Ex Parte Linck et al

Patent Trial and Appeal Board

Apr 5, 2016

13251722 (P.T.A.B. Apr. 5, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/251,722 10/03/2011
22922 7590 04/07/2016
REINHART BOERNER VAN DEUREN S,C
ATTN: TRAVIS MCDONNELL, PARALEGAL
IOOONORTHWATER STREET
SUITE 2100
MILWAUKEE, WI 53202
FIRST NAMED INVENTOR
Karl Linck
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.
11667 1030
EXAMINER
BECKER, DREW E
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
04/07/2016 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 Admin@reinhartlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KARL LINCK, CHAY VUE, and CRAIG HACKL 1
Appeal2014-008147
Application 13/251, 722
Technology Center 1700
Before 1\1ARK NAGUl\10, CHR.ISTOPHER 1\1. !LAISER, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection2 of
claims 1-6 and 12. 3 We have jurisdiction under 35 U.S.C. § 6(b ). We affirm
substantially for reasons well-stated by the Examiner.
1 The Real Party in Interest is identified as Zenbury International Limited
(Appeal Brief, filed 03 April 2014 ("Br."), 2.)
2 Office Action mailed 04 December 2013 ("Final Rejection"; cited as
"FR").
3 Claims 7-11 and 13-23 have been withdrawn. (Br. 1-5; see also FR, 2-5.)
Appeal2014-008147
Application 13/251,722
A. Introduction4
OPfNION
The subject matter on appeal relates to a process for "making
individual quick frozen pellets" of a food product. (Spec. i-f 1.) The
particular process is said to include operations of dispensing the food
product into individual cavities along "a conveyer" and freezing the food
product "into an individual quick frozen pellet starting immediately upon
disposition in one of the cavities." (Id. i-fi-1 6, 7.) Representative claim 1
reads:
A process for metering the disposition of a food product
into cavities for forming a pellet, the cavities are defined in an
endless conveyor as individual cavities, with each cavity
defining a specific volume, the process comprising:
supplying a quantity of food product in a supply chamber,
wherein the supply chamber includes a plurality of nozzles
aligned above the conveyor;
reducing the temperature of the conveyor to a
predetermined temperature in a cryogenical refrigeration
apparatus;
aligning the plurality of nozzles with a predetermined
portion of the cavities;
metering a predefined amount of the supply of food
product dispensed through dispensing the food product through
one of the nozzles into one of the cavities without exceeding the
specific volume of the cavity;
freezing the food product into an individual quick frozen
pellet starting immediately upon disposition in one of the
cavities in the conveyor; and
wherein reducing the temperature of the conveyor to the
predetermined temperature in the cryogenical refrigeration
4 Application 13/251, 722, filed 03 October 2011. We refer to the
'"722 Specification," which we cite as "Spec."
2
Appeal2014-008147
Application 13/251,722
apparatus is performed prior to dispensing the food product
through one of the nozzles into one of the cavities.
(Claims Appendix, 1 (emphases added).)
The Examiner maintains the following grounds of rejection: 5
A. Claims 1, 5, and 12 stand rejected under 35 U.S.C § 103(a) as
being unpatentable over Andersson. 6
Al. Claims 2 and 3 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Andersson and Ricciardi. 7
A2. Claims 4 and 6 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Andersson, Ricciardi, and Tanara. 8
B. Claims 1-6 and 12 stand provisionally rejected for non-
statutory double patenting over claims 1-22 of U.S. Patent
Application No. 13/614,868.
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Claim 19
Appellants argue that the Examiner erred in concluding that the
differences between the claimed invention and the prior art Andersson
5 Examiner's Answer mailed 15 May 2014 ("Ans.").
6 Bo Andersson, Freezing of Material Into Blocks, U.S. Patent 6,012,293
(issued Jan. 11, 2000).
7 Ronald J. Ricciardi, et al., Weigh Feeding Apparatus, U.S.
Patent 4, 111,272 (issued Sep. 5, 1978).
8 Giovanni Tanara, Automatic Ice Cream Manufacturing Machine, U.S.
Patent 4,044,161 (issued Aug. 23, 1977).
9 Claims 5 and 12 stand or fall with claim 1. (See Br. 6.)
3
Appeal2014-008147
Application 13/251,722
reference are such that the claimed invention as a whole would have been
obvious. In particular, Appellants argue that Andersson does not teach or
suggest a process meeting the limitation requiring "a cryogenical
refrigeration apparatus," and the limitation, ''freezing the food product into
an individual quick frozen pellet starting immediately upon disposition in
one of the cavities in the conveyor," recited in claim 1 (emphases added).
Appellants acknowledge that Andersson describes the use of "liquid
nitrogen ... for further cooling of the product in the molds" on a conveyer
but nonetheless assert that "Andersson does not teach or suggest a
cryogenical freezing apparatus." (Br. at 4--5.) The distinction- as argued
by Appellants- is that Andersson's application of nitrogen "is done to the
product itself' in exclusion of the conveyer and therefore cannot render the
claim at issue obvious. (Id. at 5.) The Examiner, on the other hand, finds
that by applying the liquid nitrogen to "the product in the molds" on a
conveyer, the liquid nitrogen would be "commonly applied" to "both the
food and the conveyer." (Ans. 7-8.)
We are not persuaded that the Examiner erred here. The Examiner
points out that the claim at issue does not exclude liquid nitrogen from being
applied to multiple components of the freezing process including the food
product and the conveyer. (Ans. 7 .) In addition, the Appellants apparently
concede that the scenario in which the liquid nitrogen is "commonly
applied" to both the food and the conveyer is "plausible" 10 in light of
Andersson. (Reply 6.) Given that the Examiner has provided a plausible
10 Appellants state that, given the Examiner's scenario, "it is equally
plausible that only enough liquid nitrogen is supplied in Andersson" to cool
the product. (Reply Brief filed 15 July 2014, 6 ("Reply").)
4
Appeal2014-008147
Application 13/251,722
reason why the claimed subject matter as a whole would have been obvious
over Andersson within the meaning of 35 U.S.C. § 103, we uphold the
Examiner's determination with regard to the "cryogenical refrigeration
apparatus" limitation of claim 1.
Appellants next argue that the Examiner erred by failing to recognize
that Andersson does not teach or suggest a process in which the food product
is frozen "starting immediately upon disposition in one of the cavities in the
conveyor" as claimed. (Br. 5 (emphasis added); see also Reply 7.) Based
on a passage in Andersson describing the post-processing product as being
"at least partly frozen" (Br. 5 (citing Andersson at 5, 11. 1-7), and without
other evidentiary support, Appellants argue that the conveyer in Andersson
is "exposed to ambient temperature prior to product disposition" and that the
"ambient air exposure is greater than the entire length" of the cooling
process in Andersson. (Br. at 5---6; see also Reply 7-8 (asserting that there is
"a significant length" in the ambient air exposure in Andersson).)
"Attorney's argument in a brief cannot take the place of evidence." In
re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Here, the mention of an "at
least partially frozen" food product in Andersson does not provide, for
example, what the "length" or "ambient temperature" of the Andersson
process might be. Appellants' contention with regard to the ambient
temperature exposure in Andersson is not supported by evidence in the
record, and Appellants fail to carry their burden to show error. Id.
Furthermore, as the Examiner points out, features such as the possible
protection from exposure to ambient temperature or cooling the food product
while the conveyer is at ambient temperature are not recited in the claim at
issue. (Ans. 8); see In re Lundberg, 244 F.2d 543, 548 (CCPA 1957)
5
Appeal2014-008147
Application 13/251,722
("Limitations in the specification not included in the claim[ s] may not be
relied upon to impart patentability to an otherwise unpatentable claim.").
The Examiner also finds that the claimed process in which the food product
is frozen "starting immediately upon disposition in one of the cavities in the
conveyor" does not preclude the process from producing the "at least
partially frozen" product described in Andersson. No harmful error has been
shown in the Examiner's findings that claim 1 would have been obvious to a
skilled artisan based on Andersson' s process in which both the food and the
conveyer are cooled during cooling cycles. (Ans. 8); see KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 419 (2007) (holding that it is not necessary to
find precise teachings in a particular reference directed to the specific
subject matter claimed because inferences and creative steps that a person of
ordinary skill in the art would employ can be taken into account).
Claim 3
Appellants argue that neither Andersson nor Ricciardi teaches or
suggests a process to freeze food in which "each cavity of a predetermined
portion of the cavities receives a different predetermined weight of the food
product" as recited in claim 3 (dependent from claim 1 ). Appellants argue
that while Ricciardi describes a "weigh feeder apparatus" capable of
"discharging [a] substance from [a] container at a controllable rate," a
skilled artisan would not have found claim 3 obvious in light of this teaching
directed to flow rate control. (Br. 7 (citing Ricciardi at 3, 11. 5-22).)
The Examiner responds that both Andersson and Ricciardi "are
directed to the metering and dispensing of flowable materials" and that a
skilled artisan would have combined the freezing process taught in
6
Appeal2014-008147
Application 13/251,722
Andersson and the controlled dispensing system taught in Ricciardi to yield
a predictable result. (Ans. 10-11.)
"[W]hen the question is whether a patent claiming the combination of
elements of prior art is obvious," the answer depends on "whether the
improvement is more than the predictable use of prior art elements according
to their established functions." KSR, 550 U.S. at 417. Here, to the extent
that claim 3 proposes an improvement to the freezing process described in
Andersson, Appellants have not shown that "the improvement is more than
the predictable use" of Andersson and Ricciardi. See id. We accordingly
are not persuaded that the Examiner erred in the finding that it is within the
skilled artisan's knowledge to implement a predictable variation based on
the collective teachings in Andersson and Ricciardi. (Ans. 10-11.)
Claims 2, 4 & 6
With regard to claims 2, 4, and 6 (all dependent claims of claim 1 ),
Appellants provide no evidence of error in the Examiner's findings but
merely repeat the claim language and provide conclusory statements that the
claimed features are not obvious. (See Br. 7 and 8); In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art."). We are not
persuaded by these arguments for the reasons discussed with respect to claim
1, from which claims 2, 4, and 6 depend.
Provisional Double Patenting Rejections
Appellants argue that the provisional double patenting rejection based
on co-pending Application No. 13/614,868 is in error. Appellants argue that
7
Appeal2014-008147
Application 13/251,722
the element of "reducing the temperature of the conveyor to the
predetermined temperature in the cryogenical refrigeration apparatus []prior
to dispensing the food product through one of the nozzles into one of the
cavities" "is not found in any of copending claims 1-22 of the '868
application." (Br. 10; see also Reply 13.)
"The primary inquiry in double patenting cases is [] whether the
claims in the [later] patent are more than a 'slight variant' from the claims in
the earlier patent." Eli Lilly & Co. v. Teva Pharms. USA, Inc., 619 F.3d
1329, 1341--42 (Fed. Cir. 2010). Here, notwithstanding the fact that the
claims in the '868 application and the application at issue recite different
terms, the Examiner finds that the claim at issue is no more than a slight
variant from claim 1 of the '868 Application which "lists a sequence of steps
wherein the step of reducing the conveyor temperature occurs before the
steps of aligning, metering, and dispensing the food into the cavities." (Ans.
12.) Other than pointing to the fact that the pending claims and claims 1-22
of the '868 application are not identical, Appellants have not pointed us to
any error in the Examiner's conclusion that the pending claims are obvious
variant of the same invention. We are therefore not persuaded that the
Examiner erred in the provisional double patenting rejections of these
claims.
C. Order
It is ORDERED that the rejection of claims 1-6, and 12 is affirmed.
8
Appeal2014-008147
Application 13/251,722
No time period for taking any subsequent action in connection with this
appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
9