TECNO POOL S.P.A.

Patent Trials and Appeals Board

Sep 17, 2020

2019006873 (P.T.A.B. Sep. 17, 2020)

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.
14/782,886 10/07/2015 Leopoldo Lago 10174.00093 7849
39232 7590 09/17/2020
Themis Law
7825 Fay Ave
Ste 200
La Jolla, CA 92037
EXAMINER
KIRKWOOD, SPENCER HAMMETT
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
09/17/2020 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):
contact@themisipc.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LEOPOLDO LAGO
____________

Appeal 2019-006873
Application 14/782,886
Technology Center 3700
____________

Before JENNIFER D. BAHR, WILLIAM A. CAPP, and
GEORGE R. HOSKINS, Administrative Patent Judges.

HOSKINS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject all pending claims 1–9 and 11 under 35 U.S.C.
§ 103 as having been obvious over Nothum (US 2005/0092730 A1, pub.
May 5, 2005), Onozato (US 8,567,308 B2, iss. Oct. 29, 2013), and Simensen
(US 6,345,770 B1, iss. Feb. 12, 2002).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Tecno Pool S.p.A. as the real party in
interest. Appeal Br. 3.
Appeal 2019-006873
Application 14/782,886

2
CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim on appeal, and it recites:
1. A cooking installation (2), comprising:
a cooking chamber;
at least one conveyor belt (10) unit positioned in said cooking
chamber and following a spiral path of vertical axis, to receive
food products and drive said food products from an inlet
opening (14) to an outlet opening (16) of said cooking chamber;
a plurality of vertical columns supporting an inner side and an
outer side of said at least one conveyor belt having the spiral
path;
a heat exchange circuit (30) comprising a bundle of pipes (44)
disposed as a spiral inserted within said conveyor belt (10) unit
and divided into a plurality of portions (60, 62) involving
different vertically superposed zones of said cooking chamber
and connected together in parallel, and to a heat control unit (32)
for generating a heating fluid;
a regulating system that independently regulates a flow rate
of said heating fluid within said portions (60, 62) of the heat
exchange circuit (30); and
a management and control unit for said heat exchange circuit,
wherein the system driving the conveyor belt comprises a
plurality of toothed wheels (28) which are spaced vertically from
one another, the plurality of toothed wheels being disposed at an
exterior of the spiral path and engaging appendices emerging
from an outer edge of the at least one conveyor belt (10), to drag
the conveyor belt into movement along support members fixed
to a support structure (8).
Appeal Br. 20 (Claims App.).
OPINION
Appellant argues claims 1–9 and 11 as a group, without separately
arguing any one claim in the group. Appeal Br. 10–19. Accordingly, we
select claim 1 to decide the appeal, with the other claims standing or falling
with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2017).
Appeal 2019-006873
Application 14/782,886

3
As pertinent to Appellant’s arguments on appeal, claim 1 recites a
“conveyor belt . . . following a spiral path,” with “a plurality of vertical
columns supporting an inner side and an outer side of [the] conveyor belt.”
Appeal Br. 20 (Claims App.). Further, “a plurality of toothed wheels” are
“disposed at an exterior of the spiral path and engaging appendices emerging
from an outer edge of the . . . conveyor belt . . . to drag the conveyor belt
into movement.” Id.
The Examiner finds Nothum correspondingly discloses, as shown in
Figure 2, a conveyor belt (i.e., conveyor 24) following a spiral path.
Non-Final Act. (mailed Dec. 5, 2018), 5; Nothum ¶ 26. However, Nothum’s
belt 24 is not supported by vertical columns at inner and outer sides of the
conveyor belt, and is not driven by toothed wheels at an exterior of the spiral
path to engage appendices of the belt to drag the belt into movement.
Non-Final Act. 5–6.
The Examiner finds Onozato discloses, as shown in Figures 8, 9, 12,
and 15, a conveyor belt (i.e., endless transfer belt 60) following a spiral path
(i.e., spiral transfer route 41). Id. at 6; Onozato, Fig. 8, 15:29–32, 16:19–20.
The Examiner finds Onozato also discloses belt 60 is supported by a
plurality of vertical columns (i.e., support struts 66) at inner and outer sides
of belt 60. Non-Final Act. 6; Onozato, Figs. 8–9, 16:19–20. The Examiner
finds Onozato further discloses belt 60 is driven by toothed wheels (i.e.,
sprockets 75 / 76) at an exterior of the spiral path, which engage appendices
(i.e., appendage parts 122) emerging from an outer edge of belt 60, to drag
belt 60 into movement. Non-Final Act. 6; Onozato, Figs. 9–10, 16:21–27,
17:1–12 (sprockets 75 and 76 engage appendage members 62 on belt 60 to
Appeal 2019-006873
Application 14/782,886

4
drive the belt); see also id. at Fig. 15, 2:27–60, 10:9–11 (cogged wheel 114
engages appendage parts 122 on conveyor belt 110 to drive the belt).
The Examiner determines it would have been obvious “to modify the
belt driving and support system of Nothum with the belt driving and support
system of Onozato, to increase space efficiency and reduce conveyor drive
mass for energy efficiency.” Non-Final Act. 6–7 (citing Onozato,
7:42–8:12).
Appellant raises four challenges to the Examiner’s foregoing
determination of obviousness: (1) there is no reasonable expectation of
success; (2) the proposed modification would improperly change Nothum’s
principle of operation; (3) there is no persuasive reason for the Examiner’s
proposed modification; and (4) the rejection is tainted by hindsight. See
Appeal Br. 10–19. Appellant does not challenge the Examiner’s findings
comparing Nothum and Onozato with the subject matter of claim 1, or the
Examiner’s additional findings and determinations relying on Simensen for
obviousness. See id. We consider each challenge (1)–(4) in turn.
1. Expectation of Success
Appellant’s first argument assumes the Examiner proposes the
obviousness of retaining Nothum’s turning barrel 70 and paddles 78 to
engage inner overhangs 46 on conveyor belt 24, while adding Onozato’s
support columns 66 at the inner and outer side of belt 24 for support.
Appeal Br. 11–12; see also Nothum, Figs. 2 and 5, ¶¶ 38, 42 (illustrating and
describing interaction between paddles 78 and overhangs 46). Based on that
assumption, Appellant asserts there is no expectation of success, because
adding inner support columns for Nothum’s belt 24 would interfere with the
Appeal 2019-006873
Application 14/782,886

5
driving interaction between Nothum’s paddles 78 and overhangs 46. Appeal
Br. 11–12.
The Examiner answers that, in the proposed combination, the inner
drum drive of Nothum “has been replaced” with the outer drive system of
Onozato. Ans. 4. Thus, we conclude Appellant’s expectation of success
argument is based on a rejection that is not made by the Examiner, and so is
not persuasive.
2. Nothum’s Principle of Operation
Appellant’s second argument is that the Examiner’s proposed
modification of Nothum would improperly change Nothum’s principle of
operation. Appeal Br. 12–14; Reply Br. 3. According to Appellant,
Nothum’s principle of operation is “providing turning barrel 70 and
paddles 78 that extend from turning barrel 70 and entrain inboard
overhangs 46 of conveyor 24.” Appeal Br. 13 (citing Nothum ¶¶ 37–38,
42). In support, Appellant cites Nothum’s disclosure that “[t]he barrel 70
provides an advantageous way of driving the conveyor 24/30, as by
interfacing an inboard structure 46 attached to the conveyor 24.” Id.
(quoting Nothum ¶ 42). Appellant concludes “eliminat[ing] rotating inner
barrel 70 and paddles 78 entirely” and replacing them with Onozato’s outer
drive system “would require a substantial reconstruction and redesign” and
“run against the teachings of” Nothum. Id. at 13–14.
The Examiner answers that replacing Nothum’s inner drive system
with Onozato’s outer drive system would “retain[] the principle inventive
feature of” Nothum, which the Examiner describes as a “zone heating
system.” Ans. 4, 5 (citing Nothum, Fig. 2, ¶¶ 17, 43). Thus, the Examiner
Appeal 2019-006873
Application 14/782,886

6
concludes the proposed obviousness would not improperly change Nothum’s
principle of operation. Id.
Upon review of the foregoing, we conclude the Examiner’s proposed
replacement of Nothum’s inner drive system with Onozato’s outer drive
system would not improperly change Nothum’s principle of operation. We
acknowledge Nothum’s disclosure that its inner drive system comprising
barrel 70 and paddles 78 advantageously permits the outer enclosure of the
oven to “closely surround” the outer extent of the spiral-traveling conveyor
belt within the oven. Nothum ¶ 42. Nonetheless, this is only one of several
identified advantages disclosed by Nothum for its oven, and the other
advantages are unrelated to the inner drive system. Id.; see also id. ¶¶ 6–17
(identifying advantages of Nothum’s oven as including proximity between
heat source and food conveyor; placing the drive engine outside of the oven
to reduce degradation and damage; providing space for air circulation; and
zonal heating).
Thus, we conclude Nothum’s principle of operation is to provide “a
spiral oven” for heating food, which is “scalable in a range between large
and compact scale extremes.” Id. ¶¶ 3–4. That principle is not changed by
replacing Nothum’s inner drive system with Onozato’s outer drive system.
3. Rational Underpinning for Obviousness
Appellant’s third argument is that the Examiner “fails to set forth a
convincing line of reasoning to support the legal conclusion of obviousness.”
Appeal Br. 14–15. Appellant acknowledges the Examiner’s determination
that replacing Nothum’s inner drive system with Onozato’s outer drive
system would “increase space efficiency and reduce conveyor drive mass for
Appeal 2019-006873
Application 14/782,886

7
energy efficiency.” Id. at 14 (quoting Non-Final Act. 7). Appellant
contends this determination is not supported by the evidence, because
Nothum’s oven is already designed to be compact, and Nothum describes its
inner barrel 70 and paddle 78 drive mechanism as “advantageous” because
“[t]he oven enclosure 22 that houses the spiral ramp 50 is shrunk down [to]
closely surround the outside of the spiral oven ramp 50 for a more compact
oven compartment.” Id. at 15 (quoting Nothum ¶ 42). Appellant asserts
adding a plurality of vertical columns to support Nothum’s conveyor 24
would in fact “increase space usage,” versus Nothum’s existing inner
barrel 70 and paddle 78 drive mechanism. Id.
In answer, the Examiner maintains that replacing Nothum’s inner
drive system with Onozato’s outer drive system would provide a “compact
and more efficient motivation means of a spiral conveyor.” Ans. 4, 5 (citing
Onozato, Figs. 8, 9, and 12, 7:42–8:12).
Appellant replies that, based on the following comparison between
Nothum’s Figure 2 and Onozato’s Figure 11, “one can easily see that for an
equal diameter of the conveyor spiral, the heat treatment apparatus disclosed
by Onozato has a wider overall diameter, that is, is less compact” than
Nothum. Reply Br. 3–5.
Appeal 2019-006873
Application 14/782,886

8

Appellant’s comparison adds four dashed lines, extending between
Nothum’s Figure 2 and Onozato’s Figure 11, to compare the respective sizes
of the illustrated ovens. Id.
Appellant further argues the Examiner errs in relying on Onozato’s
disclosure at column 7, line 42 through column 8, line 12, to support the
proposed obviousness. Reply Br. 5–6. Appellant contends this passage
“discusses the desirability of the arrangement disclosed therein over the
prior art cited by Onozato in the Background of the Invention, which
includes five Japanese patent documents,” none of which has been
established to be similar to Nothum. Id. Appellant asserts Onozato
discloses an apparatus for freezing food using freezing unit 51 disposed
Appeal 2019-006873
Application 14/782,886

9
inside Onozato’s spiral food conveyance route 41 to blow cold air over the
food, which is different from Nothum’s apparatus which heats food with
heated coils disposed in a spiral pattern parallel to the conveyor spiral, so
there is no rational relationship between the references to support
obviousness. Id. (citing Onozato, Fig. 11, 8:47–57).
Upon review of the foregoing, we conclude the Examiner has satisfied
the burden to provide a rational underpinning sufficient to support the legal
conclusion of obviousness. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006), cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007). In particular, the Examiner cites two reasons for the proposed
modification of Nothum, both of which are supported by a preponderance of
the evidence.
The first reason is that replacing Nothum’s inner drive system with
Onozato’s outer drive system would “reduce conveyor drive mass for energy
efficiency,” thereby providing a “more efficient motivation means” than
found in Nothum. Non-Final Act. 7; Ans. 4, 5. This determination is
supported by Onozato’s disclosure. Onozato discusses “patent reference 2”
(JP 2002-068436 A), which discloses a “rotating drum that drives the
conveyer belt is arranged inside the spiral route.” Onozato, code (56), 1:56,
2:61–3:3. According to Onozato, “the pulling power has to be great” in
patent reference 2, because part of the supplied power must rotate “the heavy
rotating drum.” Id. at 3:4–16 (stating further: “In other words, the drive
energy saving . . . cannot be achieved so long as the rotating drum is used”).
Onozato then describes how “the apparatus of [Onozato’s] second
invention,” shown in Figures 8–10 and cited by the Examiner, provides “a
simple configuration of the power transmission mechanisms” in which “it
Appeal 2019-006873
Application 14/782,886

10
becomes unnecessary to provide a drive device for the transfer belt inside
the spiral transfer route” as in patent reference 2. Id. at 7:42–8:3, 9:63–67.
Further, “the drive torque and the drive power can be remarkably reduced,”
because “the power for rotating the drum is not necessary.” Id. at 8:9–11.
A person of ordinary skill in the art, upon reviewing the foregoing
disclosures in Onozato, would have understood that Nothum’s turning
barrel 70 presents the same design challenge as patent reference 2, in that a
portion of the energy provided to Nothum’s drive train will have to rotate
barrel 70. See, e.g., Nothum, Fig. 2 (illustrating barrel 70 in oven 20). This
would lead a person of ordinary skill in the art to conclude that the energy
consumption efficiency of Nothum’s drive mechanism could be improved by
replacing Nothum’s barrel 70 with Onozato’s outer drive system, using
toothed wheels instead of the barrel.
We disagree with Appellant’s suggestion that a person of ordinary
skill in the art would have to review the specific disclosure of patent
reference 2 to reach this conclusion. See Reply Br. 5–6. Instead, we
conclude Onozato’s own description of patent reference 2, and how
Onozato’s invention improves upon patent reference 2, would have led a
person of ordinary skill in the art to the invention recited in claim 1 based
only on Nothum and Onozato. See, e.g., KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 421 (2007) (“A person of ordinary skill is also a person of
ordinary creativity, not an automaton.”); id. at 420 (“in many cases a person
of ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle”).
The Examiner’s second reason for replacing Nothum’s inner drive
system with Onozato’s outer drive system is that this would “increase space
Appeal 2019-006873
Application 14/782,886

11
efficiency” versus Nothum’s existing oven. Non-Final Act. 7; Ans. 4, 5.
This determination is supported by Onozato’s disclosure. Onozato discusses
how patent reference 2 presents “a difficulty in ensuring a sufficient space
inside the spiral route of the conveyor belt” due to the presence of the
rotating drum, as well as a heat-treatment-air generating device, in that
region. Onozato, 2:61–3:3. Onozato then describes how the apparatus
shown in Figures 8–10 overcomes this difficulty by providing a belt drive
mechanism outside of the spiral route of the belt, so “the degree of freedom
of the layout of the heat-treatment-gas generating device as well as the
distribution duct can be increased.” Id. at 7:65–8:8.
A person of ordinary skill in the art would have understood that
replacing Nothum’s inner drive turning barrel 70 with an outer drive
mechanism such as is disclosed in Onozato would achieve the same benefit
of freeing up space inside the conveyor belt spiral, to facilitate housing other
components of the oven inside the spiral. Further, even if there is no need
for such components, we agree with the Examiner’s finding that the removal
of Nothum’s barrel 70 would permit the outer spiral radius of conveyor 24 to
be reduced, thereby allowing an even more compact system, even after
adding Onozato’s vertical support columns and toothed wheels. See, e.g.,
Nothum, Figs. 2–3; Ans. 4, 6.
Appellant’s rebuttal to the foregoing is not persuasive. Appellant’s
comparison between the respective sizes of Nothum’s oven and Onozato’s
oven (Reply Br. 3–5, reproduced above) assumes without supporting
evidence that the two Figures are drawn to the same scale. It is, therefore,
unpersuasive. See, e.g., Nystrom v. Trex Co., Inc., 424 F.3d 1136, 1148–49
(Fed. Cir. 2005) (reversing district court judgment of patent invalidity based
Appeal 2019-006873
Application 14/782,886

12
on software modeling of a Figure in the prior art patent which was not
explicitly made to scale) (citing Hockerson-Halberstadt, Inc. v. Avia Group
Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000) and In re Wright, 569 F.2d
1124, 1127 (CCPA 1977)).
For the foregoing reasons, we conclude the Examiner has satisfied the
burden to provide a rational underpinning sufficient to support the legal
conclusion of obviousness.
4. Hindsight
Appellant’s fourth argument is that the Examiner’s rejection is tainted
by hindsight. Appeal Br. 15–19; Reply Br. 6. Many of Appellant’s
supporting assertions are simply a re-packaging of arguments already
considered above, and are not persuasive for the reasons provided.
Appellant additionally relies on the prosecution history leading to the
present appeal, as establishing the use of improper hindsight. Appeal
Br. 16–19. Appellant asserts the Examiner initially cited Nothum as a
primary reference in a series of obviousness rejections, then withdrew those
rejections in favor of a new series of obviousness rejections citing Lago
(EP 0 544 085 A1) as the primary reference, and then withdrew those
rejections in favor of a new series of obviousness rejections returning to
Nothum as the primary reference. Id. at 16–17. According to Appellant, the
first Nothum-led obviousness rejections found Nothum’s paddles 78
correspond to the “toothed wheels” that engage appendices emerging from
“an outer edge” of conveyor 24, as recited in claim 1. Id. at 18. Then the
second Nothum-led obviousness rejections eschewed that finding, in favor
of relying on Onozato in those regards. Id. Appellant describes this series
Appeal 2019-006873
Application 14/782,886

13
of rejections as flip-flopping, applying different interpretations of Nothum in
a hindsight-driven attempt to establish obviousness. Id. at 17–19.
We are not persuaded. Instead, we discern only a routine
back-and-forth patent prosecution, during which the Examiner was
persuaded by Appellant’s argument and therefore modified the rejections
presented. Specifically, the Examiner was persuaded that the initial
rejections erred in finding Nothum’s paddles 78 are toothed wheels that
engage appendices emerging from an outer edge of conveyor 24, so the
Examiner then relied on the obviousness of employing such an outer drive
system in Nothum’s oven in light of Onozato. This does not establish
hindsight, but rather establishes the Examiner’s willingness to consider the
merits of Appellant’s arguments. Thus, we conclude the Examiner’s
rejection is not tainted by hindsight.
CONCLUSION
In summary, we sustain the rejection of claims 1–9 and 11 as having
been obvious over Nothum, Onozato, and Simensen.
Claims Rejected 35 U.S.C. § References Affirmed Reversed
1–9, 11 103 Nothum, Onozato,
Simensen
1–9, 11
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED