Ex Parte Garrett et al

Patent Trials and Appeals BoardMar 22, 2019

14579582 - (D) (P.T.A.B. Mar. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/579,582 12/22/2014 Edward S. Garrett 25763 7590 03/26/2019 DORSEY & WHITNEY LLP - MINNEAPOLIS ATTENTION: PATENT PROSECUTION DOCKETING DEPARTMENT INTELLECTUAL PROPERTY PRACTICE GROUP - PT/16TH FL 50 SOUTH SIXTH STREET, SUITE 1500 MINNEAPOLIS, MN 55402-1498 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 ATTORNEY DOCKET NO. CONFIRMATION NO. P256812.US.05 4515 EXAMINER STAPLETON, ERIC S ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 03/26/2019 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): ip.docket@dorsey.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte EDWARDS. GARRETT and RICHARD D. WOODFORD Appeal2017-007414 Application 14/579,582 Technology Center 3700 Before MICHAEL L. HOELTER, MICHAEL J. FITZPATRICK, and JEREMY M. PLENZLER, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Edward S. Garrett and Richard D. Woodford ("Appellants") 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1-31. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We reverse. 1 Appellants identify West Liberty Foods, L.L.C. as the real party in interest. Appeal Br. 3. Appeal2017-007414 Application 14/579,582 STATEMENT OF THE CASE The Specification The disclosure "is directed to systems, methods and structures for reducing the likelihood of contamination of processed foods by bacteria, other microorganisms, or other pathogens." Spec. i-f2. The Rejected Claims Claims 1-31 are pending and rejected. Final Act. 1. Claims 1, 12, 18, 23, and 31 are independent. Appeal Br. 25-28. Claim 1 is representative and reproduced below. 1. A food processing facility for previously processed food products, the facility comprising: a first region corresponding to a semi-secure area; a second region corresponding to a secure area accessible from the first region, the second region including a plurality of separate isolated single-line food processing rooms accessible from the semi- secure area, each single-line food processing room being isolated from the other single-line food processing rooms and including a single set of serially-connected food processing elements which is independent of food processing devices in any other single- line food processing room. Id. at 25. 2 Appeal2017-007414 Application 14/579,582 The Appealed Rejection The following rejection is before us for review: claims 1-31 under 35 U.S.C. Â§ 103(a) as being unpatentable over Phebus et al., US 2003/0047087, published March 13, 2003 ("Phebus"). Final Act. 3-10. DISCUSSION A patent claim is unpatentable under 35 U.S.C. Â§ 103(a) if the differences between the claimed subject matter and the prior art are such that the subject matter, as a whole, would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on the basis of underlying factual determinations, including: (1) the scope and content of the prior art, (2) any differences between the claimed subject matter and the prior art, (3) the level of skill in the art, and ( 4) where in evidence, so-called secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). "An examiner bears the initial burden of presenting a prima facie case of obviousness." See, e.g., In re Huai-Hung Kao, 639 F.3d 1057, 1066 (Fed. Cir. 2011) ( citations omitted). The Examiner has not done so here. With respect to the scope and content of the prior art (Phebus), the Examiner found that it disclosed the entire subject matter of claim 1. Specifically, the Examiner found as follows: Phebus discloses: Regarding claim 1: a food processing facility for previously processed food products (Fig. 1-2 and para [0019]- [0064]), the facility comprising: 3 Appeal2017-007414 Application 14/579,582 a first region ( e.g., regions seen in Fig. 1-2) corresponding to a semi-secure area (Fig. 1-2 and para [0019]-[0064 ]); a second region (e.g., regions seen in Fig. 1-2) corresponding to a secure area (e.g., areas seen in Fig. 1-2) accessible from the first region (Fig. 1-2 and para [0019]- [0064]), the second region including a plurality of separate isolated single-line food processing rooms accessible from the semi-secure area (e.g., rooms seen in Fig. 1-2), each single-line food processing room being isolated from the other single-line food processing rooms (Fig. 1-2 and para [0019]-[0064]) and including a single set of serially-connected food processing elements (e.g., 104, 106, 108) which is independent of food processing devices in any other single-line food processing room (Fig. 1-2 and para [0019]-[0064 ]). Final Act. 3--4. Yet, the Examiner did not reject claim 1 as anticipated by Phebus. Instead, he determined that Phebus rendered claim 1 obvious because "[i]t would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Phebus as suggested and taught by Phebus in order to maintain processed food in a decontamination state." Id. at 10 (bold typeface removed, italics added). It is unclear what if any alleged differences there are between the prior art (Phebus) and claim 1. This is so because the Examiner confusingly asserted that Phebus discloses claim 1 while also finding that some modification of Phebus would be needed to reach claim 1. Compare id. at 3--4, with id. at 10. Further, the Examiner has not identified what the purported modification would be. In that regard, the Examiner asserted that it would have been obvious "to modify Phebus as suggested and taught by Phebus" 4 Appeal2017-007414 Application 14/579,582 but did not identify the actual modification or the alleged suggestion and teaching. Id. at 10. Finally, the Examiner's findings about what Phebus teaches cannot be sustained on the record presented. The Examiner has simply repeated the claim limitations and asserted that Phebus discloses them without providing any specific citations or explanation. Indeed, the rejection repeatedly cites virtually the entire disclosure of Phebus, namely both of its figures and its entire Detailed Description. See Final Act. 3--4 (repeatedly citing Phebus Figs. 1-2 and ,r,r19-64 ). The same problems underlie the rejection of claims 2-31. For the foregoing reasons, we reverse the rejection of claims 1-31 under 35 U.S.C. Â§ 103(a) as being unpatentable over Phebus. DECISION The Examiner's rejection of claims 1-31 is reversed. REVERSED 5