Ex Parte Brunner

Board of Patent Appeals and Interferences

Aug 27, 2004

10085280 (B.P.A.I. Aug. 27, 2004)

The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.
Paper No. 24
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte ROGER PATRICK BRUNNER
__________
Appeal No. 2004-1244
Application 10/085,280
___________
HEARD: August 17, 2004
___________
Before COHEN, FRANKFORT, and MCQUADE, Administrative Patent
Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Roger Patrick Brunner originally took this appeal from the
final rejection (Paper No. 7) of claims 1 through 12, all of the
claims pending in the application. Upon consideration of the
appellant’s main brief (Paper No. 12), the examiner issued an
Office action (Paper No. 14) reopening prosecution and entering a
superseding rejection of the claims. Pursuant to 37 CFR
§ 1.193(b)(2)(ii), the appellant then filed a supplemental brief
(Paper No. 16) and requested that the appeal be reinstated.
Appeal No. 2004-1244
Application 10/085,280
2
Implicitly granting the request, the examiner entered an answer
(Paper No. 17), noted a reply brief (Paper No. 19) filed by the
appellant and forwarded the application to this Board for review
of the new rejection of claims 1 through 12.
THE INVENTION
The invention relates to auger-type ice making machines
typically used in commercial settings to produce flaked or
chipped ice. Representative claims 1 and 4 read as follows:
1. An ice making apparatus comprising:
(a) a generally cylindrical and hollow freezing chamber;
(b) a compacting head at an end of said freezing chamber;
(c) a rotatable ice auger sized to fit into said freezing
chamber whereby said auger scrapes ice formed on the walls of
said chamber and conveys the ice toward a discharge end of said
auger and said compacting head;
(d) an evaporator comprising an evaportator body and a
jacket;
(e) the evaportator body having a continuous generally
spiral groove on its outer cylindrical surface, terminating in a
radial outward edge; with the evaporator having a refrigerant
inlet and refreigerant outlet;
(f) the evaporator jacket being telescopically disposed over
the spiral groove of the evaporator body and being in
interference fit against the outward edge of the spiral groove,
sealingly engaging the evaporator jacket against the evaporator
body, whereby refrigerant entering into the groove is sealingly
trapped therein between a refreigerant inlet and a refrigerant
outlet.
4. The apparatus of claim 1, wherein the spiral groove
comprises a helical groove.
Appeal No. 2004-1244
Application 10/085,280
3
THE PRIOR ART
The references relied on by the examiner as evidence of
obviousness are:
Beusch 3,910,060 Oct. 7, 1975
Kaiser et al. (Kaiser) 5,419,150 May 30, 1995
THE REJECTION
Claims 1 through 12 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Beusch in view of Kaiser.
Attention is directed to the briefs and to the superseding
Office action and answer for the respective positions of the
appellant and the examiner regarding the merits of this
rejection.
DISCUSSION
I. Grouping of claims
For purposes of this appeal, the appellant groups claims 1
through 3, 5 through 9, 11 and 12 as standing or falling together
and claims 4 and 10 as standing or falling together. In
accordance with this grouping, and pursuant to 37 CFR
§ 1.192(c)(7), we will decide the appeal on the basis of claims 1
and 4 alone. Claims 2, 3, 5 through 9, 11 and 12 shall stand or
fall with claim 1 and claim 10 shall stand or fall with claim 4.
Appeal No. 2004-1244
Application 10/085,280
4
II. The merits
Beusch, the examiner’s primary reference, discloses an ice
making apparatus for producing granular ice. As shown in Figure
1, the apparatus includes an extruder screw 1, a cooling jacket
inner wall member 6, a cooling jacket outer housing wall 7, a
space 13 between the member 6 and the wall 7 for receiving a
cooling medium, a cooling medium inlet port 8, a cooling medium
outlet port 9, and an annular extrusion plate 20 containing a
plurality of conical apertures 22. In use, water is fed into the
bottom of the cooling jacket, advanced upwardly by the extruder
screw, formed into ice/slush on the cold inner surface of the
cooling jacket, scraped off the inner surface by the screw and
advanced toward and through the conical apertures in the
extrusion plate.
The Beusch ice making apparatus meets all of the limitations
in representative claims 1 and 4 except for those requiring (1)
the evaporator body to have a continuous generally spiral groove
on its outer cylindrical surface terminating in a radial outward
edge (claim 1), (2) the evaporator jacket to be in interference
fit against the outward edge of the spiral groove sealingly
engaging the evaporator jacket against the evaporator body
whereby refrigerant entering into the groove is sealingly trapped
Appeal No. 2004-1244
Application 10/085,280
5
therein (claim 1), and (3) the spiral groove to comprise a
helical groove (claim 4). In this regard, Beusch does not teach
that the cooling jacket inner wall member 6, which effectively
constitutes an evaporator body, has a spiral or helical groove on
its outer cylindrical surface, or that the cooling jacket outer
housing wall 7, which effectively constitutes an evaporator
jacket, is in interference fit with any part of the evaporator
body.
Kaiser discloses a soft-serve frozen dessert machine 10
which is similar to the ice making apparatus disclosed by Beusch
in that it includes a cylindrical freezing chamber 32 for
receiving and freezing on its inner surface a liquid dessert mix
and a rotating dasher 132 within the freezing chamber for
scraping the frozen dessert from the inner surface and advancing
it toward a dispensing means. Of particular interest is the
construction of the freezing chamber:
[t]he freezer 32 is made up of a member 84, which has a
substantially cylindrical inner surface 86 and a spiral
groove in its outer surface 88. The member 84 is
preferably cast, although it could be machined or made
by other known methods. A tube 89 is shrunk over the
outer surface 88 of the member 84 to create a spiral
passageway for the refrigerant. This is accomplished
by first heating the tube 89 so that it expands and
then slipping the expanded tube over the member 84 from
back to front until it reaches the front flange 91 of
the casting 84. Then, when the tube 89 cools, it
shrinks around the casting 84 so that the refrigerant
Appeal No. 2004-1244
Application 10/085,280
6
cannot slip through any space between the tube 89 and
the casting 84 and must follow the spiral path 88
[column 6, lines 41 through 55].
According to Kaiser, the foregoing freezer construction is
advantageous in terms of cost and efficiency:
[t]he refrigerant enters the freezer 32 at the
refrigerant inlet 90, at the back of the freezer 32,
passes through the spiral passageway 88, and leaves
through the refrigerant outlet 92, near the front of
the freezer 32. This arrangement minimizes the expense
in making the freezer and provides for good heat
transfer from the refrigerant to the product (avoiding
problems of gaps between the coil which holds the
refrigerant and the body of the freezer which are
common in prior art designs), thereby improving the
efficiency of the present evaporator over prior art
evaporators [column 7, lines 6 through 16].
Kaiser’s description of these cost and efficiency benefits
would have provided the artisan with ample suggestion or
motivation to utilize the particular freezer construction
disclosed by Kaiser in place of the cooling jacket disclosed by
Beusch. The appellant’s contention that this would “drastically
modify Beusch’s intended operation” (reply brief, page 3) has no
basis in the fair teachings of either reference. As so modified
in view of Kaiser, the Beusch ice making apparatus would meet all
of the limitations in claims 1 and 4.
Hence, the combined teachings of Beusch and Kaiser justify a
conclusion that the differences between the subject matter
recited in claims 1 and 4 and the prior art are such that the
Appeal No. 2004-1244
Application 10/085,280
1 In the event of further prosecution, “grove” should be
changed to --groove-- in clause (e) of claim 7 and “groove”
should be changed to --grooves-- in claims 2 and 8 for
consistency with the rest of these claims, the somewhat confusing
wording in claim 9 should be clarified and the dependency of
method claim 12 should be changed from apparatus claim 6 to one
of method claims 7 through 11.
7
subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art.
Therefore, we shall sustain the standing 35 U.S.C. § 103(a)
rejection of claims 1 and 4, and claims 2, 3 and 5 through 12
which stand or fall therewith, as being unpatentable over Beusch
in view of Kaiser. As our rationale differs from that advanced
by the examiner in the explanation of the rejection set forth in
the superseding Office action (Paper No. 14), we designate our
decision as a new ground of rejection under 37 CFR § 1.196(b) to
afford the appellant a fair opportunity to react thereto.1
SUMMARY
The decision of the examiner to reject claims 1 through 12
is affirmed, with the affirmance designated as a new ground of
rejection under 37 CFR § 1.196(b).
This decision contains a new ground of rejection pursuant to
37 CFR § 1.196(b)(amended effective Dec. 1, 1997, by final rule
notice, 62 Fed. Reg. 53,131, 53,197 (Oct. 10, 1997), 1203 Off.
Gaz. Pat. & Trademark Office 63, 122 (Oct. 21, 1997)). 37 CFR
Appeal No. 2004-1244
Application 10/085,280
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§ 1.196(b) provides that, “A new ground of rejection shall not be
considered final for purposes of judicial review.”
37 CFR § 1.196(b) also provides that the appellant, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of
rejection to avoid termination of proceedings (§ 1.197(c)) as to
the rejected claims:
(1) Submit an appropriate amendment of the claims
so rejected or a showing of facts relating to the
claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the
application will be remanded to the examiner. . . .
(2) Request that the application be reheard under
§ 1.197(b) by the Board of Patent Appeals and
Interferences upon the same record. . . .
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
Appeal No. 2004-1244
Application 10/085,280
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AFFIRMED; 37 CFR § 1.196(b).
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
) BOARD OF PATENT
)
) APPEALS AND
CHARLES E. FRANKFORT )
Administrative Patent Judge ) INTERFERENCES
)
)
)
)
)
JOHN P. MCQUADE )
Administrative Patent Judge )
JPM/kis
Appeal No. 2004-1244
Application 10/085,280
10
PAUL & PAUL
2900 TWO THOUSAND MARKET STREET
PHILADELPHIA, PA 19103