Apparuti, Daniele et al.

Patent Trials and Appeals Board

May 4, 2020

2018008862 (P.T.A.B. May. 4, 2020)

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.
13/378,008 12/13/2011 Daniele Apparuti 1027651-000642 2038
21839 7590 05/04/2020
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
EXAMINER
YOO, REGINA M
ART UNIT PAPER NUMBER
1799
NOTIFICATION DATE DELIVERY MODE
05/04/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ADIPDOC1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte DANIELE APPARUTI,
ULF LINDBLAD, JENNY OLSSON,
and MICHAEL KOK OLSSON
__________

Appeal 2018-008862
Application 13/378,008
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, CHRISTOPHER C. KENNEDY, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
The Appellant1 filed an appeal under 35 U.S.C. § 134(a) from an Examiner’s
decision rejecting claims 13–18.2 We have jurisdiction under 35 U.S.C. § 6(b). A
hearing was held on December 17, 2019.

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Tetra Laval Holdings &
Finance S.A. Appeal Brief dated March 9, 2018 (“App. Br.”), at 1.
2 Claims 1–6 and 19–24 are also pending. Claims 1–6 are withdrawn from
consideration, and claims 19–24 are allowed.
Appeal 2018-008862
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We REVERSE.
The claims on appeal are directed to a device for maintaining a gas flow
barrier between two interconnected volumes of a package filling machine. Spec. 1,
ll. 5–10. According to the Appellant’s invention, the first volume has a first degree
of sterilization and the second volume has a different, second degree of
sterilization. Spec. 3, ll. 21–23. The Appellant discloses that the open end of the
package may occupy the first volume and the opposite end of the package may
occupy the second volume. Spec. 4, ll. 16–18. The package may be filled with a
food product. Spec. 1, ll. 8–10. The Appellant discloses that “it is not necessary
for the entire outer surface of the package to be kept sterile[; i]t suffices that the
inside of the package and an area adjacent to the boundary between the inside and
the outside is kept aseptic or sterile.” Spec. 4, ll. 19–21.
Appellant’s Figure 2, reproduced below, illustrates an embodiment of the
invention.

Appellant’s Figure 2 is a schematic sectional view,
orthogonal to a transportation direction, of a
filling machine according to an embodiment of
the Appellant’s invention.
According to the Appellant, nozzles 116 are arranged in the top of the filling
zone of the filling machine and inject sterile air downwards. Spec. 7, ll. 30–32.
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The injected air from each nozzle 116 is said to form a diverging flow, as indicated
by the dotted lines extending from the nozzle opening. Spec. 7, l. 32–8, l. 1. In the
Appellant’s device, a first nozzle is closer to a first side wall than a second nozzle,
and the second nozzle is closer to a second side wall than the first nozzle. See
Appellant’s Fig. 2. The first and second nozzles are arranged and configured such
that the divergent jet injected from the first nozzle intersects the first side wall, and
the divergent jet injected from the second nozzle intersects the second side wall.
The divergent jets of gas meet in an interface area between the first volume
and the second volume. The horizontal dash-dotted line in Appellant’s Figure 2 is
said to indicate the approximate position of the interface area, wherein the first
volume is above the line and the second volume is below the line. Spec. 8, ll. 5–7.
The Appellant discloses that “[i]n the interface area, there will always be a
unidirectional flow, efficiently forming a gas flow barrier preventing mass
transport from the second volume (II) to the first [volume] (I).” Spec. 8, ll. 8–10.
The sterile first volume is thus said to remain sterile independently of the
atmosphere in the second volume. Spec. 8, ll. 11–12.
Independent claim 13 is reproduced below from the Claims Appendix to the
Appeal Brief. The limitation at issue is italicized.
13. A device for maintenance of a gas flow barrier between two
volumes of a channel in a filling machine, the channel being
configured for transportation of packages in a length direction of the
channel, the device comprising:
a first volume with a first degree of sterilization;
a second volume with a second degree of sterilization that is
lower than the first degree of sterilization;
nozzles in an upper portion of the first volume;
a gas evacuation opening in the second volume;
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Application 13/378,008

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the first volume and the second volume meeting in an interface
area extending in a length direction of the channel;
the channel including first and second side walls on opposite
sides of the channel in a width direction of the channel, the width
direction being orthogonal to the length direction of the channel;
the nozzles configured to inject turbulent, divergent, jets of gas
directed toward the interface area, such that the divergent jets of gas
meet in the interface area to generate a unidirectional flow in a first
direction from the first volume toward the second volume in the
interface area, the unidirectional flow forming the gas flow barrier
preventing a flow in a second direction from the second volume
toward the first volume; and
the nozzles including first and second nozzles spaced apart
from one another in the width direction of the channel, the first nozzle
being closer to the first side wall than the second nozzle, and the
second nozzle being closer to the second side wall than the first
nozzle, the first and second nozzles being arranged and configured
such that the divergent jet injected from the first nozzle intersects the
first side wall, and the divergent jet injected from the second nozzle
intersects the second side wall.
App. Br., Claims Appendix 1–2 (emphasis added).
The Examiner maintains the following rejections on appeal:
(1) claims 13 and 15–17 under 35 U.S.C. § 103(a) as unpatentable over
Martensson et al.3 in view of Iwaki4;
(2) claim 14 under 35 U.S.C. § 103(a) as unpatentable over Martensson in
view of Iwaki and further in view of Py et al.5; and

3 US 2006/0067856 A1, published March 30, 2006 (“Martensson”).
4 JP 11-178515 A, published July 6, 1999 (“Iwaki”). In this Decision on Appeal,
we refer to the English translation dated October 6, 2017, which is of record in the
instant Application.
5 US 2006/0231519 A1, published October 19, 2006 (“Py”).
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(3) claim 18 under 35 U.S.C. § 103(a) as unpatentable over Martensson in
view of Iwaki and further in view of Quetel et al.6 or Iwashita et al.7
B. DISCUSSION
The Examiner finds Martensson discloses a device that is configured for
transporting packages in the length direction of a channel comprising, inter alia,
(1) first volume 18 with a first degree of sterilization, (2) second volume 19 with a
second, lower degree of sterilization, and (3) an interface area (i.e., any location
between first volume 18 and second volume 19). Non-Final Act. 3–4.8
Martensson’s Figure 1 is reproduced below.

Martensson’s Figure 1 illustrates a sterilizing device.

6 US 2005/0118057 A1, published June 2, 2005 (“Quetel”).
7 US 2007/0253863 A1, published November 1, 2007 (“Iwashita”).
8 Non-Final Action dated October 13, 2017.
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The Examiner finds that nozzles in first volume 18 are capable of injecting
turbulent, divergent jets of gas directed toward the interface area. Non-Final Act.
4. The Examiner, however, finds Martensson does not teach that
first and second nozzles [are] spaced apart from one another in the
width direction of the channel, the first nozzle being closer to the first
side wall than the second nozzle, the second nozzle being closer to the
second side wall than the first nozzle, the first and second nozzles
being arranged and configured such that the divergent jet injected
from the first nozzle intersects the first side wall, and the divergent jet
injected from the second nozzle intersects the second wall [as
claimed].
Non-Final Act. 4.
The Examiner finds that it was well known in the art to provide nozzles at
any location, such as along the top wall of a sterilization channel, and finds that
Iwaki exemplifies such a device. Non-Final Act. 4–5. Iwaki’s Figure 2 is
reproduced below.

Iwaki’s Figure 2 is a cross sectional view of
Iwaki’s disclosed device.
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The Examiner finds Iwaki’s device comprises, inter alia, first nozzles (i.e.,
left most nozzle 12) and second nozzles (i.e., right most nozzle 12) spaced apart
from one another in the width direction of channel 2. Non-Final Act. 5. The
Examiner finds left most nozzle 12 is closer to a first side wall (i.e., left side wall
of channel 2) than right most nozzle 12, and right most nozzle 12 is closer to a
second side wall (i.e., right side wall of channel 2) than left most nozzle 12. Non-
Final Act. 5. The Examiner further finds that divergent jets injected from left most
nozzle 12 and right most nozzle 12 are capable of intersecting the left side wall and
the right side wall, respectively. Non-Final Act. 5–6. The Examiner concludes
that it would have been obvious to one of ordinary skill in the art to modify
Martensson’s device with the nozzle configuration disclosed in Iwaki. Non-Final
Act. 6.
The Appellant argues that “Iwaki does not describe that nozzles spaced apart
along the width direction of the channel inject jets intersecting both side walls of
the channel as claimed.” App. Br. 10. According to the Appellant,
[o]ne reason first and second nozzles in the [Appellant’s] device . . .
are spaced from one another along the width direction of the channel
and so that the jets intersect the side walls is to create an interface
area between the first and second volumes. As claimed, this interface
area is the area at which the first volume having a higher degree of
sterilization meets the second volume having the lower degree of
sterilization. . . . Martensson and Iwaki do not seek to create an
interface area as claimed, and do not in fact create such an interface
area.[9]
App. Br. 11 (emphasis added).

9 The Examiner finds that the interface area in Martensson is an arbitrary location
between first volume 18 and second volume 19. See Non-Final Act. 4 (finding that
the interface area in Martensson is any location between first volume 18 and
second volume 19).
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In response, the Examiner states that Appellant “admits” that Iwaki is
capable of left most and right most nozzles 12 intersecting respective left and right
side walls of Iwaki’s channel 2. Ans. 11 (citing App. Br. 10, ll. 9–10).10 The
Appellant, on the other hand, argues that “[t]he Appellant has made no such
admission.” Reply Br. 1. The Appellant’s argument is supported by the record.
See Reply Br. 1–2.11
The Examiner also finds Iwaki discloses that “‘the whole processing space’
is utilized for processing (i.e. addition of ozone into a space).” Ans. 11–12 (citing
Iwaki ¶ 6. Therefore, the Examiner concludes that
it would have been obvious to one of ordinary skill in the art to
position the nozzles so that the nozzles inject jets of fluid that
intersects [sic, intersect] the side walls as claimed in order that the
entire process volume/space is supplied with sterilizing fluid as this
would optimize the sterilization of objects.
Ans. 12 (emphasis added).
In response, the Appellant contends that Iwaki “does not talk in terms of the
jets from the nozzles intersecting side walls as claimed.” Reply Br. 3. Indeed,
Iwaki merely refers to the “whole processing space,” nothing more. Iwaki ¶ 6.
We find that this disclosure in Iwaki encompasses a myriad of unidentified
nozzle configurations that, absent the Appellant’s disclosure, does not direct one of
ordinary skill in the art to the claimed nozzle configuration. Therefore, the
Examiner has failed to establish, by a preponderance of the evidence, that Iwaki
either describes or renders obvious first and second nozzles arranged and
configured as recited in claim 13. See In re Oetiker, 977 F.2d 1443, 1445 (Fed.

10 Examiner’s Answer dated July 16, 2018.
11 Reply Brief dated September 13, 2018.
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Cir. 1992) (examiner bears the initial burden of presenting a prima facie case of
unpatentability).
Claim 13 also recites that the first and second nozzles are configured to
inject divergent jets of gas that intersect the first side wall and the second side wall,
respectively, and meet in an interface area to generate a unidirectional flow from a
first volume having a first degree of sterilization toward a second volume having a
second, different degree of sterilization. Having failed to show that the claimed
nozzle configuration is described or rendered obvious by Iwaki, the Examiner has
likewise failed to show that the claimed interface area is rendered obvious by the
combined teachings of Martensson and Iwaki.
For the reasons set forth above, the obviousness rejection of claim 13 and
dependent claims 15–17 is not sustained.
The Examiner does not rely on the remaining prior art of record to cure the
deficiency in the obviousness rejection of claim 13 identified above. Therefore,
the obviousness rejections of claims 14 and 18 also are not sustained.
C. CONCLUSION
The Examiner’s decision is reversed.

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
13, 15–17 103(a) Martensson, Iwaki 13, 15–17
14 103(a) Martensson, Iwaki,
Py
14
18 103(a) Martensson, Iwaki,
Quetel, Iwashita
18
Overall
Outcome
13–18

REVERSED