Aspen Ice, LLC

Patent Trials and Appeals BoardOct 23, 2020

13573129 - (D) (P.T.A.B. Oct. 23, 2020)

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. 13/573,129 08/23/2012 Mark Witt 387398-000001 3123 128166 7590 10/23/2020 DLA Piper LLP (US) Boston Attn: Patent Group 11911 Freedom Dr. Suite 300 Reston, VA 20190 EXAMINER STCLAIR, ANDREW D ART UNIT PAPER NUMBER 3799 NOTIFICATION DATE DELIVERY MODE 10/23/2020 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): BostonIPDocketing@dlapiper.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARK WITT, MARGARET LOWAN BENEZRA, CRAIG ANDERSON, MARTIN RATHGEBER, KING YA MOY, NATAN PHEIL, DANIEL A. PETERSON, and DAVID CHESLEY Appeal 2020-002251 Application 13/573,129 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and CYNTHIA L. MURPHY, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 5–11, and 32. Claims 3, 4, 12–31, and 33 are cancelled. Ans. 2; Appeal Br. 9 n.1, 19–20 (Claims App.). The Appellant’s arguments were heard in an oral hearing held on October 15, 2020. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies “[t]he real party in interest is the Assignee of the above-captioned application, ASPEN ICE, LLC.” Appeal Br. 2. Appeal 2020-002251 Application 13/573,129 2 STATEMENT OF THE CASE Claimed Subject Matter Claim 1, the sole independent claim, is representative of the subject matter on appeal and is reproduced below with italics added. 1. An ice bagger comprising: a generally funnel-shaped ice hopper for receiving ice from an ice manufacturer, the ice hopper defining an ice hopper aperture thereunder; an ice trough operably positioned beneath the ice hopper aperture to receive ice from the ice hopper, the ice hopper aperture and the ice trough being substantially co- extensive, the ice trough defining a bottom surface that is slightly inclined towards a trough aperture such that water that has accumulated in the ice trough drains away from the trough aperture; a channel extending from an end of the ice trough opposite the trough aperture to an outside surface of the ice bagger, the channel configured to channel accumulated water away from the ice trough; an ice auger housed inside the ice trough, the ice hopper aperture, the ice trough, and the ice auger being substantially co-extensive, the ice auger in driving connection with a motor, the ice auger adapted to transport ice along the ice trough towards the trough aperture, the ice auger transporting the ice upwardly at an incline sufficient to cause water resulting from melted ice to drain away from the trough aperture; an ice agitator comprising a bar extending along the length of the hopper, the bar adapted to rotate around an axis along the length of the hopper, the bar having a plurality of fingers positioned perpendicular to a longitudinal axis of the bar to provide horizontal agitation to stir and churn ice in the ice hopper to prevent ice from bridging; an ice delivery chute positioned beneath the trough aperture; a hatch positioned beneath the ice delivery chute, the hatch adapted to release a filled bag for storage, the ice delivery Appeal 2020-002251 Application 13/573,129 3 chute and the hatch defining a bag filling area such that, when bags are present in the bag filling area, the bags are positioned to be filled; and a scale positioned on the hatch, the scale positioned to weigh the ice being deposited in the bag to determine when a designated amount of ice has been deposited into the bag. Appeal Br. 18, Claims App. Rejections Claims 1, 2, 5, 9–11, and 32 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schroeder2, Zimmerman3, and Stuart4. Claims 6 and 8 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schroeder, Zimmerman, Stuart, and James5. Claim 7 is rejected under U.S.C. § 103(a) as unpatentable over Schroeder, Zimmerman, Stuart, James, Allen6, and TEPTD7. ANALYSIS The Appellant argues that the proffered combination of teachings of Schroeder, Zimmerman, and Stuart in the Final Office Action fails to teach “a channel extending from an end of the ice trough opposite the trough aperture to an outside surface of the ice bagger, the channel configured to 2 Schroeder et al. (US 5,458,851, iss. Oct. 17, 1995) (“Schroeder”). 3 Zimmerman (US 3,151,668, iss. Oct. 6, 1964). 4 Stuart (US 5,109,651, iss. May 5, 1992). 5 James (US 2004/0084106 A1, pub. May 6, 2004). 6 Allen et al. (US 7,281,694 B2, iss. Oct. 16, 2007) (“Allen”). 7 Twin Eagles Paper Towel Drawer, published June 26, 2009, www.twineaglesinc.com/products/Paper-Towel-Drawer.shtml (accessed Nov. 19, 2015) (“TEPTD”). Appeal 2020-002251 Application 13/573,129 4 channel accumulated water away from the ice trough,” as recited in independent claim 1. Appeal Br. 10–12. The Appellant points out that the Examiner does not rely on the teachings of Schroeder or Zimmerman to meet the disputed claim limitation; rather the Examiner relies Stuart’s teaching of drain 24. See id. at 10 (citing Final Act. 6); see also Final Act. 4–6. The Appellant contends that the Examiner’s finding that Stuart teaches the disputed limitation is inadequately supported. See Appeal Br. 10–12. The Appellant’s argument is persuasive for the following reasons. The Examiner finds: Stuart teaches an ice bagger ([F]igures 1 and 2) having a channel (24) extending from the ice trough (14) opposite the trough aperture (opening on the left side of trough 14 in [F]igure 2) to an outside surface of the ice bagger . . . , the channel (24) [is] configured to channel accumulated water away from the ice trough (14). Final Act. 6. In the Answer, the Examiner primarily relies on Stuart’s description at column 2, line 66 – column 3, line 1, and Figures 2 and 4 to support the disputed finding. See Ans. 3–5. As for Stuart’s description, Stuart describes, with italics added and bold type omitted, “[b]ecause of the total isolation of ice collection system from the bagging mechanism and the provision of a drain 24 to remove incidental water from the system, the present invention is not dependent on any particular ice making machine.” Stuart col. 2, l. 66–col. 3, l. 1. The Examiner finds that “the system” in this description refers to a combination of Stuart’s ice bagging apparatus, an ice making apparatus, and a bagged ice storage zone. Ans. 4. We disagree with this finding. We understand “the system” to refer back to the “ice collection system,” which was referenced Appeal 2020-002251 Application 13/573,129 5 earlier in the sentence. Accordingly, we determine that the Examiner’s finding is unsupported. Based on this unsupported finding, the Examiner’s determines that “the phrase ‘remove . . . [water] from the system’ means that the drain leads to the outside of the system” (Ans. 4 (brackets in original)). This determination is likewise unsupported. See also Reply Br. 3. As for Stuart’s Figures 2 and 4, the Examiner finds that Stuart shows drain 24 with break lines. Ans. 4–5. The Examiner explains: The depictions in the Stuart reference are not intended to show that the drain tube ends arbitrarily and dumps water inside the housing (3), because if that were true then there would be no need for a drain tube at all; if the purpose of the drain of Stuart were to merely dump water out of the auger tube (14) without removing it from the system, then the auger tube (14) could simply have a hole and the drain tube (24) and fitting (22) could be omitted (see e.g. figure 4 of Stuart). Id. The Appellant acknowledges that “the alleged ‘break lines’ when properly interpreted may indicate that the tube 24 extends further.” Reply Br. 2. However, the Appellant persuasively contends that the break lines “provide no indication or teaching that the drain tube itself extends to the outside surface of Stuart’s apparatus,” and that Stuart’s remaining figures do not support the Examiner’s finding. Id. The Examiner’s explanation offers speculation as to what Stuart is “not intended to show,” and then offers further speculation as to what Stuart is intended to show. The Examiner’s explanation, however, does not address what Stuart actually shows. Stuart shows one end of drain 24 that extends from tube 14, and the other end of drain 24 is simply not shown. Therefore, the Examiner’s finding that Stuart shows drain 24 extending from an end of tube 14 to an outside surface of Stuart’s ice bagger is based on speculation. See Reply Br. 2–3. Appeal 2020-002251 Application 13/573,129 6 Thus, we do not sustain the Examiner’s rejection of independent claim 1 and dependent claims 2, 5, 9–11, and 32. Further, the Examiner fails to rely on the combined teachings of Schroeder, Zimmerman, and Stuart with those of James or James, Allen, and TEPTD in any manner that would remedy the deficiency in the Examiner’s rejection as discussed above. Thus, we do not sustain the Examiner’s rejections of dependent claims 6–8. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 5, 9–11, 32 103(a) Schroeder, Zimmerman, Stuart 1, 2, 5, 9–11, 32 6, 8 103(a) Schroeder, Zimmerman, Stuart, James 6, 8 7 103(a) Schroeder, Zimmerman, Stuart, James, Allen, TEPTD 7 Overall Outcome 1, 2, 5–11, 32 REVERSED