11009380 (B.P.A.I. Jul. 8, 2010)

Ex Parte Taylor et al

Board of Patent Appeals and InterferencesJul 8, 2010

11009380 (B.P.A.I. Jul. 8, 2010)

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. 11/009,380 12/10/2004 Alfred A. Taylor 084327-000000US 8243 20350 7590 07/08/2010 TOWNSEND AND TOWNSEND AND CREW, LLP TWO EMBARCADERO CENTER EIGHTH FLOOR SAN FRANCISCO, CA 94111-3834 EXAMINER EDWARDS, LAURA ESTELLE ART UNIT PAPER NUMBER 1713 MAIL DATE DELIVERY MODE 07/08/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte ALFRED A. TAYLOR and GARRY R. MACKAY ____________ Appeal 2009-013640 Application 11/009,380 Technology Center 1700 ____________ Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and PETER F. KRATZ, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL1 This is an appeal from the final rejection of claims 1 and 3-11. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1 and 10 are illustrative: 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-013640 Application 11/009,380 1. A device to coat relatively thin articles with a granular material, the articles having opposite major faces, said device including: a conveyor having a plurality of conveyor surfaces arranged in cascade and upon which the articles are deposited to be conveyed therefrom from an upstream portion of the conveyor to a downstream portion of the conveyor, each surface having an upstream end and a downstream end, with the downstream end of at least some of the surfaces being located above the next downstream surface so that the articles tumble fall to the next downstream surface, with alternate faces of the articles being exposed as the result of the tumbling, said conveyor being a linear slip or linear vibratory conveyor, with the surfaces being joined so as to reciprocate in unison; and a granular material dispenser located to deliver a stream of the granular material directed at at least two of the surfaces so that the granular material is applied to the major faces of the articles to coat the articles as a result of the exposure of said alternate faces. 10. A device according to claim 9 wherein gravity only causes the product to tumble fall from the first surface to the second surface. The Examiner relies upon the following references as evidence of obviousness (Ans. 2): Roser et al. (Roser) 2,893,332 July 07, 1959 Appellants’ claimed invention is directed to a device for coating thin articles, such as potato chips, with a granular material to impart flavor thereto. A dispenser delivers the granular material in a stream that is directed towards at least two surfaces of a conveyor that are arranged in a cascade fashion. The articles tumble and fall from one conveyor surface to a lower conveyor surface. Appealed claims 1 and 3-9 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Roser. Claims 10 and 11 stand rejected under 35 2 Appeal 2009-013640 Application 11/009,380 U.S.C. § 103(a) as being unpatentable over Roser. In addition, claim 10 stands rejected under 35 U.S.C. 112, first paragraph, written description requirement. We have thoroughly reviewed the respective positions advanced by Appellants and the Examiner. In so doing, we agree with Appellants that the Examiner’s prior art rejections are not sustainable. We will, however, sustain the Examiner’s § 112 rejection. We consider first the Examiner’s rejection under § 102. There is no dispute that Roser, like Appellants, discloses a device for coating thin articles with a granular material by using a conveyor having a cascade arrangement that works in conjunction with a dispenser for the granular material. Appellants’ arguments notwithstanding, we concur with the Examiner that it is reasonable to conclude that the articles of Roser tumble and fall from one conveyor surface to another such that alternate faces of the articles are exposed to the granular material. While Appellants submit that “in Roser the food products drop from one conveyor to the next in an uncontrolled and random fashion” (App. Br. 11, first full para.), we agree with the Examiner that the appealed claims do not require that the thin articles tumble and fall from one conveyor surface to another in any controlled manner. We concur with Appellants, however, that Roser does not describe, within the meaning of § 102, the claim requirement for “a granular material dispenser located to deliver a stream of the granular material directed at at least two of the [conveyor] surfaces” (claim 1). We do not subscribe to the Examiner’s position that Figure 1 of Roser depicts hopper 92 dispensing 3 Appeal 2009-013640 Application 11/009,380 granular material onto at least two conveyor surfaces 43 and 44. We find more reasonable the following argument advanced by Appellants: Granting for the sake of argument that the circulating air of Roser somehow generates a stream of powder directed to the lower portion of stream member 43, no part of that stream is directed at either screen 42 or screen 44, which adjoin screen 43 at its respective upstream and downstream ends. The circulating air is far removed from the upstream screen 42, and no granular material is directed towards it. In the area downstream of screen 43 which overlies the downstream screen 44, the air current carries the granular material upwardly, which is away from the conveyor and not towards or at the conveyor as required by the independent claims, as is unequivocally shown in Fig. 1. Roser therefore does not deliver a stream of the granular material that is directed at the surfaces of the screen or conveyor. It directs it away from it. (App. Br. 13, fourth para.). The Examiner’s § 103 rejection of claims 10 and 11 suffers from the same deficiency discussed above. We will sustain the Examiner’s § 112, first paragraph rejection of claim 10. We agree with the Examiner that the original Specification fails to provide written descriptive support for the claim recitation “wherein gravity only causes the product to tumble fall from the first surface to the second surface”. While Appellants contend that their Specification discloses no means for causing the articles to fall from one conveyor surface to another, other than gravity, Appellants have not explained how the stream of granular material directed towards the articles does not add energy to the falling articles in a downward gravitational direction. We note that Appellants’ Figure 1 depicts the granular material dispensed in curtains 23 which have a vector coincident with the force of gravity. 4 Appeal 2009-013640 Application 11/009,380 In conclusion, based on the foregoing, the Examiner’s rejections under § 102 and § 103 are reversed. The Examiner’s rejection under 35 U.S.C. § 112, first paragraph is sustained. Accordingly, the Examiner’s decision rejecting the appealed claims is affirmed-in-part. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a) (2008). AFFIRMED-IN-PART ssl TOWNSEND AND TOWNSEND AND CREW, LLP TWO EMBARCADERO CENTER EIGHTH FLOOR SAN FRANCISCO, CA 94111-3834 5