CUMMINGS, Daniel Louis.Download PDFPatent Trials and Appeals BoardDec 9, 201914032322 - (D) (P.T.A.B. Dec. 9, 2019) 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. 14/032,322 09/20/2013 Daniel Louis CUMMINGS 12619-US-NP 2589 74475 7590 12/09/2019 Societe des Produits Nestlé S.A. Attn: Patent Department One Checkerboard Square St. Louis, MO 63164 EXAMINER KIM, BRYAN ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 12/09/2019 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): Lori.Bowen@purina.nestle.com gary.lobel@us.nestle.com patentdepartment@rd.nestle.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL LOUIS CUMMINGS Appeal 2019-000228 Application 14/032,322 Technology Center 1700 Before BRADLEY R. GARRIS, BRIAN D. RANGE, and MICHAEL G. McMANUS, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 4, 8, 9, 11, and 15–18. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Nestec S.A. Appeal Br. 1. Appeal 2019-000228 Application 14/032,322 2 CLAIMED SUBJECT MATTER The claims are directed to a method of balancing a continuous product production flow rate with a package filling rate. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of balancing a continuous product production flow rate with a package filling rate, the method comprising: operating a food manufacturing system comprising: a continuous aseptic food sterilization process comprising a buffer tank and a controller, and a package filling machine capable of delivering food product to a package at a set package fill rate and of ceasing to deliver the food product to the package, wherein the buffer tank is between an aseptic sterilizer and the package filling machine; and applying an averaging level control scheme to the continuous aseptic food sterilization process, the averaging level control scheme comprising: setting a target flow rate of food product in the continuous food sterilization process; setting a set point level for the food product in the buffer tank, wherein the set point level may be set at any level that prevents overflow of the food product in the buffer tank and shutting down of the aseptic sterilizer; measuring a level of the food product in the buffer tank; and triggering the controller to lower the target flow rate when the measured level rises above the set point level due to stoppage of a package filling machine, thereby providing time to repair or restart the package filling machine. REJECTIONS Under pre-AIA 35 U.S.C. § 103(a), the Examiner rejects sole independent claim 1 as unpatentable over Cadeo (WO 2011/143782 A1, published Nov. 24, 2011 (citations are to English language equivalent US Appeal 2019-000228 Application 14/032,322 3 2013/0064952 A1, published Mar. 14, 2013)) in view of Weng (US 2005/0031751 A1, published Feb. 10, 2005) and Torterotot (US 4,684,531, issued Aug. 4, 1987) and rejects remaining dependent claims 4, 8, 9, 11, and 15–18 as unpatentable over these references alone or in combination with additional prior art.2 In rejecting claim 1, the Examiner finds that Cadeo discloses a method of balancing a continuous production flow rate with a package filling rate comprising a continuous aseptic food pasteurization process having a buffer tank and a controller, wherein a control scheme (i.e., corresponding to the claimed averaging level control scheme) is applied to the process, the scheme comprising setting a target flow rate in the process, setting a set point level in the buffer tank, measuring a level in the buffer tank, and triggering the controller to lower the target flow rate when the measured level rises above the set point level due to stoppage of a filling machine, thereby providing time to repair or restart the filling machine (Final 2–4 (citing Cadeo, e.g., ¶¶ 30, 34, 36)). The Examiner finds that Cadeo discloses a pasteurization process rather than the claimed sterilization process but that Weng teaches using a sterilization process for food products (id. at 4). The Examiner concludes that it would have been obvious to replace Cadeo’s pasteurization process with Weng’s sterilization process in order to treat food products requiring sterilization (id.). 2 Appellant does not present arguments specifically directed to the dependent claims under rejection (see Appeal Br. 5–10). Consequently, the dependent claims will stand or fall with their parent independent claim 1. Appeal 2019-000228 Application 14/032,322 4 Finally, the Examiner finds that Cadeo is silent regarding the claim feature of a buffer tank between a sterilizer and a package filling machine but that Torterotot discloses this feature (id. at page 5). The Examiner concludes that, in view of Torterotot, it would have been obvious to use Cadeo’s aseptic container 22 as a buffer tank between the modified-Cadeo sterilizer and the package filling machine (id.). OPINION We will sustain the rejections before us for the reasons given by the Examiner in the Final Office Action and in the Examiner’s Answer. We add the following comments for emphasis. Appellant disputes the Examiner’s determination that Cadeo teaches or would have suggested the claimed averaging level control scheme (Appeal Br. 6–7). According to Appellant, “[a]s explained in an Inventor Declaration filed with the September 18, 2017, Office [A]ction Response, ‘averaging level control’ is well understood by those skilled in the art as a specific control scheme that minimizes the rate of change to the manipulated variable (i.e., flow) by actually allowing the level to change, and changing the manipulated variable only as required to keep the level within its set point limit” (id. at 6). Appellant argues, “[n]o combination of the references cited by the Examiner discloses the use of averaging level control as understood by one skilled in the art” (id. at 7). However, we agree with the Examiner that it is reasonable and consistent with the Specification to interpret the claim phrase “averaging level control scheme” as comprising setting a target flow rate for continuous product production as disclosed in the Specification and as recited in claim 1 (Final 2–3, Ans. 11, both citing Spec. ¶ 10). We also agree with the Appeal 2019-000228 Application 14/032,322 5 Examiner’s determination that the proposed combination of Cadeo, Weng, and Torterotot yields each of the steps recited in claim 1 as comprising the “averaging level control scheme” and, in so doing, satisfies this quoted limitation (Final 5, Ans. 11). Finally, we emphasize the Examiner’s point that “there does not appear to be any disclosure in the [S]pecification regarding the term [‘averaging level control scheme’] including the meaning ‘minimizes the rate of change’ [as stated in the Appeal Brief and the Declaration]” (Ans. 11). Appellant does not dispute this point (see generally Reply Br.). Concerning the Examiner’s proposed substitution of Weng’s sterilizer for Cadeo’s pasteurizer, Appellant argues, “the differences between pasteurizing and sterilizing are significant, [and] . . . it would not be reasonable to one skilled in the art to substitute an aseptic sterilizer for a pasteurizer” (Appeal Br. 8). Appellant further argues that such a substitution “would remove the buffering aspect of the Cadeo pasteurizer making it inoperable for its intended purpose” (id. at 9). These arguments are unpersuasive for the reasons detailed by the Examiner (Ans. 12–13). As explained by the Examiner, an obviousness conclusion regarding the proposed substitution is supported by a number of factors including Torterotot’s repeated disclosures that heat treatments for food products can include either pasteurization or sterilization treatments (id. at 12). In this regard, we observe that Appellant does not address, much less show error in, the Examiner’s reasoning that the substitution would have been made in order to process foods that require sterilization (Final 4). The Examiner also correctly explains that the substitution would not remove the buffering aspect of Cadeo because Weng’s sterilizer comprises a holding Appeal 2019-000228 Application 14/032,322 6 section and because the proposed combination of Cadeo, Weng, and Torterotot results in a buffer tank between an aseptic sterilizer and a package filling machine as claimed (id. at 13). We emphasize that Appellant does not contest the Examiner’s conclusion that, in view of Torterotot, it would have been obvious to use Cadeo’s aseptic container 22 as a so-located buffer tank (see generally Appeal Br., cf. Final 5, Ans. 13). For the reasons given by the Examiner and emphasized above, we sustain the §103(a) rejections under consideration. CONCLUSION We affirm the Examiner’s decision to reject claims 1, 4, 8, 9, 11, and 15–18. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 8, 9, 11, 15–18 103(a) Cadeo, Weng, Torterotot, alone or in combination with additional prior art 1, 4, 8, 9, 11, 15–18 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation