Ex Parte 6,707,010 B2 et al

Patent Trial and Appeal Board

Feb 24, 2016

90020004 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
901020,004 07/19/2012
25215 7590 02/24/2016
THE DOBRUSIN LAW FIRM, P,C
29 W LAWRENCE ST
SUITE 210
PONTIAC, MI 48342
FIRST NAMED INVENTOR
6,707,010 B2
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1401E.007 (CI0278US) 1681
EXAMINER
FETSUGA, ROBERT M
ART UNIT PAPER NUMBER
3993
MAILDATE DELIVERY MODE
02/24/2016 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 GEA FOOD SOLUTIONS 1
Appellant, Patent Owner
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B22
Technology Center 3900
Before STEVEN D.A. McCARTHY, DANIELS. SONG and
BRETT C. MARTIN, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
1 GEA Food Solutions is the real party in interest (Appeal Brief (hereinafter
"App. Br.") 2).
2 Issued March 16, 2004 (hereinafter "the 'O 10 patent").
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
Claims 1-18 and 20-31 are pending in the reexamination, claim 19
having been canceled (App. Br. 4). Patentability of claims 7-10 has been
confirmed, and the Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306
from a Final Rejection of claims 1---6, 11-17, 20-24 and 26-31 3 (id.). We
have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
The invention is directed to an oven having a conveyor belt and a
fluid jet device (Abs.). Representative independent claims 1 and 4 are
reproduced below, with underlining to indicate limitations at issue in this
appeal (App. Br., Claims App.):
Claim 1. Oven comprising a housing (1 ), a conveyor belt (7)
for guiding products through the interior space (3, 4) of the
housing (1) and heating means (16--19) for heating the products
(24) in the interior space (3, 4) of the housing (1) using a fluid,
such as hot air and/or steam, which conveyor belt (7) extends
between an entrance (10) and an exit (12) of the housing (1)
and, between these two points, follows at least one path (8, 9)
with turns which lie above one another, a straight section (11,
13, 14) of the conveyor belt (7) being connected to in each case
top and bottom ones of said turns, and at least one fluid jet
device (20) being provided for generating a hot flow of fluid
(25) in jet form, which fluid jet device (20) is positioned above
at least one of the said straight sections (11, 13, 14) in such a
manner that the hot flow of fluid (25) in jet form impinges on
the products (24) situated on that section, in which the fluid jet
device (20) comprises at least one plate which extends over the
at least one of the straight sections (11, 13, 14) of the conveyor
3 The Patent Owner's Appeal Brief also indicates that claims 18 and 25 stand
rejected and appealed (App. Br. 4). However, claims 18 and 25 were only
subject to an indefiniteness rejection, which has been withdrawn by the
Examiner (Ans. 20). Indeed, the Appeal Brief does not identify claims 18
and 25 as being rejected in its listing of the grounds of rejections to be
reviewed on appeal (App. Br. 13-14).
2
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
belt (7), which plate (21) on its side which is remote from the
straight section (11, 13, 14) of the conveyor belt, delimits an air
duct (18) and through which plate (21) a series of jet nozzles
(22) pass that are arranged to jet air onto the at least one of the
straight sections (11, 13, 14) of the conveyor belt (7), and in
which the series of jet nozzles have controllable or closeable
passage.
Claim 4. Oven comprising a housing (1), a conveyor belt (7)
for guiding products through the interior space (3, 4) of the
housing (1) and heating means (16--19) for heating the products
(24) in the interior space (3, 4) of the housing (1) using a fluid,
such as hot air and/or steam, which conveyor belt (7) extends
between an entrance (10) and an exit (12) of the housing (1)
and, between these two points, follows at least one path (8, 9)
with turns which lie above one another, at least one fluid jet
device (20) being provided for generating a hot flow of fluid
(25) in jet form, which fluid jet device (20) is positioned in such
a manner with respect to at least one section of the conveyor
belt (7) that the hot flow of fluid (25) in jet form impinges on
the products (24) situated on that section, in which the fluid jet
device (20) comprises at least one plate (21) which extends
above at least a section of the conveyor belt (7), which plate
(21), on its side which is remote from the said conveyor-belt
section, delimits an air duct (18) and through which plate (21)
at least one jet nozzle (22) passes that is arranged to jet air onto
the at least one section of the conveyor belt, in which the fluid
jet device (20) comprises a series of the jet nozzles (22), in
which the plate extends over a straight conveyor belt section,
and in which the sum of the surfaces of the series of jet nozzles
(22) which lie in the vicinity of the inner side of the curved
series per unit surface area of the belt below is greater than the
sum of the surfaces of the series of jet nozzles (22) which lie in
the vicinity of the outer side of the curved series per unit
surface area of the said belt, and in which the heating means are
arranged in a top of the housing and the heating means
comprise a fan which opens out into the air duct so that air
3
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
sucked up by the fan is forced into the air duct, past the heating
means and through the series of jet nozzles in the at least one
plate.
The Examiner rejects various claims under 35 U.S.C. § 112, first
paragraph, as follows: 4
1. Claims 11, 12, 26, 27, and 29 for lack of written descriptive
support (Ans. 2-3).
2. Claims 14 and 15 for lack of written descriptive support (Ans.
3).
The Examiner also rejects various claims under 35 U.S.C. § 103(a) as
follows:
3. Claims 16, 17, 20, and 21 as unpatentable over Caridis5 and
Kuenen '8786 (Ans. 3--4).
4 The Patent Owner's Appeal Brief states that claims 4---6 and 24 also stand
rejected for lack of written descriptive support (App. Br. 13). Indeed, these
claims were rejected for lack of written descriptive support for the limitation
"series of jet nozzles" in claim 4, and for the limitation "series of jet nozzles
are identical" in claim 5 (see Final Rejection mailed July 31, 2013, pgs. 2-
3). Claims 6 and 24 depend from claim 4, and appear to have been rejected
based on the noted language of claim 4. However, the Examiner withdrew
this rejection as to claims 4 and 5 (Ans. 20). Thus, based on the present
record, we consider the Examiner's rejection of these claims for lacking
written descriptive support as having been fully withdrawn with respect to
not only claims 4 and 5, but also with respect to claims 6 and 24.
5 EP 0 528 593 Bl published February 24, 1993.
6 EP 0 804 878 Al published November 05, 1997.
4
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
4. Claims 16, 17, 20, and 21 as unpatentable over Kuenen '878
and Caridis (Ans. 5---6).
5. Claims 4 and 5 as unpatentable over Kuenen '878 and Caridis,
and further in view of van de Vorst7 (Ans. 6).
6. Claims 16, 17, 20, and 21 as unpatentable over Kuenen '878
and Caridis, and further in view ofHwang8 (Ans. 6-7).
7. Claims 4 and 5 as unpatentable over Lygum,9 Caridis and van
de Vorst (Ans. 7-8).
8. Claims 16, 17, 20, and 21 as unpatentable over Lygum, Caridis,
Hwang, and Kuenen '878 (Ans. 8-10).
9. Claims 4---6 as unpatentable over Martin, 1° Caridis and van de
Vorst (Ans. 10-11).
10. Claims 1-3, 11, 13, 14, 22-24, and 27-31 as unpatentable over
Kuenen '878, Caridis, and van de Vorst (Ans. 12-14).
11. Claims 1-3 as unpatentable over Lygum and van de Vorst (Ans.
14-15).
12. Claims 1-3, 11-15, 22-24, and 27-29 as unpatentable over
Lygum, Caridis, and van de Vorst (Ans. 15-17).
13. Claims 13, 22, 23, and 27-29 as unpatentable over Lygum,
Caridis, and van de Vorst, and further in view of Stewart11
(Ans. 17).
7 EP 0 953 286 Al published November 3, 1999.
8 U.S. Patent No. 5,078,120 issued January 7, 1992.
9 EP 0 558 151 Al published September 1, 1993.
10 U.S. Patent No. 6,065,463 issued May 23, 2000.
11 U.S. Patent No. 4,726,766 issued February 23, 1988.
5
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
14. Claims 30 and 31 as unpatentable over Lygum, Caridis, Hwang,
Kuenen '878, and van de Vorst (Ans. 18).
15. Claim 24 as unpatentable over Martin, Caridis, and van de
Vorst (Ans. 19).
We AFFIRM-IN-PART.
ANALYSIS
We address the various arguments of the Patent Owner infra in an
order that differs slightly from the order presented in the Patent Owner's
main brief. Only those arguments actually made by the Patent Owner have
been considered and any arguments not made are deemed to be waived. See
37 C.F.R. § 41.37(c)(l)(vii).
Rejection 1
Claims 11, 12, 26, 27, and 29 stand rejected for lack of written
descriptive support (Ans. 2-3). The Examiner notes that amended claim 11
now recites "the series of jet nozzles are in the form of pipes" and "the series
of jet nozzles have a controllable or closeable passage," but finds:
[t]his combination of features is not found in the original
disclosure, and is therefore considered to be new matter. The
identified description in Kuenen at column 2, lines 5-8, does
not necessarily disclose the newly claimed combination.
(Id. at 2-3; see also id. at 22). Claims 12 and 27 depend from claim 11,
while claims 26 and 29 recite similar subject matter. Thus, these claims also
stand rejected for the same reason (id. at 22).
6
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
The Patent Owner argues that:
the specification as filed at column 2, lines 5-8 teach "the fluid
jet nozzles may be designed in the form of pipes, in the form of
holes in a plate, etc. Moreover, the fluid jet nozzles may have a
controllable or closeable passage." Appellant believes that
these facts demonstrate with "reasonable clarity" that Appellant
was in possession of these features at the time of filing and that
the rejection must be reversed.
(App. Br. 26).
We agree with the Patent Owner that the Specification of the '010
patent sufficiently demonstrates possession of the invention now claimed. In
re Kaslow, 707 F.2d 1366, 1375 (Fed. Cir. 1983) ("The test for determining
compliance with the written description requirement is whether the
disclosure of the application as originally filed reasonably conveys to the
artisan that the inventor had possession at that time of the later claimed
subject matter, rather than the presence or absence of literal support in the
specification for the claim language.").
The Specification of the '010 patent states:
The fluid jet device preferably comprises a series of jet nozzles
which may, for example, be circular in cross section. The fluid
jet nozzles may be designed in the form of pipes, in the form of
holes in a plate, etc. Moreover, the fluid jet nozzles may have a
controllable or closeable passage.
(Col. 2, 11. 3-8).
The above reproduced portion of the '010 patent is reasonably clear in
conveying that the "fluid jet nozzles" refer to the jet nozzles that make up
the series of jet nozzles, and that such fluid jet nozzles may not only be in
the form of pipes, but also have a controllable or closeable passage. ecause
the Specification of the 'O 10 patent reasonably conveys to those in the art
7
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
that the inventor had possession of the claimed invention, we reverse
Rejection 1.
Rejection 7
Claims 4 and 5 stand rejected as unpatentable over Lygum, Caridis
and van de Vorst (Ans. 7-8). The Examiner finds that Lygum discloses an
oven as recited in these claims except for the limitation requiring that the
nozzles be distinct jet structures, and the limitation requiring the "sum of the
surfaces of the series of jet nozzles" per unit surface area of the belt be
greater toward the inner side of the curved belt than the outer side of the
curved belt (id. at 7). The Examiner relies on Caridis for disclosing an oven
having nozzles with distinct jet structures, and concludes that "in
consideration of Caridis, it would have been obvious to one of ordinary skill
in the oven art to associate a distinct jet structure with the Lygum nozzles, in
order to facilitate flow control." (Id. at 7-8). The Examiner also concludes
that having the sum of the surfaces of the series of jet nozzles per unit
surface area of the belt be greater toward the inner side of the curved belt
than the outer side of the curved belt would have been obvious, finding that:
Caridis also teaches varying the cross-sectional flow area and
orientation of the nozzles to facilitate cooking food products.
Furthermore, van de Vorst teaches varying the flow volume and
flow velocity of nozzles 10 to facilitate cooking food products
(col. 7, Ins. 41--4 7). Thus, one skilled in the art would be
knowledgeable with respect to selecting these parameters in
order to optimize the cooking of food products.
(Id. at 8).
8
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
The Patent Owner argues that the Examiner has not made factual
findings that the cited art discloses various limitations recited in the claims,
and thus, has failed to establish a prima facie case of obviousness (App. Br.
37-38). We generally agree with the Examiner and address the Patent
Owner's specific arguments infra.
The Patent Owner argues that the Examiner has failed to explain how
hot flow of fluid in jet form impinges on the products situated on a straight
section (Id. at 35-37, 46). The Patent Owner states "Appellant does not
believe that the opening of Lygum is located over any portion of the
conveyor belt and thus, the opening cannot cause the impingement as is
required in the claims." (Id. at 3 7). The Patent Owner further argues that
the Examiner failed to explain how the fluid jet device is situated over and
above the straight, connecting conveyor-belt section as recited in claim 11
(id. at 47).
Lygum discloses an oven having conveyor belt 7 and hot air heating
devices 18, each heating device having blower 19 (i.e., fan), channel 20,
heating element 23 and outflow opening 21 (Lygum, col. 2, 11. 26-27,
37--47; Figs. 1 and 2). In this regard, because Figure 2 is a partial cross
sectional view, it does not show a heating element for the heating device
closest to outlet opening 13 of the oven, or the outflow openings for three of
the four heating devices. However, a person of ordinary skill in the art
would reasonably infer that the construction and operation each of the
heating devices is substantially the same, such that an outflow opening is
provided below each heating element. In re Preda, 401 F.2d 825, 826
(CCP A 1968) (in considering the scope and content of the prior art, "it is
9
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
proper to take into account not only specific teachings of the reference but
also the inferences which one skilled in the art would reasonably be
expected to draw therefrom.").
In addition, contrary to the Patent Owner's assertion, the air heating
device closest to outlet 13 of the conveyor clearly includes outflow opening
21 through which conveyor belt 7 is illustrated in Figure 2 ofLygum. Thus,
when the outflow openings of Ly gum are modified to incorporate nozzles of
the type described by Caridis, as suggested by the Examiner, the nozzles of
such modified heating devices adjacent partition 25 would be positioned
over the straight section of conveyor belt 7, which extends from drum 5 to
drum 6 and passes through partition 2 (Lygum, Figs. 1 and 2). These
nozzles would provide hot flow of fluid in jet form that impinges on the
products situated on a straight section.
The Patent Owner also argues that the Examiner has failed to explain
where a plate extends over a straight conveyor belt section. (App. Br. 36).
The Patent Owner acknowledges that the Examiner relies on column 2, line
41 of Lygum, which states "[t]his housing opens out into a channel 20,
which has an outflow opening 21 in its bottom wall."), but argues that a
disclosure of an outflow opening in a bottom wall of the housing does not
demonstrate a plate (id.).
The Specification of the '010 patent is clear that the recited plate
refers to plate 21, which is the bottom wall of the duct from which the jet
nozzles 22 that provide heated air project (Figs. 2 and 3; col. 3, 11. 65----67).
Lygum similarly discloses channel 20, which has a bottom wall, albeit not
specifically enumerated, having an opening 21 to provide heated air
10
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
(Lygum, col 2, 11. 39--47; Figs. 1 and 2). Thus, when Lygum is modified so
as to provide nozzles of Caridis to provide heated air instead of opening 21,
such nozzles would extend from the bottom wall of the duct.
The Patent Owner also argues that the Examiner has failed to explain
where the heating means is arranged in a top of the housing and comprises a
"fan which opens out into the air duct so that air sucked up by the fan is
forced into the air duct, past the heating means and through the series of jet
nozzles in the at least one plate." (App. Br. 37). However, Lygum discloses
that "[h]ot-air heating devices, indicated in their entirety by 18, are provided
in the top of the cap." Lygum's device further includes a blower 19 at the
top of the device that sucks up air and directs it into the air conveying
channel 20 for heating by heating elements 23 prior to flowing out of the
opening 21 (Lygum, col. 2, 11. 37--47; Figs. 1and2).
Therefore, we find the Patent Owner's arguments unpersuasive and
affirm Rejection 7.
Rejection 8
Claims 16, 17, 20, and 21 stand rejected as unpatentable over Lygum,
Caridis, Hwang, and Kuenen '878, the Examiner relying on Lygum and
Caridis in a manner similar to that discussed above relative to Rejection 7
(Ans. 8-10). The Examiner further relies on Caridis and/or Hwang for
disclosing that fluid permeable conveyor belts were well known in the art,
and concludes that "it would have been obvious to one of ordinary skill in
the oven art to associate fluid permeability with the Lygum conveyor belt, as
11
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
being a common type of oven conveyor which facilitates the cooking of food
products." (Id. at 9, citing Hwang, col. 4, 11. 55-59).
The Examiner concedes that Lygum does not disclose a shield, but
relies on Kuenen '878 as disclosing an oven having a shield and concludes
that "it would have been obvious to one of ordinary skill in the oven art to
associate a shield with the Lygum oven, in order to ensure uniform heating
of food products," and "to divert the flow of air created in the Lygum oven
and facilitate the uniform heating of food products." (Id. at 8-10, citing
Kuenen '878, col. 3, 11. 16-33; see also Ans. 32-33).
The Patent Owner refers to arguments presented relative to Rejection
7 (App. Br. 38). These arguments are unpersuasive for reasons discussed
supra. The Patent Owner also argues that "the addition of the guide means
would prevent impingement and thus one skilled in the art would not be
motivated to combine the references of record" to result in the invention
claimed (id. at 38-39). The Patent Owner further argues that the Examiner
has not provided a reason why a person of ordinary skill in the art would
combine the references in the manner suggested (id. at 39).
However, as found by the Examiner (Ans. 8-10), Kuenen '878
discloses guide element 18 (i.e., the shield) may be provided to guide the hot
air to come into contact with products 21 on the inside of belt 8 (Kuenen
'878, Figs. 1-3; col. 3, 11. 11-33). We agree with the Examiner that it would
have been obvious and within the skill of a person in the art to have
provided, and positioned, a guide to "ensure uniform heating of food
products," and/or "to divert the flow of air created in the Lygum oven and
facilitate the uniform heating of food products" in view ofKuenen '878
12
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
(Ans. 8-10). The Patent Owner's argument appears to ignore the skill and
ordinary creativity that a person of ordinary skill would possess. KSR Int'!
Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("A person of ordinary skill is
also a person of ordinary creativity, not an automaton."). Using such skill
and creativity, it would have been obvious to one of ordinary skill to provide
a shield, if desired, to ensure uniform heating as articulated by the Examiner
in the rejection, while also allowing for direct impingement along another
portion of the conveyor. In this regard, we find no error in the Examiner's
conclusion that:
even when the shield(s) of Kuenen '878 (Fig. 3) is installed
above and over the uppermost curved conveyor belt section( s)
of Lygum, the food products situated on the upper, straight belt
section of Lygum would still be subject to direct, vertical
impingement of the hot flow of fluid. This is clearly evident
from Lygum where the [] nozzles [i.e., outflow openings 21 as
modified] adjacent to the partition 25 are in vertical alignment
with the upper, straight belt section.
(Ans. 32-33).
Therefore, the Patent Owner's arguments are unpersuasive and we
affirm Rejection 8.
Rejection 12
Claims 1-3, 11-15, 22-24, and 27-29 stand rejected as unpatentable
over the combination of Lygum, Caridis, and van de Vorst for substantially
the same reasons discussed supra relative to Rejection 7 (Ans. 15-17). The
Examiner also relies on van de Vorst for disclosing adjustable nozzles (id. at
16, citing van de Vorst i-f 19). The Patent Owner relies on the same
13
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
unpersuasive arguments submitted relative to Rejection 7 that have been
addressed supra (App. Br. 46-47).
The Patent Owner also argues that the Examiner has failed to explain
how the combination results in jet nozzles located over the straight section
of the conveyor belt so that browning is ensured as recited in claim 13, or
how the fluid comes into contact first with the product situated on the
conveyor belt as recited in claim 14 (id. at 4 7). We first observe that the
language "browning is ensured" is a statement of intended use as it does not
structurally define the claimed invention. As the Examiner finds, Lygum's
device includes four air ducts 20. The Examiner correctly infers that each
air duct has an identical nozzle or inlet 21 directed toward the food product
moving along conveyor 7 (Ans. 7). When one compares the position of the
inlet 21 shown in one of air ducts 20 in Figure 2 of Lygum with the positions
of heating elements 23 in the other air ducts, it is apparent that the other
three inlets are hidden by heating elements 23 in the top view. The
arrangement of solid and broken lines in Figure 2 indicate that the one inlet
21 shown is located over conveyor 7. This finding is borne out by the text
(Lygum, col. 2, 11. 44--47). Comparing Figures 1 and 2 of Lygum, the inlets
or nozzles associated with the two middle air ducts, hidden beneath heating
elements 23, are positioned over both a straight portion of conveyor 7 and
inner comers of the helical portions of the conveyor supported on drums 6.
Therefore, the Examiner is correct in finding (Ans. 38) that the modified
oven of Lygum would position jet nozzles over a straight portion of the
conveyor on either side of partition 25, as discussed; that positioning the jet
nozzles over the straight portion would result in the air coming into contact
14
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
first with the products situated on the straight portion of conveyor 7 as the
products are conveyed between two chambers 26, 27 through partition 25;
and that exposing the product to the hot air jets from the nozzles would
ensure browning.
Finally, the Patent Owner argues that the Examiner has not performed
fact finding with respect to claims 22, 23, and 27-29 to establish a prima
facie case of obviousness (App. Br. 47). However, as noted above, the
position of the Examiner is that Lygum discloses the limitations of these
claims except for the limitations pertaining to distinct jet nozzles having
controllable or closable passages (Ans. 15-16). Claims 22 and 27 require
the nozzles to be located at a top of a housing over a straight section of the
conveyor belt so that browning is ensured; claims 23 and 28 further require
heating means to be arranged in the top of the housing and to include a fan;
and claim 29 requires the nozzles to have a controllable or closable passage
(App. Br., Claims App.). As the Examiner finds, the oven of Lygum, when
modified in the manner suggested to provide nozzles in place of Lygum's
outflow opening 21 in view of Caridis and van de V orst, satisfies all of these
limitations as discussed above and relative to Rejections 7 and 8.
Therefore, we also affirm Rejection 12.
15
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
Rejection 13
Claims 13, 22, 23, and 27-29 stand rejected as unpatentable over
Lygum, Caridis, and van de Vorst, and further in view of Stewart (Ans. 17).
The basis for Rejection 13 is substantively the same as that of Rejections 7
and 12 discussed supra, but the Examiner relies on Stewart for teaching that
it may be desirable to ensure browning in certain foods such as dough
products (id.). Indeed, as found by the Examiner, Stewart discloses a
conveyor oven, and states "[t]he discharge tubes 154 are above the dough
receiving trays T to assist in building a crust and browning the dough
products." (Stewart, Abs., col. 6, 11. 11-14). Thus, while we view the
language "ensure browning" as a statement intended use, Stewart explicitly
discloses such use and desirability of browning for a food product. Thus, we
affirm Rejection 13 for the reasons addressed in Rejection 12 in conjunction
with this additional disclosure in Stewart as well.
Rejection 14
Claims 30 and 31 stand rejected as unpatentable over Lygum, Caridis,
Hwang, Kuenen '878, and van de Vorst, the Examiner concluding that the
choice of jet nozzle shape is an obvious choice (Ans. 18), that Caridis
discloses jet nozzles 54 in the form of pipes and van de Vorst discloses
adjusting the volume or velocity of air by varying the dimensions of the air
outlet openings so that providing adjustable nozzles in Lygum would have
been obvious (id. at 18). The Patent Owner relies on arguments submitted
with respect to Rejection 8 discussed above (App. Br. 48--49). As already
discussed, these arguments are unpersuasive. Thus, we affirm Rejection 14.
16
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
Rejection 9
Claims 4--6 stand rejected as unpatentable over Martin, Caridis, and
van de Vorst (Ans. 10-11). The Examiner finds that Martin discloses an
oven that satisfies most of the limitations of these claims except for the
limitation in independent claim 4 reciting "the sum of the surfaces of the
series of jet nozzles which lie in the vicinity of the inner side of the curved
series per unit surface area of the belt below is greater than the sum of the
surfaces of the series of jet nozzles which lie in the vicinity of the outer side
of the curved series per unit surface area of the said belt." (Id. at 11; App.
Br., Claims App.). According to the Examiner:
Caridis teaches varying the cross-sectional flow area and
orientation of nozzles 54 to facilitate cooking food products
(pg. 5, Ins. 51-56)Y2J van de Vorst teaches varying the flow
volume and flow velocity of nozzle openings 10 to facilitate
cooking food products (col. 7, Ins. 41--47). Thus, one skilled in
the art would be knowledgeable with respect to selecting these
parameters in order to optimize the cooking of food products.
Therefore, in consideration of Caridis and van de Vorst, it
would have been obvious to one of ordinary skill in the oven art
to vary the effective flow area of the Martin nozzles, in order to
account for the curved travel of the conveyor belt.
(Ans. 11).
The Patent Owner argues that the Examiner has not made factual
findings that the cited art discloses numerous limitations recited in the
claims, and thus, failed to establish a prima facie case of obviousness (App.
12 The Examiner's citation to Caridis, page 5, lines 51-56 appears to be
erroneous in that the cited lines are blank. In reviewing Caridis, it appears
that the Examiner intended to cite to page 5, lines 1---6 instead.
17
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
Br. 39--43). We generally agree with the Examiner and address the Patent
Owner's arguments infra.
The Patent Owner argues that the Examiner has failed to explain how
hot flow of fluid in jet form impinges on the products situated on a straight
section, and that discharging heated air upward toward bakery trays is not
the same as "impinging a jet of fluid onto a food product." (Id. at 39--40).
The Examiner does not agree, considering bakery tray to be part of the
product (Ans. 34), and finding that:
claim 4 does not restrict what is to be considered a "hot flow of
fluid", does not restrict what is to be considered as "impinges",
and does not restrict what is to be considered as the "products".
This claim wording is very broad (and functional) and connotes
no definite structural limitation(s ).
(Id. at 33).
The Examiner's claim interpretations of the noted terms are not
unreasonable. We observe that independent claim 4 merely requires the
fluid jet device to be positioned so that "hot flow of fluid[], injet form
impinges on the products." Claim 4 does not recite that the nozzles must
impinge on a "food product" as argued by the Patent Owner, or require
specific directionality in the impingement of the fluid so that the
impingement must be downwardly on the product. In this regard, even if
such downward directionality was recited (which it is not), we also observe
that Martin clearly establishes that such downward impingement of the fluid
was well known in the art (see Martin, Figs. 1 and 2). As the Examiner also
notes, the Specification of the 'O 10 patent does not define "products" to be
"food product" as argued, or otherwise exclude inedible components
reasonably related to cooking of such food products, including trays on
18
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
which a food product may be cooked and processed as described in Martin.
Moreover, it would have been obvious not to use a tray for cooking in the
oven of Martin for other edible products that do not require such a tray.
The Patent Owner argues that the rejection fails to establish how
Martin discloses that "the fluid jet device comprises at least one plate," or
that "the plate extends over a straight conveyor belt section." (App. Br.
39--41 ). However, as to the plate, the Examiner is correct in finding (Ans.
10, 34) that Martin discloses nozzle assemblies 342 having a plate at the
base (not enumerated) of nozzles 348 that delimits an air duct (not
enumerated), the air duct being in fluidic communication with hot air
plenum 338 via passageway 346 (see Martin, Fig. 5; col. 4, 11. 7-14).
As to the limitation requiring the plate to extend over a straight
conveyor belt section, we agree with the Examiner that:
the plate of the jet device [of Martin] extends both above "a
section of the conveyor belt" (Fig. 4) and over "a straight
conveyor belt section" 262 (Fig. 3).
(Ans. 10-11).
As elaborated by the Examiner:
consider the nozzle assembly which is positioned both in zone
332 and at the left end of the lower right quadrant (as viewed in
Fig. 3). The plate which is associated with this particular
nozzle assembly would necessarily extend over the straight
conveyor belt section 262.
(Id. at 34).
Thus, the Examiner finds that the nozzle assembly at the left portion
of the plenum that is connected to outlet tube 276 (positioned at the lower
right quadrant as viewed in Figure 3) in Zone 2, identified by numeral 332
19
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
(upper tier of ascending spiral 256; see Martin, col. 3, 11. 12-18, 51-56), is
above straight conveyor belt section 262. We agree with this finding.
While there are sections of the conveyor of ascending spiral 256 that
intervene between the nozzles and longitudinally extending section 262 (i.e.,
a straight conveyor belt section), the plate from which nozzles 348 extend, is
nonetheless positioned "over" straight conveyor belt section 262 (Martin,
Fig. 3). In addition, while the nozzle assembly (with its plate) may not be
entirely over the straight conveyor belt section due to the curved shape of the
plenum, Figure 3 illustrates that the nozzle assembly is almost entirely over
the straight conveyor section. Nothing in these claims requires that the plate
be directly and entirely over the recited straight conveyor belt section.
Moreover, Martin again establishes that such positioning of devices for
discharging hot air was well known in the art (Martin, Figs. 1 and 2).
The Patent Owner also argues that the Examiner has not made fact
finding that the cited art discloses the limitation requiring the sum of the
surfaces of the jet nozzles in the vicinity of the inner side of the curved
section per unit surface area of the belt be greater than that of the outer side
per unit surface area of the belt (App. Br. 39). According to the Patent
Owner, van de Vorst is deficient in that being able to adjust the volume or
velocity of air does not necessarily mean that the sum of surfaces per unit of
surface area of the conveyor belt is greater on an inner side than on an outer
side (id. at 43, referencing arguments in paragraph F, which encompasses
App. Br. 33).
However, we agree with the Examiner's position as set forth above
that such an arrangement would have been obvious in view of the teachings
20
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
in Caridis and van de Vorst to vary the flow volume and flow velocity for
optimal cooking of products while accounting for the curved travel of the
helical conveyor belt (Ans. 11 ). For example, it is reasonable to find that
flow volume is correlated to the number of nozzles wherein greater the
number, higher flow volume being possible, and lesser the number, lower
flow volume being possible. Thus, in accounting for the curved travel of the
helical conveyor belt, which could potentially result in higher density of
products toward the inner side of the conveyor as compared to the outer side,
it would have been obvious to ensure that appropriate amount of flow
volume of hot fluid is available to allow for optimal cooking, depending on
the food product. Arranging the nozzles so that the sum of surfaces per unit
of surface area of the conveyor belt is greater on an inner side than on an
outer side would be one of the obvious finite solutions to ensure optimal
cooking. Moreover, we further observe that in a simple implementation of
providing nozzles radially outwardly from the center of the spirals as done in
Martin, the recited limitation would naturally occur due to the curvature of
the belt wherein the surface area of the belt progressively increases from the
inner side toward the outer side.
The Patent Owner argues that the Examiner has not made a fact
finding that Martin discloses that "the heating means are arranged in a top of
the housing." (App. Br. 39, 41--42). To the contrary, the Examiner finds
that burner 270 is arranged in a top of the housing stating:
the burner 270 in Martin extends to a level in the enclosure or
housing 254 which is similar to the position of fan 310 (Fig. 4).
And, the fan 3 10 is described in Martin as being in the 'upper
regions of the enclosure' (col. 3, Ins. 37-40).
21
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
(Ans. 34--35).
Although burner 270 of Martin extends downwardly within oven 250,
the Examiner is correct that burner 270 is mounted at a level similar to the
position of fan 310 so that burner 270 can reasonably be considered as being
"arranged in a top of the housing." (Martin, Fig. 4). In addition, we note
that merely altering a position of a component in a device does not render
the device patentable. See In re Japikse, 181 F .2d 1019, 1032 (CCP A 1950)
(specific positioning of a starting switch of a hydraulic power press held
unpatentable because shifting the position of the starting switch would not
have modified the operation of the device); In re Kuhle, 526 F.2d 553, 555
(CCPA 1975) (particular placement of a contact in a conductivity measuring
device is an obvious matter of design choice). To any extent that burner 270
of Martin can be considered as not being arranged in a top of the housing,
such positioning would have been obvious to one of ordinary skill in the art
to select from the known locations for arranging the heating means,
including mounting locations described in Caridis and/or van de Vorst, in
view of the fact that there are only a finite number of identified, predictable
locations. KSR, 550 U.S. at 421. In this regard, the applied prior art also
clearly demonstrates that arranging heating means in a top of the housing
was well known and practiced in the art (Caridis, pg. 4, 11. 28-32 disclosing
"heating means 13" and Figs. 1, 2 showing positioning thereof; van de Vorst,
col. 7, 11. 31-3 6 disclosing "heat exchanger 13" and Fig. 1 showing
positioning thereof). See also Randall Mfg. v. Rea, 733 F.3d 1355, 1362-63
(Fed. Cir. 2013) (prior art of record not specifically relied upon in the
22
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
rejection considered as evidence of the state of the art, common knowledge,
and common sense of one of ordinary skill in the art).
The Patent Owner further argues that the Examiner has not provided
"reasons why one skilled in the art would select the elements of Caridis and
van de Vorst and arrange them in Martin as alleged." (App. Br. 43).
However, as noted supra, the Examiner articulated that Martin discloses an
oven that satisfies most of the limitations of these claims except for the
limitation directed to the sum of the surfaces of the series of jet nozzles
(Ans. 11 ). As also noted, the Examiner relied on Caridis and van de Vorst
for providing a reason to "vary the effective flow area of the Martin nozzles,
in order to account for the curved travel of the conveyor belt" to thereby
conclude that varying the sum of the surfaces of the jet nozzles would have
been obvious (id.). The Examiner did not "select the elements of Caridis
and van de Vorst and arrange them in Martin" as asserted by the Patent
Owner, but instead, used the teachings in the art to establish why modifying
Martin to include the missing limitation would have been obvious to a
person of ordinary skill in the art, including explicit reasons of "optimiz[ing]
the cooking of food products" and "account[ing] for the curved travel of the
conveyor belt." (Id.).
Finally, the Patent Owner asserts that the Examiner has not made any
fact findings as to claim 6 (App. Br. 43). Claim 6 recites that the jet nozzles
"comprise rows which extend transversely to the direction of movement of
the conveyor belt." (Id. at Claims App.). However, as noted above, the
position of the Examiner is that Martin discloses the limitations of claims
4---6 except for the limitation pertaining to the sum of the surfaces of the jet
23
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
nozzles (Ans. 11 ). Indeed, Figure 4 of Martin appears to illustrate the
recited orientation of discharge nozzle assembly 342 and its nozzles 348
shown in Figure 5 (Martin, Figs. 4, 5). Moreover, as noted above, such
transverse orientation of nozzles for discharging hot fluid is also disclosed in
Martin as being well known in the art (Martin, Figs. 1 and 2).
Therefore, in view of the above considerations, we also affirm
Rejection 9.
Rejections 2---6, 10, 11, and 15
Each claim subject to one or more of Rejections 2-6, 10, 11, and 15
stand rejected in at least one of the rejections affirmed above. Thus,
Rejections 2---6, 10, 11 and 15 are cumulative, and we decline to reach them.
CONCLUSIONS
1. Rejection 1 is REVERSED.
2. Rejections 7-9 and 12-14 are AFFIRMED.
3. Rejections 2---6, 10, 11 and 15 are moot.
SUMMARY
The Examiner's Final Rejection of claims 1---6, 11-17, 20-24, and
27-31 is affirmed, but reversed with respect to claim 26.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(±).
24
Appeal2015-004493
Reexamination Control 90/020,004
Patent No. US 6,707,010 B2
AFFIRMED-IN-PART
Koppens B.V.
Bakel, Nether lands
Gable & Gotwals
100 West Fifth Street
10th Floor
Tulsa, OK 74103
25