Ex Parte Mitchell et al

Patent Trial and Appeal Board

Sep 28, 2016

12806960 (P.T.A.B. Sep. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/806,960
58076 7590
REED SMITH LLP
101 Second Street
Suite 1800
FILING DATE
08/25/2010
09/30/2016
SAN FRANCISCO, CA 94105
FIRST NAMED INVENTOR
Josh Mitchell
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.
351606.00510 5462
EXAMINER
CORMIER, DAVID G
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
09/30/2016 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):
ipdocket-chi@reedsmith.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte JOSH MITCHELL and STEPHEN F. GRIFFIN
Appeal2015-003229
Application 12/806,9601
Technology Center 1700
Before JEFFREY T. SMITH, WESLEY B. DERRICK, and
MONTE T. SQUIRE, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 43 and 46-52. We have jurisdiction
pursuant to 35 U.S.C. § 6(b).
1 According to the Appeal Brief, the Real Party in Interest is Misionero
Vegetables. App. Br. 1.
Appeal2015-003229
Application 12/806,960
The Examiner maintains the 35 U.S.C. § 103(a) rejections of:
(I) claims 43 and 46 Brown (US 2003/0126850 Al, Jul. 10, 2003), in view of
France '530 (FR 2,659,530 A, Oct. 20, 1991) and Japan '976 (JP 63-129976
A, June 2, 1988); (II) claims 47 and 52 over Brown, France '530, and Japan
'976, in view of Pryor (US 2,522,535, Sept. 19, 1950); and (III) claims 48-
51 over Brown, in view of France '530, Japan '976, and Pryor, in further
view of Japan '372 (JP 03-297372 A, Dec. 27, 1991).
BACKGROUND
Appellants' invention relates generally to an apparatus for harvesting,
washing, and drying cut vegetables and produce. (Spec. 1 ). Claim 43 is
reproduced below from the Claims Appendix to the Brief:
43. A wash device for washing cut vegetables in totes,
compnsmg:
a wash tank filled with a liquid, the liquid establishing a
fluid level with the wash tank;
a flow device configured to cause a flow of the liquid
across the wash tank below the fluid level of the liquid;
and
a transport mechanism configured to immerse totes
containing cut de-cored vegetables below the fluid level in the
wash tank, wherein the totes are immersed such that a top of
each tote is at below the fluid level in the wash tank;
wherein the transport mechanism is configured to move
the totes through the wash tank in a pre-determined alignment
direction; and
the pre-determined alignment direction comprises an
axial direction in which cut de-cored vegetables are to be
located in the totes, such that the flow of the liquid across the
wash tank is aligned with a de-cored end of the vegetables.
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Application 12/806,960
OPINION
Upon consideration of the evidence on this record and each of
Appellants' contentions, we find that the preponderance of evidence
supports the Examiner's conclusion that the subject matter of Appellants'
claims is unpatentable over the applied prior art. We sustain the Examiner's
§ 103 rejections essentially for the reasons set out by the Examiner in the
Final Action and the Answer. We add the following:
Rejections I and IF
The dispositive issue on appeal is: Did the Examiner err in
determining that it would have been obvious to a person of ordinary skill in
the art to form a wash device for washing cut vegetables in totes, wherein
the wash tank allows vegetables to be immersed in a wash liquid, while a
flow device causes a flow of the liquid across the wash tank below the fluid
level of the liquid so as to wash the vegetables in the totes?
We answer this question in the negative. 3
The Examiner found Brown discloses substantially the claimed wash
device for washing cut vegetables in totes, with the exception of the flow
device being configured to cause a flow of a cleaning solution within the
wash tank. (Final Act. 5). To address this difference the Examiner found
France '530, teaches that it was well known to provide a flow device
2 The complete statement of the rejections on appeal appear in the Non-
Final Action and the Answer. (Final Act. 4--11).
3 Appellants have presented arguments directed to independent claim 43
dependent claim 49. Appellants have not separately address the dependent
claims 44--48 and 50-52. See Appeal Brief, generally. We limit our initial
discussion to independent claim 43 and will address separately argued claim
49.
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Appeal2015-003229
Application 12/806,960
configured to cause a flow of a cleaning solution within a wash tank. (Id.).
The Examiner concluded it would have been obvious to form the wash
device of Brown including a flow device such as taught by France '530, with
no change in their respective function, for the purpose of enhancing the
washing process. (Id.). The Examiner further cited Japan '976 for teaching
that it was known to wash vegetables in a totes wherein the vegetables had a
predetermined alignment direction. (Id.).
Appellants' initial arguments address only France '530. Appellants
have not disputed the Examiner's finding that Brown describes a wash
device that differs from the claimed invention only in the flow of the wash
fluid. (See App. Br. generally). Rather, Appellants argue the jets of France
'530 are positioned at the waterline and are not located to cause the flow of
the liquid across the wash tank. (App. Br. 7).
Appellants' arguments lack persuasive merit. As correctly pointed out
by the Examiner the jets of France '530 are arranged to allow the wash fluid
to flow through the crates (totes). (Ans. 2-3; France '530 pg. 2 11. 10-11). A
person of ordinary skill in the art would have sufficient skill to arrange the
nozzles to allow the wash fluid to flow through the totes so that the
vegetables are efficiently washed. "[W]hen a patent 'simply arranges old
elements with each performing the same function it had been known to
perform' and yields no more than one would expect from such an
arrangement, the combination is obvious." KSR Int'! Co. v. Teleflex Inc.,
550 U.S. 398, 417 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282
(1976))
Appellants also argue that Japan '976 teaches the spraying of liquid
and is not a wash tank immersion process. (App. Br. 7). This argument is
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Application 12/806,960
not persuasive because it does not address the Examiner's reasons for citing
Japan '976, specifically that it was known to wash vegetables in a totes
wherein the vegetables had a predetermined alignment direction. (Final Act.
5).
Rejection III
Appellants have presented arguments addressing only claim 49.
(App. Br. 9-10). Appellants have not separately address claims 48, 50, and
51.
Appellants argue Japan '976 does not teach the limitations of
claim 49. Appellants specifically state:
It is clear from the statement and figures that Japan '976 does not
teach de-coring vegetables and immersing them in a fluid tank.
Specifically, Japan '976 teaches washing the roots of the vegetables -
this teaches away from the present invention in which the vegetables
are first "de-cored" and fluid washes through the interior of the
vegetable. (App. Br. 10).
Appellants' arguments are not persuasive because they are directed to
the items to be worked on (cut de-cored vegetables) by the claimed
apparatus. "[A]pparatus claims cover what a device is, not what a device
does." Hewlett-Packard Co. v. Bausch & Lomb, Inc., 909 F.2d 1464, 1468
(Fed. Cir. 1990). Therefore, the patentability of an apparatus claim depends
on the claimed structure, not on the use or purpose of that structure, Catalina
Marketing Int'l Inc. v. Coolsavings.com Inc., 289 F.3d 801, 809 (Fed. Cir.
2002), or the function or result of that structure. In re Danly, 263 F.2d 844,
848 (CCPA 1959); In re Gardiner, 171F.2d313, 315-16 (CCPA 1948). If
the prior art structure possesses all the claimed characteristics including the
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Application 12/806,960
capability of performing the claimed function, then there is a prima facie
case ofunpatentability. In re Ludtke, 441F.2d660, 663-64 (CCPA 1971).
Consequently, after consideration of Appellants' arguments, we are
unpersuaded of reversible error in the Examiner's determination of
obviousness.
ORDER
The Examiner's prior art rejections are affirmed.
TIME PERIOD
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).
AFFIRMED
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