Aspen Ice, LLC

Patent Trials and Appeals Board

Oct 23, 2020

13573129 - (D) (P.T.A.B. Oct. 23, 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.
13/573,129 08/23/2012 Mark Witt 387398-000001 3123
128166 7590 10/23/2020
DLA Piper LLP (US) Boston
Attn: Patent Group
11911 Freedom Dr.
Suite 300
Reston, VA 20190
EXAMINER
STCLAIR, ANDREW D
ART UNIT PAPER NUMBER
3799
NOTIFICATION DATE DELIVERY MODE
10/23/2020 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):
BostonIPDocketing@dlapiper.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARK WITT, MARGARET LOWAN BENEZRA,
CRAIG ANDERSON, MARTIN RATHGEBER, KING YA MOY,
NATAN PHEIL, DANIEL A. PETERSON, and DAVID CHESLEY

Appeal 2020-002251
Application 13/573,129
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 5–11, and 32. Claims 3, 4, 12–31,
and 33 are cancelled. Ans. 2; Appeal Br. 9 n.1, 19–20 (Claims App.). The
Appellant’s arguments were heard in an oral hearing held on October 15,
2020. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies “[t]he real party in interest is the
Assignee of the above-captioned application, ASPEN ICE, LLC.” Appeal
Br. 2.
Appeal 2020-002251
Application 13/573,129

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STATEMENT OF THE CASE
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below with italics added.
1. An ice bagger comprising:
a generally funnel-shaped ice hopper for receiving ice from
an ice manufacturer, the ice hopper defining an ice
hopper aperture thereunder;
an ice trough operably positioned beneath the ice hopper
aperture to receive ice from the ice hopper, the ice hopper
aperture and the ice trough being substantially co-
extensive, the ice trough defining a bottom surface that is
slightly inclined towards a trough aperture such that
water that has accumulated in the ice trough drains away
from the trough aperture;
a channel extending from an end of the ice trough opposite
the trough aperture to an outside surface of the ice
bagger, the channel configured to channel accumulated
water away from the ice trough;
an ice auger housed inside the ice trough, the ice hopper
aperture, the ice trough, and the ice auger being
substantially co-extensive, the ice auger in driving
connection with a motor, the ice auger adapted to
transport ice along the ice trough towards the trough
aperture, the ice auger transporting the ice upwardly at an
incline sufficient to cause water resulting from melted ice
to drain away from the trough aperture;
an ice agitator comprising a bar extending along the length
of the hopper, the bar adapted to rotate around an axis
along the length of the hopper, the bar having a plurality
of fingers positioned perpendicular to a longitudinal axis
of the bar to provide horizontal agitation to stir and churn
ice in the ice hopper to prevent ice from bridging;
an ice delivery chute positioned beneath the trough aperture;
a hatch positioned beneath the ice delivery chute, the hatch
adapted to release a filled bag for storage, the ice delivery
Appeal 2020-002251
Application 13/573,129

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chute and the hatch defining a bag filling area such that,
when bags are present in the bag filling area, the bags are
positioned to be filled; and
a scale positioned on the hatch, the scale positioned to weigh
the ice being deposited in the bag to determine when a
designated amount of ice has been deposited into the bag.
Appeal Br. 18, Claims App.

Rejections
Claims 1, 2, 5, 9–11, and 32 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Schroeder2, Zimmerman3, and Stuart4.
Claims 6 and 8 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Schroeder, Zimmerman, Stuart, and James5.
Claim 7 is rejected under U.S.C. § 103(a) as unpatentable over
Schroeder, Zimmerman, Stuart, James, Allen6, and TEPTD7.

ANALYSIS
The Appellant argues that the proffered combination of teachings of
Schroeder, Zimmerman, and Stuart in the Final Office Action fails to teach
“a channel extending from an end of the ice trough opposite the trough
aperture to an outside surface of the ice bagger, the channel configured to

2 Schroeder et al. (US 5,458,851, iss. Oct. 17, 1995) (“Schroeder”).
3 Zimmerman (US 3,151,668, iss. Oct. 6, 1964).
4 Stuart (US 5,109,651, iss. May 5, 1992).
5 James (US 2004/0084106 A1, pub. May 6, 2004).
6 Allen et al. (US 7,281,694 B2, iss. Oct. 16, 2007) (“Allen”).
7 Twin Eagles Paper Towel Drawer, published June 26, 2009,
www.twineaglesinc.com/products/Paper-Towel-Drawer.shtml (accessed
Nov. 19, 2015) (“TEPTD”).

Appeal 2020-002251
Application 13/573,129

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channel accumulated water away from the ice trough,” as recited in
independent claim 1. Appeal Br. 10–12. The Appellant points out that the
Examiner does not rely on the teachings of Schroeder or Zimmerman to
meet the disputed claim limitation; rather the Examiner relies Stuart’s
teaching of drain 24. See id. at 10 (citing Final Act. 6); see also Final
Act. 4–6. The Appellant contends that the Examiner’s finding that Stuart
teaches the disputed limitation is inadequately supported. See Appeal
Br. 10–12. The Appellant’s argument is persuasive for the following
reasons.
The Examiner finds:
Stuart teaches an ice bagger ([F]igures 1 and 2) having a
channel (24) extending from the ice trough (14) opposite the
trough aperture (opening on the left side of trough 14 in
[F]igure 2) to an outside surface of the ice bagger . . . , the
channel (24) [is] configured to channel accumulated water away
from the ice trough (14).
Final Act. 6. In the Answer, the Examiner primarily relies on Stuart’s
description at column 2, line 66 – column 3, line 1, and Figures 2 and 4 to
support the disputed finding. See Ans. 3–5.
As for Stuart’s description, Stuart describes, with italics added and
bold type omitted, “[b]ecause of the total isolation of ice collection system
from the bagging mechanism and the provision of a drain 24 to remove
incidental water from the system, the present invention is not dependent on
any particular ice making machine.” Stuart col. 2, l. 66–col. 3, l. 1. The
Examiner finds that “the system” in this description refers to a combination
of Stuart’s ice bagging apparatus, an ice making apparatus, and a bagged ice
storage zone. Ans. 4. We disagree with this finding. We understand “the
system” to refer back to the “ice collection system,” which was referenced
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Application 13/573,129

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earlier in the sentence. Accordingly, we determine that the Examiner’s
finding is unsupported. Based on this unsupported finding, the Examiner’s
determines that “the phrase ‘remove . . . [water] from the system’ means that
the drain leads to the outside of the system” (Ans. 4 (brackets in original)).
This determination is likewise unsupported. See also Reply Br. 3.
As for Stuart’s Figures 2 and 4, the Examiner finds that Stuart shows
drain 24 with break lines. Ans. 4–5. The Examiner explains:
The depictions in the Stuart reference are not intended to show
that the drain tube ends arbitrarily and dumps water inside the
housing (3), because if that were true then there would be no
need for a drain tube at all; if the purpose of the drain of Stuart
were to merely dump water out of the auger tube (14) without
removing it from the system, then the auger tube (14) could
simply have a hole and the drain tube (24) and fitting (22) could
be omitted (see e.g. figure 4 of Stuart).
Id. The Appellant acknowledges that “the alleged ‘break lines’ when
properly interpreted may indicate that the tube 24 extends further.” Reply
Br. 2. However, the Appellant persuasively contends that the break lines
“provide no indication or teaching that the drain tube itself extends to the
outside surface of Stuart’s apparatus,” and that Stuart’s remaining figures do
not support the Examiner’s finding. Id. The Examiner’s explanation offers
speculation as to what Stuart is “not intended to show,” and then offers
further speculation as to what Stuart is intended to show. The Examiner’s
explanation, however, does not address what Stuart actually shows. Stuart
shows one end of drain 24 that extends from tube 14, and the other end of
drain 24 is simply not shown. Therefore, the Examiner’s finding that Stuart
shows drain 24 extending from an end of tube 14 to an outside surface of
Stuart’s ice bagger is based on speculation. See Reply Br. 2–3.
Appeal 2020-002251
Application 13/573,129

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Thus, we do not sustain the Examiner’s rejection of independent
claim 1 and dependent claims 2, 5, 9–11, and 32. Further, the Examiner fails
to rely on the combined teachings of Schroeder, Zimmerman, and Stuart
with those of James or James, Allen, and TEPTD in any manner that would
remedy the deficiency in the Examiner’s rejection as discussed above. Thus,
we do not sustain the Examiner’s rejections of dependent claims 6–8.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5,
9–11, 32
103(a) Schroeder,
Zimmerman, Stuart

1, 2, 5,
9–11, 32
6, 8 103(a) Schroeder,
Zimmerman, Stuart,
James
6, 8
7 103(a) Schroeder,
Zimmerman, Stuart,
James, Allen, TEPTD
7
Overall
Outcome
1, 2,
5–11, 32

REVERSED