Ex Parte Windhab et al

Patent Trial and Appeal Board

May 13, 2016

13039905 (P.T.A.B. May. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/039,905 03/03/2011
29157 7590
K&L Gates LLP-Chicago
P.O. Box 1135
CHICAGO, IL 60690
05/17/2016
FIRST NAMED INVENTOR
Erich Josef Windhab
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.
3712036-01245 1815
EXAMINER
SORKIN, DAVID L
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
05/1712016 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):
USpatentmail@klgates.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERICH JOSEF WINDHAB and
JOHANN WILDMOSER
Appeal2014-008949
Application 13/039,905
Technology Center 1700
Before TERRY J. OWENS, WESLEY B. DERRICK,
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal 1 under 35 U.S.C. § 134 from the Examiner's
decision2 finally rejecting claims 1-3, 5, 16 and 18. We have jurisdiction
under 35 U.S.C. § 6(b). We reverse.
The claims are directed to a device (independent claim 1, and
dependent claims 2, 3, 5, and 18) and a single or twin-screw extruder
arrangement (independent claim 16) for low temperature extrusion of frozen
1 Appellants identify the real party in interest as N estec S .A. Appeal Brief
filed January 21, 2014 ("App. Br."), 2.
2 Final Office Action mailed August 29, 2013 ("Final Act.").
Appeal2014-008949
Application 13/039,905
aerated masses. Claim 1, reproduced below, is illustrative of the claims on
appeal.
1. A device for a low temperature extrusion process
for energy optimized, viscosity adapted micro-structuring
of frozen aerated masses, the device comprising:
at least one extruder screw that comprises a screw flight
and rotates within an extruder screw channel formed by an
inner barrel wall, the extruder screw channel having an
inner diameter and a length,
the length of the extruder screw channel divided into at
least three zones comprising an inlet zone (I), middle zone
(II), and a final third (III), the device configured to perform
a mechanical treatment of a partially frozen, aerated mass
over the length of the extruder screw channel with respect
to its local viscosity, performed such that, in each of a
subsequent zone there is a dispersing of air bubbles/air
cells and at the same time temperature decrease and related
increase of the frozen water fraction is achieved,
the device having a variable screw geometry along the
length of the extruder scre\v channel locally adjusted in
each of the at least three zones according to a local
viscosity with respect to efficient progressive dispersing,
simultaneous progressive temperature reduction and
related freezing of water, the extruder screw comprising a
screw flight height adjusted along the length of the
extruder screw channel for mass viscosity wherein, in the
inlet zone (I) of the extruder screw channel, the ratio of the
screw flight height to the outer screw diameter is adjusted
to between 0.03 and 0.07; in the middle zone (II) of the
extruder screw channel, the ratio of the screw flight height
to the outer screw diameter is adjusted to between 0.1 and
0.15; and in the final third (III) of the extruder screw
channel, the ratio of the screw flight height to the outer
screw diameter is adjusted to between 0.1 and 0.25.
App. Br. 15 (Claims Appendix).
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Appeal2014-008949
Application 13/039,905
Claims 1-3, 5, 16, and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Yamaguchi 3 in view of Gonon. 4 Final Act. 3.
We need address only the independent claims ( 1 and 16). Each of
those claims requires an extruder screw channel divided into at least three
zones (an inlet zone (I), a middle zone (II), and a final third zone (III)) with
each zone having a ratio of the screw flight height to the outer screw
diameter in a specific range-an inlet zone (I) of the extruder screw channel
where the ratio of the screw flight height to the outer screw diameter is
adjusted to between 0.03 and 0.07; a middle zone (II) of the extruder screw
channel where the ratio of the screw flight height to the outer screw diameter
is adjusted to between 0.1and0.15; and a final third zone (III) of the
extruder screw channel where the ratio of the screw flight height to the outer
screw diameter is adjusted to between 0.1 and 0.25. The Examiner relies
upon the combined disclosures of Yamaguchi and Gonon to meet these
claim limitations. Ans. 2-3.
Yamaguchi discloses an extrusion molding apparatus that comprises a
screw extruder 4 having built therein an extruding screw 40 for mixing
ceramic material 80 (Yamaguchi 4:57---62). The extruding screw 40 includes
a pressing screw portion 410 and a dispersing screw portion 420 arranged on
the same axis (Yamaguchi 4:63---67). Yamaguchi's Figure 2 depicts an
extruding screw where the ratio of the screw flight height to the outer screw
diameter increases from the rear end of the dispersing screw portion 422 to
the tip of the dispersing screw portion.
3 Yamaguchi et al., US 7,101,165 B2, issued September 5, 2006 (hereinafter
"Yamaguchi").
4 Gonon et al., US 6,598,516 B2, issued July 29, 2003 (hereinafter
"Gonon").
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Appeal2014-008949
Application 13/039,905
The Examiner finds Yamaguchi discloses the invention as claimed in
independent claims 1 and 16 with the exception of an extruder screw
channel having an inlet zone (I) where the ratio of the screw flight height to
the outer screw diameter is adjusted to between 0.03 and 0.07. See Final
Act. 3. The Examiner relies on Gonon for this limitation. Gonon discloses a
freezer for producing ice-cream products having a freezing cylinder with a
screw worm for forcing the ice cream through and out of the freezing
cylinder and for scraping off solid ice formation from an inner surface of the
freezing cylinder (Gonon 4:55---62). Gonon discloses the outer diameter of
the worm screw is 1.1 to 1.4 times an outer diameter of a core of the rotor
from which the screw extends (Gonon 6:7-11, 4:46-49; Fig. 2). Based on
this disclosure, the Examiner calculates the ratio of the screw flight height to
the outer screw diameter in Gonon to be 0.05. See Final Act. 4; see also
Ans. 5. The Examiner contends that because Gonon teaches a constant ratio
of screw flight height to outer screw diameter of 0.05, it would have been
obvious for one of ordinary skill in the art at the time the invention was
made to use a value of less than 0.07 as the ratio of the screw flight height to
the outer screw diameter in the upstream end of the dispersing portion 420 of
Yamaguchi' s extruding screw and the results of such use would have been
predictable to one of ordinary skill in the art. Ans. 5.
The key to supporting a prima facie conclusion of obviousness under
35 U.S.C. § 103 is the clear articulation of an apparent reason why the
claimed invention would have been obvious. See KSR Int 'l Co. v. Teleflex,
Inc., 550 U.S. 398, 418 (2007). Yamaguchi describes an extrusion apparatus
for mixing ceramic material (Yamaguchi 4: 5 7---62). Yamaguchi' s apparatus
includes an extruding screw where the ratio of the screw flight height to the
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Appeal2014-008949
Application 13/039,905
outer screw diameter increases from the rear end to the tip of the screw
(Fig. 2). Yamaguchi' s extruding screw eliminates uneven portions of the
ceramic material by efficient mixing and dispersion (3:47-52). Gonon, on
the other hand, describes an apparatus for continuously producing ice cream
while maintaining overrun (degree of swelling) ( 4:55---62; 1:32--41 ).
Gonon's apparatus includes a freezing cylinder and a driving screw worm
with a large worm pitch (between 1 to 2 times the outer diameter of the
worm) to scrape off an ice layer formed on the inside of the freezer cylinder
at low temperatures (2:11-14, 50-53; 3:12-15; 4:55---62). The Examiner
does not address the differences between Yamaguchi' s and Gonon' s
apparatuses and explain why, despite those differences, one of ordinary skill
in the art would have been led to combine their teachings to make an
extruder screw with at least three zones (an inlet zone (I), a middle zone (II),
and a final third zone (III)) with each zone having a ratio of screw flight
height to outer screw diameter within the claimed ranges. Accordingly, we
do not sustain the obviousness rejection of claims 1-3, 5, 16, and 18.
DECISION
For the above reasons, the Examiner's rejection of claims 1-3, 5, 16,
and 18 is reversed.
REVERSED
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