Levsen, Clark A.

Patent Trials and Appeals Board

Oct 2, 2019

14693697 - (D) (P.T.A.B. Oct. 2, 2019)

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.
14/693,697 04/22/2015 Clark A. Levsen 46372 7231
23589 7590 10/02/2019
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
EXAMINER
NGUYEN, PHONG H
ART UNIT PAPER NUMBER
3724
NOTIFICATION DATE DELIVERY MODE
10/02/2019 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):
uspatents@hoveywilliams.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CLARK A. LEVSEN
____________________

Appeal 2019-0017901
Application 14/693,697
Technology Center 3700
____________________

Before PHILLIP J. KAUFFMAN, JEREMY M. PLENZLER, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

FINAMORE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–3, 5, and 8–15. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 We reference herein the Specification filed April 22, 2015 (“Spec.”),
Non-Final Office Action mailed March 9, 2018 (“Non-Final Act.”), Appeal
Brief filed June 21, 2018 (“Appeal Br.”), Examiner’s Answer mailed
October 30, 2018 (“Ans.”), and Reply Brief filed December 26, 2018
(“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Hantover, Inc. Appeal Br. 4.
Appeal 2019-001790
Application 14/693,697

2
SUBJECT MATTER ON APPEAL
The invention “relates generally to powered knives, such as those
commonly used in meat processing plants,” and more specifically, to “a
rotary knife having a rotating blade.” Spec. ¶ 3. Independent claim 1,
reproduced below, is the sole independent claim and is representative of the
subject matter on appeal.
1. A rotary knife comprising:
a frame;
a blade housing supported on the frame; and
an annular blade supported on the blade housing for
rotational movement about an axis,
said blade presenting an annular inner blade surface that
terminates at a cutting edge,
said inner blade surface including first and second
sections, with the first section extending from the cutting edge
and the second section being located further from the cutting
edge than the first section,
said first and second sections of the inner blade surface
being angled relative to one another,
said first and second sections of the inner blade surface
being immediately adjacent one another and forming a transition
area therebetween,
said transition area being a sharp apex,
said first section defining a first angle relative to an
imaginary plane transverse to the axis,
said second section defining a second angle relative to the
imaginary plane,
said second angle being at least about ten degrees greater
than the first angle.
Appeal Br., Claims App.

Appeal 2019-001790
Application 14/693,697

3
REJECTION
The Examiner rejects claims 1–3, 5, and 8–15 under 35 U.S.C. § 103
as unpatentable over Esarey (US 2014/0074118 A1, published Mar. 13,
2014). 3
ANALYSIS
Esarey describes a hand-held, power operated dermatome having an
annular blade. Esarey ¶ 39, Fig. 4. Blade section 304 of annular blade 300
includes lower region 359 and upper region 358, separated by a
discontinuity. Id. ¶ 69, Fig. 15. The inner, conical surface of lower
region 359 defines cutting angle CA of approximately 30 with horizontal
surface CP when cutting edge 360 rests on the surface. Id. ¶ 69, Fig. 16.
The Examiner finds Esarey discloses the limitations of independent
claim 1, except for the “second angle being at least about ten degrees greater
than the first angle.” Non-Final Act. 2–4. The Examiner further finds that
one of ordinary skill in the art would have recognized Esarey’s first angle
affects the cutting angle CA, which in turn affects the quality of tissue cut by
the dermatome. Ans. 6–7. Based on this finding, the Examiner determines
that “it would have been obvious to one skilled in the art to optimize the
tissue removal by varying the angle of the blade.” Id. at 7. The Examiner
also determines the recited second angle would have been obvious to try
because (1) there had been a recognized problem in the art including
pressure to solve the problem of the first angle, (2) there are a finite number
of identified, predictable solutions to the recognized problem, namely 30
intervals of 1 to make the first section form a 180 angle with the second

3 The Examiner has withdrawn a rejection of claims 1–3, 5, and 8–15 under
35 U.S.C. § 102(a)(1) as anticipated by Esarey. Ans. 2.
Appeal 2019-001790
Application 14/693,697

4
section, (3) in view of the relationship between the first angle and the quality
of cut and the only 30 potential solutions, one of ordinary skill in the art
could have pursued the known potential solutions with a reasonable
expectation of success, and (4) the Graham factual inquiries set forth in the
rejection. Id. at 8–9.
Appellant argues the Examiner’s rationale based on optimization is
deficient. Appeal Br. 10–11; Reply Br. 4–6. Appellant further argues the
obvious-to-try reasoning is insufficient for the same reasons as the
optimization rationale. Reply Br. 6–7. Appellant’s arguments are
persuasive. Although Esarey discloses a relationship between the first angle
and the quality of the cut, the Examiner does not correlate the second angle
to the quality of the cut. More simply put, the Examiner has not
demonstrated the quality of the cut would be effected by varying the
difference between the first and second angles. Consequently, the Examiner
has not shown persuasively that the subject matter of independent claim 1,
including the “second angle being at least about ten degrees greater than the
first angle,” would have been obvious from the teachings of Esarey. We,
therefore, do not sustain the rejection of independent claim 1 and claims 2,
3, 5, and 8–15 depending therefrom.
CONCLUSION
Claims
Rejected
Basis  Affirmed Reversed
1–3, 5, and 8–15 35 U.S.C. § 103  1–3, 5, and 8–15
Overall Outcome 1–3, 5, and 8–15

REVERSED