CUMMINGS, Daniel Louis.

Patent Trials and Appeals Board

Dec 9, 2019

14032322 - (D) (P.T.A.B. Dec. 9, 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.
14/032,322 09/20/2013 Daniel Louis CUMMINGS 12619-US-NP 2589
74475 7590 12/09/2019
Societe des Produits Nestlé S.A.
Attn: Patent Department
One Checkerboard Square
St. Louis, MO 63164
EXAMINER
KIM, BRYAN
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
12/09/2019 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):
Lori.Bowen@purina.nestle.com
gary.lobel@us.nestle.com
patentdepartment@rd.nestle.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL LOUIS CUMMINGS
Appeal 2019-000228
Application 14/032,322
Technology Center 1700
Before BRADLEY R. GARRIS, BRIAN D. RANGE, and
MICHAEL G. McMANUS, Administrative Patent Judges.
GARRIS, 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, 4, 8, 9, 11, and 15–18. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Nestec S.A.
Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to a method of balancing a continuous product
production flow rate with a package filling rate. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A method of balancing a continuous product production
flow rate with a package filling rate, the method comprising:
operating a food manufacturing system comprising:
a continuous aseptic food sterilization process
comprising a buffer tank and a controller, and a package
filling machine capable of delivering food product to a
package at a set package fill rate and of ceasing to deliver
the food product to the package, wherein the buffer tank
is between an aseptic sterilizer and the package filling
machine; and
applying an averaging level control scheme to the
continuous aseptic food sterilization process, the averaging
level control scheme comprising:
setting a target flow rate of food product in the
continuous food sterilization process;
setting a set point level for the food product in the
buffer tank, wherein the set point level may be set at any
level that prevents overflow of the food product in the
buffer tank and shutting down of the aseptic sterilizer;
measuring a level of the food product in the buffer
tank; and
triggering the controller to lower the target flow
rate when the measured level rises above the set point
level due to stoppage of a package filling machine,
thereby providing time to repair or restart the package
filling machine.
REJECTIONS
Under pre-AIA 35 U.S.C. § 103(a), the Examiner rejects sole
independent claim 1 as unpatentable over Cadeo (WO 2011/143782 A1,
published Nov. 24, 2011 (citations are to English language equivalent US
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2013/0064952 A1, published Mar. 14, 2013)) in view of Weng (US
2005/0031751 A1, published Feb. 10, 2005) and Torterotot (US 4,684,531,
issued Aug. 4, 1987) and rejects remaining dependent claims 4, 8, 9, 11, and
15–18 as unpatentable over these references alone or in combination with
additional prior art.2
In rejecting claim 1, the Examiner finds that Cadeo discloses a method
of balancing a continuous production flow rate with a package filling rate
comprising a continuous aseptic food pasteurization process having a buffer
tank and a controller, wherein a control scheme (i.e., corresponding to the
claimed averaging level control scheme) is applied to the process, the
scheme comprising setting a target flow rate in the process, setting a set
point level in the buffer tank, measuring a level in the buffer tank, and
triggering the controller to lower the target flow rate when the measured
level rises above the set point level due to stoppage of a filling machine,
thereby providing time to repair or restart the filling machine (Final 2–4
(citing Cadeo, e.g., ¶¶ 30, 34, 36)).
The Examiner finds that Cadeo discloses a pasteurization process
rather than the claimed sterilization process but that Weng teaches using a
sterilization process for food products (id. at 4). The Examiner concludes
that it would have been obvious to replace Cadeo’s pasteurization process
with Weng’s sterilization process in order to treat food products requiring
sterilization (id.).

2 Appellant does not present arguments specifically directed to the
dependent claims under rejection (see Appeal Br. 5–10). Consequently, the
dependent claims will stand or fall with their parent independent claim 1.
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Finally, the Examiner finds that Cadeo is silent regarding the claim
feature of a buffer tank between a sterilizer and a package filling machine
but that Torterotot discloses this feature (id. at page 5). The Examiner
concludes that, in view of Torterotot, it would have been obvious to use
Cadeo’s aseptic container 22 as a buffer tank between the modified-Cadeo
sterilizer and the package filling machine (id.).
OPINION
We will sustain the rejections before us for the reasons given by the
Examiner in the Final Office Action and in the Examiner’s Answer. We add
the following comments for emphasis.
Appellant disputes the Examiner’s determination that Cadeo teaches
or would have suggested the claimed averaging level control scheme
(Appeal Br. 6–7). According to Appellant, “[a]s explained in an Inventor
Declaration filed with the September 18, 2017, Office [A]ction Response,
‘averaging level control’ is well understood by those skilled in the art as a
specific control scheme that minimizes the rate of change to the
manipulated variable (i.e., flow) by actually allowing the level to change,
and changing the manipulated variable only as required to keep the level
within its set point limit” (id. at 6). Appellant argues, “[n]o combination of
the references cited by the Examiner discloses the use of averaging level
control as understood by one skilled in the art” (id. at 7).
However, we agree with the Examiner that it is reasonable and
consistent with the Specification to interpret the claim phrase “averaging
level control scheme” as comprising setting a target flow rate for continuous
product production as disclosed in the Specification and as recited in claim 1
(Final 2–3, Ans. 11, both citing Spec. ¶ 10). We also agree with the
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Examiner’s determination that the proposed combination of Cadeo, Weng,
and Torterotot yields each of the steps recited in claim 1 as comprising the
“averaging level control scheme” and, in so doing, satisfies this quoted
limitation (Final 5, Ans. 11). Finally, we emphasize the Examiner’s point
that “there does not appear to be any disclosure in the [S]pecification
regarding the term [‘averaging level control scheme’] including the meaning
‘minimizes the rate of change’ [as stated in the Appeal Brief and the
Declaration]” (Ans. 11). Appellant does not dispute this point (see generally
Reply Br.).
Concerning the Examiner’s proposed substitution of Weng’s sterilizer
for Cadeo’s pasteurizer, Appellant argues, “the differences between
pasteurizing and sterilizing are significant, [and] . . . it would not be
reasonable to one skilled in the art to substitute an aseptic sterilizer for a
pasteurizer” (Appeal Br. 8). Appellant further argues that such a substitution
“would remove the buffering aspect of the Cadeo pasteurizer making it
inoperable for its intended purpose” (id. at 9).
These arguments are unpersuasive for the reasons detailed by the
Examiner (Ans. 12–13). As explained by the Examiner, an obviousness
conclusion regarding the proposed substitution is supported by a number of
factors including Torterotot’s repeated disclosures that heat treatments for
food products can include either pasteurization or sterilization treatments (id.
at 12). In this regard, we observe that Appellant does not address, much less
show error in, the Examiner’s reasoning that the substitution would have
been made in order to process foods that require sterilization (Final 4). The
Examiner also correctly explains that the substitution would not remove the
buffering aspect of Cadeo because Weng’s sterilizer comprises a holding
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section and because the proposed combination of Cadeo, Weng, and
Torterotot results in a buffer tank between an aseptic sterilizer and a package
filling machine as claimed (id. at 13). We emphasize that Appellant does
not contest the Examiner’s conclusion that, in view of Torterotot, it would
have been obvious to use Cadeo’s aseptic container 22 as a so-located buffer
tank (see generally Appeal Br., cf. Final 5, Ans. 13).
For the reasons given by the Examiner and emphasized above, we
sustain the §103(a) rejections under consideration.
CONCLUSION
We affirm the Examiner’s decision to reject claims 1, 4, 8, 9, 11, and
15–18.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4, 8, 9,
11, 15–18
103(a) Cadeo, Weng,
Torterotot, alone or
in combination
with additional
prior art
1, 4, 8, 9,
11, 15–18

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