Ex Parte Wegwerth

Patent Trial and Appeal BoardAug 30, 2017

13457818 (P.T.A.B. Aug. 30, 2017)

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. 13/457,818 04/27/2012 Hugh Wegwerth 3512 7590 HUGH WEGWERTH 1795 ALBERT STREET FALCON HEIGHTS, MN 55113 EXAMINER YOO, HONG THI ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 08/31/2017 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 HUGH WEGWERTH Appeal 2016-007973 Application 13/457,818 Technology Center 1700 Before MARK NAGUMO, WESLEY B. DERRICK, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. DERRICK, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING STATEMENT OF THE CASE Appellant requests that we reconsider our Decision of June 22, 2017 (“Decision”), in which we reversed the Examiner’s decision and entered a new ground of rejection of claims 1 and 7 under 35 U.S.C. § 103(a) as being unpatentable over Sahni1 in view of Rey2 and Beechlyn3 (Decision 4-7) issued in the Decision. See Request for Rehearing filed August 21, 2017 (“Request”). 1 Julie Sahni, Classic Indian Cooking (1980). 2 Rey, US 2,782,825, issued February 26, 1957. 3 Beechlyn, US 1,794,823, issued March 3, 1931. Appeal 2016-007973 Application 13/457,818 ANALYSIS As provided by 37 C.F.R. § 41.50(b)(2), when the Board enters a new ground of rejection, an Appellant may request rehearing to address the new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection. Appellant contends that we misapprehend the device disclosed in Rey, as well as the manner in which it is used, in finding Rey to disclose removing coconut meat by the conventional method with a coconut half held in one hand and a knife held in the other. Request 4-5. Noting disagreement with our description of the device in Rey, Appellant contends the device in Rey is a power driven machine requiring at least two workmen wherein the workmen do not manually manipulate the knife blade, but one in which a first workman holds the coconut with two hands and a second operates the machine. Request 4-5 (citing Rey col. 1, 11. 43-44,4 48-51, 60-64, col. 2,11. 11-13, Figs. 1, 3). Noting that “[t]he Board refers to Figures 1 and 3 of Rey,” but still finds Rey to disclose the conventional method of holding a coconut half in one hand and using a knife held in the other hand to remove the coconut meat, Appellant contends that it is evident from Figure 3 of Rey that the coconut is held by both hands of a worker against the knife attached to the 4 Appellant cites text by reference to line numbers in column 1 of Rey sequentially from the first line of text, which begins at line 15, rather than citing to the corresponding line number according to the provided line numbering disposed between columns 1 and 2 as is the convention. Our citation in the Decision and herein follows the convention of identifying the text by reference to the provided line numbering. 2 Appeal 2016-007973 Application 13/457,818 device operated by a second worker, and that the device is the object of Rey’s invention. Request 4-5 (citing Rey col. 1,11. 43^14, 48^19, col. 2, 11. 11-13, Figs. 1,3). As to removing the coconut meat in a single piece, Appellant contends that Rey’s recitation that “it is usually necessary to cut the meat in the shell into small pieces” does not teach that the coconut meat can be removed in a single piece. Request 5. Emphasizing again that Rey’s power driven cutting device and its use differs from the claimed knife and its use, Appellant expresses disagreement with our determination that “Rey reasonably teaches that the coconut meat can be removed in a single piece using hand knives.” Request 6 (citing Decision 5-6). Appellant’s arguments fail to identify any point misapprehended or overlooked because Rey was relied on for its teaching of the conventional method using a knife in one hand and holding the coconut in the other and on its teaching as to the shape of a useful blade, not on Rey’s inventive power driven device or its use. Decision 4 (citing Rey col. 1,11. 22-26, col. 3,11. 35^40, Figs. 1, 3). Neither did we misapprehend or overlook any point as to removing the meat in a single piece as our finding was grounded on Rey reasonably teaching that using a hand held knife did not always require cutting the meat into pieces, and we are directed to nothing to the contrary, particularly as to knives with curved blades according to the combination of Sahni and Rey. Decision 4-5. Appellant contends that we overlooked the critical “distinct upward curve . . . [of] the Beechlyn knife, labeled with the numeral 13 in both Figures 1 and 2” and misapprehended that a “knife blade with this curvature in the middle “. . . would have been capable of performing the intended use 3 Appeal 2016-007973 Application 13/457,818 recited . . . (page 5, paragraph 4 of the Decision).” Request 6-7. Appellant further contends that the further reversed curvature at the tip of Beechlyn’s knife distinguishes that knife from Appellant’s knife. Request 7. Appellant further disagrees with our reliance on Beechlyn as analogous art. Request 7 (citing Decision 5). Appellant’s arguments fail to identify any point misapprehended or overlooked because Beechlyn was not relied on for its teaching of the blade shape, but rather for its teaching of how to attach a handle, as is manifest from our Decision discussing “a curved knife as taught by Sahni, modified to include the flattened spoon shape and sharp pointed end as taught by Rey” and that it would have been “obvious to attach the modified knife blade to a handle through a holder member as taught by Beechlyn.” Decision 5. As to our reliance on Beechlyn as analogous art, we discern no cogent argument directing us to any point misapprehended or overlooked. Appellant contends Sahni’s disclosure is insufficient to comprehend the curvature of a knife of identical structure to Appellant’s knife tool configured to remove, or capable of removing, coconut meat from the coconut shell in one piece. Request 7. Appellant’s arguments fail to identify any point misapprehended or overlooked as Sahni was relied on for its teaching that it was known to use a curved knife to remove coconut meat from a coconut shell after cracking the coconut to open the shell. Decision 4. CONCLUSION For the reasons above, we have granted Appellant’s Request to the extent that we have reconsidered our Decision in light of the arguments in 4 Appeal 2016-007973 Application 13/457,818 Appellant’s Request, but we deny Appellant’s request to make any changes therein. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). DENIED 5