’s view is
that “Cole discloses the microwave energy interactive layer is capable of
[being applied] on a first panel and a second panel and that is spaced apart
from a third panel as” claimed. Id.
We agree with Appellant. Claim 33 requires that the first and second
panels include a microwave energy interactive area that is “spaced apart
from” the third layer. Even under a broadest reasonable interpretation of the
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“spaced apart from” term, there must be some portion of the first and second
panels that extends between their respective lower edges that are joined to
the third panel (claim 33, lines 7–8) and the lower-most extremity of the
microwave energy interactive area, in order for the interactive area to be
spaced apart from the third panel. See, e.g., Spec. Figs. 1A–1D, 3:24–30,
5:4–11 (microwave energy interactive areas 112 in panels 102 and 104 are
spaced apart from bottom panel 106).
The Examiner cites paragraphs 29 and 41 of Cole as disclosing that
first and second panels 30 and 35 of package 10ʹʹ each include microwave
energy interactive areas that are spaced apart from third panel 75. Final
Act. 3–4, 31; Ans. 22–23. This finding is not supported by a preponderance
of the evidence. The cited disclosures pertinently indicate first and second
panels 30 and 35 “may be formed from one or more microwave interactive
materials.” Cole ¶ 29. They also indicate “[t]he microwave energy
interactive material may be applied to the substrate in any suitable manner”
and “in any pattern.” Id. ¶ 41 (emphases added). Further, “the microwave
energy interactive material may be provided as a continuous or
discontinuous layer or coating, circles, loops, hexagons, islands, squares,
rectangles, octagons, and so forth.” Id. (emphasis added). Finally, “other
patterns of microwave energy interactive material are contemplated.” Id.
However, the cited disclosures do not indicate that Cole’s microwave
interactive materials may be provided in panels 30 and 35 so as to be
“spaced apart from” third panel 75, as we have construed that term above.
That is, there is no indication in Cole that a portion of either panel 30 or 35
extends between the lower edge of the panel that is joined to third panel 75
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and the lower-most extremity of the pattern formed by the microwave
energy interactive material.
The Examiner does not rely on Fitzwater to cure this deficiency of
Cole in relation to claim 33. See Final Act. 3–4. Moreover, the rejection of
the other independent claims 42, 52, and 60 rests upon the same analysis
(see id. at 9–11, 17–19, 23–25), and the rejection of dependent claims 34–
40, 43–47, 49–51, 53–55, 57–59, 61, 62, and 64 likewise does not cure the
deficiency of Cole in relation to the independent claims (id. at 5–9, 11–16,
19–23, 25–27). Therefore, we do not sustain the rejection of claims 33–40,
42–47, 49–55, 57–62, and 64 as unpatentable over Cole and Fitzwater.
B. Obviousness over Cole, Fitzwater, and either Peterson and Brown
The Examiner’s additional consideration of claims 41, 48, 56, and 63,
and of Peterson and Brown, does not cure the deficiency of Cole in relation
to the independent claims. See Final Act. 27–30. Therefore, we do not
sustain the rejection of claims 41, 48, 56, and 63 as unpatentable over Cole,
Fitzwater, and either Peterson and Brown.
DECISION
The Examiner’s decision to reject claims 33–64 is reversed.
REVERSED