Ex Parte Sammel et alDownload PDFPatent Trial and Appeal BoardNov 30, 201612267356 (P.T.A.B. Nov. 30, 2016) Copy Citation 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. 2 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. 3 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 4 Appeal 2014-007704 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 5 Appeal 2014-007704 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 6 Copy with citationCopy as parenthetical citation