Timothy H. BohrerDownload PDFPatent Trials and Appeals BoardAug 9, 201913454511 - (D) (P.T.A.B. Aug. 9, 2019) Copy Citation 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under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 33–64 in this application, after claims 1–32 were withdrawn.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. Appeal 2017-010044 Application 13/454,511 2 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). Appeal 2017-010044 Application 13/454,511 3 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,” Appeal 2017-010044 Application 13/454,511 4 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 Appeal 2017-010044 Application 13/454,511 5 “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 Appeal 2017-010044 Application 13/454,511 6 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 Copy with citationCopy as parenthetical citation