Ex Parte Meyrahn et al

Patent Trial and Appeal BoardOct 30, 2012

11670697 (P.T.A.B. Oct. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOACHIM MEYRAHN, EGGO HASCHKE, and JURGEN HANTEN ____________ Appeal 2010-009917 Application 11/670,697 Technology Center 3700 ____________ Before STEFAN STAICOVICI, GAY ANN SPAHN, and JAMES P. CALVE, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-009917 Application 11/670,697 2 STATEMENT OF THE CASE Joachim Meyrahn et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-6 and 8-15 under 35 U.S.C. § 103(a) as unpatentable over Ebert (DE 10 2005 033 437 A1, published Feb. 1, 2007.1 Claim 7 has been canceled. We have jurisdiction over this appeal under 35 U.S.C. § 6. THE INVENTION Appellants’ invention relates to a clip control system including a stuffer/clipper, a processing unit having an operating parameter, and a clip package holding a plurality of clips and product-specific information that can be used by the processing unit to set the operating parameter. Spec. 3, ll. 15-20; Spec. 6, ll. 7-9; and fig. 1. Claim1 is illustrative of the claimed invention and reads as follows: 1. A clip control system comprising: a stuffer/clipper for processing a food product, said stuffer clipper comprising a reader and a processing unit and having a product-specific operating parameter, said operating parameter comprising at least one of a clip type, a portion per casing, a label, and a casing brake setting; a clip package mountable to said stuffer/clipper and holding a plurality of clips; and 1 This reference is the priority document to U.S. Patent No. 7,325,380 B2, issued Feb. 5, 2008. Inasmuch as both the Examiner and Appellants have referred to U.S. Patent No. 7,325,380 B2, for consistency, all references to DE 10 2005 033 437 A1 in our opinion are to U.S. Patent No. 7,325,380 B2 (hereafter “Ebert”). See Ans. 3 and App. Br. 5. We further find for the purpose of this appeal that the Examiner’s reference to “DE 10 1005 033 437.7” to be a mere topographical error. See e.g, Ebert, under the section “Foreign Application Priority Data.” Emphasis added. Appeal 2010-009917 Application 11/670,697 3 information encoded in said clip package and readable by said reader; said processing unit configured to receive said information and to set said operating parameter based thereon. SUMMARY OF DECISION We AFFIRM-IN-PART. ANALYSIS Claims 1-6, 8, and 9 Independent claim 1 requires a processing unit configured to set an operating parameter based on information encoded in a clip package, wherein “said operating parameter comprising at least one of a clip type, a portion per casing, a label, and a casing brake setting.” App. Br., Claims Appendix. The Examiner found that the system of Ebert reads information contained on a clip package and sends it to a control unit 146 which after comparing it to a list, allows the process to continue if the information is correct. Ans. 4. The Examiner concluded that: . . . it would have been obvious to one of ordinary skill in the art at the time the invention was made to add more information, as taught in the disclosure of EBERT, and to further use any of the recited pieces of information in the identifier in order to make it more useful to a consumer. Id. Appellants argue that in contrast to the claimed invention in which the “system actually controls the operation of the stuffer/clipper,” Ebert’s system “merely allows his clipper to operate.” App. Br. 5. According to Appellants, because “Ebert only has information relating to the compatibility Appeal 2010-009917 Application 11/670,697 4 of the clip and the clip tool,” Ebert does not have any information on the product to be manufactured. Thus, Ebert does not describe setting of an operating parameter “comprising at least one of a clip type, a portion per casing, a label, and a casing brake setting,” as called for by independent claim 1. App. Br. 6. In response, the Examiner takes the position that the “reading and setting of information in digital format” by Ebert’s control system constitutes a control system configured to set an operating parameter, as called for by independent claim 1. Ans. 5. We do not agree with the Examiner that “reading and setting of information in digital format” constitutes setting a product-specific operating parameter, as called for by independent claim 1. When construing claim terminology in the United States Patent and Trademark Office, claims are to be given their broadest reasonable interpretation consistent with the specification. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). In this case, Appellants’ Specification states that, “[s]tuffer/clipper 30 uses this information [product-specific information] to program itself for the proper operating parameters necessary for that clip 40.” Spec. 6, ll. 7-9. Emphasis added. An ordinary and customary meaning of the term “set” that is most consistent with the Specification is “to adjust (a device and especially a measuring device) to a desired position.” MERRIAM - WEBSTER’S COLLEGIATE DICTIONARY (10th Ed. 1997). Thus, we interpret the limitation “said processing unit configured to receive said information and to set said operating parameter based thereon” to mean that the Appeal 2010-009917 Application 11/670,697 5 processing unit adjusts the product-specific operating parameter based upon the information received. In Ebert, control unit 146 (evaluation means) merely compares a clip information signal and a closure tool signal to a table and if the signals are compatible, outputs a compatibility signal that enables operation of the clip machine. See App. Br. 6. See also, Ebert, col. 3, ll.32-48; col. 6, l. 61 through col. 7, l. 2; and fig. 1. We could not find any portion in Ebert and the Examiner has not pointed to any portion that discloses control unit 146 adjusting a product-specific operating parameter. Thus, we agree with Appellants that because Ebert “does not describe ‘setting information,’” Ebert fails to describe “setting an operating parameter of a clip type, a portion per casing, a label, or a casing brake setting.” Reply Br. 2. Thus, we cannot sustain the rejection of independent claim 1 and its dependent claims 2-6, 8, and 9 under 35 U.S.C. § 103(a) as unpatentable over Ebert. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988) Claims 10-15 With respect to independent claim 10, and its dependent claims 11 through 15, Appellants make the same arguments as presented above regarding the rejection of independent claim 1. App. Br. 6 and 7. Here, we are not persuaded by Appellants’ arguments because independent claim 10 does not require a processing unit, moreover a processing unit configured to set an operating parameter. See App. Br., Claims Appendix. Appellants do not make any argument regarding the Examiner’s proposed modification of Ebert. Appeal 2010-009917 Application 11/670,697 6 Thus, for the foregoing reasons, we shall sustain the rejection of claims 10-15 under 35 U.S.C. § 103(a) as unpatentable over Ebert. SUMMARY The decision of the Examiner is affirmed as to claims 10-15 and reversed as to claims 1-6, 8, and 9. 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-IN-PART Klh