Ex Parte Axelrod

Patent Trial and Appeal Board

Sep 23, 2016

13026721 (P.T.A.B. Sep. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/026,721 02/14/2011 Glen S. AXELROD
32047 7590 09/26/2016
GROSSMAN, TUCKER, PERREAULT & PFLEGER, PLLC
55 SOUTH COMMERCIAL STREET
MANCHESTER, NH 03101
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.
TFH194 5408
EXAMINER
BECKER, DREW E
ART UNIT PAPER NUMBER
1792
MAILDATE DELIVERY MODE
09/26/2016 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 GLENS. AXELROD 1
Appeal2015-002994
Application 13/026,721
Technology Center 1700
Before BEYERL YA. FRANKLIN, CHRISTOPHER L. OGDEN, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-3, 5-7, 10-12, and 15-16 in the above-identified
application.2 We have jurisdiction pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is T.F.H. Publications,
Inc. Appeal Br. 1.
2 Appellant appeals from the non-final Office Action dated Apr. 3, 2014
[hereinafter Action]. See Appeal Br. 7.
Appeal2015-002994
Application 13/026,721
BACKGROUND
Appellant's invention relates to edible pet chews "that may be
configured with selected openings contained within the periphery of the
chew to allow for more efficient rates of drying and removal of moisture."
Spec. 1 :7-9. An embodiment of this invention is illustrated in part by
Figure 3, reproduced below:
.1f
I
500A
FIG~ 3
Figure 3 is a plan view depicting a chew 500A with irregular periphery
502A. Id. at 3, 7. The chew contains one or more openings 504, 506, one of
which is near the center of gravity of the chew (not shown). Id. at 7: 15-20,
8: 18-20. In this example, "a distance Dz from the edge or inner periphery
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Application 13/026,721
505 of the opening 504 to the periphery 502A is less than one-half of the
largest dimension D1 of the chew 500A." Id. at 7:18-20.
Claim 1, the sole independent claim, is representative:
1. A method of forming animal chews, comprising:
a. providing an edible composition including water;
b. providing melt processing equipment to process said
edible composition:
c. processing said edible composition through said melt
processing equipment to form an animal chew having a
periphery defining an irregular shape, a first water content, and
a thickness, the irregular shape having an upper surface
spanning said outer periphery and having a greatest linear
dimension, wherein:
said animal chew further includes one or more openings
defining an inner periphery of said animal chew and a center of
gravity, wherein at least one of said openings is formed about
said center of gravity; and
a distance from said inner periphery to said outer
periphery of said animal chew is less than one-half said greatest
linear dimension; and
d. drying said animal chew to a second water content that is
relatively uniform throughout its irregular shape.
Appeal Br. 21 (emphases added).
The Examiner rejects claims 1-3, 5-7, 10-12, and 15-16 under 35
U.S.C. § 103(a) as being unpatentable over U.S. Patent No. 3,899,607
(issued Aug. 12, 1975) [hereinafter Miller] in view of U.S. Patent
Application Pub. No. US 2008/0003338 Al (published Jan. 3, 2008)
[hereinafter Bamvos]. Action 3--4; Answer 2-5.
In the Appeal Brief, Appellant argues the claims as a group. See
Appeal Br. 7-19. Therefore, consistent with the provisions of 37 C.F.R.
§ 41.37(c)(l)(iv) (2013), we limit our discussion to independent claim 1, and
all other claims stand or fall together with claim 1.
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Appeal2015-002994
Application 13/026,721
DISCUSSION
The Examiner finds that Miller teaches the limitations of claim 1,
except that Miller does not "specifically recite an outer periphery with an
irregular shape." Id. However, the Examiner finds that Bamvos teaches a
process for making an animal chew in which the chew has an irregular
shape. Action 4. In light of these teachings, the Examiner concludes as
follows:
Id.
It would have been obvious to one of ordinary skill in the
art to incorporate the claimed irregular shape of the outer
periphery into the method of Miller et al, in view of Bamvos et
al, since both are directed to animal chews, since Miller et al
did not place any limitations on the shape of the outer periphery
of the product (column 5, line 41 ), since irregular shapes were
commonly used for animal chews as shown by Bamvos et al,
since an irregular shape would be appealing to animals wishing
to chew on the product of Miller et al by providing a varied
surface which could accommodate mouths of varying sizes as
compared to a simple round or cylindrical shape, and since
decorative irregular shapes, such as the irregular shape of
Bamvos et al, would have been appealing to the people buying
the animal chews of Miller et al.
Elaborating on these findings in the Answer, the Examiner broadly
construes the term relatively uniformly and finds that Miller teaches "drying
the product to a 'relatively uniform' moisture content of 5-12%." Answer 7
(citing Miller 2:49). The Examiner also finds that Miller teaches "harmful
effects that would occur if this 'relatively uniform' range was not achieved."
Id. (citing Miller 4:13-29). Furthermore, the Examiner finds that
Appellant's Specification "attribute[s] the act of achieving the 'relatively
uniform' moisture content solely to the presence of the opening(s)." Id.
Thus, the openings are the "means for achieving the 'relatively uniform'
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Appeal2015-002994
Application 13/026,721
moisture content in spite of an 'irregular shape'." Id. (citing Miller 6:19-
7:20).
Regarding the requirement of claim 1 that "at least one of said
openings is formed about said center of gravity," see Appeal Br. 21, the
Examiner finds that Miller discloses a hollow center that would contain the
center of gravity of a round-shaped chew, see Answer 10, and that "applying
the irregular peripheral shape of Barnvos et al[.] to the bone of Miller et al[.]
would not have moved the center of gravity any large distance, and this
center of gravity would still be spanned by the hollow center of Miller et al."
Id.
Citing the examples in Miller and a dictionary definition of the word
center,3 Appellant argues that "one of ordinary skill in the art would
understand Miller to disclose the production of animal chews having a
regular shape, i.e., a shape that includes at least one axis of symmetry."
Appeal Br. 12; see also Reply Br. 10 (arguing that Miller does not provide
any guidance as to any shapes other than regular shapes). We do not find
this argument persuasive of reversible error. While Miller does not
specifically refer to irregular shapes, Miller teaches that the chew is
"simulated bone" that "can be in any of several shapes." Miller 5:41--42.
Miller's reference to a symmetrical round shape as an alternative among
several possible shapes does not constitute teaching away from the use of
irregular shapes in animal chews. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004) ("The prior art's mere disclosure of more than one
alternative does not constitute a teaching away from any of these alternatives
3 "1. A point or area equidistant from all sides of something." American
Heritage Publishing Staff & Robert Masters, Center, ROGET'S II: THE NEW
THESAURUS (expanded ed. 1988).
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Appeal2015-002994
Application 13/026,721
because such disclosure does not criticize, discredit, or otherwise discourage
the solution claimed .... "). Appellants have not pointed to anything in
Miller or elsewhere in the prior art that criticizes, discredits, or otherwise
discourages the use of an irregularly shaped periphery in an animal chew.
Moreover, the Examiner cites Bamvos as a secondary reference
teaching that an animal chew may have an irregular shape. See Answer 10
("Bamvos et al[.] was only relied upon to teach an irregular peripheral shape
for a bone.") Appellant has not directed our attention to factual evidence
disputing the Examiner's conclusion that a person of ordinary skill in the art
preparing a chew as in Miller would have had reason to apply the teaching
of Bamvos of an irregular shape. We have carefully considered Appellant's
arguments that Bamvos teaches a significantly different process for
preparing an animal chew that does not involve forming an opening, and has
significant differences in drying properties. See Appeal Br. 14--17; Reply
Br. 10-13. However, we do not find these arguments persuasive of
reversible error. The Examiner has not cited Bamvos for teaching a specific
structure or method of making a chew. Obviousness depends on what the
references would have suggested to a person of ordinary skill in the art, "not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference." In re Keller, 642 F.2d 413, 425
(CCPA 1981).
Appellant also argues that Miller does not teach or recognize the
problem of uniform drying in irregularly-shaped chews, see Appeal Br. 12;
Reply Br. 8-9, does not provide any teaching on the location of the center of
gravity, see id. at 13-14, and is silent about an opening such that "the
distance between the irregularly shaped outer periphery and the inner
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Application 13/026,721
periphery of the opening is less than one half of the greatest linear dimension
of the chew," id. at 14.
We do not find these arguments persuasive of reversible error. Miller
teaches that moisture content in the hard chew material must be between
about 5-12%, in order to ensure that the shear value falls within the range
needed to simulate bone. See Miller 4:13-29. Because Miller links the
water content to the mechanical properties of the simulated bone, and those
properties occur across the structure of the simulated bone, we find no
reversible error in the Examiner's determination that Miller teaches
relatively uniform water content throughout the shape of the chew. Because
the Specification lacks clear guidance that limits the meaning of the term
relatively uniform, we interpret the term broadly. See In re Translogic Tech.
Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) ("[D]uring examination
proceedings, claims are given their broadest reasonable interpretation
consistent with the specification.") (quoting In re Hyatt, 211F.3d1367,
1372 (Fed. Cir. 2000)). According to its broadest reasonable interpretation,
relatively uniform encompasses the range of about 5-12% water taught by
Miller.
We have also carefully considered Appellant's argument that the
Examiner has not shown that an opening disclosed in Miller is formed about
the center of gravity of the chew, as required by claim 1. See Appeal Br.
13-14. However, we do not find this argument persuasive of reversible
error. Miller teaches, as one embodiment, a chew with a "round shape with
a hollow center." Miller 5:43. Miller also provides dimensions for a round
simulated bone with an inner diameter of 0.5 inches and an external diameter
of 1.5 inches. See id. at 6:68-7:3. Appellant has not directed our attention
to any factual evidence to dispute the Examiner's well-founded conclusion
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Application 13/026,721
that in such a geometry, the center of gravity would be within the hollow
center. See Answer 10. Neither has Appellant directed our attention to any
factual evidence disputing the Examiner's conclusion that "applying the
irregular peripheral shape of Bamvos et al[.] to the bone of Miller et al[.]
would not have moved the center of gravity any large distance, and this
center of gravity would still be spanned by the hollow center of Miller et al."
Id. Likewise, Appellant does not direct our attention to any evidence that
applying an irregular periphery to the chew with the dimensions exemplified
in Miller would not result in a chew in which the "distance from said inner
periphery to said outer periphery of said animal chew is less than one-half
said greatest linear dimension," as required by claim 1. Appeal Br. 21.
Therefore, by a preponderance of the evidence on this record, we are
not persuaded of reversible error in the Examiner's decision to reject claim
1. For the same reasons, we find no reversible error in the Examiner's
decision to reject claims 2-3, 5-7, 10-12, and 15-16.
DECISION
The Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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