Ex Parte 8146380 et alDownload PDFPatent Trial and Appeal BoardNov 24, 201590012927 (P.T.A.B. Nov. 24, 2015) 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. 90/012,927 07/25/2013 8146380 14144-67588 8633 24504 7590 11/25/2015 THOMAS | HORSTEMEYER, LLP 400 INTERSTATE NORTH PARKWAY SE SUITE 1500 ATLANTA, GA 30339 EXAMINER GELLNER, JEFFREY L ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 11/25/2015 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MORRIS & ASSOCIATES, INC. 1 Appellant, Patent Owner ____________________ Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 2 Technology Center 3900 ____________________ Before DANIEL S. SONG, MICHAEL L. HOELTER and BRETT C. MARTIN, Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL 1 Morris & Associates, Inc. is the real party in interest (Appeal Brief (hereinafter "App. Br.") 3). 2 Issued April 3, 2012 (hereinafter "the ’380 patent"). Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 2 Claims 1–11 are subject to reexamination and stand rejected. The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306 from a Final Rejection of these claims. We have jurisdiction under 35 U.S.C. §§ 134(b) and 306. In addition to the Appeal Brief, the Patent Owner also relies on a Reply Brief (hereinafter "Reply Br."). An oral hearing was held before the Patent Trial and Appeal Board on November 17, 2015, a transcript of which will be entered into the record in due course. The invention is directed to a rocker chiller having a baffle assembly for reducing the temperature of carcasses such as poultry carcasses (Title; Abs.; col. 1, ll. 16–20). Representative independent 1 reads as follows: 1. A rocker chiller comprising: an elongated tank including a curved bottom portion configured to hold heat-exchanging liquid at a liquid level in said tank and for receiving carcasses in the heat-exchanging liquid in said tank, a baffle assembly extending along the length of said tank, said baffle assembly including a drive shaft above said curved bottom portion of said tank, and a baffle extending downwardly from said drive shaft toward said bottom portion of said tank and including a distal edge adjacent said curved bottom portion of said tank, said baffle sized, shaped and positioned to sweep closely adjacent the facing curved bottom portion of said tank, power means connected to said baffle assembly for oscillating said baffle side to side in an arc along said curved bottom portion of said tank, said baffle defining openings therethrough, said openings in said baffle being sized and shaped to pass the heat- exchanging liquid through said openings from one side to the other side of said baffle in directions opposite to the directions of the oscillations of said baffle and for said baffle to retard the movement of at least some of the carcasses from one side to the other side of said baffle as said baffle oscillates; Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 3 the configuration of said baffle selected from the group consisting of, at least one elongated baffle slat positioned between said drive shaft and said distal edge defining said openings between said baffle slat and said drive shaft and between said baffle slat and said distal edge, a plurality of elongated baffle slats positioned between said drive shaft and said distal edge and defining openings between said baffle slats, a plurality of elongated parallel spaced bars extending radially from said drive shaft and defining said openings between said spaced bars, a perforated sheet with the perforations of said sheet forming said openings, and a plurality of horizontally extending parallel spaced bars positioned between said drive shaft and said distal edge and defining said baffle openings between said spaced bars. The only other independent claim, claim 11, is similar to claim 1. REJECTIONS The Examiner rejects various claims under 35 U.S.C. § 103(a) as unpatentable based on the following combination of references: 1. Claims 1, 2, 4 and 7–11 over Morris ’502 3 in view of Morris ’384 4 (Ans. 3–4). 2. Claims 3, 5 and 6 over Morris ’502 in view of Morris ’384 and Taniyoshi 5 (Ans. 4). 3 Publication No. US 2007/0169502 A1, July 26, 2007. 4 Patent No. US 7,281,384 B2, October 16, 2007. 5 Japanese Kokai (unexamined) Patent Publication No. 5-195028, November 12, 1993 (citations to the English translation of record). Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 4 3. Claims 1, 2, 4, 7 and 11 over Crane 6 in view of Morris ’384 (Ans. 5). 4. Claims 8 and 10 over Crane in view of Morris ’384 and Morris ’502 (Ans. 6). 5. Claims 3, 5 and 6 over Crane in view of Morris ’384 and Taniyoshi (Ans. 6–7). We REVERSE. PRINCIPLES OF LAW The Supreme Court explained that "[a] patent composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known in the prior art." KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 418 (2007). The Court noted that the obviousness analysis "should be made explicit." Id. (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) ("[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness")). The Court also warned that the "factfinder should be aware . . . of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning." Id. at 421. In addition, "[a] reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction 6 US Patent No. 3,426,546, February 11, 1969. Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 5 divergent from the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). ANALYSIS Rejections 1 and 3 Claims 1, 2, 4 and 7–11 stand rejected over the combination of Morris ’502 and Morris ’384 (Ans. 3–4). Claims 1, 2, 4, 7 and 11 also stand rejected over the combination of Crane and Morris ’384 (Ans. 5). The Examiner finds that both Morris ’502 and Crane disclose the subject matter of the noted claims except for the limitation requiring a baffle defining openings therethrough, which allows the heat-exchanging liquid to pass but retards the movement of at least some of the carcasses from one side of the baffle to the other (Ans. 3, 5). To remedy this deficiency, the Examiner relies on the embodiment shown in Figures 7–9 of Morris ’384 and discussions related thereto, which states: [i]n this embodiment of the invention, the paddles 94 are formed with a series of spaced, parallel, vertically oriented bars 104. The bars are spaced apart a distance small enough so as to prevent birds from passing between the bars or becoming lodged in the bars but are spaced apart far enough so as to permit the water of the chiller to pass between the bars. (Morris ’384, col. 11, ll. 23–29; Figs. 7–9). Based on this disclosure in Morris ’384, the Examiner concludes with respect to Rejection 1 that "it would [have been] obvious to one of ordinary skill in the art at the time of invention to modify the chiller of Morris ’502 to include the openings (in the form of paddles) taught by Morris ’384 for the purpose of preventing birds from passing through but allowing the water of Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 6 the chiller to pass through." (Ans. 3, 9). A similar conclusion is made by the Examiner with respect to the combination of Crane and Morris ’384 in Rejection 3 (Ans. 5). Morris ’502 discloses rocker chiller 100 having paddle assembly 104 having paddle support arms 136 extending from axle 138, and paddle blade 140 mounted thereto at a positioned adjacent the concave longitudinal wall 116 (Morris ’502 ¶[0021]; Fig. 1). As shown in Figure 1, paddle support arms 136 are spaced apart from each other to define large openings through which carcasses can move. Morris ’502 also discloses that "[t]he oscillation of the paddle assembly 104 tends to break up clusters of carcasses to create a relatively uniform distribution of carcasses within the tank 102, and promotes heat transfer by continually replacing the heat-exchanging fluid 110 adjacent the carcass body." (Morris ’502 ¶[0024]; see also id. at ¶[0025]). Crane discloses a rocker chiller that is substantially the same as that disclosed in Morris ’502, but is more explicit in disclosing the manner in which such rocker chillers operate, stating that paddle 24 is spaced from the shaft "to permit birds to pass between the shaft and paddle during oscillation thereof." (Crane, col. 3, ll. 1–4; Figs. 1, 2). Crane expressly teaches that: [t]he space 25 between the shaft 22 and the paddle [24] permit the passage of birds therebetween during oscillation of the paddle and, thus, prevent the birds form being bruised or the like by the paddle. (Crane, col. 3, ll. 1–4, 9–13). The Patent Owner argues, inter alia, that "[b]oth the examiner and the requester cite the need to prevent birds from passing through the baffle but Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 7 allowing water to pass through as the motivation that renders the combination of references obvious. This is not a need or problem that was recognized in the prior art" in the context of rocker chillers like those of Morris ’502 and Crane (App. Br. 19; Reply Br. 14–15). The Patent Owner argues that Morris ’384 provides the baffle with openings to address a problem in drag chillers wherein birds become gathered or clumped against the paddles due to the counter flow of water in the drag chiller (App. Br 22– 25). Indeed, Morris ’384 teaches a solution to the problem of gathering or clumping of carcasses that results in reduced contact of the carcasses with the chilling water and antimicrobial agents, which are taught therein as being undesirable (Morris ’384, col. 2, ll. 6–16). Notably, the problem of gathering or clumping identified is described relative to auger chillers and drag chillers (Morris ’384, Figs. 4–9). Morris ’384 addresses this problem with respect to drag chillers by providing water jets 120 that are directed upwardly and inwardly and provide water streams 122 that engage the carcasses "to move the birds away from paddles and out into the space ahead of the paddles where more volume of water is available." (Morris ’384, col. 3, ll. 16–24; col. 4, ll. 23–60; col. 11, ll. 47–60; Figs. 7–9). A similar solution is disclosed with respect to auger chillers by utilizing water nozzles 70 (Morris ’384, col. 8, l. 59–col. 9, l. 27; Figs. 4–6). As noted, the Patent Owner argues that such clustering is not a problem in rocker chillers, and in contrast to the claimed invention that operates to gather the birds together, Morris ’384 teaches that clumping is an undesirable problem for which it proposes a solution (App. Br. 25). Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 8 Accordingly, the Patent Owner argues that the prior art actually teaches away from gathering the birds together, and the Examiner is engaging in improper hindsight reconstruction (Reply Br. 5–6). In support thereof, the Patent Owner notes (App. Br. 31) that the original Examiner involved in the prosecution of the application that issued as the subject ’380 patent concluded that the prior art teaches away from the claimed invention in the Reasons for Allowance stating: [i]n addition to the foregoing references, the prior art in the field of poultry chillers teach away from a rocker chiller that uses a baffle to separate the poultry carcasses into two separate sections of the chiller and cause them to conglomerate during oscillation of the baffle. For example, an auger chiller to Morris III et. al. US 7174724 (Morris 2) teaches the use of water streams to reduce conglomeration of the carcasses so as to improve heat transfer (abstract). Further, a rocker chiller to Crane US 3,426,546, which is very similar to Morris [’502], teaches that a space should be left between the drive shaft and baffle blade, so that carcasses can pass between the two so as to prevent bruising. (Notice of Allowability dated Feb. 8, 2012, pg. 5). We agree with the Patent Owner and address the Examiner's response. According to the Examiner, "[s]ince the reasoning (preventing birds but allowing water to pass through the baffle) for having spaced bars in a baffle is explicitly stated in the applied teaching reference (Morris ’384) the examiner considers the recognized problem to be implicit in that Morris ’384 provides a solution." (Ans. 8–9). The Examiner further finds that "[a]lthough other references in the art of rocker chillers may have a goal of reducing conglomeration of carcasses, Morris ’384 explicitly discloses a reason for having openings in a baffle." (Ans. 10). Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 9 However, as noted above, the problem identified and addressed in Morris ’384 is specific to auger chillers and drag chillers. As the Patent Owner argues, there is no evidence of record that gathering or clumping of carcasses was a known problem with respect to rocker chillers, the moving blade of known rocker chillers preventing such gathering or clumping. There is no evidence that the reason set forth in Morris ’384 for providing spaced bars in a baffle, that is, to address undesirable reduction in contact of the carcasses with the chilling water and antimicrobial agents caused by gathering or clumping of carcasses, is applicable to rocker chillers. The Examiner also finds that the applied prior art references "are not considered to teach away from the combinations because they are analogous art." (Ans. 9). However, the issue of whether or not a prior art is analogous does not speak to the whether or not the analogous prior art teaches away from the claimed invention, which is a separate inquiry. The above discussed teachings in Morris ’384, Morris ’502 and Crane indicate not only that the problem of gathering/clumping was not applicable to rocker chillers, but also indicates that the prior art rocker chillers taught away from the claimed invention in that the prior art teaches the undesirability of such gathering/clumping of carcasses so that a person of ordinary skill in the art would have been led in a direction divergent from the recited invention. Gurley, 27 F.3d at 553. In view of the above, the Examiner's articulated reasoning does not appear to be based on adequate rational underpinnings sufficient to support the conclusion of obviousness, but rather, appears to be based on impermissible hindsight and ex post reasoning. KSR, 550 U.S. at 421. Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 10 Correspondingly, we reverse Rejections 1 and 3. The remaining dispute between the Patent Owner and the Examiner relative to various dependent claims in Rejections 1 and 3 are moot in that those claims ultimately depend from independent claim 1. Rejections 2 and 5 Claims 3, 5 and 6 ultimately depend from independent claim 1, and the Examiner merely relies on Taniyoshi for its disclosure of a distribution chute (Ans. 4, 6–7), which does not cure the above-described deficiencies. Correspondingly, these rejections are reversed for the same reasons discussed supra relative to Rejections 1 and 3, and arguments directed to these claims are moot. Rejection 4 Claims 8 and 10 ultimately depend from independent claim 1, and the Examiner's reliance on Morris ’502 in combination with Crane and Morris ’384 (Ans. 6) does not address the deficiencies noted with respect to Rejection 3. Correspondingly, Rejection 4 is also reversed for the same reasons discussed supra relative to Rejection 3, and arguments directed to these claims are moot. Substantial New Question of Patentability The Patent Owner's arguments directed toward the Examiner's finding of a substantial new question of patentability (App. Br. 16–18), and the Appeal 2015-006098 Reexamination Control 90/012,927 Patent No. US 8,146,380 B1 11 Examiner's response thereto (Ans. 7–8), are moot in view of our reversal of the substantive rejections on appeal. ORDERS Rejections 1–5 are reversed. REVERSED Pgc Patent Owner: Thomas Horstmeyer LLP 400 Interstate North Parkway SE Suite 1500 Atlanta, GA 30339 Third-Party Requester: Richard Blakely Glasgow 200 West Capitol Avenue Suite 2300 Little Rock, AR 72201 Copy with citationCopy as parenthetical citation