Yoshiaki Nagayama

Patent Trials and Appeals Board

Aug 24, 2020

13990699 - (D) (P.T.A.B. Aug. 24, 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.
13/990,699 05/30/2013 Yoshiaki Nagayama 00594.0668FPWO 6796
23552 7590 08/24/2020
MERCHANT & GOULD P.C.
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
08/24/2020 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):
USPTO23552@merchantgould.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YOSHIAKI NAGAYAMA
Appeal 2019-005650
Application 13/990,699
Technology Center 1700

Before LINDA M. GAUDETTE, JAMES C. HOUSEL, and
DEBRA L. DENNETT, Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 4, 5, and 10–13. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.2

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Sanyo Foods
Company, Ltd. Appeal Brief (“Appeal Br.”) filed February 19, 2019, at 2.
2 This Decision also cites to the Specification (“Spec.”) filed May 30, 2013,
the Final Office Action (“Final Act.”) dated September 27, 2018, the
Examiner’s Answer (“Ans.”) dated May 16, 2019, and the Reply Brief
(“Reply Br.”) filed July 15, 2019.
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Application 13/990,699

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CLAIMED SUBJECT MATTER
The invention relates to a process for producing generally straight-
shaped instant noodles having a suppressed “longitudinal wave” and
exhibiting a satisfactory “unfastening [property]” at the time of eating. Spec.
¶ 1. Appellant discloses that the process includes an air-flow supply
arranged between respective upper and lower bundles slit from a dough
sheet fed to upper and lower cutting blade rolls with scraping members,
wherein an air flow is supplied to and imparts random directionality to the
noodle strip bundles. Id. ¶¶ 16, 18.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the claimed subject matter:
1. A process for producing noodle strips in which a dough
sheet is slit into noodle strips using a rotary slitting device
comprising at least a pair of cutting blade rolls, scraping
members and air flow supply, the process comprising the steps
of:
passing the dough sheet through the cutting blade roll,
thereby slitting the dough sheet into noodle strips;
peeling the noodle strips off from the cutting blade rolls
using the scraping members, thereby separating peeled noodle
strips into upper peeled noodle strips and lower peeled noodle
strips; and
supplying air flow from the air flow supply to the upper
peeled noodle strips and the lower peeled noodle strips while
the upper and lower peeled noodle strips are in an air space,
thereby changing an orbit of each noodle strip in an air space
and forming noodle strip bundles on a wave conveyer, wherein
each noodle strip that forms the noodle strip bundles has an
annular, transverse wave-shaped and/or zigzag-shaped orbit;
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wherein the air flow supply is arranged at a portion
between the upper peeled noodle strips and the lower peeled
noodle strips;
wherein the air flow is supplied between, and directly to
each of, the upper peeled noodle strips and the lower peeled
noodle strips; and
wherein the air flow supply is provided with a plurality
of air flow discharge ports, and the air flow discharge ports
have a polygonal slit, circular or oval shape.
Independent claim 10 recites a similar process to claim 1, and
further includes steps of gelatinizing the generally flat noodle strip
bundle followed by drying.
REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Paxhia et al. US 3,695,388 Oct. 03, 1972
Sugisawa et al.
(“Sugisawa1”)
US 4,483,879 Nov. 20, 1984
Atwood et al. US 5,417,989 May 23, 1995
Mihalos et al. US 7,789,644 B2 Sept. 07, 2010
Schultz et al. US 2005/0244560 A1 Nov. 03, 2005
Sugisawa et al.
(Sugisawa2”)
JP 59059162 A Apr. 04, 1984
Fujiwara et al. JP 10084896 A Apr. 07, 1998
Ikeda et al. JP 10210924 A Aug. 11, 1998
Kurachi et al. JP 2005341897 A Dec. 15, 2005
Ishii et al. EP 2 308 311 A1 Apr. 13, 2011

REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following rejections under 35 U.S.C. § 103(a):
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1. Claims 1, 2, 4, 5, and 10–13 as unpatentable over Ikeda in view
of Schultz, Sugisawa1, Sugisawa2, Fujiwara, Atwood, Mihalos,
Paxhia, and Kurachi; and
2. Claims 1, 2, 4, 5, and 10–13 as unpatentable over Ishii in view
of Schultz, Sugisawa1, Sugisawa2, Fujiwara, Atwood, Mihalos,
Kurachi, and Paxhia.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the record
before us, we are persuaded of reversible error in the pending rejections.
The Examiner has the initial duty of supplying the requisite factual
basis and may not, because of doubts that the invention is patentable, resort
to speculation, unfounded assumptions, or hindsight reconstruction to supply
deficiencies in the factual basis. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (“To facilitate review, [the obviousness] analysis should be
made explicit.”); see also, In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.”), quoted with approval in KSR, 550 U.S. at 418. To establish a
prima facie case of obviousness, the Examiner must show that each and
every limitation of the claim is described or suggested by the prior art or
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would have been obvious based on the knowledge of those of ordinary skill
in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988).
The Examiner acknowledges that both primary references to Ikeda
and Ishii fail to disclose supplying air flow, the characteristics and
configuration of the air flow, the configuration of the bundles, and the
changing of the orbit of the noodle strips. Ans. 4, 7. The Examiner relies on
Schultz, Sugisawa1, Sugisawa2, Fujiwara, Atwood, Mihalos, Paxhia, and
Kurachi to suggest modification of Ikeda and Ishii to meet these claimed
features.
Specifically, the Examiner finds that Mihalos discloses cooling the
dough pieces passing through a forming roller using a curtain or sheet of air
provided by a linear air nozzle or knife. Ans. 4, 8. The Examiner finds that
Kurachi discloses a cutting apparatus for preparing noodles having an air
nozzle directing air to the blade surface of the cutting part. Id. at 4, 7. The
Examiner finds Paxhia discloses an improved air jet nozzle having multiple
orifices. Id. The Examiner finds that Schultz teaches a method of forming
the flattened dough pieces, wherein the flattened dough pieces pass over a
roller during unloading of the dough pieces and are engaged by an unloading
system including an air jet device to direct a curtain or series of jets of air to
the underside of the flattened dough pieces. Id. at 4–5, 8. The Examiner
finds Atwood discloses a method for making a dough product, wherein a
proofed dough piece is engaged by a die having an air passage to direct air
into engagement with the dough to separate the dough from the die. Id. at 5,
8. The Examiner finds that Sugisawa1 discloses a method of preparing dried
noodles, wherein air is blown against raw noodles before dehydration to
harden on the surface of the raw noodle strips to prevent condensation of
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steam on the surface of raw noodles. Id. at 5, 8–9. The Examiner finds that
Fujiwara discloses a method for loosening noodle lines by spraying
compressed air directly to the noodle lines from a rotating or swinging
nozzle. Id. at 5, 9. The Examiner finds that Sugisawa2 discloses improving
the unfastening effect of noodles by blowing air directly to a noodle line. Id.
The Examiner finds that Schultz and Atwood teach that dough pieces have
the tendency to be sticky and the use of air flow facilitates the separation of
the dough pieces from working surfaces. Id. The Examiner finds that
Sugisawa1, Fujiwara, and Sugisawa2 teach that it was known to blow air
directly onto the noodle bundles to help in obtaining uniform dehydration or
to help with the loosening and unfastening effect. Id. at 5–6, 9.
The Examiner concludes that it would have been obvious to facilitate
the separation of the noodle strips in Ikeda and Ishii using an air flow as
taught by Schultz and to place the air nozzle between the upper and lower
noodle strips as they are scraped off the cutting rollers to effectively direct
the air flow directly to the noodle strips as taught in Sugisawa1 and
Fujiwara. Ans. 6, 9. The Examiner further concludes that it would have been
obvious to determine the type of movement that would optimize the process
of moving the noodle strips away from the cutting rollers and separate the
strips from each other. Id. In other words, the Examiner determines that it
would have been readily apparent to skilled artisans that directing air flow in
the direction of movement of the noodle strips would effectively separate
them and directing air flow directly at the noodle bundles would separate the
strips from the cutting rollers. Id.
Appellant argues, inter alia, that if the prior art teaches use of air flow
to separate noodles strips from each other and from the roller blades, the air
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nozzle should be placed between the noodle strips and the roller blades.
Reply Br. 3. In this regard, Appellant contends that such placement is
consistent with the teachings of Schultz, Atwood, and Kurachi, all of which
provide air between a dough handling structure and formed dough pieces. Id.
at 3–4. Appellant further contends that Sugisawa1 fails to teach any position
for air flow, whereas Sugisawa2 and Fujiwara direct air onto the noodles
downstream of the cutting rollers. Id. at 4. Also, Appellant notes that Paxhia
is silent with respect to forming a dough product and, therefore, fails to teach
any relationship between such product and cutting rollers. Id.
Appellant’s argument is persuasive of reversible error. As Appellant
argues, when faced with the problem of separating noodle strips from each
other and the cutting rollers, the prior art consistently suggests placing the
air flow between the noodle strips and the rollers, or against the strips
downstream of the cutting rollers. The Examiner fails to direct our attention
to any teaching or suggestion in the record for arranging an air flow supply
and supplying air flow between the upper and lower peeled noodle strips or
bundles in either Ikeda or Ishii as required by both claims 1 and 10, nor do
we find any. Under these circumstances, we cannot conclude that the
Examiner has met the minimum threshold of establishing obviousness under
35 U.S.C. § 103(a). See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir.
1992). Accordingly, we do not sustain the Examiner’s obviousness
rejections of claims 1, 2, 4, 5, and 10–13.
CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Appeal and Reply Briefs, the Examiner’s decision to reject claims
under 35 U.S.C. § 103(a) is reversed.
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More specifically,
the rejection of claims 1, 2, 4, 5, and 10–13 under 35 U.S.C. § 103(a)
as unpatentable over Ikeda in view of Schultz, Sugisawa1, Sugisawa2,
Fujiwara, Atwood, Mihalos, Paxhia, and Kurachi is reversed; and
the rejection of claims 1, 2, 4, 5, and 10–13 under 35 U.S.C. § 103(a)
as unpatentable over Ishii in view of Schultz, Sugisawa1, Sugisawa2,
Fujiwara, Atwood, Mihalos, Kurachi, and Paxhia is reversed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4, 5,
10–13
103(a) Ikeda, Schultz,
Sugisawa1, Sugisawa2,
Fujiwara, Atwood,
Mihalos, Paxhia,
Kurachi
1, 2, 4, 5,
10–13
1, 2, 4, 5,
10–13
103(a) Ishii, Schultz,
Sugisawa1, Sugisawa2,
Fujiwara, Atwood,
Mihalos, Kurachi,
Paxhia
1, 2, 4, 5,
10–13
Overall
Outcome
1, 2, 4, 5,
10–13

REVERSED