Ex Parte Amigh et al

Board of Patent Appeals and Interferences

May 16, 2007

10457876 (B.P.A.I. May. 16, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND
TRADEMARKHATCHADOURIANOFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEVEN AMIGN
AND HOMERO ORTEGON
____________

Appeal 2007-0485
Application 10/457,876
Technology Center 1700
____________

Decided: May 16, 2007
____________

Before PETER F. KRATZ, CATHERINE Q. TIMM, and LINDA M.
GAUDETTE, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 28, 30-34 and 38-51. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

Appeal 2007-0485
Application 10/457,876

I. BACKGROUND
The invention relates to a method for dispensing pizza sauce onto
pizza dough. Claim 28 is illustrative of the subject matter on appeal:
1. A method of dispensing pizza sauce onto an edible pizza dough
base supported by a pizza pan on a rotatable disc, the method comprising:

positioning an edible pizza dough base on a pizza pan;

centering the pizza pan on the rotatable disc;

selectively rotating the disc, pizza pan and the edible pizza dough base
thereon at a predetermined rate;

moving at least one nozzle over the edible pizza dough base;

selectively dispensing pizza sauce through the at least one nozzle onto
the pizza dough base while the pizza dough base rotates; and

terminating the dispensing operation.

The rejections as presented by the Examiner are as follows:
1. Claims 28, 30-34, and 43-51 rejected under 35 U.S.C. § 112, ¶ 2 as
indefinite;
2. Claims 28, 30, 32-34, 38, and 41-51 rejected under 35 U.S.C. § 103(a)
as obvious over Khatchadouran (WO 98/04,137) in view of
MacManus (US 3,724,417);
3. Claims 31 and 40 rejected under 35 U.S.C § 103(a) as obvious over
Khatchadourian and MacManus and further in view of Bakker (US
5,117,749); and
4. Claim 39 is rejected under 35 U.S.C § 103(a) as obvious over
Khatchadourian and MacManus and further in view of Olander (US
5,997,924).
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II. DISCUSSION
Indefiniteness
The Examiner rejects claims 28, 30-34, and 43-51 as indefinite under
35 U.S.C. § 112, ¶ 2 because “a pizza pan” as recited in line 3 of claims 28
and 46 does not have antecedent basis and, therefore, it is unclear whether
the pizza pan is the same pizza pan referenced in line 2 of those claims.
Appellants state that line 3 is referencing the same pizza pan as line 2
and upon successful resolution of the § 103 rejections, Appellants will
amend the claims as suggested by the Examiner by changing “a pizza pan”
to “ the pizza pan” in line 3 of claims 28, 46, and 47 (Br. § VII.A).
In the absence of a dispute between the Examiner and Appellants, we
summarily affirm the decision of the Examiner with respect to the rejection
under 35 U.S.C. § 112, ¶ 2.
Obviousness
Each of the obviousness rejections advanced by the Examiner relies
upon the teachings of Khatchadourian with those of MacManus. Appellants
contend that there is no motivation to combine the teachings of these two
references because the proposed modification of Khatchadourian would
render the device of Khatchadourian unsatisfactory for its intended purpose
and would change the principle of operation of the Khatchadourian
apparatus (Br. 9-11). The issue, therefore, is: Have Appellants successfully
shown that there is no reason, suggestion, or motivation to modify the device
of Khatchadourian as proposed by the Examiner?
Khatchadourian describes an apparatus and method for making pizza.
The apparatus includes a rotary index table station 20 (Khatchadourian, p. 7,
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Application 10/457,876

ll. 19-22; p. 23, ll. 11-13). Station 20 includes three plates 222, 224, and
226, each of which index between an outermost radial position and an
innermost radial position (Khatchadourian, p. 23, 19-21; Fig. 4 showing
plate 226 indexing inner and outermost positions). The plates carry pizza
dough through sauce and topping dispensing stations (Khatchadourian,
p. 23, ll. 13-14; Figs. 1 and 4 at I-VI). At the sauce dispensing station II, a
stationary nozzle dispenses sauce downwardly while the plate carrying the
dough indexes radially and rotates about its axis (Khatchadourian, p. 26, ll.
23-28). The plate’s combination indexing and rotational movement results
in a spiral pattern of sauce on the dough (Khatchadourian, p. 26, ll. 28-29;
Fig. 22).
MacManus describes a similar nozzle and turntable dispensing
apparatus for depositing a spiral of material onto a food product through
uniform relative translational movement between the nozzle and turntable
(MacManus, col. 1, ll. 48-52). According to MacManus, “the relative
translational movement may be provided by moving the nozzle over the
turntable or by moving the turntable radially relatively to the fixed nozzle.”
(MacManus, col. 1, ll. 58-62). Therefore, MacManus describes the form of
relative translational movement used by Khatchadourian and further
describes an equivalent method for obtaining a spiral of dispensed material
by moving the nozzle instead of indexing the plate or turntable.
A claimed invention is unpatentable if the differences between it and
the prior art are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having ordinary skill
in the pertinent art. 35 U.S.C. § 103(a) (2000); Graham v. John Deere Co.,
383 U.S. 1, 13-14, 148 USPQ 459, 474 (1966). Here the difference is the
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Application 10/457,876

method of relative translational movement between the nozzle and turntable
or plate. But whether one of ordinary skill in the art indexes the turntable or
the nozzle, the result is the same: A spiral of material is applied to the
substrate. MacManus shows that those of ordinary skill in the food art
understood that the two types of relative translation movement were
equivalent for dispensing a spiral of material on a food substrate. “The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” KSR Int’l. Co.
v. Teleflex Inc., 127 S. Ct. 1727, 1739, 82 USPQ2d 1385, 1395 (2007). The
art here shows that those of ordinary skill in the food processing art
understood that either known method of relative translational movement will
result in the predictable result of a spiral of material on the food substrate.
In our analysis, we do not overlook the fact that Khatchadourian is not
limited to applying just sauce to the pizza. Khatchadourian also moves the
plates to other stations in which dispensers drop toppings onto the sauce.
However, we cannot agree with Appellants that changing from an indexing
plate apparatus to an indexing nozzle apparatus would render the other
dispensing stations ineffective or inoperable. Whether one is dispensing
sauce or toppings the relative translational movement will accomplish the
same spiral application. Therefore, as found by the Examiner, those of
ordinary skill in the art would have understood that all of Khatchadourian
stations could use the dispenser movement method described by MacManus
in lieu of the indexing plates. Contrary to the arguments of Appellants, the
Examiner’s reasoning is grounded in the objective evidence provided by the
prior art. “[T]he suggestion test is not a rigid categorical rule. The
motivation need not be found in the references sought to be combined, but
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may be found in any number of sources, including common knowledge, the
prior art as a whole, or the nature of the problem itself.” DyStar Textilfarben
GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1361,
80 USPQ2d 1641, 1645 (Fed. Cir. 2006); see also KSR, 127 S. Ct. at 1741,
82 USPQ2d at 1396 (As first applied by the Court of Customs and Patent
Appeals, the suggestion test captured a helpful insight, helpful insights,
however, need not become rigid and mandatory formulas; and when it is so
applied, the suggestion test is incompatible with our precedents.).
Appellants present no arguments directed to the other subsidiary
obviousness rejections. We conclude that a preponderance of the evidence
supports the Examiner’s finding of a reason, suggestion, or motivation to
modify the device of Khatchadourian so that the nozzles and dispensers
move relative to the plate rather than indexing the plates.

III. DECISION
The decision of the Examiner to the reject claims 28, 30-34, and 43-51
under 35 U.S.C. § 112, ¶ 2 and claims 28, 30-34, and 38-51 under 35 U.S.C.
§ 103(a) is AFFIRMED.

IV. TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

cam

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