Ex parte Askman et al.

Board of Patent Appeals and Interferences

Jun 16, 1999

08288127 (B.P.A.I. Jun. 16, 1999)

Application for patent filed August 10, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 22
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte LARS ASKMAN and WERNER LEONHARDT
__________
Appeal No. 96-1548
Application 08/288,1271
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HEARD: June 10, 1999
___________
Before PAK, WALTZ and KRATZ, Administrative Patent Judges.
WALTZ, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the
examiner’s refusal to allow claims 11 through 24 as amended
subsequent to the final rejection (see the amendment dated
July 31, 1995, Paper No. 11, entered as per the Advisory
Action dated Aug. 8, 1995, Paper No. 12). Claims 11 through
24 are the only claims remaining in this application.
Appeal No. 96-1548
Application 08/288,127
2
According to appellants, the invention is directed to a
process for blanching or cooking continuous strands of pasta
dough by directing leading ends of the strands with water at a
temperature sufficient to blanch or cook the strands into an
inlet of a pipe which descends vertically from the inlet to an
outlet end (Brief, page 3). Claim 11 is illustrative of the
subject matter on appeal and is reproduced below:
11. A process for blanching or cooking pasta comprising:
preparing a pasta dough;
forming the dough into a plurality of continuous pasta
dough strands;
simultaneously directing leading ends of the continuous
strands and water at a temperature sufficient to blanch or
cook the strands into an inlet end of a pipe having a length
which descends vertically from the inlet end to an outlet end,
so that the water contacts the strands and draws and
continuously conveys the strands through the length of the
pipe, the continuous strands extending from the inlet to the
outlet, for a time sufficient to blanch or cook the strands
and so that the cooked or blanched strands and water exit from
the pipe through the outlet end;
conveying the cooked or blanched strands exiting the pipe
away from the outlet end and draining and collecting water
from the pipe and the strands as the strands are conveyed; and
recirculating the drained and collected water to the pipe
inlet end.
Appeal No. 96-1548
Application 08/288,127
We rely upon and cite from the English translations of Ohki and Oki provided by2
the Patent & Trademark Office (both now made of record, see also the Advisory Action
date Aug. 8, 1995, Paper No. 12). We do not rely upon the English translation of Oki
provided by appellants as an attachment to the Information Disclosure Statement dated
Apr. 13, 1994, Paper No. 9, or the English abstract of Ohki of record.
The examiner and appellants mistakenly list the applied references as “Ohki I”3
and “Ohki II” (see the Brief, page 5, and the Answer, page 2). However, the English
translations of record show that Japanese Kokai 62-22612 discloses “Nobuo Oki” as the
sole inventor and Japanese Kokai 58-18055 discloses “Yasuo Ohki” as the sole inventor.
Accordingly, we will refer to these references as “Oki” and “Ohki”, respectively.
3
The examiner has relied upon the following references as
evidence of obviousness:
Ohki 58-18055 Feb. 5, 1982
(Published Japanese Kokai)
Oki 62-22612 Jan. 30, 1987
(Published Japanese Kokai)2
Claims 11-24 stand rejected under 35 U.S.C. § 103 as
unpatentable over Oki in view of Ohki (Answer, page 3). We3
reverse this rejection for reasons which follow.
OPINION
The process of appealed claim 11 recites the limitations
of “simultaneously directing leading ends of the continuous
strands and water at a temperature sufficient to blanch or
cook the strands into an inlet end of a pipe” which “descends
vertically” from the inlet to the outlet “so that the water
Appeal No. 96-1548
Application 08/288,127
4
contacts the strands and draws and continuously conveys the
strands through the length of the pipe”.
Oki discloses a cooking process for pasta (noodles) where
the raw materials along with warm water are poured into the
inflow tank and heated while passing through the water conduit
pipe by hot water around the pipes (Oki, page 6, “(Effect)”;
page 8, last paragraph). Oki teaches that there is no direct
heating of the warm water surrounding the noodles but the
noodles are boiled and cooked in the boiling water conduit by
the hot water in the water conduit tank (page 10). Oki does
teach vertical flow (i.e., gravitational flow) from the inlet
to the outlet end of the pipes (page 8, last paragraph, and
Figure 1).
The examiner applies Ohki (cited by Oki as “Prior Art” at
page 3) to show the cooking of pasta or noodles by conveying
the hot water and noodles in cooking tubes (see the Final
Rejection, page 2). However, Ohki does not disclose a
vertical or gravitational flow of noodles and water but uses a
vacuum pump to produce a partial vacuum to convey the noodles
through the pipe structure (see Ohki, pages 2, 6 and 7). In
fact, Ohki teaches away from the use of gravitational flow
Appeal No. 96-1548
Application 08/288,127
5
because the flow speed of the water and noodles varies thus
affecting the cooking time (Ohki, page 3).
“When relying on numerous references or a modification of
prior art, it is incumbent upon the examiner to identify some
suggestion to combine references or make the modification.”
In re Mayne, 104 F.3d 1339, 1342, 41 USPQ2d 1451, 1454 (Fed.
Cir. 1997). See also In re Dembiczak, __ F.3d __, __, 50
USPQ2d 1614, 1617 (Fed. Cir. 1999); In re Rouffet, 149 F.3d
1350, 1359, 47 USPQ2d 1453, 1459 (Fed. Cir. 1998). We
determine that the examiner has not identified any reason,
suggestion or motivation to combine the teachings of Oki and
Ohki in the manner proposed (see the Brief, page 8, and the
Answer, page 3). The examiner fails to present reasoning or
explanation why one of ordinary skill in the art at the time
of appellants’ invention would have been motivated to use
boiling water inside the pipes to cook the noodles, as taught
by Ohki, with the boiling apparatus of Oki where only warm
water is initially used with the noodles in the pipes (see the
paragraph bridging pages 2-3 of the Final Rejection). There
is also no reasoning or explanation by the examiner supporting
the proposed combination of references in light of the
Appeal No. 96-1548
Application 08/288,127
6
teaching by Ohki of the disadvantages of a gravitational flow
apparatus similar to the apparatus disclosed by Oki. For the
foregoing reasons, we determine that the examiner has failed
to establish a prima facie case of obviousness in view of the
applied prior art. Accordingly, the
rejection of claims 11-24 under 35 U.S.C. § 103 as
unpatentable over Oki in view of Ohki is reversed.
The decision of the examiner is reversed.
REVERSED
CHUNG K. PAK )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
THOMAS A. WALTZ )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
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)
)
Appeal No. 96-1548
Application 08/288,127
7
PETER F. KRATZ )
Administrative Patent Judge )
TAW/kis
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