Ex Parte Garrett et al

Patent Trials and Appeals Board

Mar 22, 2019

13246027 - (D) (P.T.A.B. Mar. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/246,027 09/27/2011 Edward S. Garrett
25763 7590 03/26/2019
DORSEY & WHITNEY LLP - MINNEAPOLIS
ATTENTION: PATENT PROSECUTION DOCKETING DEPARTMENT
INTELLECTUAL PROPERTY PRACTICE GROUP - PT/16TH FL
50 SOUTH SIXTH STREET, SUITE 1500
MINNEAPOLIS, MN 55402-1498
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P256812.US.04 3408
EXAMINER
STAPLETON, ERIC S
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
03/26/2019 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):
ip.docket@dorsey.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARDS. GARRETT, RICHARD D. WOODFORD,
and CHARLES F. COOK
Appeal2017-007423
Application 13/246,027
Technology Center 3700
Before MICHAEL L. HOELTER, MICHAEL J. FITZPATRICK, and
JEREMY M. PLENZLER, Administrative Patent Judges.
FITZPATRICK, Administrative Patent Judge.
DECISION ON APPEAL
Edward S. Garrett, Richard D. Woodford, and Charles F. Cook
("Appellants") 1 appeal under 35 U.S.C. § 134(a) from the Examiner's final
decision rejecting claims 1 and 3-32. We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.
1 Appellants identify West Liberty Foods, L.L.C. as the real party in interest.
Appeal Br. 3.
Appeal2017-007423
Application 13/246,027
STATEMENT OF THE CASE
The Specification
The disclosure "is directed to systems, methods and structures for
reducing the likelihood of contamination of processed foods by bacteria,
other microorganisms, or other pathogens." Spec. i-f2.
The Rejected Claims
Claims 1 and 3-32 are pending and rejected. Final Act. 1. Claims 1,
5, and 9 are independent. Appeal Br. 33--44. Claim 1 is representative and
reproduced below.
1. A food processing facility, comprising:
a plurality of secure area single-line food processing
rooms, each secure area single-line food processing room
comprising a structurally defined secure area to facilitate
maintenance of a substantially sterile level of cleanliness which
prevents the presence and growth of Listeria, Salmonella and
other pathogenic microorganisms, and having a single line of
series-connected food processing elements including at least
one food processing device and at least one food packaging
device, each secure area single-line food processing room and
its single line of series-connected food processing elements at
the first substantially sterile level of cleanliness, the plurality of
secure area single-line food processing rooms each being
individually atmospherically and structurally isolated from one
another to prevent any contamination occurring in any such
food processing room or series-connected food processing
element therein from contaminating food products processed in
any other of such plurality of secure area single-line food
processing rooms and series-connected food processing
elements therein;
at least one delivery area, each delivery area being
structurally defined to facilitate management of a level of
substantial cleanliness therein that can be below the first
substantially sterile level of cleanliness but will substantially
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Application 13/246,027
prevent contamination of previously processed food products
conveyed through the delivery area;
at least one at least semi-secure packaged food receiving
area, each packaged food receiving area being structurally
defined to facilitate maintenance of a level of substantial
cleanliness therein that can be below the first substantially
sterile level of cleanliness but prevents contamination of
hermetically sealed food packages received or transported
within the packaged food receiving area;
a first passage extending from each of the plurality of
secure area single-line food processing rooms to the delivery
area, and a second passage extending from each of the plurality
of secure area single-line food processing rooms to the
packaged food receiving area;
at least one at least semi-secure buffer area, each buff er
area being structurally defined to be maintained at a level of
cleanliness therein that can be below the level of cleanliness of
the delivery area but will prevent contamination of previously
processed food products being conveyed therethrough, and of
personnel, clean uniforms, cleaning supplies and equipment
located within and passing through such semi-secure buffer
area;
at least one unsecure common area, each common area at
a level of cleanliness that can be below the level of cleanliness
of the buffer area, wherein the level of cleanliness of the
common area is appropriate for management staff and
personnel support activities; and
one or more sanitizing stations located between two or
more adjacent areas.
Id. at 33-34.
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Appeal2017-007423
Application 13/246,027
The Appealed Rejections
The following rejections are before us for review:
1. claims 30-32 under 35 U.S.C. § 112 ,II (Final Act. 4);
2. claims 1, 3, 5-15, and 19-32 under 35 U.S.C. § I03(a) as
unpatentable over Phebus2 (id. at 5);
3. claim 4 under 35 U.S.C. § I03(a) as unpatentable over Phebus
and Koke 3 (id. at 22); and
4. claims 16-18 under 35 U.S.C. § I03(a) as unpatentable over
Phebus and Higgins4 (id. at 23).
DISCUSSION
Rejection 1
The Examiner rejected 30-32 under 35 U.S.C. § 112 ,II. Final Act. 4.
Claims 30-32 recite "the plurality of secure area single-line food processing
rooms are not serially or successively operationally connected to each
other." Appeal Br. 42--43. In the Examiner's determination, the application
as filed "does not disclose that the plurality of secure area single-line food
processing rooms are not serially or successively connected to each other
and the drawings do not show the plurality of secure area single-line food
processing rooms are not serially or successively connected to each other, as
indicated above." Final Act. 4.
"In order to satisfy the written description requirement, the disclosure
as originally filed does not have to provide in haec verba support for the
2 US 2003/0047087, published March 13, 2003 ("Phebus").
3 US 2004/0028777 Al, published Feb. 12, 2004 ("Koke").
4 US 2004/0187396 Al, published Sept. 30, 2004 ("Higgins").
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Appeal2017-007423
Application 13/246,027
claimed subject matter at issue." Purdue Pharma L.P. v. Faulding, Inc., 230
F.3d 1320, 1323 (Fed. Cir. 2000). Nonetheless, the disclosure must convey
with reasonable clarity to those skilled in the art that the inventor was in
possession of the invention. See id.
Appellants argue that Figure 1 and related disclosure of the
application adequately describe the claimed inventions of claims 30-32.
Appeal Br. 10. Figure 1 is reproduced below.
' ,'
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Figure 1 of the application, reproduced above, shows "a schematic top plan
view of a first exemplary embodiment of a food processing facility and food
processing systems." Spec. i-f35. Figure 1 includes "a plurality of single-line
food processing rooms 140." Id. ,I53. As argued by Appellants, "[t]he
various single-line food processing rooms 140 shown in Figure 1 are not
arranged in series or following one after the other, but instead are disclosed
in a parallel or side-by-side relationship." Appeal Br. 11. The disclosure
explains:
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Application 13/246,027
[T]here is a single food product inlet from the food delivery 130
to a single-line food processing room 140 and a single outlet
from a single-line food processing room 140 to a packaged food
receiving area 150. The food processing devices in that single-
line food processing room 140 are independent of the food
processmg devices in any other single-line food processing
room.
Spec. i-f56; see also id. ,I58 ("[A]ny food product leaving a single-line food
processing room 140 will be packaged before it leaves that single-line food
processing room 140. ").
We agree with Appellants that the application as filed adequately
describes "the plurality of secure area single-line food processing rooms are
not serially or successively operationally connected to each other," as recited
in claims 30-32. Accordingly, the rejection of claims 30-32 under
35 U.S.C. § 112 ,II is reversed.
Rejection 2
The Examiner rejected claims 1, 3, 5-15, and 19-32 under 35 U.S.C.
§ I03(a) as unpatentable over Phebus. Final Act. 5.
A patent claim is unpatentable under 35 U.S.C. § I03(a) if the
differences between the claimed subject matter 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 art to which said
subject matter pertains. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations, including: ( 1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and ( 4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
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Application 13/246,027
"An examiner bears the initial burden of presenting a prima facie case
of obviousness." See, e.g., In re Huai-Hung Kao, 639 F.3d 1057, 1066 (Fed.
Cir. 2011) ( citations omitted). The Examiner has not done so here.
With respect to the scope and content of the prior art (Phebus), the
Examiner found that it disclosed the entire subject matter of claim 1. Final
Act. 5-8. Yet, the Examiner did not reject claim 1 as anticipated by Phebus.
Instead, he determined that Phebus rendered claim 1 obvious because "[i]t
would have been obvious to one of ordinary skill in the art at the time the
invention was made to modify Phebus as suggested and taught by Phebus in
order to maintain processed food in a decontamination state." Id. at 21 (bold
typeface removed, italics added).
It is unclear what if any alleged differences there are between the prior
art (Phebus) and claim 1. This is so because the Examiner confusingly
asserted that Phebus discloses claim 1 while also finding that some
modification of Phebus would be needed to reach claim 1. Compare id. at
5-8, with id. at 21.
Further, the Examiner has not identified what the purported
modification would be. In that regard, the Examiner asserted that it would
have been obvious "to modify Phebus as suggested and taught by Phebus"
but did not identify the actual modification or the alleged suggestion and
teaching. Id. at 21.
Finally, the Examiner's findings about what Phebus teaches cannot be
sustained on the record presented. The Examiner has simply repeated the
claim limitations and asserted that Phebus discloses them without providing
any specific citations or explanation. Indeed, the rejection repeatedly cites
virtually the entire disclosure of Phebus, namely both of its figures and its
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Application 13/246,027
entire Detailed Description. See Final Act. 5-8 (repeatedly citing Phebus
Figs. 1-2, ,T,TI9-64).
The same deficiencies with rejection of claim 1 underlie the rejection
of independent claims 5 and 9. Thus, for the foregoing reasons, we reverse
the rejection of independent claims 1, 5, and 9 under 35 U.S.C. § I03(a) as
unpatentable over Phebus. We likewise reverse the rejection of claims 3, 6-
8, 10-15, and 19-32, which ultimately depend from claims 1, 5, or 9. See In
re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988) ("Dependent claims are
nonobvious under section 103 if the independent claims from which they
depend are nonobvious.").
Rejections 3 and 4
The Examiner rejected, under 35 U.S.C. § I03(a), claim 4 as
unpatentable over Phebus and Koke and claims 16-18 as unpatentable over
Phebus and Higgins. Final Act. 22-23. Claims 4 and 16-18 ultimately
depend from either claim 1 or claim 9. The Examiner did not apply the
additional references, i.e., Koke and Higgins, to cure the deficiencies noted
above in the rejection of claims 1 and 9 as unpatentable over Phebus. Id.
Accordingly, for the same reasons as discussed above, we also reverse the
rejection of claim 4 as unpatentable over Phebus and Koke and claims 16-18
as unpatentable over Phebus and Higgins.
DECISION
The Examiner's rejection of claims 30-32 under 35 U.S.C. § 112 ,Tl is
reversed.
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Application 13/246,027
The Examiner's rejection of claims 1, 3, 5-15, and 19-32 under
35 U.S.C. § 103(a) as unpatentable over Phebus is reversed.
The Examiner's rejection of claim 4 under 35 U.S.C. § 103(a) as
unpatentable over Phebus and Koke is reversed.
The Examiner's rejection of claims 16-18 under 35 U.S.C. § 103(a) as
unpatentable over Phebus and Higgins is reversed.
REVERSED
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