10487194 (B.P.A.I. Jan. 24, 2011)

Ex Parte Weber

Board of Patent Appeals and InterferencesJan 24, 2011

10487194 (B.P.A.I. Jan. 24, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte GUNTHER WEBER ____________ Appeal 2009-009146 Application 10/487,194 Technology Center 3700 ____________ Before LINDA E. HORNER, STEVEN D.A. McCARTHY and STEFAN STAICOVICI, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL1 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 2009-009146 Application 10/487,194 2 The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 1 final decision rejecting claims 9-12. More specifically, the Examiner rejects 2 claims 9-12 under 35 U.S.C. § 103(a) as being unpatentable over Gammerler 3 (US 2002/0017174 A1, publ. Feb. 14, 2002). Claims 7 and 8 have been 4 withdrawn and claims 1-6 and 13 have been cancelled. Claim 9 is the sole 5 independent claim. 6 We REVERSE. 7 Claim 9 is illustrative of the claims on appeal: 8 9. A method for setting the cutting gap in a cutting 9 apparatus for food products, said cutting apparatus 10 having a cutting edge and a blade rotatably 11 drivable in a cutting plane, said method comprising 12 the steps of: 13 moving the cutting blade toward the cutting 14 edge by an electric motor until the cutting blade 15 contacts the cutting edge, 16 detecting an increase of electrical current for 17 the motor in excess of a preset threshold amount 18 which is indicative of contact between the cutting 19 blade and the cutting edge, 20 setting a zero position of the cutting blade in 21 response to said detecting step, 22 thereafter moving the cutting blade away 23 from the cutting edge, and 24 sensing the distance of said cutting blade 25 from said zero position. 26 (Italics added). 27 Gammerler describes a cutting apparatus that sets and maintains a 28 cutting gap 6 between a rotation cutting knife 2 and a blade 16 on a counter 29 knife 4. (Gammerler, paras. [0034]-[0036].) For example, the width of the 30 Appeal 2009-009146 Application 10/487,194 3 cutting gap 6 initially may be set at about 3/100 mm by displacement of a 1 holder 20. (Gammerler, paras. [0036] and [0042].) Friction during the 2 operation of the cutting apparatus may cause thermal expansion of the knife 3 2 and the blade 16. As a result the cutting gap 6 can disappear so that the 4 knife 2 and blade 16 come into contact. (Gammerler, para. [0005].) A 5 monitoring device 32 monitors whether the knife 2 and the blade 16 come 6 into contact by detecting whether a short circuit forms between the knife 2 7 and blade 16. (Gammerler, para. [0039].) If a short circuit is detected, a 8 motor automatically enlarges the cutting gap 6. (Gammerler, paras. [0024]-9 [0025] and [0042].) 10 The Appellant is correct that Gammerler does not teach, disclose or 11 suggest “moving the cutting blade toward the cutting edge, or vice versa, by 12 a motor until the cutting edge contacts the cutting blade.” (Reply Br. 2 13 (italics added).) 14 The Examiner cites paragraph [0042] of Gammerler and relies on a 15 finding that Gammerler “enlarges the width of the cutting gap (6) by moving 16 the rotation cutting knife and/or counter knife (2, 4)” (see Ans. 4, quoting 17 Gammerler, claim 5) in reaching the opposite conclusion. Neither 18 Gammerler’s disclosure of enlarging the width of the cutting gap 6 nor the 19 description in paragraph [0042] implies that Gammerler discloses or even 20 suggests a step of using an electric motor to move the knife blade 2 and the 21 blade 16 toward one another, however. To the extent the Examiner’s 22 reasoning, based on reversal of parts, (See Ans. 3 and 5, citing In re Einstein, 23 46 F.2d 373, 374 (CCPA 1931)) presupposes that it would have been 24 obvious in view of Gammerler to perform the step of using an electric motor 25 Appeal 2009-009146 Application 10/487,194 4 to move the blade 16 toward the knife blade 2, that reasoning is 1 unpersuasive. 2 The Examiner has not articulated reasoning with some rational 3 underpinning sufficient to show that the subject matter of independent claim 4 9 would have been obvious in view of the teachings of Gammerler. We do 5 not sustain the rejection of claims 9-12 under § 103(a) as being unpatentable 6 over Gammerler. 7 8 DECISION 9 We REVERSE the Examiner’s decision rejecting claims 9-12. 10 11 REVERSED 12 13 Klh 14 15 16 17 18 GIFFORD, KRASS, SPRINKLE, ANDERSON & CITKOWSKI, P.C 19 PO BOX 7021 20 TROY MI 48007-7021 21