Ex Parte Lundberg

Patent Trial and Appeal Board

Oct 16, 2018

13914181 (P.T.A.B. Oct. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/914,181 06/10/2013
97462 7590 10/16/2018
Mark A. Litman & Associates, P.A.
7001 Cahill Road, Ste. ISA
Edina, MN 55439
FIRST NAMED INVENTOR
Brock M. Lundberg
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.
601.016US1 1964
EXAMINER
CHAWLA, JYOTI
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
10/16/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BROCK M. LUNDBERG
Appeal2017-009603
Application 13/914, 181
Technology Center 1700
Before CATHERINE Q. TIMM, GEORGE C. BEST, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 14--21. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 In our Opinion, we refer to the Specification filed June 10, 2013 ("Spec.");
the Final Office Action mailed June 1, 2016 ("Final Act."); the Appeal Brief
filed October 27, 2016 ("Br."); and the Examiner's Answer mailed April 17,
2017 ("Ans."). Appellant did not file a Reply Brief.
2 Appellant, the applicant, identifies Fiberstar, Inc. as the real party in
interest. Br. 3.
Appeal2017-009603
Application 13/914, 181
The claims are directed to procedures for manufacturing highly
refined cellulose fiber including a bound hydrocolloid. Spec. 3, 11. 20-24.
Claim 14, reproduced below from the Claims Appendix of the Appeal Brief,
is illustrative of the claimed subject matter:
14. A method for refining cellulosic material from
parenchymal fiber mass comprising:
soaking raw non-refined material from organic fiber plant
mass comprising at least 50% by weight of all fiber mass as the
parenchymal fiber mass in an aqueous solution with less than
1 %NaOH;
draining the raw non-refined material and allowing the
raw material to sit for sufficient time to enable cells in the raw
non-refined material to form open cells and expand the raw
material into an expanded fiber product, the soaking producing
soaked raw materials with open cells;
refining the soaked raw material to produce refined
material by shearing the soaked raw materials in the presence of
at least 10% by weight of hydrocolloid with respect to the
weight of the organic fiber plant mass; and
then drying the sheared mixture of highly refined
cellulosic fiber and hydrocolloid.
REFERENCES
The Examiner relies on Lundberg et al., US 2005/0074542 Al,
published April 2, 2005 in rejecting the claims on appeal.
REJECTIONS
The Examiner maintains, and Appellant seeks review of, the
following rejections: (1) claims 14--18 under 35 U.S.C. § I02(a)(2) as
anticipated by Lundberg; and (2) claims 19--21 under 35 U.S.C. § 103 as
obvious over Lundberg. Final Act. 2---6; Br. 8.
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Application 13/914, 181
OPINION
Claim 14 is the sole independent claim. Br. 19-21 (Claims App.).
Appellant does not argue any claim separately from the others. Id. 9-15.
We select claim 14 as representative of claims 15-18, which will stand or
fall with claim 14. 37 C.F.R. § 4I.37(c)(l)(iv). We address claims 19-21
separately below.
With respect to claim 14, Appellant argues that Lundberg does not
disclose shearing of the open cell material while wet and while in the
presence of at least 10% hydrocolloid prior to top drying. Br. 9. Appellant
argues that Lundberg does not indicate the time of addition ofhydrocolloid
(i.e., before the raw material has been refined by shearing), which Appellant
contends is critical to the claimed process. Id. at 10. Appellant explains:
The presence of the hydrocolloid with an unrefined, at least
partially unsheared and preferably completely unsheared
cellulosic fiber and subsequent shearing produces substantially
and unexpected beneficial results as compared with addition or
blending of the two materials, even with additional shearing,
even with equal amounts of the two ingredients.
Spec. 12, 11. 23-26.
The Examiner finds that Lundberg teaches these limitations at
paragraphs 40, 46, and 47. Final Act. 3; Ans. 2. The relevant portions of
these paragraphs of Lundberg read as follows:
draining the raw material and allowing the raw material to sit
for a sufficient period under conditions ... so that the fibers
and cells are softened so that shearing can open up the fibers
. . . . This process produces soaked raw materials; and the
process continues with refining the soaked raw material to
produce refined material; and drying the soaked raw
material. . . .
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Appeal2017-009603
Application 13/914, 181
the final product of this invention comprises a combination of
the HRC [highly refined cellulose fiber or particulate products]
and the hydrocolloid material. Any procedure that intimately
associates the two materials is acceptable, and extremely simple
procedures for effecting this are available. A very simple
process is referred to as "co-processing" which requires little
more then [sic] providing hydrocolloid material in the liquid
volute that is used during the drying stage for the fiber so that
hydrocolloid remains with the HRC .... Another method of
combining the hydrocolloid with the expanded cellulose ... is
by dry blending. The expanded fiber materials ... can be
processed with minimal effort and the refinement process can
be little more then [sic] minimizing ... , separation ... and
drying.
Lundberg ,r,r 40, 46.
The Examiner finds that Lundberg's disclosure of co-processing HRC
and hydrocolloid, and combining hydrocolloid with expanded cellulose and
refining prior to drying shows that Lundberg teaching "shearing of the open
cell material while wet and while in the presence of at least 10%
hydrocolloid." Ans. 6. We disagree.
HRC is highly refined cellulose, not the raw, open cell material of
claim 14. See Lundberg ,r 10. Thus, Lundberg discloses combining highly
refined cellulose with hydrocolloid. Id. 46. In contrast, claim 14 recites
combining raw, soaked non-refined material with hydrocolloid, and then
refining by shearing. Br. 19 (Claims App.). While the steps of a method are
not limited to a specific order unless the claim explicitly or implicitly so
requires, Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1345
(Fed. Cir. 2008), here, a plain reading of claim 14 evinces a specific order.
Appellant persuasively shows the Examiner reversibly erred in finding
claim 14 anticipated by Lundberg; we do not sustain the rejection. For the
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Appeal2017-009603
Application 13/914, 181
same reasons, we do not sustain the rejection of claims 15-18, which depend
from claim 14 and are also rejected as anticipated by Lundberg.
The Examiner rejects claims 19-21, which depend from claim 14, as
obvious over Lundberg. Final Act. 4; Ans. 3. However, as discussed above,
Lundberg does not disclose shearing of the open cell material while wet and
while in the presence of at least 10% hydrocolloid prior to top drying. The
Examiner makes no additional determination that Lundberg renders the
order of the steps obvious. Therefore, we do not sustain the rejection of
claims 19-21 over Lundberg.
DECISION
The rejections of claims 14--21 are reversed.
REVERSED
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