Ex Parte 8146380 et al

Patent Trial and Appeal Board

Nov 24, 2015

90012927 (P.T.A.B. Nov. 24, 2015)

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").
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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;
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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).
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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.
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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
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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
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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).
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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).
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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.
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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
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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