Ex Parte CATELLI et alDownload PDFPatent Trial and Appeal BoardAug 29, 201813673152 (P.T.A.B. Aug. 29, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/673, 152 11/09/2012 86378 7590 08/31/2018 Pearne & Gordon LLP 1801 East 9th Street Suite 1200 Cleveland, OH 44114-3108 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR ROBERTO CATELLI 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. BUG?-50338 1925 EXAMINER CHAWLA, JYOTI ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 08/31/2018 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): patdocket@pearne.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERTO CATELLI, MARIO GOZZI, AND STEFANO ROMEI Appeal2017-010786 Application 13/673,152 Technology Center 1700 Before JEFFREY B. ROBERTSON, WESLEY B. DERRICK, and JEFFREY R. SNAY, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL Appeal2017-010786 Application 13/673,152 STATEMENT OF CASE Appellant1 appeals under 35 U.S.C. § 134 from the Examiner's rejections of claims 1-6 and 19-22. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. THE INVENTION Appellant states that the invention relates to a method for the production of apple sauce. (Spec. 2 1, 11. 1-2.) Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. Method for the production of apple sauce comprising the following steps: -slicing apples generating a plurality of slices having two opposite faces and a peel which develops continuously between said two opposite faces; -pulping the slices and obtaining a first product and a first waste; the step of pulping the slices comprising a step of forcing the slices against a first sieve, the first product passing through holes in the first sieve, the first waste failing to pass through the first sieve and being provided to a second sieve, the holes of the first sieve which permit passage of the first product being greater than the holes of the second sieve which permit passage of a second product; -refining the first waste by forcing the first waste against the second sieve, the second product passing through the holes in the second sieve, the refining of the first waste generating the second product and a second waste; -mixing the first product and the second product; 1 Appellant is the Applicant, CFT S.p.A, which, according to the Appeal Brief, is the real party in interest. (Appeal Brief filed September 12, 2016, hereinafter "Appeal Br.," 1.) 2 We refer to the Specification, filed Nov. 9, 2012 ("Spec."). 2 Appeal2017-010786 Application 13/673,152 -heating the combination of the first product and the second product in order to deactivate enzymes contained therein. ( Appeal Brief, Claims Appendix 9.) THE REJECTION The Examiner rejected the claims under pre-AIA 35 U.S.C. § I03(a) as follows: Claims 1---6 and 19--22 as obvious over Catelli et al. (EP 2 022 342 Al, issued February 11, 2009) (hereinafter "Catelli") in view of Metcalf et al. (US 5,244,685, issued September 14, 1993) (hereinafter "Metcalf'); Rowse (US 3,103,438 issued September 10, 1963) (hereinafter "Rowse"); and Rooker (US 3,019,113 issued January 30, 1962) (hereinafter "Rooker"). (Final Office Action, mailed April 12, 2016, (hereinafter "Final Act.") 2-10; Examiner's Answer, mailed June 23, 2017, (hereinafter "Ans.") 2-7.) ISSUES The Examiner found that Catelli discloses a method for production of purees from fruit products including apple sauce where the fruit is triturated, slices being pulped, to obtain a first product and a first waste, which includes forcing a product through a sieve to separate pulp and juice from waste. (Final Act. 2--4.) The Examiner found that Catelli is silent regarding refining the first waste, but that Metcalf discloses a finisher to separate undesirable portions (waste) of the apple from pulped flesh where the waste may be further processed through a second finisher to further recover apple flesh. (Id. at 4--5.) The Examiner found that one of ordinary skill in the art would have been motivated to modify Catelli to repeat the processing step of refining the first waste in order to increase the overall yield of the pulp of 3 Appeal2017-010786 Application 13/673,152 puree obtained. (Id. at 5.) Regarding the size of the holes recited in the claims, the Examiner found that Rowse discloses a method of making sauces and purees where apples are forced through a first screen to obtain first product and first waste and then the first waste is refined through a second screening to extract apple sauce. (Id.) The Examiner found that Rowse discloses that the "size of the screen openings ... depends on the character of fruit and the desired grain or texture of the sauce or puree." (Id., quoting Rowse, col. 4, last two lines to col. 5, 1. 5.) The Examiner also found that Rooker discloses methods of making fruit sauces where the fruit is passed through a comminutor with blades and a screen, where the grain sizes may vary from 5-30 mesh based on trade or manufacturer preferences. (Id. at 6; citing Rooker, col. 2, 11. 68-72, col. 3, 11. 1-3.) The Examiner then concluded that altering the sizes of screen openings based on the size of the particles or pieces of food in the finished product was known and that the purpose of refinement or super refinement is to make a finer puree or pulp product such that it would have been a matter of routine determination to arrange for the holes of the second refinement step to be smaller than the holes of the first refinement step. (Id.) Appellant contends that Catelli discloses refining and super-refining the puree and not the first waste product as recited in claim 1. (Appeal Br. 2-3.) Appellant argues that Metcalf does not disclose mixing the apple flesh produced by the second finisher with the product obtained from the first finisher. (Id. at 3.) Appellant contends that Metcalf actually teaches against mixing apple flesh from the two finishers because the waste product of the first finisher would be exposed to the atmosphere, which would permit immediate oxidation of the apple flesh and degrade taste, color, and aroma, 4 Appeal2017-010786 Application 13/673,152 whereas the first product is passed into an air-tight tank such that one of ordinary skill in the art would not mix the two products. (Id. at 3--4; Reply Brief filed August 17, 2017, 1-2.) Appellant argues also that Metcalf does not teach the holes in the second sieve as being smaller than the holes from the first sieve as claimed. (Appeal Br. 4.) Appellant contends that Rowse discloses a hole arrangement of the first and second sieve that is exactly the opposite of what is recited in claim 1 and further that Rowse does not disclose mixing the products of the first sieve and second sieve disclosed therein. (Id. at 4--5.) Appellant argues that Rooker only discloses forming a first product and not a second product. (Id. at 5.) Regarding claims 20 and 22, Appellant argues that Rooker does not disclose the sieve opening sizes recited in the claim or the particular relationship of the sieves where the holes of the second sieve are smaller than the holes of the first sieve. (Id. at 6-7.) Therefore, the dispositive issues on appeal are: Has Appellant sufficiently shown that the Examiner committed reversible error in concluding that it would have been obvious to produce apple sauce by providing a first waste product to a second sieve where the holes of a first sieve are greater than the holes of a second sieve to produce a first and second product where the two products are mixed in view of the prior art of record? Has Appellant sufficiently shown that the Examiner committed reversible error in concluding that it would have been obvious to have holes in a second sieve having the surface area recited in claims 20 and 22 in view of the prior art of record? 5 Appeal2017-010786 Application 13/673,152 DISCUSSION Appellant argues claim 1 and present additional arguments for claims 5, 20 and 22. (See generally App. Br.) We therefore confine our discussion to appealed claim 1 pursuant to 37 C.F.R. § 4I.37(c)(l)(iv), and address the additional arguments presented separately. Issue 1 We are not persuaded by Appellant's argument that the Examiner erred in rejecting claim 1. Initially, we observe, as does the Examiner, that many of Appellant's arguments are directed to the individual references in the rejection, rather than the combination of references and the rejection as a whole. In re Keller, 642 F.2d 413,426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). (Ans. 7, 10, 12.) Regarding Appellant's argument that Catelli does not disclose refining the first waste product, we agree with the Examiner that Metcalf provides the teaching that a first waste product may be refined. In particular, Metcalf discloses: "Apple waste from waster conveyor 40 may be further processed though a second finisher to further recover apple flesh." (Metcalf, col. 4, 11. 13-16; Ans. 3.) Accordingly, we agree with the Examiner that it would have been obvious in view of this disclosure to refine the waste product of Catelli in a second refiner or finisher as taught by Metcalf. (Ans. 3--4.) Appellant's position that not only does Metcalf not disclose mixing two products, but actually would "teach against" mixing a product from the second finisher with the first finisher is similarly not persuasive. In this regard, it is clear that Metcalf is concerned with oxidation and freshness of applesauce, and provides pulped flesh to an air-tight tank. (Col. 1, 11. 20--43; col. 4, 11. 5-16.) However, Appellant does not provide sufficient support for 6 Appeal2017-010786 Application 13/673,152 the assertion that if the apple waste from the first finisher is processed through a second finisher, it would be exposed to the atmosphere and not mixed with the first waste. That is, although Metcalf appears to show in the embodiment depicted in Figure 1, that the waste from the finisher is exposed to the atmosphere, such an embodiment does not include a second finisher. (Fig. 1; col. 4, 11. 5-13.) Thus, we are not convinced that even in the context of Metcalf, one of ordinary skill in the art would have necessarily allowed the waste product from a first finisher to be exposed to the atmosphere before entering a second finisher. The clear implication from Metcalf is that recovering further apple flesh in a second finisher would be to obtain usable apple flesh in order to increase the yield of applesauce produced and reduce waste. The idea that Metcalf would recover an inferior product in the second finisher that would not be mixed or mixable with a first product from a first finisher is inconsistent with the overall purpose and thrust of Metcalf itself. Regarding the arrangement of holes as recited in claim 1, we first observe that Appellant's argument that Metcalf does not disclose the arrangement of holes recited in the claim is not persuasive as it does not take into account the rejection as a whole, which as further discussed below, relies on Rowse and Rooker in rendering the hole arrangement recited in the claim obvious. Regarding Rowse, it is true that Rowse depicts an embodiment in Figure 1 where the holes in the first sieve are smaller than the holes in the second sieve. (Fig. 1; col. 3, 1. 75 - col. 4, 1. 6.) However, as the Examiner points out, Rowse discloses that "the effective size of the screen openings, in any of the continuous procedures herein described, will depend upon the 7 Appeal2017-010786 Application 13/673,152 character of the fruit and the desired grain or texture of the sauce or puree which is to be extracted." (Col. 4, 1. 75 - col. 5, 1. 4; Ans. 10.) Thus, Rowse does not limit its method to the particular embodiments disclosed therein. The Examiner cited Rowse to support the position that the size or sizes of the holes in the sieves employed in the methods of Catelli in view of Metcalf are dependent on the desired consistency of the resulting sauce, and therefore are result effective variables. (Ans. 12-13.) The Examiner additionally cited Rooker for this point as Rooker also discloses "The prepared fruit is passed thru a comminutor with its blades and screen of proper sizes to give the desired particles or grain size in the finished sauce." (Col. 2, 11. 69-71.) Rooker further discloses that the "grain size may be varied from 5 to 30 mesh according to the trade or manufacturer's preference." (Col. 2, 1. 72 - col. 3, 1. 2.) We are not persuaded by Appellant's arguments that Rowse does not disclose mixing two products and that Rooker only discloses one product, because the rejection is based on the position that Catelli in view of Metcalf discloses two products that are mixed together in order to increase the overall yield of the pulp or puree obtained. (Ans. 3--4.) As to the particular arrangement of holes in the first sieve being greater than the holes of the second sieve, Appellant has not demonstrated error in the Examiner's position that it would have been obvious in view of the prior art disclosures that hole sizes are result effective variables to employ sieves where "the sieve hole sizes are progressively reduced to achieve fruit mash having pieces or particles of two or more different size ranges" in order to achieve "an apple mash product having variable texture." (Ans. 4--5.) The Examiner relied on the general purpose of refinement to 8 Appeal2017-010786 Application 13/673,152 make a finer puree or pulp product as support for the particular hole arrangement as claimed, "for the purpose of fully utilizing the fruit product and to increase the overall yield of the pulp or puree obtained." (Ans. 5---6.) We understand the Examiner's rationale to be based, at least in part, on the position that in order to fully utilize the fruit product consistent with the teachings of the prior art, e.g., Metcalf, one of ordinary skill in the art would have selected sieves with smaller holes in the treatment of the first waste product. We agree with the Examiner, as the first waste product would have smaller portions of apple flesh that would appear to be more receptive to being harvested with a sieve having smaller holes. Accordingly, we affirm the Examiner's rejection of claim 1. Issue 2 Appellant's arguments with respect to claims 20 and 22 focus on the position that the sizes of the holes disclosed in Rooker, mesh size 5 to 30, are much larger in size than the size of the holes for the second sieve recited in claims, which Appellant contends correspond to mesh size 35-38. (Appeal Br. 6-7.) We are not persuaded by Appellant's arguments in this regard. As discussed above, and as noted by the Examiner in the Answer (Ans. 12-13), the size of the holes in the second sieve is a result effective variable in order to produce a desired size of the smaller particles for a finer fruit sauce product in the refining step. Indeed, Appellant has not shown any particular criticality to the particular sizes of the holes of the second sieve as recited in claims 20 and 22. Appellant's further argument that Rooker only discloses a single sieve is not persuasive as discussed above. (Appeal Br. 7 .) 9 Appeal2017-010786 Application 13/673,152 As a result, we are not convinced that Appellant has demonstrated that the Examiner committed reversible error in rejecting claims 20 and 22. CONCLUSION Appellant has not sufficiently shown that the Examiner committed reversible error in concluding that it would have been obvious to produce apple sauce by providing a first waste product to a second sieve where the holes of a first sieve are greater than the holes of a second sieve to produce a first and second product where the two products are mixed in view of the prior art of record. Appellant has not sufficiently shown that the Examiner committed reversible error in concluding that it would have been obvious to have holes in a second sieve having the surface area recited in claims 20 and 22 in view of the prior art of record. DECISION We affirm the Examiner's rejection of claims 1-6 and 19-22. TIME 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)(l )(iv). AFFIRMED 10 Copy with citationCopy as parenthetical citation