Ex Parte Zhu

Board of Patent Appeals and Interferences

Oct 20, 2006

09571803 (B.P.A.I. Oct. 20, 2006)

The opinion in support of the decision being entered today was not written
for publication in and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
___________

Ex parte GUANGSHAN ZHU
___________

Appeal No. 2006-1404
Application No. 09/571,803
Technology Center 3700
___________

ON BRIEF
___________

Before FRANKFORT, OWENS, and LEVY, Administrative Patent Judges.
OWENS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal is from a rejection of claims 1, 2, 4-7, 9-17,
19 and 21-32, which are all of the pending claims.
THE INVENTION
The appellant claims a food slicer having a unitary handle.
Claim 1 is illustrative:

Appeal Number: 2006-1404
Application Number: 09/571,803
1. A slicer comprising:
a slicer body including a rotatable blade for slicing
a product; and
a tray mounted for reciprocal movement relative said
slicer body, said tray including a tray body and a support
surface for supporting and moving said product relative said
blade, said tray including a handle unitary with said tray to be
gripped for manually moving said tray, wherein said handle is
located generally below said support surface and extends from
said tray at at least two spaced locations.

THE REFERENCES
Van Berkel 1,954,605 Apr. 10, 1934
Reussenzehn Des. 92,770 Jul. 10, 1934
Walker Des. 148,203 Dec. 23, 1947
Cantatore et al. (Cantatore) Des. 269,347 Jun. 14, 1983
Czala 4,397,206 Aug. 9, 1983
THE REJECTIONS
The claims stand rejected as follows: claims 1, 2, 4, 6, 7,
9-17, 19 and 21-32 1) under 35 U.S.C. § 102(b) as anticipated by
or, in the alternative, under 35 U.S.C. § 103 as obvious over
Reussenzehn, and 2) under 35 U.S.C. § 103 as obvious over
Reussenzehn in view of van Berkel; and claims 1, 2, 4-7, 9-17,
19 and 21-32 under 35 U.S.C. § 103 as obvious over 1) Czala in
view of van Berkel and Walker, and 2) Cantatore in view of van
Berkel and Walker.

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Appeal Number: 2006-1404
Application Number: 09/571,803
OPINION
The rejections are affirmed as to claims 1, 2, 4,1 6,2 7, 9,
12, 13, 15-17, 19, 21-25, 27-29, 31 and 32, and reversed as to
claims 5, 10, 11, 14, 26 and 30.
The appellant states that the claims stand or fall in the
following groups: 1) claims 1, 2, 7, 9, 13, 17, 19 and 21,
2) claims 5, 26 and 30; 3) claims 4 and 16, 4) claims 10, 11
and 14, 5) claims 6, 12 and 15, 6) claims 22, 25 and 29,
7) claims 23, 27 and 31, and 8) claims 24, 28 and 32 (brief,
page 5). Hence, we limit our discussions of the claims for
which the rejections are affirmed to one claim in each group,
i.e., claims 1, 4, 12, 22, 23 and 24. See
37 CFR § 41.37(c)(1)(vii)(2004).
Rejections over Reussenzehn, alone
or in combination with van Berkel

Claim 1
Reussenzehn discloses a slicer having a slicer body, a tray
and a handle that appears to be fastened to two pieces extending
from the tray (figures 3 and 4).
Van Berkel discloses a slicer having a handle (29) secured
to a table (11) (page 1, lines 68-69).

1 The rejections of claims 4 and 16 over Reussenzehn, alone or in combination
with van Berkel are affirmed, but the other rejections of those claims are
reversed.

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Appeal Number: 2006-1404
Application Number: 09/571,803
The appellant argues that Reussenzehn’s handle is not
unitary with the tray because it is attached to the tray by a
nut, screw or other fastener, and that Reussenzehn would not
have suggested, to one of ordinary skill in the art, a handle
that is unitary with the tray, i.e., a handle and tray that are
one piece (brief, pages 5-8; reply brief, pages 2-9).
The appellant argues as though to meet the requirements of
the appellant’s claim 1, Reussenzehn’s handle and tray
protrusions to which it is attached must be one piece. The
appellant’s specification, however, does not define “unitary” as
requiring one piece construction.3 Hence, we use the ordinary
meaning of “unitary” (not the appellant’s argued meaning (reply
brief, pages 2-4)) which is “having the character of a unit”,
where a “unit” is “a single thing or person or group that is a
constituent of a whole”.4, ,5 6 See Phillips v. AWH Corp., 415 F.3d

2 The rejections of claims 6, 12 and 15 over Reussenzehn, alone or in
combination with van Berkel are affirmed, but the other rejections of those
claims are reversed.
3 Moreover, claim 10, which depends from claim 1 and requires that the tray
body and handle are a single, cast piece of metal, indicates that claim 1
more broadly encompasses a tray body and handle that are not one piece.
4 Webster’s New Collegiate Dictionary 1279-80 (G. & C. Merriam Co. 1973).
5 The appellant relies upon a dictionary definition of “unitary” as
“undivided, whole” (brief, page 17; reply brief, pages 7-9), whereas the
examiner relies upon a dictionary definition of “unitary” as: “Having the
character of a unit: WHOLE”, wherein “unit” is: “1. An individual group,
structure, or other entity regarded as an elementary structural or functional
constituent of a whole. 2. A group regarded as a distinct entity within a
larger group” (answer, page 12). The broadest reasonable interpretation of
“unitary” consistent with the appellant’s specification is “having the
character of a unit”. Hence, we use that definition.
6 One case relied upon by the appellant, Pall Corp. v. PTI Techs Inc., 259
F.3d 1383, 1391, 59 USPQ2d 1763, 1768 (Fed. Cir. 2001), the court stated that

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Appeal Number: 2006-1404
Application Number: 09/571,803
1303, 1312, 75 USPQ2d 1321, 1326 (Fed. Cir. 2005), cert. denied
sub nom., 126 S. Ct. 1332 (2006). Reussenzehn’s handle has the
character of a single thing because it is fastened to the tray
protrusions.
We therefore find the slicer claimed in the appellant’s
claim 1 to be anticipated by Reussenzehn. Accordingly, we
affirm the rejection of claims 1, 2, 7, 9, 13, 17, 19 and 21
under 35 U.S.C. § 102(b) over Reussenzehn and, because
anticipation is the epitome of obviousness, see In re Skoner,
517 F.2d 947, 950, 186 USPQ 80, 83 (CCPA 1975); In re Pearson,
494 F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA 1974), we affirm
the rejections of those claims under 35 U.S.C. § 103 over
Reussenzehn and over Reussenzehn in view of van Berkel.7

the claims did not require a unitary structure but, rather, were open to two
components welded together. The appellant’s specification and the dictionary
definitions of “unitary” do not give that term such a narrow meaning. The
other cases relied upon by the appellant (reply brief, pages 5-6) do not
limit “unitary” to “one piece”. Thirteen of the patents relied upon by the
appellant have in a portion cited by the appellant (reply brief, pages 6-7)
the terms “unitary” and either “one-piece” or “single piece” either together
or in close proximity, but do not indicate that if an article is unitary it
must be one piece.
7 The appellant’s reliance upon a declaration by Guangshan Zhu with respect to
the rejection under 35 U.S.C. § 103 (brief, page 8), wherein Zhu states that
there has been a long-felt need to eliminate gaps and spaces in food
processing equipment (¶ 5) and that molding a single-piece handle is
expensive (¶ 8), is unavailing to the appellant as to the affirmed rejections

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Appeal Number: 2006-1404
Application Number: 09/571,803
Claims 26 and 30
Claims 26 and 30 require that the handle extends vertically
between the at least two spaced locations.8
The handles of Reussenzehn (figures 1, 3 and 4) and
van Berkel (figures 1 and 3) extend horizontally, and the
examiner provides no explanation as to why it would have been
prima facie obvious to one of ordinary skill in the art to
orient them vertically.
Therefore, we reverse the rejections of claims 26 and 30
over Reussenzehn and over Reussenzehn in view of van Berkel.
Claim 4
Claim 4 depends from claim 1 and requires that the tray
body includes a recessed area extending between the at least two
locations at which the handle extends from the tray.
The appellant argues that the space between the legs of
Reussenzehn’s handle is not recessed but, rather, the surface of
the tray body is flush with the surrounding area (brief,
page 20). The tray protrusions to which Reussenzehn’s handle
are attached are part of the tray. Hence, the space between
them is a recessed area of the tray body.

because the claims in those rejections do not require a single-piece handle
or elimination of gaps and spaces.
8 Although claims 1 and 13 are of comparable scope, and their respective
dependent claims 5 and 26 are of comparable scope, claim 5, unlike claim 26,
is not rejected over Reussenzehn, alone or in combination with the other
references.

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Appeal Number: 2006-1404
Application Number: 09/571,803
We therefore affirm the rejections of claims 4 and 16 over
Reussenzehn and over Reussenzehn in view of van Berkel.
Claims 10, 11 and 14
Claims 10, 11 and 14 require that the tray body and handle
are a single, cast piece of metal.
The examiner states that “single, cast” “has not been given
significant patentable weight, since the method of forming the
device is not germane to the issue of patentability of the
device itself” (answer, page 6).9 That limitation is not a
method step but, rather, is a structural requirement of the
slicer, i.e., the tray body and handle must have the structure
of a single, cast piece of metal.
The examiner argues that the applied references render
claims 10, 11 and 14 obvious (answer, page 25), but the examiner
does not provide a basis for that argument.
For the above reasons we reverse the rejections of
claims 10, 11 and 14 over Reussenzehn and over Reussenzehn in
view of van Berkel.
Claim 12
Claim 12 depends from claim 1 and requires that the tray
includes at least two generally curved surfaces, each surface

9 Regarding the “single, cast” limitation the examiner directs the appellant’s
attention to GB 438,208, page 4, lines 113-120 (answer, page 6, footnote 1).
We do not address this reference because it is not included in the statement

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Appeal Number: 2006-1404
Application Number: 09/571,803
being located adjacent to one of the at least two locations to
form a smooth transition between the tray body and the handle.
The appellant argues that Reussenzehn discloses a flared
out structure (reply brief, page 20). Reussenzehn’s protrusions
from the tray, which the appellant refers to as a flared out
structure, have generally curved surfaces that are located
adjacent to the two locations where the handle is attached to
the tray body and form a smooth transition between the tray body
and the handle.
Consequently, we affirm the rejections of claim 6, 12
and 15 over Reussenzehn and over Reussenzehn in view of
van Berkel.
Claim 22
Claim 22 depends from claim 1 and requires that the handle
is generally spaced apart from the support surface.
The appellant argues that the handles of Reussenzehn and
van Berkel are coupled to and extend from the support surface
(brief, page 19). The surface of Reussenzehn’s tray that
contacts the food is a support surface for the food, and the
handle is generally spaced apart from that support surface,
i.e., it is attached to the opposite side of the tray.

of a rejection and, therefore, is not properly before us. See In re Hoch,
428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).

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Appeal Number: 2006-1404
Application Number: 09/571,803
We therefore affirm the rejections of claims 22, 25 and 29
over Reussenzehn and over Reussenzehn in view of van Berkel.
Claim 23
Claim 23 depends from claim 1 and requires that the tray
body extends generally downwardly from the support surface, and
the handle is unitary with the tray body.
The appellant argues that Reussenzehn’s slicer does not
include any generally downwardly extending structure from which
the handle extends (brief, page 19). Reussenzehn’s tray body is
below the support surface that supports the food and, therefore,
extends generally downwardly from the support surface.
Thus, we affirm the rejections of claims 23, 27 and 31 over
Reussenzehn and over Reussenzehn in view of van Berkel.
Claim 24
Claim 24 depends from claim 1 and requires that the tray
body extends generally downwardly from the support surface, and
the handle extends from the tray body at least partially along a
direction of reciprocal movement of the tray.
The appellant argues that the handles of Reussenzehn and
van Berkel extend perpendicular to the direction of movement of
the product relative to the blade and, therefore, do not extend
at least partially along a direction of reciprocal movement of
the tray. Claim 24 does not require that the handle extends

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Appeal Number: 2006-1404
Application Number: 09/571,803
perpendicular to the direction of movement of the product
relative to the blade but, rather, requires that the handle
extends from the tray body at least partially along a direction
of reciprocal movement of the tray. The handles of Reussenzehn
(figures 1, 3 and 4) and van Berkel (figures 1 and 3) both
extend from the tray body at least partially along a direction
of reciprocal movement of the tray.
Accordingly, we affirm the rejections of claims 24, 28
and 32 over Reussenzehn and over Reussenzehn in view of
van Berkel.
Rejections over Czala in view of
van Berkel and Walker
Claim 1
Czala discloses a slicer having a handle (to the left of
numeral 14 and its arrow in figure 1) that is fastened to a tray
in an undisclosed manner.
Walker discloses a vegetable cutter having a curved handle
attached thereto at only one end (figures 1-3).
The appellant argues that Czala does not disclose that the
handle is unitary with the tray, and that “the handle could
easily be coupled to the tray by various internal or non-visible
means, such as adhesives, small welds, internal fasteners, snap
attachments, interengaging geometries, etc.” (brief, page 12).
As discussed above regarding the rejections over Reussenzehn,

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Appeal Number: 2006-1404
Application Number: 09/571,803
the broadest reasonable interpretation of “unitary” consistent
with the appellant’s specification does not exclude those
attachments.
The appellant argues that van Berkel’s handle could not be
used on Czala’s slicer because Czala’s slicer lacks any flanges
to which van Berkel’s horizontally extending handle could be
coupled (brief, page 13). Van Berkel’s handle, which is
attached to the side of table 11, could be attached in the same
manner to the side of hopper 4 to which Czala’s handle is
attached.
The appellant argues that Walker’s handle does not extend
from at least two locations (brief, page 13). A handle
extending from at least two locations is disclosed by van Berkel
(figure 3, element 29).
For the above reasons we are not convinced of reversible
error in the examiner’s rejection of claim 1 over Czala in view
of van Berkel and Walker. Hence, we affirm the rejection of
claims 1, 2, 7, 9, 13, 17, 19 and 21 over those references.
Claims 4 and 16
The examiner argues that Czala discloses a recessed area
between the inside bend of the handle and the leg portion near
item 14 in figure 1 (answer, pages 7 and 25). Claims 4 and 16
require that the tray body includes a recessed area. The

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Appeal Number: 2006-1404
Application Number: 09/571,803
examiner’s argument regarding the handle having a recessed area
is not pertinent to that limitation.
Accordingly, we reverse the rejection of claims 4 and 16
over Czala in view of van Berkel and Walker.
Claims 5, 26 and 30
The examiner asserts that Czala modified by van Berkel and
Walker render obvious a handle that extends generally vertically
between at least two locations at which it is attached to the
tray, but the examiner provides no explanation as to why or how
one of ordinary skill in the art would have combined the
references to arrive at such a configuration (answer, page 25).
Consequently, we reverse the rejection of claims 5, 26
and 30 over Czala in view of van Berkel and Walker.
Claims 10, 11 and 14
The examiner’s argument regarding claims 10, 11 and 14 is
the same as that set forth with respect to the rejections over
Reussenzehn, alone or in combination with van Berkel (answer,
page 8). The rejection of claims 10, 11 and 14 over Czala in
view of van Berkel and Walker is reversed for the reasons given
above regarding the rejections over Reussenzehn, alone or in
combination with van Berkel.

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Appeal Number: 2006-1404
Application Number: 09/571,803
Claims 6, 12 and 15
The examiner argues that Czala’s handle has an arcuate
shape at its attachment point, and van Berkel’s handle appears
to show arcuate shapes at the juncture between the legs and the
tray (answer, page 26).
The appellant argues that at the handle/tray junction, the
handles of Czala and van Berkel form sharp, well defined angles
(brief, page 22).
Czala’s figure 1 and van Berkel’s figure 3 shows that the
handle is straight at the junction between the handle and the
tray. The handles have some curvature farther from the tray,
but no curvature that reasonably can be considered arcuate.
Consequently, we reverse the rejection of claims 6, 12
and 15 over Czala in view of van Berkel.
Claim 22
The appellant argues that the handles of Czala and
van Berkel are coupled to and extend from the support surface
(brief, page 19). The support surface reasonably can be
considered to be the surface of the tray that supports the food.
In both Czala and van Berkel the handle is on the opposite side
of the tray from the support surface and, therefore, is
generally spaced apart from the support surface.

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Appeal Number: 2006-1404
Application Number: 09/571,803
Therefore, we affirm the rejection over Czala in view of
van Berkel of claims 22, 25 and 29.
Claim 23
The appellant argues that Czala and van Berkel do not
disclose a tray body that extends generally downwardly from a
support surface (brief, page 19). The tray bodies of Czala and
van Berkel are below the surface that supports the food and,
therefore, extend generally downwardly from the support surface.
Hence, we affirm the rejection of claims 23, 27 and 31 over
Czala in view of van Berkel.

Claim 24
The appellant argues that the handles of Czala and
van Berkel extend perpendicular to the direction of movement of
the product relative to the blade (brief, pages 19-20).
Claim 24 requires that the handle extends from the tray body at
least partially along a direction of reciprocal movement of the
tray. Van Berkel’s handle (figures 1 and 3) extends from the
tray body at least partially along a direction of reciprocal
movement of the tray.
We therefore are not convinced of reversible error in
the examiner’s rejection of claim 24 over Czala in view of

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Appeal Number: 2006-1404
Application Number: 09/571,803
van Berkel. Accordingly, we affirm the rejection of claims 24,
28 and 32 over those references.
Rejection over Cantatore in view of
van Berkel and Walker
Claim 1
Cantatore discloses a food slicer having what appears to be
a handle attached at one location below a tray (figures 1
and 4).
The appellant argues that Cantatore does not disclose that
the handle is unitary with the tray (brief, pages 14-15). The
handle is at least fastened to the tray and, as discussed above
regarding the rejections over Reussenzehn, the broadest
reasonable interpretation of “unitary” consistent with the
specification includes such fastening.
The appellant argues that Cantatore’s handle extends
downwardly away from the tray, and lacks any flanges to which
van Berkel’s horizontally extending handle could be attached
(brief, page 16). Cantatore’s handle is attached to the tray
(figures 1 and 4), and van Berkel’s handle could be attached to
that tray the same way it is attached to van Berkel’s tray
(figures 1 and 3).
The appellant argues that Walker’s handle does not extend
from at least two locations (brief, page 16). A handle

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Appeal Number: 2006-1404
Application Number: 09/571,803
extending from at least two locations is disclosed by van Berkel
(figure 3, element 29).
For the above reasons we affirm the rejection of claims 1,
2, 7, 9, 13, 17, 19 and 21 over Cantatore in view of van Berkel
and Walker.
Claims 4 and 16
The examiner argues that “[i]n Cantatore et al, the area
between the wedge shape and the rectangular shape of the leg to
which the handle is attached is deemed to define a recess”
(answer, page 25). Claims 4 and 16, however, require a recess
in the tray body, not the handle. The examiner has not
explained how Cantatore, van Berkel and Walker would have fairly
suggested that claim requirement to one of ordinary skill in the
art.
Hence, we reverse the rejection of claims 4 and 16 over
Cantatore in view of van Berkel and Walker.
Claims 5, 26 and 30
The examiner asserts that Cantatore modified by van Berkel
and Walker would have rendered obvious a handle that extends
generally vertically between at least two locations at which it
is attached to the tray, but the examiner provides no
explanation as to why or how one of ordinary skill in the art

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Appeal Number: 2006-1404
Application Number: 09/571,803
would have combined the references to arrive at that
configuration (answer, page 25).
We therefore reverse the rejection of claims 5, 26 and 30
over Cantatore in view of van Berkel and Walker.
Claims 10, 11 and 14
The examiner’s argument regarding claims 10, 11 and 14 is
the same as that set forth with respect to the rejections over
Reussenzehn, alone or in combination with van Berkel (answer,
pages 10-11). The rejection of claims 10, 11 and 14 over
Cantatore in view of van Berkel and Walker is reversed for the
reasons given above regarding the rejections over Reussenzehn,
alone or in combination with van Berkel.
Claims 6, 12 and 15
The examiner argues that in view of van Berkel and Walker
it would have been obvious to one of ordinary skill in the art
to provide Cantatore’s handle with arcuate or curved surfaces as
a matter of aesthetic and ergonomic design choice (answer,
page 10). Van Berkel’s handle is not curved at its points of
attachment (figure 3). Walker’s handle is curved at its sole
point of attachment but, like Cantatore’s handle (figure 1), it
is attached at only one end (figure 1). None of the handles is
disclosed as being ergonomic, and the examiner has not explained
how a desire for aesthetic appearance would have led one of

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Appeal Number: 2006-1404
Application Number: 09/571,803
ordinary skill in the art to combine the features of the handles
pointed out by the examiner in such a manner that a handle which
extends from a tray in at least two spaced locations and has the
curvature requirement of the appellant’s claim 6, 12 or 15 is
obtained.
We therefore reverse the rejection of claims 6, 12 and 15
over Cantatore in view of van Berkel and Walker.
Claims 22-25, 27-29, 31 and 32
Regarding the rejection of claims 22-25, 27-29, 31 and 32
over Cantatore in view of van Berkel and Walker the appellant
relies upon the same arguments set forth with respect to the
rejection of those claims over Czala in view of van Berkel and
Walker. Those arguments are not persuasive for the reasons
given above regarding the rejection over Czala in view of van
Berkel and Walker.
Consequently, we affirm the rejection of claims 22-25, 27-
29, 31 and 32 over Cantatore in view of van Berkel and Walker.
DECISION
The rejections of claims 1, 2, 4, 6, 7, 9-17, 19 and 21-32
under 35 U.S.C. § 102(b) over Reussenzehn and under
35 U.S.C. § 103 over Reussenzehn and over Reussenzehn in view of
van Berkel are affirmed as to claims 1, 2, 4, 6, 7, 9, 12, 13,
15-17, 19, 21-25, 27-29, 31 and 32, and reversed as to claims

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Appeal Number: 2006-1404
Application Number: 09/571,803
10, 11, 14, 26 and 30. The rejections of claims 1, 2, 4-7, 9-
17, 19 and 21-32 under 35 U.S.C. § 103 over Czala in view of van
Berkel and Walker and over Cantatore in view of van Berkel and
Walker are affirmed as to claims 1, 2, 7, 9, 13, 17, 19, 21-25,
27-29, 31 and 32, and reversed as to claims 4-6, 10-12, 14-16,
26 and 30.
No time period for taking any subsequent action in

connection with this appeal may be extended under 37 CFR

§ 1.136(a).

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Appeal Number: 2006-1404
Application Number: 09/571,803
AFFIRMED-IN-PART

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
TERRY J. OWENS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
STUART S. LEVY )
Administrative Patent Judge )

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Appeal Number: 2006-1404
Application Number: 09/571,803
THOMPSON HINE LLP
P.O Box 8801
DAYTON, OH 45401-8801

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