Ex Parte Sammel et al

Patent Trial and Appeal Board

Nov 30, 2016

12267356 (P.T.A.B. Nov. 30, 2016)

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.
12/267,356 11/07/2008 Lauren Michele Sammel 1410/93411 5958
48940 7590 11/30/2016
FITCH EVEN TAB IN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
PATEL, BHARAT C
ART UNIT PAPER NUMBER
3724
MAIL DATE DELIVERY MODE
11/30/2016 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 LAUREN MICHELE SAMMEL, CORY PAINTER,
SARAH C. HUMKE, and SCOTT J. BRADLEY
Appeal 2014-007704
Application 12/267,356
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
GEORGE R. HOSKINS, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Lauren Michele Sammel et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision rejecting claims 1—7.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Claim 1 is illustrative, and reads:
1. A method of creating randomly sized slices of meat from
a plurality of meat products, the method including:
1 The Appeal Brief indicates Kraft Foods Group Brands LLC is the real
party in interest. Appeal Br. 3.
Appeal 2014-007704
Application 12/267,356
rotating a plurality of meat products using an impeller
having a plurality of inwardly extending paddles, the plurality of
meat products exceeding the plurality of paddles;
directing one of the meat products toward a slicing blade
during rotation of the impeller by lodging the one of the meat
products against one of the paddles and against the impeller using
centrifugal force from the rotation of the impeller;
urging the one of the meat products against the slicing
blade using the one of the paddles to cut a slice of meat from the
one of the meat products; and
dislodging the one of the meat products from against the
one of the paddles using others of the plurality of meat products,
so that the one of the meat products has a different orientation
with a subsequent urging against the slicing blade for creating
randomly sized slices of non-uniform meat product.
Appeal Br. 16 (Claims App.).
REJECTIONS
Claims 1—4, 6, and 7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Prewitt (US 2002/0170991 Al, published Nov. 21, 2002)
and Walker (US 6,895,846 B2, issued May 24, 2005).
Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Prewitt, Walker, and Sherman (US 2,253,733, issued Aug. 26, 1941).2
Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Prewitt, Walker, and/or in view of Sherman, and further in view of Urschel
(US 2007/0227325 Al, published Oct. 4, 2007).
2 The heading of the rejection lists “Sherman 2,253,733.” Final Act. 4. We
note, however, that William M. Sheldon is the named patentee for this patent
number (issued Aug. 26, 1941). US 2,252,733 (issued Aug. 19, 1941)
names J.Q. Sherman et al. as the patentees. The Examiner’s citations to
Sherman in the discussion of the rejection (Final Act. 4) make clear that
Sherman 2,252,733 is applied.
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Appeal 2014-007704
Application 12/267,356
ANALYSIS
Obviousness of claims 1—4, 6, and 7
As to claim 1, the Examiner finds that Prewitt discloses dislodging
one of the meat products from against one of the paddles 320 using others of
the meat products, but does not disclose “that the one of the meat products
has a different orientation with a subsequent urging against the slicing blade
for creating randomly sized slices of non-uniform meat product.” Final Act.
2—3 (citing Prewitt, || 34, 84, Figs. 1—13). The Examiner finds that Walker
teaches dislodging one of the meat products 12 from against one of the
paddles 38 using other meat products 12, so that the dislodged one meat
product 12 has a different orientation with a subsequent urging against
slicing blade 20 for creating randomly sized slices of non-uniform meat
product. Final Act. 3 (citing Walker, col. 1,11. 55—58, col. 2,11. 28—35, col.
4,1. 12—col. 5,1. 25, Figs. 1-10).
The Examiner concludes that it would have been obvious to provide
Prewitt’s impeller with a tapered thickness cutting arrangement, as taught by
Walker, to provide an irregular cut configuration as a tapered cut thickness
characteristic of a product. Final Act. 3 (citing Walker, col. 1,11. 55—58, col.
2,11. 28-35).
Appellants contend the combination of Prewitt and Walker fails to
disclose or suggest dislodging a meat product from an impeller paddle with
another meat product. Appeal Br. 10. Rather, Appellants contend, both
Prewitt and Walker teach maintaining the food product against an interior
surface of the drum during a full revolution for achieving a uniform cut
product. Id. at 6, 10.
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Appeal 2014-007704
Application 12/267,356
Prewitt discloses that the “product” that is cut or shredded can be
processed meats. See Prewitt 134. We agree with Appellants, however,
that the portions of Prewitt cited by the Examiner do not disclose or suggest
dislodging a meat product from against one of the paddles 320 using others
of the meat products. Appeal Br. 10-11. Appellants point out Prewitt
discloses that “centrifugal force ensures that the outer faces of the cheese
blocks [or processed meats] remain pressed against the inner periphery of
the housing 304 throughout the entire revolution of the impeller 314,” and
the cheese blocks or processed meats are continuously guided to successive
blades 330 until completely shredded. Id. at 10 (citing Prewitt, | 84,
(emphasis added)). As such, Prewitt appears to teach that dislodging of
products from the inner periphery of housing 304 not only does not occur,
but is to be prevented. Accordingly, the Examiner’s finding that Prewitt
discloses dislodging of a meat product from against a paddle using other
meat products (Final Act. 2) is not supported by a preponderance of the
evidence.
Appellants point out that Walker discloses that impeller 32 and
paddles 38 rotate “at a speed sufficient to carry and maintain each potato
12 in sliding engagement with the interior wall of the housing, by means
of centrifugal force.” Appeal Br. 10 (citing Walker, col. 3,11. 57—61; see
also, Walker, Fig. 4). Appellants also note that Walker discloses, “[t]he
remaining uncut portion of each product with the impeller 32 continues to be
rotated within the impeller to carry the product through another revolution
back into cutting engagement with the slicing knife 20 for cutting another
slice 14.” Id. at 9; see also Walker, col. 4,11. 28—32. These passages in
Walker appear to teach maintaining the food product against an interior
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Application 12/267,356
surface of the drum during a full revolution. We agree with Appellants that
the portions of Walker cited by the Examiner also do not disclose or suggest
dislodging a meat product from against a paddle using others of a plurality
of meat products, as claimed. Id. at 10-11.
The Examiner responds by providing additional explanation regarding
how the Examiner understands Walker’s apparatus to operate. Ans. 6. We
agree with Appellants, however, that the Examiner’s explanation is based on
speculation, not on actual disclosure found in Walker. “The Patent Office
has the initial duty of supplying the factual basis for its rejection. It may not,
because it may doubt that the invention is patentable, resort to speculation,
unfounded assumptions or hindsight reconstruction to supply deficiencies in
its factual basis.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967)
(emphasis added). The Examiner has not provided a factual basis to support
the position that Walker teaches the claimed “dislodging.”
Furthermore, claim 1 calls for the dislodged meat product to have “a
different orientation with a subsequent urging against the slicing blade for
creating randomly sized slices of non-uniform meat product.” As the
combination of Prewitt and Walker fails to disclose or suggest the claimed
“dislodging,” the combination also fails to disclose or suggest this further
limitation of claim 1.
We do not sustain the rejection of claim 1 and dependent claims 2-4,
6, and 7 as unpatentable over Prewitt and Walker.
Obviousness of claims 4 and 5
Claims 4 and 5 depend ultimately from claim 1. The Examiner’s
application of Sherman to the rejection of claim 4, and Sherman and Urschel
to the rejection of claim 5, does not cure the deficiencies of the rejection of
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Application 12/267,356
claim 1 discussed above. Final Act. 4—5. Accordingly, we do not sustain
the rejection of claim 4 as unpatentable over Prewitt, Walker, and Sherman,
or the rejection of claim 5 as unpatentable over the combination of Prewitt,
Walker, Sherman, and Urschel.
DECISION
We reverse the Examiner’s decision to reject claims 1—7.
REVERSED
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