Ex Parte TREMBLEY et al

Patent Trials and Appeals Board

Jun 17, 2019

14760742 - (D) (P.T.A.B. Jun. 17, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/760,742 07/14/2015
23543 7590 06/17/2019
AIR PRODUCTS AND CHEMICALS, INC.
7201 HAMILTON BOULEVARD
ALLENTOWN, PA 18195-1501
FIRST NAMED INVENTOR
Jean-Philippe TREMBLEY
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.
07774ZPUSA 9769
EXAMINER
JEFFERSON, MELODEE M.
ART UNIT PAPER NUMBER
3763
MAIL DATE DELIVERY MODE
06/17/2019 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 JEAN-PHILIPPE TREMBLEY and NIGEL COPE 1
Appeal2018-007014
Application 14/760,742
Technology Center 3700
Before: KEVIN F. TURNER, ANNETTE R. REIMERS, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1, 5, and 6. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 The Appeal Brief indicates that Jean P. Trembley, Nigel Cope, and
Appellant, Air Products and Chemicals, Inc., are the real parties in interest.
Appeal Br. 3.
Appeal2018-007014
Application 14/760,742
CLAIMED SUBJECT MATTER
The claims are directed to a system for chilling poultry carcasses by
injection of a cryogenic fluid. Spec. ,r 1. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A cryogenic poultry chilling system comprising:
a rotatable carousel including:
a plurality of stations each configured and arranged
to receive a corresponding poultry carcass suspended from
leg hangers, the corresponding poultry carcass having an
upward facing cavity opening and a downward facing
neck opening;
a tundish having a plurality of outlet ports with an
outlet port corresponding to each of the plurality of
stations; and
a plurality of injectors with an injector extending
downwardly from each of the tundish outlet ports
configured and arranged to deliver liquid cryogen into the
cavity opening of the carcass in the corresponding station;
and
a cryogen delivery apparatus configured and
arranged to deliver substantially liquid cryogen into the
tundish.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
van den Nieuwelaar
La Sorda
US 2004/0241295 Al Dec. 2, 2004
US 2009/0288520 Al Nov. 26, 2009
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Appeal2018-007014
Application 14/760,742
THE REJECTIONS ON APPEAL
I. Claim 6 is rejected under 35 U.S.C. § 112(b) as indefinite. 2
II. Claim 1, 5, and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over van den Nieuwelaar and La Sorda. 3
OPINION
Rejection I, Indefiniteness
The Examiner determines that claim 6 should be interpreted under 3 5
U.S.C. § 112(f), and the Specification fails to disclose corresponding
structure sufficient for a person of ordinary skill in the art to understand the
metes and bounds of the claim. Final Act. 7-8; id. at 3---6. Specifically, the
Examiner states, "it is unclear as to what type of corresponding structure is
capable of maintaining the cavity opening of the poultry carcass." Id. at 7
( emphasis added).
Appellant contends that the Examiner misinterprets claim 6 because
the guide member is not recited as maintaining the cavity opening in an open
state. 4 Appeal Br. 17. Instead, Appellant asserts, claim 6 requires the guide
member to maintain alignment between the cavity opening and the injector.
2 The Examiner withdrew a rejection of claims 2-5 and 7- 9 as indefinite.
See Ans. 7; Final Act. 6-8. Although the Examiner's statement, in the
Answer, listing withdrawn rejections does not explicitly indicate that the
rejection of claim 8 under this section is withdrawn, the Answer explicitly
withdraws the rejection of claim 7 as indefinite. See Answer 7. As claim 8
was rejected only due to its dependency from claim 7 (see Final Act. 8), we
understand the withdrawal of the rejection of claim 7 to indicate that the
rejection of claim 8 is also withdrawn.
3 The Examiner withdrew a rejection of claims 2--4 and 7-9 as unpatentable
over van den Nieuwelaar and La Sorda. See Ans. 7; Final Act. 8, 12-15.
4 Appellant does not contest the Examiner's determination that claim 6
should be interpreted under 35 U.S.C. § 112(f). See Appeal Br. 17.
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Appeal2018-007014
Application 14/760,742
Id. Appellant contends that structure (guide member 259) that performs this
function is disclosed in the Specification at paragraph 92 and in Figures 8,
10, 11, 12, and 14. Appeal Br. 5. Appellant argues that the Examiner's
alleged misinterpretation of claim 6 is the result of omitting a portion of the
clause at issue, namely, the portion of claim 6 dealing with alignment. Id. at
17.
In response, the Examiner reiterates that claim 6 requires the guide
member to maintain the open state of the cavity opening. See Ans. 21-22.
In support of this interpretation, the Examiner states,
on page 5 of Appellant's arguments, in regards to claim 6,
Appellant specifically states the claim limitation as "a guide
member (259, paragraph 0092, Figs. 8, 10, 11, 12, 14) at each
station positioned around at least a portion of the corresponding
injector configured and arranged to maintain the cavity opening
of the poultry carcass at each said station."
Id. (Emphasis omitted). Thus, the Examiner does not consider the limitation
at issue to require alignment between the cavity opening of the poultry
carcass and the corresponding injector.
Appellant has the better position. We agree that the Examiner's
interpretation of claim 6 does not account for the words following "cavity
opening of the poultry carcass at each said station." Specifically, claim 6
recites that "a guide member at each station positioned around at least a
portion of the corresponding injector [is] configured and arranged to
maintain the cavity opening of the poultry carcass at each said station
aligned with the corresponding injector at each said station." Appeal Br. 22
(Claims App.) ( emphasis added). Thus, in claim 6, what is maintained is
alignment of the cavity opening and the corresponding injector. We agree
with Appellant that the drawings and Specification teach structure that
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Appeal2018-007014
Application 14/760,742
performs this function. Figure 11 in particular depicts leg guide 259 acting
to maintain alignment of the opening in bird 24 with injector 266. See Fig.
11; Spec. 92. Accordingly, we do not sustain the rejection of claim 6 as
indefinite. 5
Rejection II, van den Nieuwelaar and La Sorda
The Examiner finds that van den Nieuwelaar discloses all of the
elements recited in claim 1 except for a cryogen delivery apparatus, and the
Examiner relies on La Sorda to remedy this deficiency. Final Act. 9--10.
The Examiner finds that conveyor 20 of van den Nieuwelaar meets the
requirement in claim 1 for a "rotatable carousel."
Appellant contends that conveyor 20 of van den Nieuwelaar is not a
rotatable carousel as recited in claim 1 because it does not move, much less
rotate. See Appeal Br. 9; Reply Br. 3. Appellant contends that instead of
rotating, conveyor 20 remains stationary, and rollers travel upon it the same
way a clothing conveyor in a dry cleaning store allows clothing to travel
along its length. Reply Br. 4.
In response to the arguments in the Appeal Brief, the Examiner finds
that van den Nieuwelaar discloses that its product (poultry) is movable "in
connection with the conveyor 20." The Examiner explains that
the definition of the noun conveyor is "a mechanical apparatus
for moving articles or bulk material from place ( as by an endless
5 The Examiner objected to claim 6, asserting that claim 6 should recite that
the guide member is "configured and arranged to maintain the cavity of the
poultry carcass in an open position at each said station aligned with the
corresponding injector at each said station" Final Act. 3. Although
objections are typically addressed via petition to the Director rather than by
appeal to the Board (see MPEP 706.01 ), we note that the issue presented in
the objection to claim 6 seems to implicate the same incorrect claim
interpretation as is used for the basis of the rejection of claim 6 as indefinite.
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Appeal2018-007014
Application 14/760,742
moving belt or a chain of receptacles)" ("Conveyor." Merriam-
Webster.com. Merriam-Webster, n.d. Web. 5 June 2018.). The
adjective rotatable being an extension of rotate, is defined as "to
cause to tum around an axis or center point; revolve; to cause to
go through a cycle of changes; cause to pass or follow in a fixed
routine of succession" ("Rotate." Dictionary.com.
Dictionary.com, n.d. Web. 5 June 2018.). The definition of
conveyor taken together with the definition of rotatable, further
demonstrates that by virtue of the conveyor, the poultry is moved
(i.e. the conveyor rotates so as to move the poultry).
Ans. 12 (underlining added).
We agree with Appellant's argument that conveyor 20 does not
qualify as a rotatable carousel as recited in claim 1. Specifically, as shown
in Figures 2--4 and explained in paragraph 51 of van den Nieuwelaar, pulleys
22 carry poultry 21 along a running surface of conveyer 20. See Figs. 2--4,
Spec. ,r 51. Thus, conveyor 20 includes a running surface that remains
stationary, and only pulleys 22 are disclosed as moving. 6 Consequently,
conveyor 20 itself is not rotatable, even if pulleys 22 are. Therefore,
conveyer 20 is not a rotatable carousel as required by claim 1, and we do not
sustain the rejection of claim 1 and claims 5 and 6 depending therefrom as
unpatentable over van den Nieuwelaar and La Sorda.
DECISION
I. We reverse the rejection of claim 6 as indefinite.
II. We reverse the rejection of claim 1, 5, and 6 as unpatentable
over van den Nieuwelaar and La Sorda.
6 To the extent that the Examiner relies only upon pulleys 22 (which appear
to carry the poultry along the path established by conveyor 20) to satisfy the
requirement for a "rotatable carousel" as recited in claim 1, we note that the
rotatable carousel is recited as including, among other things, a tundish.
Appeal Br. 21 (Claims App.). A preponderance of the evidence does not
support a finding that pulleys 22 include a tundish.
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Application 14/760,742
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
REVERSED
7