Ex Parte Hart et al

Patent Trial and Appeal BoardOct 15, 2012

12115729 (P.T.A.B. Oct. 15, 2012)

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. 12/115,729 05/06/2008 Colin R. Hart 6292.380 DIV 5661 28410 7590 10/15/2012 BERENATO & WHITE, LLC 6550 ROCK SPRING DRIVE SUITE 240 BETHESDA, MD 20817 EXAMINER HESS, DOUGLAS A ART UNIT PAPER NUMBER 3651 MAIL DATE DELIVERY MODE 10/15/2012 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 COLIN R. HART, PAUL J. JOYNT, DAVID W. BRANER, JOSHUA W. HIGGINS, and DAVID W. ALEXANDER ____________________ Appeal 2010-009086 Application 12/115,729 Technology Center 3600 ____________________ Before: STEFAN STAICOVICI, JAMES P. CALVE, and SCOTT A. DANIELS, Administrative Patent Judges. DANIELS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-009086 Application 12/115,729 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 10, 11 and 12. Claims 1-9 and 13-19 have been canceled from the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Appellants’ invention relates to a loading device 10 for arranging and distributing food articles such as sausages and hot dogs into trays or similar packaging. The loading device includes a main conveyor 14 and a transfer wheel 18 which facilitates transfer of the food from the main conveyor 14 to an indexing conveyor 16, and then to a pusher mechanism 22 which controls transfer of the food from the indexing conveyor 16 into the packaging. Spec. 3-4 and fig. 1. The claims are directed particularly to an apparatus for loading food articles. Claim 10, reproduced below, is representative of the claimed subject matter: 10. A loading apparatus, comprising: an indexing conveyor having a top and a bottom surface for receiving and transporting a plurality of food articles; a pusher mechanism having at least one gate that retains food articles on the bottom surface of the indexing conveyor; and the pusher mechanism adapted to raise the gates after food articles are released from the bottom surface of the indexing conveyor. Appeal 2010-009086 Application 12/115,729 3 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Hart US 6,141,943 Nov. 7, 2000 REJECTIONS Appellants seek our review of the following rejections: Claims 10, 11 and 12 under 35 U.S.C. § 102(e) as being anticipated by Hart. ANALYSIS Appellants argue claims 10, 11 and 12 as a group where no additional argument is presented with respect to dependent claims 11 and 12, and claim 10 is the only independent claim. We therefore select claim 10 as representative of the group and claims 11 and 12 stand or fall with claim 10. See 37 C.F.R. 41.37(c)(1)(vii) (2011). Claims 10, 11 and 12 are rejected under 35 U.S.C. § 102(e).1 Appellants argue that Hart fails to disclose each and every limitation as set forth in claim 10 because “[c]laim 10 requires in-part: ‘the pusher mechanism adapted to raise the gates.’ The prior art does not teach this limitation.” App. Br. 3. Appellants contend that: In contrast Hart et al. teaches gates 200 being biased by a torsion spring 204. Each gate 200 is 1 Noting the common inventor (Hart) with the present application, the Examiner pointed out that “[t]his rejection under 35 U.S.C. 102(e) might be overcome either by a showing under 37 CFR 1.132 that any invention disclosed but not claimed in the reference was derived from the inventor of this application and is thus not the invention "by another," or by an appropriate showing under 37 CFR 1.131.” Ans. 4. Appellants have not presented any such showing or evidence. Appeal 2010-009086 Application 12/115,729 4 biased toward the horizontal by torsion springs 204. Each gate 200 requires the use of at least one torsion spring 204. Springs 204 bias the gates 200 to a substantially horizontal orientation, and return the gates 200 to this orientation once the downward force of the stripper device 40 is removed. (Col. 9, lines 44-53). Therefore, Hart's gate 200 is raised by torsion spring 204 and not by pusher mechanism 254 as is required by Applicant's independent claim 10. App. Br. 3. In other words, Appellants’ argument is that, “the pusher mechanism adapted to raise the gates” is not disclosed by Hart’s described use of springs 204 to raise the gates 200. The Examiner finds that Hart discloses “the pusher mechanism adapted to raise the gates” limitation where Hart’s spring biased gates 200 are opened and closed according to the influence of the ramrod 254 and stripper feet 243, i.e. a pusher mechanism, pushing down to force the food articles through the spring biased gate(s) 200. Ans. 4. The Examiner also found that The gates must be forced down first by the ramrod 254 (forcing the stripper feet to contact the articles which forces the gates 200 into the open position) therefore these components are all tied together and hence, the interpretation of the claim is met by the Hart et al. USP 6,141,943. The ramrod indirectly forces the gates down and then the spring pushes them back in position. But, the gates would not be in position to move back up by the springs without the ramrod first pushing them down. The ramrod is part of the process for raising/lowering the stripper feet 243 as claimed. Appeal 2010-009086 Application 12/115,729 5 Id. Based on this, the Examiner found Appellants’ limitation does not adequately distinguish the claimed invention from Hart’s pusher mechanism including ramrod 254 and stripper feet 243, which indirectly opens, and hence subsequently closes, the spring biased gates 200. Ans. 5. We agree with the Examiner that Hart discloses “a pusher mechanism adapted to raise the gates after food articles are released from the bottom surface of the indexing conveyor” as recited in claim 10. Notwithstanding the Examiner’s and Appellants’ disagreement over interpretation of the elemental features of the stripper feet 243 and gates 200, we understand Appellants’ contention that the stripper feet and gates are different elements of the claimed pusher mechanism. Reply Br. 22. We also understand that the gates 200 disclosed by Hart have the same objective as the gates 68 in Appellants’ specification, namely, “hinge gates 68 adjacent the bottom surface 44 of the indexing belt 40 to periodically retain food articles 12 on the bottom surface 44 of indexing conveyor 16.” Spec. para. 27, See also Hart col. 9, ll. 44-54. We further understand the Examiner’s findings to include Hart’s stripper feet 243 and gate(s) 200 elements working in concert to essentially perform the same function as Appellants’ pusher mechanism where “[t]he ramrod indirectly forces the gates down and then the spring pushes them back in position. But, the gates would not be in position to move back up by the springs without the ramrod first pushing them down. The ramrod is part of the process for raising/lowering the stripper feet 243 as claimed.” Ans 4-5. Appellants have not persuaded us of error in the Examiner’s findings that Hart discloses a pusher mechanism that includes 2 In this decision, a reference to “Reply. Br.” is a reference to the Reply Brief filed March 3, 2010. Appeal 2010-009086 Application 12/115,729 6 gates 200 that retain food articles and then are raised after food articles are released from a bottom surface of the indexing conveyor as called for in claim 10. While the phrase “adapted to” can mean configured to (see Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir. 2012)), the Examiner has identified a pusher mechanism that is configured with stripper feet 243 and gates 200 that perform the functions recited in claim 10. Appellants’ argument that the Examiner has identified element 243 as corresponding to the claimed gate (Reply Br. 2) is not persuasive because the Examiner found that Hart discloses gates as elements 200 and 243 (Ans. 4-5) and Hart discloses that the gates retain food articles and are raised after food articles are released as called for in claim 10 (see col. 9, l. 44 to col. 10, l. 9, l. 36). To the extent that Appellants’ arguments are asking us to read limitations into claim 10, or to limit the claim language to a disclosed embodiment(s) in Appellants specification, we respectfully decline to read such limitations from the specification into the claims. It is well settled that the PTO applies to verbiage of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in applicant’s specification. In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997). Reading a claim in light of the specification, to thereby interpret limitations explicitly recited in the claim, is a quite different thing from reading limitations of the specification into a claim, to thereby narrow the scope of the claim by implicitly adding disclosed limitations which have no express basis in the Appeal 2010-009086 Application 12/115,729 7 claim. In re Prater, 415 F.2d 1393, 1404-05, (CCPA 1969). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181 (Fed. Cir. 1993). Appellants can always amend the claims to define the invention more precisely during proceedings before the USPTO. See Morris, 127 F.3d at 1056-57. Therefore, we find that Hart discloses each and every limitation of claim 10 including “the pusher mechanism adapted to raise the gates” and thus affirm the Examiner’s rejection of claims 10, 11 and 12. DECISION For the above reasons, the Examiner’s rejection of claims 10, 11 and 12 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Klh