Ex Parte Obersteiner

Patent Trial and Appeal BoardNov 25, 2014

11997760 (P.T.A.B. Nov. 25, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte HEIMO OBERSTEINER ____________ Appeal 2012-009647 Application 11/997,760 Technology Center 3700 ____________ Before JENNIFER D. BAHR, BRANDON J. WARNER, and TIMOTHY J. GOODSON, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Heimo Obersteiner (Appellant)1 appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–10, which are all the pending claims. Appeal Br. 2. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellant, the real party in interest is KONINKLIJKE PHILIPS ELECTRONICS N.V. Appeal Br. 2. Appeal 2012-009647 Application 11/997,760 2 CLAIMED SUBJECT MATTER Appellant’s disclosed invention relates to a food processing device including high speed rotation, such as for chopping. See, e.g., Spec., p. 1, ll. 1–7. Claim 1, reproduced below with disputed limitations italicized for emphasis, is the sole independent claim appealed and is representative of the subject matter on appeal. 1. A food processing device comprising: a container comprising a central shaft fixedly mounted on the container bottom; a lid covering the container; a processing tool unit supporting a food processing tool, wherein an upper end of the processing tool is coupled to a drive unit through the lid, a lower end of the processing tool has an elongated cavity for rotatably engaging with the central shaft and allowing for pivotal movement about the axis of the central shaft, the elongated cavity being provided with a bearing part, wherein the bearing part has a predetermined shape on an inner surface of the bearing part for jamming with the central shaft during the pivotal movement, and wherein the central shaft extends longitudinally through a hollow center of the processing tool. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Collins US 2,723,110 Nov. 8, 1955 Calange US 6,193,404 B1 Feb. 27, 2001 Safont US 2003/0007418 A1 Jan. 9, 2003 Appeal 2012-009647 Application 11/997,760 3 REJECTIONS The following rejections are before us for review:2 I. Claims 1–5 and 8–10 stand rejected under 35 U.S.C. § 102(b) as anticipated by Safont. II. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Safont and Collins. III. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Safont and Calange. ANALYSIS Rejection I – Claims 1–5 and 8–10 as anticipated by Safont Appellant argues the rejection of claims 1–5 and 8–10 together. See Br. 4–5; Reply Br. 2–5. We select claim 1 as the representative claim to decide the appeal of the rejection of these claims, with claims 2–5 and 8–10 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner found that Safont discloses all of the limitations as recited in independent claim 1. Ans. 5–6 (citing Safont, Figs. 1, 5, 8; ¶¶ 28, 30, 32). Appellant argues that “Safont fails to disclose or suggest ‘the elongated cavity being provided with a bearing part,’ as recited in claim 1.” Appeal Br. 5; see Reply Br. 2–4. We are not persuaded by Appellant’s argument because, as correctly found by the Examiner, Safont expressly discloses this limitation as recited in the claim. In particular, the Examiner 2 We note that the rejection of claims 1–10 under 35 U.S.C. § 112, second paragraph, as being indefinite, has been withdrawn by the Examiner and thus is not before us for review as part of the instant appeal. Ans. 4. Appeal 2012-009647 Application 11/997,760 4 correctly identified that Safont discloses tool 6, which includes an elongated cavity (lower hollow cavity that receives central shaft 11), and it is this lower hollow cavity of tool 6 that is “provided with” bearing part 9 (at an upper end thereof), as recited in the claim. See Ans. 5, 9–11; Safont, Figs. 1 (reproduced an annotated in the Answer), 8, 9; ¶ 30. Thus, Appellant has not apprised us of error in the Examiner’s findings, which are supported by a preponderance of the evidence. Appellant further argues that “Safont also fails to disclose or suggest ‘the central shaft extends longitudinally through a hollow center of the processing tool,’ as recited in claim 1.” Appeal Br. 5; see Reply Br. 4–5. Again, we are not persuaded by Appellant’s argument because, as correctly found by the Examiner, Safont expressly discloses this limitation as recited in the claim. In particular, as discussed supra, the Examiner correctly identified that Safont’s tool 6 includes an elongated lower cavity that receives central shaft 11 within the lower hollow portion thereof. See Ans. 5–6, 9–11; Safont, Figs. 1 (reproduced an annotated in the Answer), 8, 9; ¶ 30. Appellant also asserts that Safont’s central shaft 11 is “located below” tool 6 and thus “does not extend through its hollow center” (Appeal Br. 5), and that Safont’s cavity “is an enclosed cavity” such that central shaft 11 cannot extend longitudinally therethrough (Reply Br. 4–5); however, these assertions are misplaced as they are not responsive to the rejection as articulated by the Examiner.3 Rather, we note that Safont’s elongated lower 3 These assertions are flawed, as they appear to be directed to an additional, upper hollow portion of Safont’s tool 6, which is both located above central shaft 11 and enclosed at its lower end. See, e.g., Safont, Appeal 2012-009647 Application 11/997,760 5 cavity, as relied on by the Examiner in the rejection of record (see Ans. 5–6), is neither enclosed nor located above central shaft 11, but is instead open at a lower end thereof to receive central shaft 11, which extends longitudinally therethrough, in the same manner as Appellant’s device. Compare Figs. 1, 9 of Safont, with Figs. 1–4 of the present invention; see also Ans. 11. Thus, Appellant has not apprised us of error in the Examiner’s findings, which are supported by a preponderance of the evidence. Accordingly, for the foregoing reasons, we sustain the rejection of claim 1, and of claims 2–5 and 8–10 falling with claim 1, under 35 U.S.C. § 102(b) as anticipated by Safont. Rejection II – Claim 6 as unpatentable over Safont and Collins With respect to the rejection of claim 6, Appellant does not set forth any additional substantive arguments separate from the arguments discussed supra; instead stating only that “Collins fails to cure the above-identified deficiencies of Safont,” and relying on dependency from claim 1. Appeal Br. 6; Reply Br. 5. Accordingly, as we do not find any deficiencies of Safont, Appellant does not apprise us of error in the Examiner’s rejection of this claim and we likewise sustain the rejection of claim 6 under 35 U.S.C. § 103(a) as being unpatentable over Safont and Collins. Figs. 1, 9. But this additional hollow portion was not relied on by the Examiner in the rejection of record and is thus not germane to the issues here. See Ans. 5–6. Appeal 2012-009647 Application 11/997,760 6 Rejection III – Claim 7 as unpatentable over Safont and Calange With respect to the rejection of claim 7, Appellant does not set forth any additional substantive arguments separate from the arguments discussed supra; instead stating only that “Calange also fails to cure the above- identified deficiencies of Safont,” and relying on dependency from claim 1. Appeal Br. 7; Reply Br. 6. Accordingly, as we do not find any deficiencies of Safont, Appellant does not apprise us of error in the Examiner’s rejection of this claim and we likewise sustain the rejection of claim 7 under 35 U.S.C. § 103(a) as being unpatentable over Safont and Calange. DECISION We AFFIRM the Examiner’s decision rejecting claims 1–5 and 8–10 under 35 U.S.C. § 102(b) as anticipated by Safont. We AFFIRM the Examiner’s decision rejecting claim 6 under 35 U.S.C. § 103(a) as being unpatentable over Safont and Collins. We AFFIRM the Examiner’s decision rejecting claim 7 under 35 U.S.C. § 103(a) as being unpatentable over Safont and Calange. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Klh