Ex Parte Brown

Patent Trial and Appeal BoardOct 26, 2017

12694164 (P.T.A.B. Oct. 26, 2017)

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. 12/694,164 01/26/2010 Dennis Brown 4171 5478 66714 7590 10/26/2017 INTELLECTUAL PROPERTY CENTER, LLC 7101 College Boulevard SUITE 1520 OVERLAND PARK, KS 66210 EXAMINER DAVIES, SAMUEL ALLEN ART UNIT PAPER NUMBER 3724 MAIL DATE DELIVERY MODE 10/26/2017 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 DENNIS BROWN Appeal 2016-001527 Application 12/694,164 Technology Center 3700 Before: CHARLES N. GREENHUT, ERIC C. JESCHKE, and PAUL J. KORNICZKY, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134 from a rejection of claims 1—7. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellant identifies Midwest Metalcraft, Inc. as the real party in interest. App. Br. 4. Appeal 2016-001527 Application 12/694,164 CLAIMED SUBJECT MATTER The claims are directed to a double-blade meat sheer. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A device for producing a spiral cut on a single non- symmetrical meat product having a meat surface and a central bone, said device comprising: a first blade assembly having a mechanical output fixed to an angularly selectable first cutting blade, said first blade assembly operable to rotate about a first vertical axis; a second blade assembly having a mechanical output fixed to an angularly selectable second cutting blade, said second blade assembly operable to rotate about a second vertical axis, said first and second vertical axis being spaced along a top surface associated with a meat rotation assembly; said meat rotation assembly adapted for rotation of the received meat product and including a tailstock assembly in communication with a headstock assembly and adapted for rotational receipt of said meat product; and a processor and controller in communication with said first and second blade assemblies and operable to simultaneously reciprocally engage the meat product in at least two positions with said first blade assembly at a lower position and said second blade assembly at an upper position, whereby a spiral slice is formed from the simultaneous operation of both said first and second blade assemblies slicing in opposing directions from the meat surface of the meat product to the meat bone. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Barnhart Nishi Takeshi US 2003/0070525 A1 US 2008/0168860 A1 JP2002321119 Apr. 17, 2003 July 17, 2008 Dec. 30, 2014 2 Appeal 2016-001527 Application 12/694,164 REJECTIONS Claims 1, 2, and 5—7 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Barnhart and Takeshi. Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Barnhart, Takeshi, and Nishi. OPINION There does not appear to be any dispute concerning the content of the Barnhart and Takeshi references cited against sole independent claim 1. Barnhart teaches a single-blade spiral sheer. Takeshi teaches a dual-blade cutter. The Examiner’s rejection lacks adequate evidence supporting the conclusion that it would have been obvious to cut Barnhart’s meat product “from both ends in order to reduce the amount of time to complete the desired operation upon the work piece by providing two blade assemblies capable of cutting the meat from either end.” Final Act. 3^4; Ans. 7—8; App. Br. 13—14. Contrary to the Examiner’s position, the modification to Barnhart needed to arrive at the claimed subject matter involves more than just a duplication of blade assemblies. See Ans. 7—8. Claim 1 requires: a processor and controller in communication with said first and second blade assemblies and operable to simultaneously reciprocally engage the meat product in at least two positions with said first blade assembly at a lower position and said second blade assembly at an upper position, whereby a spiral slice is formed from the simultaneous operation of both said first and second blade assemblies slicing in opposing directions from the meat surface of the meat product to the meat bone. There is no evidence of record to demonstrate this type of control was known in the art, or to support the Examiner’s conclusion that such 3 Appeal 2016-001527 Application 12/694,164 operation would have been obvious. App. Br. 13. “[T]he precise language of 35 U.S.C. § 102 that ‘(a) person shall be entitled to a patent unless,’ concerning novelty and unobviousness, clearly places a burden of proof on the Patent Office which requires it to produce the factual basis for its rejection of an application under sections 102 and 103.” In re Warner, 379 F.2d 1011, 1016 (CCPA 1967). “With respect to core factual findings in a determination of patentability^ the PTO] must point to some concrete evidence in the record in support of these findings.” In re Zurko, 258 F. 3d 1379, 1386 (Fed. Cir. 2001). Anything less prohibits a meaningful appellate review. Id. Nishi is not relied upon by the Examiner to cure this deficiency. Thus, the rejection of independent claim 1 is not sustained. Similarly, the rejections of claims 2—7, which depend from claim 1, are not sustained. DECISION The Examiner’s rejections of claims 1—7 are reversed. REVERSED 4