Ex Parte Hendrix et al

Board of Patent Appeals and Interferences

Jan 4, 2007

10207122 (B.P.A.I. Jan. 4, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MARC HENDRIX and MARC KELLENS
____________

Appeal 2007-0165
Application 10/207,122
Technology Center 1700
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Decided: January 4, 2007
____________

Before EDWARD C. KIMLIN, CHUNK K. PAK, and
JEFFREY T. SMITH, Administrative Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 13-17. Claim 13 is
illustrative:
13. An installation for the dry fractionation of edible oils, fats
and related products, comprising:

- a crystallizer,

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Application 10/207,122

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- a crusher,

- means for transporting solid blocks of crystallized
material formed in the crystallizer to the crusher,

- a filter press, and

- means for transporting a paste obtained in said crusher to
said filter press, wherein said crystallizer comprises at least one cooling
chamber provided with at least one wall permitting heat transfer to form at
least one solid block of crystallized material.

The Examiner relies upon the following references in the rejection of
the appealed claims:
Higuchi US 4,795,569 Jan. 3, 1989
Yoneda EP 1 028 159 A1 Aug. 16, 2000

Appellants’ claimed invention is directed to an installation for the dry
fractionation of edible oils and fats. The installation comprises a
crystallizer, means for transporting blocks or crystallized material to a
crusher, and means for transforming a paste obtained in the crusher to a filter
press. Also, the crystallizer comprises at least one cooling chamber having a
wall that permits heat transfer for forming the block crystallized material.
Appealed claims 13-17 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Yoneda in view of Higuchi.
We have thoroughly reviewed the respective positions advanced by
Appellants and the Examiner. In so doing, we find that the Examiner has
failed to establish a prima facie case of obviousness for the claimed subject
matter. Accordingly, we will not sustain the Examiner’s rejection.
Both the Yoneda and Higuchi, like Appellants, are directed to
installations for fractionation of edible oils and fats which perform the
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operations of crystallization, crushing, and filtering. However, we concur
with Appellants that Yoneda and Higuchi “can only be viewed as alternative
solutions” which combination does not arrive at the claimed installation.1
As recognized by the Examiner, Yoneda “does not disclose the crystallizer
comprises at least one cooling chamber provide [sic, provided] with at least
one wall permitting heat transfer to form at least one solid block of
crystallized material.[2]” To remedy this deficiency the Examiner relies on
the cooling chamber of Higuchi that permits heat transfer to form at least
one solid block of crystallized material. However, the cooling,
crystallization chamber of Higuchi also comprises the filtering operation
such that modifying the apparatus of Yoneda in accordance with Higuchi
would result in crystallizing and filtering the oils and fats before
transportation to a crusher which, of course, does not correspond Appellants’
installation. Also, while it is not necessary for a finding of obviousness that
the features of one reference be physically incorporated with the features of
another reference, the crystallization and filtering operations of Higuchi are
too integrally related to suggest divorcing the cooling/crystallization
operation from the filtering components.
In our view, the present case provides a classic example of where all
the features of the claimed installation, namely, crystallizer, crusher, and
filter press, were conventional components in the art of dry fractionation of
edible oils and fats, and the Examiner explained what could have been done
by one of ordinary skill in the art in terms of arranging the known
components into a system. However, it is well settled that the mere fact that

1 Page 20 of principal Brief, ¶3.
2 Page 3 of Answer, ¶3.
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the prior art could be modified would not have made the modification
obvious unless the prior art suggested the desirability of the modification. In
re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). In
the present case, Yoneda, Higuchi, and Appellants all disclose three distinct
installations for the dry fractionation of edible oils and fats, but neither
Yoneda nor Higuchi, nor their combination, would have suggested
Appellants’ installation.
One final point remains. Upon return of this application to the
Examiner, the Examiner should consider the patentability of the claimed
subject matter over the patent of Kuwabara (U.S. Patent No. 5,045,243). It
would appear that Kuwabara discloses an installation for the dry
fractionation of edible oils and fats comprising a crystallizer, a crusher, and
a filter press, the three major components of the claimed installation. The
Examiner should determine whether the claimed crystallizer comprising at
least one cooling chamber having at last one wall permitting heat transfer is
patentably distinct from the crystallizer of Kuwabara under 35 U.S.C. 102
and 35 U.S.C. 103. We note that the reference discloses that in practice the
fat is fractionated in a relatively shallow container such as a vat, tray, or the
like, and is cooled slowly with cold air or water or a liquid refrigeration
medium.
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Application 10/207,122

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In conclusion, based on the foregoing, we are constrained to reverse
the Examiner’s rejection.
REVERSED

hh

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