Ex Parte Keller

Patent Trial and Appeal BoardFeb 25, 2019

13974718 (P.T.A.B. Feb. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/974,718 08/23/2013 136476 7590 02/27/2019 Shumaker & Sieffert, PA/Keller Technologies Inc. 1625 RADIO DRIVE SUITE 100 WOODBURY, MN 55125 A. Kent Keller 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. 1237-00lUSOl 7160 EXAMINER WONG, LESLIE A ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 02/27/2019 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): pairdocketing@ssiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte A. KENT KELLER Appeal2018-003857 Application 13/974,718 Technology Center 1700 Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and N. WHITNEY WILSON, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. Â§ 134 the final rejection of claims 16-25. We have jurisdiction over the appeal pursuant to 35 U.S.C. Â§ 6(b). We REVERSE. Appellant's invention is directed to a system for drying a whey composition, which is a byproduct of Greek yogurt manufacturing (Spec. ,r 4). Greek yogurt producers typically dispose liquid acid whey as waste, but there are environmental concerns associated with such disposal, such as decreased amounts of oxygen in waterways (id. at ,r 27). The Specification 1 The named inventor A. Kent Keller is identified as the real party in interest (Appeal Br. 3). Appeal2018-003857 Application 13/974,718 describes a system for drying liquid acid whey that results in a solid powder product, which is said to be more easily and economically stored, transported, and commercially sold (id. at ,r 28). Claim 16 is illustrative ( emphasis added): 16. A system comprising: a supply system for supplying a first whey composition comprising lactose; a concentration system comprising two or more evaporators connected in series, wherein at least one of the evaporators comprises an evaporator configured to agitate the whey composition within the at least one evaporator, the two or more evaporators configured to concentrate the whey composition to form a concentrated whey composition comprising at least about 75 weight% solids; a crystallization system configured to receive the concentrated whey composition from the concentration system, the crystallization system comprising a crystallization cascade comprising one or more crystallizing stages configured to crystallize at least a portion of the lactose in the concentrated whey composition to form an at least partially-crystallized whey composition, wherein the crystallization system is separate from the concentration system; and a dryer configured to dry the at least partially-crystallized whey composition to form a dried product, wherein the dryer is separate from the concentration system and the crystallization system. Appellant appeals the following rejection: 1. Claims 16-25 are rejected under 35 U.S.C. Â§ 103 as unpatentable over Henningfield et al. (US 2003/0196957 Al, published Oct. 23, 2003, "Henningfield") in view of Keller (US 7,651,711 B2, issued Jan. 26, 2010), and L. Mockus et al., "Continuous Time Representation Approach to Batch and Continuous Process 2 Appeal2018-003857 Application 13/974,718 Scheduling. 1. MINLP Formulation," Ind. Eng. Chem. Res. 38: 197-203 (1999) ("Mockus"). FINDINGS OF FACT & ANALYSIS The Examiner's findings and conclusions regarding Henningfield, Keller, and Mockus are located on pages 2-3 of the Final Office Action and pages 4--6 of the Answer. It is well understood that "[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." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The fact that a reference may be modified to reflect features of the claimed invention does not make the modification, and hence the claimed invention, obvious unless the prior art, knowledge of a person having ordinary skill in the art, or the nature of the problem to be solved suggested the desirability of such modification. In re Mills, 916 F.2d 680, 682 (Fed. Cir. 1990). In this case, the Examiner finds Henningfield teaches that "a lactose- containing liquid is subjected to simultaneous heating, removal of evaporated vapor and mechanical agitation at high shear . . . to progressively concentrate the agitated liquid and simultaneously crystallize lactose therefrom" (Final Act. 2) ( emphasis added). Although the Examiner acknowledges that Henningfield is silent regarding, inter alia, the requisite separation of the crystallization, concentration, and dryer systems, the Examiner finds that Mockus "disclose[s] the conventional use of both batch and continuous processes in the food art" (id. ( citing Mockus Introduction)). 3 Appeal2018-003857 Application 13/974,718 The Examiner determined that "[i]t would have been obvious to a person of ordinary skill in the art, at the time the invention was filed, to use [Mockus' s] batch process ... [with] that of Henningfield[] because the specific choice of a batch or continuous process is conventional and well- known in the art" (Final Act. 3). Appellant argues, inter alia, that Henningfield's device uses the same stage to perform evaporation and crystallization and, thus, "does not include a crystallization system that is separate from a concentration system, as recited by claim 16" (Appeal Br. 7-8). Appellant further argues that the Examiner has not established that Mockus would have prompted a person having ordinary skill in the art to have modified Henningfield' s single stage device "into a multi-stage device in which the crystallization system is separate from the concentration system, as recited by claim 16." (id. at 8). According to Appellant, absent "a 'clear articulation of the reason(s) why the claimed invention would have been obvious,' ... the Examiner failed to establish a prima facie case of non-patentability of claim 16" (id. at 12 (citing MPEP Â§ 2143)). The Examiner responds to Appellant's arguments by finding that Henningfield teaches "a supply system, a concentration system, a crystallization system, and a dryer" (Ans. 4 ( citing Henningfield Fig. 1, ,r,r 58-80) and provides no additional findings regarding Mockus ( compare Ans. 4--5 with Final Act. 3). The Examiner's conclusory response, however, does not persuasively address or rebut Appellant's arguments as set forth above. Moreover, we find that Mockus' s disclosure is directed to issues regarding decision timing in batch and continuous process scheduling (see Mockus Abstract). We, 4 Appeal2018-003857 Application 13/974,718 thus, agree with Appellant that "Mockus nowhere describes or suggests modifying a system that implements a continuous process into a system that implements a batch process" (Appeal Br. 13). As Appellant argues, the Examiner has failed to identify the specific elements of Henningfield' s device that would have been modified by the ordinarily skilled artisan in view of Mockus's teachings (id. at 11-12). Consequently, the Examiner has not provided any argument or reasoning supported by adequate facts to explain why a person of ordinary skill in the art would have found that the combination of Henningfield's and Mockus' s teachings disclose or suggest the disputed limitations. In particular, the Examiner has not adequately explained why the ordinary skilled artisan would have incorporated Mockus' s batch processing to modify Henningfield' s single stage into a crystallization system separate from a concentration system. Therefore, the Examiner has not established a prima facie case of obviousness based upon articulated reasoning with rational underpinnings. Thus, the facts and reasons relied on by the Examiner are insufficient to establish a prima facie case of obviousness as to independent claim 16. Accordingly, we reverse the obviousness rejection of claims 17-25. 37 C.F.R. Â§ 4I.37(c)(l)(iv). In light of our reversal for the reasons given above, we do not address the Declaration under 37 C.F.R. Â§ 1.132 dated March 27, 2017 or Appellant's remaining arguments (see, e.g., Appeal Br. 6-7; 9-11; 14--19). 5 Appeal2018-003857 Application 13/974,718 DECISION The Examiner's decision is reversed. ORDER REVERSED 6