Ex Parte Durance et al

Patent Trial and Appeal Board

Aug 19, 2016

12682989 (P.T.A.B. Aug. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/682,989 05/05/2010
22885 7590 08/23/2016
MCKEE, VOORHEES & SEASE, P.L.C.
801 GRAND A VENUE
SUITE 3200
DES MOINES, IA 50309-2721
FIRST NAMED INVENTOR
Timothy D. Durance
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.
P09610US01 8311
EXAMINER
LU,JIPING
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
08/23/2016 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):
patatty@ipmvs.com
michelle. woods@ipmvs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY D. DURANCE, JUN FU, and
P ARASTOO Y AGHMAEE
Appeal2016-007246
Application 12/682,989
Technology Center 3700
Before LYNNE H. BROWNE, ERIC C. JESCHKE, and
BRENT M. DOUGAL, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Timothy D. Durance et al. (Appellants) appeal under 35 U.S.C. § 134
from the rejection of claims 1-37. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
Appeal2016-007246
Application 12/682,989
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An apparatus for dehydrating organic material, comprising:
(a) a vacuum chamber having an input end for introduction of
a container for the organic material into the vacuum
chamber and a discharge end for removal of the container;
(b) a microwave generator;
( c) a microwave-transparent window for transmission of
microwave radiation from the microwave generator into
the vacuum chamber;
( d) means for reducing pressure inside the vacuum chamber;
( e) means for loading the container into the input end of the
vacuum chamber;
( t) means for rotating the container inside the vacuum
chamber so as to tumble the organic material in the
container;
(g) means for moving the rotating container through the
vacuum chamber from the input end to the discharge end
thereof; and
(h) means for unloading the container of dehydrated organic
material from the vacuum chamber at the discharge end
thereof.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Semon
Bibb
Mencacci
Durance
Wefers
Burger
Behnke
us 1,969,101
us 3,308,332
us 4,169,408
us 5,676,989
US 6,442,866 B2
US 2005/0019209 Al
US 7 ,092,668 B2
2
Aug. 7, 1934
Mar. 7, 1967
Oct. 2, 1979
Oct. 14, 1997
Sept. 3, 2002
Jan.27,2005
Aug. 15, 2006
Appeal2016-007246
Application 12/682,989
REJECTIONS 1
I. Claims 1---6, 12, 16-20, 26-29, 31 and 33-35 stand rejected
under 35 U.S.C. § 103(a) as unpatentable over Wefers and
Burger.
II. Claims 7, 9, 10, 21, 30, and 32 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wefers, Burger, and Mencacci.
III. Claims 8, 22, and 23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wefers, Burger, and Bibb.
IV. Claim 11 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Wefers, Burger, Mencacci, and Semon.
V. Claim 13 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Wefers, Burger, and Semon.
VI. Claims 14, 15, 24, 25, 36, and 37 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Durance, Bibb, and
Behnke.
DISCUSSION
Rejection I
Appellants argue claims 1-6, 12, 16-20, 26-29, 31, and 33-35
together. See Appeal Br. 10. We select independent claim 1 as the
illustrative claim, and claims 2---6, 12, 16-20, 26-29, 31, and 33-35 stand or
fall with claim 1.
The Examiner finds that the combined teachings of W efers and
Burger disclose or suggest all of the limitations of independent claim 1. See
1 The rejection of claims 1-13, 16-23, and 26-35 under 35 U.S.C. § 112,
first paragraph, was withdrawn in the Advisory Action mailed January 14,
2015.
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Appeal2016-007246
Application 12/682,989
Final Act. 3-6. In particular, the Examiner finds that Wefers discloses "a
vacuum chamber 1 having an input end 5' for introduction of a container 4
for the organic material into the vacuum chamber 1 and a discharge end 7
for removal of the container." Id. at 3 (citations omitted). The Examiner
further finds that Burger "teaches a concept of simultaneous rotation and
transport of the containers 2 in a vacuum chamber 5 for treating the
containers 2 under microwave." Id. at 5.
Appellants argue that "[ n ]either, Burger nor Wefers show tumbling of
organic material." Appeal Br. 10. The rejection as articulated by the
Examiner, as noted supra, relies upon W efers for organic material and
Burger to teach rotating containers. Thus, it is the combination that renders
obvious the "tumbling of organic material." Nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Thus, Appellants do not apprise
{' us or error.
Appellants further contend that "contrary to the Examiner's assertion,
such tumbling of the material would not be inherent within an obvious
combination of Burger and Wefers." Appeal Br. 10. In support of this
contention, Appellants acknowledge that "tumbling would be dependent on
speed of rotation as well as the adherence of the contents to the inner surface
of the container" and note that "neither Wefers nor Burger mentions the
possibility or desirability of tumbling the contents." Id. at 11; see also Reply
Br. 2. However, Appellants do not explain why tumbling would not occur.
Rather, as noted by Appellants, given the appropriate selection of rotation
speed and material for the inner surface of the container, tumbling would be
inherent. Thus, Appellants' argument is unpersuasive.
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Appeal2016-007246
Application 12/682,989
In addition, Appellants argue that "W efers teaches away from
agitating the products during transport through the vacuum chamber,"
because "Wefers states: 'Furthermore, the conveyor means are hardly
exposed to transverse forces, due to the gentle continual transport, thus
reducing the maintenance expense of the apparatus to advantage."' Appeal
Br. 10 (citing Wefers 2:41--44) (emphasis added).
Wefers states:
Yet a further advantage is that the product to be treated or
remainders thereof need not be removed mechanically from a
conveyor belt in a vacuum chamber. This adds to the life of a
conveyor belt arranged in the treatment chamber due to its
reduced wear. Furthermore, the conveyor means are hardly
exposed to transverse forces, due to the gentle continual
transport, thus reducing the maintenance expense of the
apparatus to advantage.
Wefer 2:37--44.
This paragraph discusses the advantage of not having to remove the
product (i.e., organic material) from the conveyor belt. It does not "criticize,
discredit, or otherwise discourage" tumbling of containers, and thus, does
not constitute a teaching away. See In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004). Moreover, Appellants do not explain why tumbling of the
containers precludes gentle transport. Thus, Appellants do not apprise us of
error.
In conclusion, Appellants argue that "the rotation of the containers in
Burger only results in application of the microwave radiation to the surfaces
of the containers, not to the contents: 'only the surface [of the containers] is
treated' by the plasma zone." Appeal Br. 11 (citing Burger i-f 16). Again,
Appellants attack the references separately and do not address the combined
teachings as Wefer, not Burger, is relied upon to teach "transmission of
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Appeal2016-007246
Application 12/682,989
microwave radiation from the microwave generator into the vacuum
chamber" as required by claim 1. See Final Act. 3; Appeal Br. 15. As
discussed supra, such separate attacks cannot establish nonobviousness.
In accordance with 37 C.F.R. § 41.41(b)(2), lacking a showing of
good cause, we do not consider the arguments raised in the Reply Brief,
which are not responsive to an argument raised in the Answer. See Reply
Br. 2--4.
For these reasons, we sustain the Examiner's decision rejecting claim
1, and claims 2-6, 12, 16-20, 26-29, 31, and 33-35, which fall therewith.
Rejections 11-V
Appellants do not present any arguments pertaining to Rejections II-
V. See, generally, Appeal Br. It appears that Appellants rely upon the
arguments pertaining to Rejection I. See id. at 10, 12. Accordingly, we
sustain the Examiner's decisions rejecting claims 7-11, 13, 21-23, 30, and
32 as set forth in Rejections II-V for the reasons discussed supra.
Re} ection VI
The Examiner finds that the combined teachings of Durance, Bibb,
and Behnke disclose or suggest all of the limitations of claims 14 and 24.
See Final Act. 15-17. In particular, the Examiner finds that Durance
discloses "a vacuum chamber (60, fig. 2)." Final Act 15. The Examiner
further finds that "Bibb teaches (d) means for blowing a stream of gas (fig.
4) into a chamber (17, fig. 2) across a window (14, fig. 2)" and Bibb teaches
the "concept of generating air streams 27 to avoid arcing of the microwave
field 40 (col. 17, lines 3---6)." Id. at 16.
Noting that "Bibb discloses a window-cooling structure for an
electron tube apparatus," Appellants argue that "[t]here is no means for
blowing a stream of gas into the vacuum chamber" and thus, "at most, Bibb
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Appeal2016-007246
Application 12/682,989
would suggest blowing a stream of gas on the outside of the window of
Durance." Appeal Br. 12; see also Reply Br. 4 (emphasis added).
Responding to this argument, the Examiner explains that "Behnke
clearly teaches (see col. 17, lines 3-9) the air streams 27 are generated inside
the microwave mechanism 5 in order to avoid arcing and distortion of the
microwave field 40." Ans. 19. However, the Examiner does not explain
how Behnke teaches "blowing a stream of gas into the vacuum chamber
across the window" as required by claims 14 and 24. Appeal Br. 18, 20.
Thus, the Examiner's proposed modification does not meet the claim
limitations at issue.
For this reason, we do not sustain the Examiner's decision rejecting
claims 14 and 24, and claims 15, 25, 36, and 37, which depend therefrom.
DECISION
The Examiner's rejections of claims 1-13, 16-20, 21-23, and 26-35
are AFFIRivIED.
The Examiner's rejection of claims 14, 15, 24, 25, 36, and 37 is
REVERSED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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