Ex Parte Moore et alDownload PDFPatent Trial and Appeal BoardOct 31, 201411693952 (P.T.A.B. Oct. 31, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/693,952 03/30/2007 Gary Moore CQKER.2756 1166 110933 7590 11/03/2014 Carstens & Cahoon, LLP PO Box 802334 Dallas, TX 75380 EXAMINER LEFF, STEVEN N ART UNIT PAPER NUMBER 1792 MAIL DATE DELIVERY MODE 11/03/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GARY MOORE and ABU-ALI JAREER ____________ Appeal 2012-011907 Application 11/693,952 Technology Center 1700 ____________ Before CHUNG K. PAK, MARK NAGUMO, and RICHARD M. LEBOVITZ, Administrative Patent Judges. LEBOVITZ, Administrative Patent Judge. DECISION ON APPEAL This appeal involves claims to a method of driving particulates into objects in a rotatable drum comprising at least one flight. The Examiner has rejected the claims as anticipated under 35 U.S.C. § 102(b) and obvious under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 134. The Examiner’s rejections are affirmed. STATEMENT OF CASE The claimed method of driving particulates into objects in a rotatable drum, having at least one flight, comprises a step of “rotating the drum wherein each flight lifts and then drops the objects and particulates” such Appeal 2012-011907 Application 11/693,952 2 that the impact “drives” the particulates into the object. (Abstract.) According to the Specification of the above-identified application (“the ’952 Application”), the objects can be food pieces, such as puffed cereal balls and fruit pieces. ’952 Application ¶¶ 7, 9, 22. The particulates are also food pieces, but can be nuts, grains, and granola. Id. at ¶ 24. Claim 1 is the only independent claim on appeal and reads as follows: 1. A method of driving particulates into objects comprising a. optionally, applying a liquid or semi-fluid binder to the objects to form pre-coated objects; b. adding the objects and particulates to a rotatable drum having at least an inlet, a length (L) and a diameter (D), the drum comprising at least 1 flight; and c. rotating the drum wherein each flight lifts and then drops both the objects and particulates such that the impact forces of the falling objects and particulates drives the particulates into the objects or into the coating of the pre-coated objects to form objects having particulates embedded therein or objects having a coating having particulates embedded therein and to reduce defective conglomerate pieces; wherein a tumbling action in the drum is avoided. The Examiner rejected the claims as follows: Claims 1–3 and 16–19 as anticipated under 35 U.S.C. § 102(b) by Kelly (U.S. Patent No. 5,964,146, patented Oct. 12, 1999). Claims 4–7 and 10–15 as obvious under 35 U.S.C. § 103(a) over Kelly. Claims 8, 9, and 21 as obvious under 35 U.S.C. § 103(a) over U.S. Kelly and Holtz et al. (US 5,510,130, patented Apr. 23, 1996). Appeal 2012-011907 Application 11/693,952 3 CLAIM INTERPRETATION Claim 1 is directed to a process of “driving particulates into objects.” The claim recites an optional step a followed by two steps, b and c. In optional step a, a liquid or semi-fluid binder is applied to objects to form pre-coated objects. Step b comprises adding objects and particulates to a rotatable drum, where the drum comprises at least one “flight.” Step c comprises rotating the drum wherein each flight lifts and then drops both the objects and particulates such that the impact forces of the falling objects and particulates drives the particulates into the objects or into the coating of the pre-coated objects to form objects having particulates embedded therein or objects having a coating having particulates embedded therein. The claim recites that “tumbling action in the drum is avoided.” The ’952 Application describes “objects” as “food pieces,” such as fruit pieces, puffed cereal-based pieces, “extruded or otherwise baked or expanded grain-based centers, grain-based flakes, confectionery pieces, nuts, gels, gum, and other sweet or savory food pieces.” ’952 Application ¶¶ 3, 22. “Particulates” are described in the application also as “food pieces,” “including but not limited to fruit pieces, extruded or otherwise expanded grain-based pieces, crushed bakery pieces (such as broken cookie pieces), confectionery pieces, nuts, gels, gums, rolled whole grains (such as rolled oats) and pre-coated rolled whole grains” and “granola-type mixtures.” Id. at ¶ 24. As an example, the ’952 Application states “puffed cereal-based balls are first pre-coated with a liquid or semi-liquid tacky material. Then, the pre-coated balls are coated with granola particulates.” Id. at ¶ 25. Appeal 2012-011907 Application 11/693,952 4 The claimed drum is recited to have at least one “flight.” A “flight” is shown in Figure 2 of the ’952 Application as an element 200 fixed to the wall of the drum. Figure 2 is reproduced below: Figure 2 shows flights 200. The claim recites in step c that “each flight lifts and then drops both the objects and particulates such that the impact forces of the falling objects and particulates drives the particulate” into the objects or the coating on the objects. This action is depicted in Figure 2 of the ’952 Application as contents 201 comprising objects and particulates being lifted by the flights 200 and then being dropped as indicated by 202. ’952 Application ¶¶ 6, 28. The “lifts and then drops” limitation is met if the objects and particulates are lifted on a flight sufficiently that they fall some vertical distance. This lifting and dropping action is distinguished in the claim from “tumbling action.” The tumbling action is also referred to as “rolling.” Id. at ¶ 6. The claim states that tumbling is “avoided,” but does not require it to be 100% avoided. Thus, some tumbling or rolling in the drum may occur. In particular, the characterization of a motion by prior art references as Appeal 2012-011907 Application 11/693,952 5 “tumbling” is not dispositive of a disclosure of pure “tumbling” as that term is used in the appealed claims. The claim further requires in step c that the impact of the falling objects “drives” the particulates into the objects and “embeds” the particulates into the objects or the coated objects. The ’952 Application does not define the terms “drive” or “embed.” The term “embed” does not appear in the ’952 Application however, the application refers to particulates sticking and adhering to the object. ’952 Application ¶¶ 9, 38, 49 (Table.) Furthermore, the ’952 Application states that “dropping of the product drives the particulates into the object which improves adhesion to the object, thus improving particulate retention in downstream processing and reducing the amount of particulates that fall off the objects during shipping and handling.” Id. at ¶ 6 (emphasis added.) We thus construe step c’s driving and impact driven embedding to mean causing strong adherence of the particulate to the object,1 for example, by breaking the object’s surface (Answer 9)) and being surrounded by object material.2 In sum, we interpret the claim to require that “tumbling,” (i.e., “rolling”) is avoided if the flights (200) in the drum lift (201) and drop (202) the objects and particulates, driving the particulates into the objects. 1 During patent examination proceedings, claim terms are given “the broadest reasonable meaning . . . in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). 2 Embed: “1. to fix into a surrounding mass.” “2. to surround tightly or firmly; envelop or enclose.” http://dictionary.reference.com/browse/embed. Appeal 2012-011907 Application 11/693,952 6 ANTICIPATION REJECTION The Examiner rejected claims 1–3 and 16–19 as anticipated by Kelly. Answer 2. A. Findings The following finding (“F”) are pertinent to this determination: F1. Kelly describes a rotating drum for binding particulates to baked good or snack pieces. Kelly, Abstract; col. 6, ll. 3–15. F2. The drum comprises flights, referred to as longitudinal vanes, ribs, or baffles in Kelly: Longitudinal vanes, ribs, or baffles 42 are mounted to the inside wall 27 of the rotatable drum 5. In preferred embodiments, the longitudinal vanes 42 are arranged substantially parallel to the central longitudinal axis 12 of the drum 5. Kelly, col. 9, ll. 19–23. F3. Figure 2 of Kelly, reproduced below, shows the vanes, ribs, or baffles 42 attached to the wall of the drum. Figure 2 of Kelly shows the vanes, ribs, or baffles 42. Appeal 2012-011907 Application 11/693,952 7 F4. Kelly describes the snack pieces driven or riding up to apex 47 and then falling down to 5. Kelly, col. 9, ll. 38–45; Figs. 2, 6, and 7; See Answer 2. The pieces are contacted sequentially by the liquid composition and the particulate composition several times as the pieces are driven up the side of the rotating drum and tumble downwardly as they travel through the drum. The resulting alternating layers of particulate and adhesive compositions promote strong binding of the particulates to the substrate while creating an appearance of visually apparent discrete particulate particles. Kelly Abstract (emphasis added.) The rotation of the drum and a plurality of longitudinal vanes or baffles on the inside surface of the drum causes the baked good pieces or snack pieces to ride up the inside surface of the drum a substantial distance before tumbling down towards the bottom-most circumferential portion of the drum. This motion is repeated numerous times as the pieces are transport[ed] from the inlet to the outlet of the rotating drum. Kelly, col. 4, ll. 29–35 (emphasis added.) As shown in FIG. 2, the sprayer 40 is preferably disposed on the side of the drum 5 upon which the bed 45 of baked good pieces or snack pieces 15 ride up and tumble down. Kelly, col. 10, ll. 18–21. The rotary motion of the drum 5, 120 causes the pieces 15 to ride up the inner cylindrical wall 7, 198 of the drum 5, 120 and then tumble down towards the bottommost portion of the drum 5, 120. Kelly, col. 14, ll. 45–48. F5. The riding up and tumbling downward action described by Kelly as caused by the vanes (F4) inside the drum was found by the Examiner to correspond to the claimed limitation that “each flight lifts and then drops both the objects and particulates.” Answer 4 and 7. Appeal 2012-011907 Application 11/693,952 8 F6. The Examiner further found that Kelly’s riding up and tumbling down action provides “strong binding of the particulates to the substrate” (Kelly, col. 4, ll. 41–48), meeting the claimed limitation that “the impact forces of the falling objects and particulates drives the particulates into the objects or into the coating of the pre-coated objects.” Answer 4. F7. With respect to the limitation that “tumbling action in the drum is avoided,” the Examiner found that when “a plurality of longitudinal vanes or baffles on the inside surface of the drum causes the baked good pieces or snack pieces to ride up the inside surface of the drum a substantial distance before tumbling down towards the bottom-most circumferential portion of the drum” (Kelly, col. 4, ll. 29–35; F4), tumbling action (rolling) is avoided because riding up action is taking place instead. Answer 7–8. B. Discussion Appellants contend that Kelly’s method “does not drive particulates into objects, does not rotate a drum such that each flight lifts and then drops both the objects and particulates to achieve the desired results of driving the particulates into the objects.” Appeal Br. 10. Further, Appellants contend that Kelly “does not avoid a tumbling action (but in fact requires it.) Tumbling does not provide the same contact force as a lifting and dropping motion.” Id. Appellants argue that in Kelly “the objects are lifted to an extent to obtain a tumbling action. But as clearly depicted in the Figure 2 of Kelly, this is not the dropping action as required by the instant claims.” Id. 12. Appellants assert that “mere adherence” occurs in Kelly, not the claimed impact force of the falling objects and particulates which drives the particulates into the objects or into the coating on the objects. Reply Br. 4. Appeal 2012-011907 Application 11/693,952 9 Appellants’ arguments are not persuasive. The Examiner made factual findings supported by the disclosure in Kelly that the snack pieces and particulates ride up the drum and then tumble down as shown in Kelly’s Figure 2. F4. This action would reasonably be understood to be the same as the lifting and dropping action recited in the claim. F5. Figure 2 of the ’952 Application (Claim interpretation section supra) has the same appearance of Figure 2 of Kelly in illustrating the riding and tumbling down action. Appellants deny that the lifts in Kelly do not achieve the claimed lifting and dropping action, but do not specifically identify a defect in the Examiner’s findings. Reply Br. 4. Specifically, Appellants do not explain how the tumbling down action in Kelly (F4; col. 14, ll. 45–48) is different from — or how it does not include — the “drop” action recited in the claim. Appellants attempt to distinguish Kelly on the basis that its flights are “relatively short,” but do provide any factual evidence that the lifts in Kelly would not lift and drop objects and particulates as claimed, especially in view of the explicit disclosure in Kelly that pieces ride up to 47 and tumble down to 5 (F4) as illustrated in Fig. 2. F3 and F4 (e.g., Kelly, col. 14, ll. 45– 48). Appellants did not point to disclosure in the ’952 application that particular flight sizes are necessary to avoid the tumbling action to the extent required by claim 1. Appellants also contend that Kelly is not designed to embed particulates in objects, but rather “particulates are dispensed in a curtain 55 for maximum coverage over the baked goods.” Appeal Br. 11. Appellants argue that Kelly is coating the objects with particulates using an adhesive, not embedding them by impact as required by the claims. Id. However, as found the Examiner, the pieces described in Kelly are dropped when they Appeal 2012-011907 Application 11/693,952 10 tumble downward to the inner surface of the drum 5 (Fig. 2) and thus would produce an impact by gravity which would embed the particulates in the pieces. Answer 9–10. The Examiner’s position is fact-based and reasonable. It is true that Kelly refers to coating pieces with particulates which are adhered to the pieces (Kelly, col. 3, ll. 11–13), but such disclosure is not inconsistent with the particulates being embedded in the coating. Claim 1 also has an optional coating step. Kelly expressly refers to its action as “promot[ing] strong binding of the particulates to the substrate (F6; Abstract). As discussed, the ’952 application refers to adhering particulates to pre-coated food pieces (at ¶¶ 9, 49) and to “improve adhesion” (at ¶ 6). Appellants did not provide sufficient factual evidence to distinguish Kelly’s strong binding from the claimed force driven embedding which we interpreted, based on the ’952 Application, to comprise strong adherence. Based on the disclosure in Kelly of strong binding, the Examiner had reasonable basis to believe3 that the claimed limitation of “impact forces of the falling objects and particulates drives the particulates into the objects or into the coating of the pre-coated objects” is met by Kelly’s riding up and tumbling action and that such action would embed the particulates into the objects. Appellants did not provide sufficient factual evidence to rebut the Examiner’s finding. Appellants also argue that particulates can be driven into the surface of fragile objects because they would “break up.” Appeal Br. 12. “For 3 When the limitations of a claim are not expressly described in the prior art, the PTO must show “sound basis for believing” that despite the failure of the prior art to describe them, the limitations are inherently there and “the products of the applicant and the prior art are the same.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). Appeal 2012-011907 Application 11/693,952 11 instance, the crackers and chips of Kelly would be broken.” Id. at 13. However, the claims are not limited to a particular type of “object,” and Kelly discloses numerous substrates (Kelly, col. 6, ll. 10–24, not all which would necessarily break up as alleged by Appellants. Appellants have also not provided factual evidence that the products described in Kelly would be fragile and break apart when impacted by particulates, particularly when Kelly adheres particulates to its substrate in its drum comprising lifts without reporting breakage. To anticipate under 35 U.S.C. § 102, a publication must “disclose all elements of the claim within the four corners of the document” and “‘arranged as in the claim.’” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008). In this case, the Examiner’s findings that all the elements of claim 1 are met by Kelly are supported by a preponderance of the evidence. See F2–F7; Answer 5–8. We therefore affirm the rejection of claim 1. Claims 2, 3, and 16–19 were not argued separately and fall with claim 1 for the reasons given by the Examiner. OBVIOUSNESS REJECTIONS The Examiner further rejected dependent claims 4–7, 10–15, and 20 as obvious in view of Kelly, finding that Kelly is silent with respect to the claimed spacing, widths, diameters, weight ratios, angles, etc., but determined that it would have been obvious to one of ordinary skill in the art to have selected these values to achieve the desired purpose of a coated product. Answer 5–7. The Examiner also rejected dependent claims 8, 9, and 21 as obvious in view of Kelly and Holtz. The Examiner found that Kelly is silent with Appeal 2012-011907 Application 11/693,952 12 regard to the drum speeds recited in claims 8 and 9, but determined that such speeds are typical and dictated by product density and flight width, as taught by Holtz at column 13, lines 16–20, and thus would have been obvious to optimize to achieve a substrate adhered with particulate. Answer 8. The Examiner further found that Holtz described granola, as recited in claim 21, determining that it would have been obvious to have utilized it as a particulate in Kelly’s process because “design incentives and market forces, with respect to the desired final tasting provides a reason to make an adaptation.” Id. at 9. Appellants do not provide separate arguments for claims 4–7, 10–15, and 20. We thus affirm the rejection of these claims for the reasons stated above and those of the Examiner. With respect to claims 8, 9, and 21, Appellants contend Holtz describes an extruder which is unrelated to reasons for adjusting the speeds of a tumble drum. Appeal Br. 15. Furthermore, Appellants argue that Holtz describes mixing using a tumbling action and “requires the dough and particulates to be mixed in an extruder to have the particulates embedded into the dough.” Appeal Br. 15–16 (emphasis omitted.) The Examiner relied upon Holtz for teaching typical drum rotation speeds since Kelly was silent as to the speed at which it operated. Answer 11 (“one of ordinary skill in the art would have been motivated to look to the art for drum rotation speeds for its art recognized purpose of transporting the product as the drum rotates such that each flight lifts and then drops the objects and particulates”). While Holtz teaches extrusion, a drum tumbler is expressly taught to attach food particulates to substrate flakes. Appeal 2012-011907 Application 11/693,952 13 A preferred enrobing process comprises introducing the embedded cereal flake and edible particulate matter into a rotary drum which coincidentally transports said flakes and edible particulate matter in an axial direction. As the drum rotates, the flakes and particulate matter are mixed through a tumbling action. The attachment vehicle is concurrently sprayed onto the flakes and particulate matter, preferably from spray nozzles located axially at or near the top of the drum. When the sprayed flakes and particulate matter come in contact, they tend to stick together, thereby attaching said particulate matter to the flake surface. Holtz, col. 13, ll. 3–13 (emphasis added.) Holtz also teaches, as indicated by the Examiner, that the “drum rotation speed is dictated by product density and flight width” (at col. 13, ll. 16–18). Accordingly one of ordinary skill in the art would have recognized that drum rotation speed can be optimized to achieve the desired result. Answer 8. For the forgoing reasons and those of the Examiner, we conclude that the Examiner’s determination that claims 8, 9, and 21 are obvious in view of Kelly and Kelly and Holtz is supported by a preponderance of the evidence. Summary The obviousness 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)(1)(iv). AFFIRMED cdc Copy with citationCopy as parenthetical citation