Morris & Associates, Inc.v.Cooling & Applied Technology, Inc.

Patent Trial and Appeal Board

Jul 21, 2015

09637345 (P.T.A.B. Jul. 21, 2015)

Trials@uspto.gov Paper No. 7
571.272.7822 Entered: July 21, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

MORRIS & ASSOCIATES, INC.,
Petitioner,

v.

COOLING & APPLIED TECHNOLOGY, INC.,
Patent Owner.
____________

Case IPR2015-00461
Patent 6,397,622 B1
____________

Before MEREDITH C. PETRAVICK, BARRY L. GROSSMAN, and
JEREMY M. PLENZLER, Administrative Patent Judges.

PETRAVICK, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108

I. INTRODUCTION
A. Background
Morris & Associates, Inc. (“Petitioner”) filed a Petition requesting
inter partes review of claims 1–8 of U.S. Patent No. 6,397,622 B1 (Ex.
1001, “the ’622 patent”) pursuant to 35 U.S.C. §§ 311–319. Paper 1
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(“Pet.”). Cooling & Applied Technology, Inc. (“Patent Owner”) filed a
Preliminary Response to the Petition. Paper 6 (“Prelim. Resp.”). We have
jurisdiction under 35 U.S.C. § 314, which provides that an inter partes
review may not be instituted “unless . . . the information presented in the
petition . . . shows that there is a reasonable likelihood that the petitioner
would prevail with respect to at least 1 of the claims challenged in the
petition.”
We conclude that Petitioner has failed to demonstrate that there is a
reasonable likelihood that it would prevail with respect to at least one of the
challenged claims. For the reasons described below, we deny institution of
inter partes review.

B. Related Proceedings
Both Petitioner and Patent Owner state that the ’622 patent is the
subject of a pending proceeding in the U.S. District Court for the Eastern
District of Arkansas, Cooling & Applied Technology, Inc. v. Morris &
Associates, Inc., Civil Action No. 4:14-cv-0368-BRW. Pet. 1; Paper 4, 1.
The ’622 patent was the subject of Reexamination Request No.
90/013,096, which resulted in Ex Parte Reexamination Certificate
US 6,397,622 C1. During reexamination, claim 1 was amended and claims
3–8 were added.

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C. The ’622 patent
The ’622 patent is titled “Water Flow for Auger Type Poultry Chiller”
and issued June 4, 2002. Ex. 1001, 1. The ’622 patent discloses a counter
flow, re-circulating, externally refrigerated auger type chiller. Id. at col. 2,
ll. 66–67. Figure 2 is reproduced below.

Figure 2 depicts the chiller of the ’622 patent.
The chiller has tank 20 and auger 10, mounted to rotate in tank 20. Id.
at col. 4, ll. 1–2. Tank 20 has an inlet end 21, where freshly killed poultry
carcasses enter the tank, and an outlet end 22, where chilled poultry
carcasses exit the tank. Id. at col. 4, ll. 6–9. Tank 20 is filled with chilled
water 30, which flows counter to the poultry carcasses. Id. at col. 4, l. 5,
33–38. Water 30 enters tank 20 at outlet end 22 and exits tank 20 at inlet
end 21. Id. Auger 10 rotates such that the poultry carcasses move through
the water and, thereby, transfer heat to water 30. Id. at col. 4, ll. 16–19.
Water 30 exits tank 20 at inlet end 21 and is circulated to a refrigeration
system 40. Id. at col. 4, ll. 20–25. Refrigeration system 40 re-chills water
30 through heat exchanger 41 and re-chilled water 30, then enters tank 20 at
outlet end 22. Id. at col. 4, ll. 27–29.
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Figures 4 and 5 of the ’622 patent are reproduced side-by-side below.

Figure 4 depicts a cross sectional end view of a prior art chiller, and Figure 5
depicts a cross sectional end view of the chiller of the ’622 patent.
Figures 4 and 5 depict a side-by-side comparison of the cross section
of a prior art chiller and the chiller of the ’622 patent. See id. at col. 3, ll.
60–62. The cross section of tank 20 of the ’622 patent’s chiller is depicted
in Figure 5. Id. at col. 2, ll. 61–62. Tank 20 is semi-cylindrical in shape and
the walls of tank 20 closely conform to the circular cross section of the
auger. Id. at col. 3, ll. 1–3. The ’622 patent states:
By minimizing the gap between the walls of the tank and the
outer edges of the rotating auger, the counter flowing chilled
water is forced to flow in the helical path determined by the
auger. This assures a longer residence time for the chilled
water in the auger, more thorough and more intimate contact
between the poultry carcasses and the chilled water, and thus
more efficient transfer of heat from the poultry carcasses to the
chilled water.
Id. at col. 3, ll. 3–10.
In the prior art chiller depicted in Figure 4, tank 53 has a cylindrical
shape up to approximately a center line of the axis of rotation of auger 51.
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Id. at col. 4, ll. 39–45. Vertical portions 55 of tank 53’s longitudinal walls,
water level 56, and outer edge 52 of auger 51 form triangular area 60. Id. at
col. 4, ll. 49–51. Triangular area 60 extends through the chiller and provides
a path, which bypasses the longer helical route around the flights of auger
51. Id. at col. 4, ll. 52–56. “The chilling water naturally tends to follow the
easier route and thus is inefficiently routed away from the most desirable
route around the auger where contact with the poultry carcasses is desired
for maximum heat transfer.” Id. at col. 4, ll. 56–59.
Claim 1, which was amended during reexamination, is reproduced
below and is illustrative of the claimed subject matter.
1. An auger type food product chiller, comprising:
a tank comprising longitudinal side walls having an inlet
end and an outlet end, an inlet wall closing said inlet end, an
outlet wall closing said outlet end, wherein said longitudinal
side walls comprise an inner surface and an outer surface,
wherein said longitudinal side walls, said inlet wall and said
outlet wall together form a semi-cylinder having an inner
surface and an outer surface;
an auger comprising a shaft and a helical blade, wherein
said helical blade forms at least one flight having outer edges,
wherein said helical blade and said inner surface of said tank
side walls forms a helical path between said inlet end of said
tank and said outlet end of said tank, said auger mounted for
rotation within said tank and having an axis of rotation whereby
rotation of said auger moves a food product along said helical
path from said inlet end of said tank to said outlet end of said
tank;
a volume of chilling water, wherein said tank is filled
with said volume of said chilling water to a water level above
said shaft of said auger and below a top of said at least one
flight of said auger, wherein an entirety of said inner surface of
said tank side walls is positioned parallel to said outer edges of
said at least one flight of said auger and wherein said entirety of
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said inner surface of said tank side walls conforms closely to
said outer edges of said one or more flights of said auger,
thereby forcing said chilling water to flow along said helical
path when said auger rotates and impeding a flow of said
chilling water between said tank side walls and said outer edges
of said at least one flight of said auger when said auger rotates;
means for removing the food product from said outlet
end;
means for discharging chilling water from said inlet end
of said tank;
refrigerating means external to said outer surface of said
tank for refrigerating the chilling water discharged from said
inlet end of said tank; and
means for re-circulating chilling water from said
refrigerating means and introducing chilling water into said
outlet end of said tank.
D. Asserted Grounds of Unpatentability
For all of the challenged claims, Petitioner asserts the following
grounds of unpatentability:
Ground Claims Prior Art
§ 103 1 and 3–8 Innes1 and Crawford2
§ 103 2 Innes, Crawford, and Morris’1013
§ 103 1 and 3–8 Innes and Morris’0004
§ 103 2 Innes, Morris’000, and Morris’101

1 Innes et al., U.S. Patent No. 4,860,554 (issued Aug. 29, 1989)(Ex. 1004).
2 Crawford et al., U.S. Patent No. 4,788,831 (issued Dec. 6, 1988)
(Ex. 1005).
3 Morris, Jr. et al., U.S. Patent No. 5,868,000 (issued Feb. 9, 1999)(Ex.
1006).
4 Morris, Jr. et al., U.S. Patent No. 3,410,101 (issued Nov. 12, 1968)(Ex.
1007).
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II. ANALYSIS
A. Claim Construction
We interpret claims using the broadest reasonable construction in light
of the specification of the patent in which they appear. 37 C.F.R.
§ 42.100(b). Under the broadest reasonable construction standard, claim
terms are given their ordinary and customary meaning, as would be
understood by one of ordinary skill in the art in the context of the entire
disclosure. In re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir.
2007). However, a “claim term will not receive its ordinary meaning if the
patentee acted as his own lexicographer and clearly set forth a definition of
the disputed claim term in either the specification or prosecution history.”
CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002).
Any special definition for a claim term must be set forth in the specification
with “reasonable clarity, deliberateness, and precision.” In re Paulsen, 30
F.3d 1475, 1480 (Fed. Cir. 1994).
i. “an entirety of said inner surface of said tank side walls is
positioned parallel to said outer edges of said at least one flight of said
auger”
Independent claims 1 and 8 recite “an entirety of said inner surface of
said tank side walls is positioned parallel to said outer edges of said at least
one flight of said auger.” Petitioner proposes that “parallel” should be
construed to mean “everywhere equally distant” because Patent Owner acted
as its own lexicographer and defined parallel as such during the
reexamination. Pet. 11 (citing Ex. 1003, 268). Patent Owner does not
propose an alternate construction or address the propriety of Petitioner’s
construction in the Preliminary Response. See Prelim. Resp. 11, n. 1.
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In an Amendment filed on December 18, 2013 during the
reexamination of the ’622 patent, Patent Owner amended claim 1 to include
this limitation and stated “[a]s used herein, ‘parallel’ means ‘everywhere
equally distant.’ See Exhibit A, Merriam-Webster Dictionary.” Ex. 1003,
268. Cited Exhibit A is a definition of “parallel” from MERRIAM-
WEBSTER’S NEW COLLEGIATE DICTIONARY, which defines “parallel” as
“everywhere equally distant .” Id. at 255–256.
Based upon this record, we are persuaded that Patent Owner acted as
its own lexicographer and defined “parallel” as “everywhere equally
distant.” The limitation, thus, requires that an entirety of said inner surface
of said tank side walls is positioned everywhere equally distant to said outer
edges of said at least one flight of said auger.
ii. Other Terms
Petitioner proposes constructions for various other claim terms.
Pet. 9–14. Based upon our review of the record before us, however, no
explicit construction of any other claim term is needed at this time.

B. Grounds Under 35 U.S.C. § 103
Section 103(a) forbids issuance of a patent when “the
differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made to
a person having ordinary skill in the art to which said subject
matter pertains.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
obviousness is resolved on the basis of underlying factual determinations,
including: (1) the scope and content of the prior art, (2) any differences
between the claimed subject matter and the prior art, and (3) the level of skill
in the art. Graham v. John Deere Co., 383 U.S. 1, 17 (1966); see KSR, 550
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U.S. at 407 (“While the sequence of these questions might be reordered in
any particular case, the [Graham] factors continue to define the inquiry that
controls.”).
i. Claims 1 and 3–8 over Innes and Crawford and over Innes and
Morris’000
Independent claims 1 and 8 both recite “wherein an entirety of said
inner surface of said tank side walls is positioned parallel to said outer edges
of said at least one flight of said auger” (“the parallel limitation”) and, as
discussed above, we construed the parallel limitation as requiring that an
entirety of said inner surface of said tank side walls is positioned everywhere
equally distant to said outer edges of said at least one flight of said auger.
Claims 3–7 depend from claim 1.
Petitioner contends that claims 1 and 3–8 are unpatentable over Innes
and Crawford and that claims 1 and 3–8 are unpatentable over Innes and
Morris’101. In both of these grounds, Petitioner relies upon Innes alone to
teach the parallel limitation. See Pet. 20–21, 24–25, 44, 46. Petitioner
argues:
Innes discloses that the auger is “coaxial” with the axis of the
tank, and the outer edges of the auger “closely approach” the
inner surface of the tank. Ex. 1004, 4:67–5:1, 3:44–47. To be
coaxial is to have a common axis, or to be concentric, which,
notably, is the very term contained in the definition relied upon
by Patent Owner during the reexamination of the ’622 Patent.
See Ex. 1003, pp. 256 and 268. In order to be “parallel” or
“everywhere equally distant,” the axis of the tank and the axis
of the auger flights have to be the same, or concentric/coaxial.
Thus, in Innes, the inner surface of the tank side walls is
positioned equally distant to the outer edges of the flight of the
auger.
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Pet. 24–25 (citing Ex. 1008 ¶¶ 35, 40, “Smith Decl.”). In addition to
repeating much of Petitioner’s argument from the Petition (see Smith Decl.
¶¶ 35, 40), Petitioner’s declarant Dr. Smith states:
For the auger to be coaxial with the axis of the tank, that means
that the auger flights have to necessarily be parallel to the inside
walls of the tank. Therefore, the inner surface of Innes’ tank is
positioned equally distant to the outer edges of the flight of the
auger.
Smith Decl. ¶ 40.
Patent Owner contends that Petitioner has failed to demonstrate that
Innes discloses, either expressly or inherently, the parallel limitation.
Prelim. Resp. 11–15. Patent Owner first argues that neither of the passages
of Innes cited by Petitioner expressly discloses the parallel limitation. Id. at
12 (referring to Ex. 1001, col. 3, ll. 44–47, col. 4, l. 64–col. 5, l. 1). Patent
Owner further argues that Petitioner’s argument (i.e., that to be coaxial
necessarily means that the parallel limitation is satisfied) assumes that the
cross-sectional shape of Innes’ worm is the same as the tank and that Innes,
however, does not teach such. Id. at 13–15.
Innes is U.S. Patent No. 4,860,554, which issued on August 29, 1989,
and is titled “Counter-flow Poultry Chiller.” Ex. 1004, 1. Figure 1 of Innes
is reproduced below.
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Figure 1 depicts the chiller of Innes.
Innes discloses a poultry chilling system that has tank 3, which is
“substantially semi-cylindrical,” and contains a worm 4 mounted on shaft 5.
Id. at col. 3, ll. 38–42. Innes states that “[t]he worm 4 is dimensioned so as
to closely approach the surface of tank 3 which may be semi[-]cylindrical
and extend 270˚ or more around the worm.” Id. at col. 3, ll. 44–47. Claim 1
of Innes recites “a screw-feed mechanism mounted within said tank with its
axis coaxial with axis of said tank and its outer edges closely approaching
the inner surface of said tank.” Id. at col. 4, l. 67–col. 5, l. 1.
We are not persuaded by Petitioner that Innes teaches the parallel
limitation. We agree with Patent Owner that Innes’ disclosure that tank 3
and worm 4 are coaxial does not necessarily teach that an entirety of an
inner surface of tank 3’s side walls is positioned everywhere equally distant
to said outer edges of a flight of worm 4. See Prelim. Resp. 12. For
example, the tank and auger of Figure 4 of the ’622 patent, reproduced
above, are coaxial (i.e., they have a common axis) but an entirety of an inner
surface of tank 55’s side walls are not positioned everywhere equally distant
to the outer edges of a flight of auger 54. Ex. 1001, Fig. 4. We also agree
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with Patent Owner that Innes’ disclosure that the outer edges of worm 4
closely approach the inner surface of tank 3 does not necessarily teach that
an entirety of an inner surface of tank 3’s side walls to be positioned
everywhere equally distant to said outer edges of a flight of worm 4.
See Prelim. Resp. 14–15.
We agree with Patent Owner that Petitioner’s argument (i.e., to be
coaxial necessarily means to be parallel) assumes or implies that the cross-
sectional shape of Innes’ worm 4 is circular or that worm 4 and tank 3 have
the same cross-sectional shape, but that neither Petitioner nor its declarant
Dr. Smith provides sufficient argument, rationale, and evidence to support
this assumption. Prelim. Resp. 14–15; see Pet. 24–25; Smith Dec. ¶¶ 35, 40.
Innes, itself, makes no explicit mention of the cross-sectional shape of worm
4 in its Specification, and Figures 1 and 2 do not clearly indicate the cross-
sectional shape of worm 4. See Ex. 1004, Figs. 1, 2.
We also are not persuaded by Petitioner that the dictionary definition,
relied upon during the reexamination (Ex. 1003, 268), equates being coaxial
or concentric to being parallel. See Pet. 11, 25. The dictionary definition
defines “parallel” as “everywhere equally distant .” Ex. 1003, 255–256 (MERRIAM-WEBSTER’S NEW COLLEGIATE
DICTIONARY’S definition of “parallel”). Concentric spheres are mentioned
as an illustration of usage of “parallel,” not as a definition of “parallel.”
On this record, we determine that Petitioner has failed to demonstrate
that there is reasonable likelihood that claims 1 and 3–8 are unpatentable
over Innes and Crawford and unpatentable over Innes and Morris’000.

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ii. Claim 2 over Innes, Crawford, and Morris’101 and Innes, Morris’000,
and Morris’101
Claim 2 depends from claim 1, and Petitioner does not rely upon
Crawford, Morris’101, and Morris’000 to cure the deficiency of Innes
discussed above (see Pet. 41–42, 59–60). We determine that Petitioner has
failed to demonstrate that there is a reasonable likelihood that claim 2 is
unpatentable over Innes, Crawford, and Morris’101 or over Innes,
Morris’000, and Morris’101.

III. CONCLUSION
On this record, we determine that Petitioner has failed to demonstrate
a reasonable likelihood of prevailing on the grounds of:
claims 1 and 3–8 under 35 U.S.C. § 103(a) over Innes and Crawford;
claim 2 under 35 U.S.C. § 103(a) over Innes, Crawford, and
Morris’101;
claims 1 and 3–8 under 35 U.S.C. § 103(a) over Innes and
Morris’000; and
claim 2 under 35 U.S.C. § 103(a) over Innes, Morris ’101, and
Morris’000.

IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that institution of inter partes review is denied as to all
challenged claims of the ’622 patent.

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PETITIONER:
N. Andrew Crain
Robert Gravois
Kenneth Knox
andrew.crain@thomashorstemeyer.com
robert.gravois@thomashorstemeyer.com
kenny.knox@thomashorstemeyer.com

PATENT OWNER:
Richard Blakely Glasgow
J. Charles Dougherty
bglasgow@wlj.com
jdougherty@wlj.com