Keith Alan. Barber et al.Download PDFPatent Trials and Appeals BoardJul 18, 201914475039 - (D) (P.T.A.B. Jul. 18, 2019) Copy Citation 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. 14/475,039 09/02/2014 Keith Alan BARBER CFLAY.00963 9593 110933 7590 07/18/2019 Carstens & Cahoon, LLP PO Box 802334 Dallas, TX 75380 EXAMINER WARD, THOMAS JOHN ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 07/18/2019 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 KEITH ALAN BARBER, JUSTIN FRENCH, GIRISH GANJYAL, CHRISTOPHER JAMES KOH, and SCOTT L. SULLIVAN ____________ Appeal 2017-011819 Application 14/475,0391 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, TARA L. HUTCHINGS, and ROBERT J. SILVERMAN, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the Examiner’s decision rejecting claims 1–9. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE and enter a NEW GROUND OF REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b). 1 “The real party in interest in this appeal is . . . Frito-Lay North America, Inc.” Appeal Br. 2. Appeal 2017-011819 Application 14/475,039 2 STATEMENT OF THE CASE Subject Matter on Appeal The Appellants’ “invention relates to an improved method and system for the production of a fried snack food with reduced oil content.” Spec. ¶ 2. Claim 1, the sole independent claim, is representative of the subject matter on appeal and reproduced below. 1. A system for producing fried food pieces comprising: an immersion fryer using hot oil, wherein said hot oil comprises an initial par-fry oil temperature and a final par-fry oil temperature, that receives food pieces and produces par-fried food pieces; a takeout means that removes said par-fried food pieces from said immersion fryer; a submerger upstream from the takeout means; and at least one submerged hot oil curtain inside the hot oil, where the at least one submerged hot oil curtain is a narrow region of oil located only in close proximity to said takeout means, wherein the at least one submerged hot oil curtain covers said par-fried food products in oil at an initial finish-fry oil temperature, wherein said initial finish-fry oil temperature is greater than said final par-fry oil temperature, and wherein said at least one submerged hot oil curtain is provided by at least one hot oil dispenser located no lower than the submerger so that the submerged hot oil curtain cascades downwardly from a position above a product bed as it passes under the submerger of said immersion fryer. Rejection Claims 1–9 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Schonauer et al. (US 4,929,461, iss. May 29, 1990) (“Schonauer”), Eves, II (US 4,882,984, iss. Nov. 28, 1989) (“Eves”), and Mottur et al. (US 4,923,705, iss. May 8, 1990) (“Mottur”). Appeal 2017-011819 Application 14/475,039 3 ANALYSIS Obviousness based on Schonauer, Eves, and Mottur Claim 1 calls for an immersion fryer with different temperatures of hot oil. See Appeal Br., Claims App. More specifically, claim 1 calls for hot oil with an initial finish-fry oil temperature being greater than the final par-fry oil temperature. Id.; see also Appeal Br. 3 (citing Spec. ¶¶ 22, 25– 27). The Appellants’ argument is based on an explanation that contrasts Schonauer’s continuous frying process with the Examiner’s rationale for modifying Schonauer’s process in view of Eves’ teachings. Reply Br. 4. The Appellants point out that “Schonauer teaches a continuous frying process that conveys potato slices through an initial frying region with a temperature from about 115°C – 155°C and then through a final frying region with a temperature from about 165°C – 185°C.” Id. Also, the Appellants point out that “the Examiner’s purported combination of Eve[]s with Schonauer to add all Eves’ manifolds[] 61–68 down the entire length of the fryer ‘to allow for the uniform frying [of a] fried food stuff,’ would result in a plurality of uniform temperature zones.” Id. The Appellants’ argument is persuasive. The Examiner’s rejection includes a rationale which is difficult to reconcile with Schonauer’s teachings. On the one hand, the Examiner finds Schonauer’s frying system includes tank 10 having frying oil with multiple temperatures. See Final Act. 3. On the other hand, the Examiner’s rationale for modifying Schonauer’s frying tank in view of Eves’ teachings is to “allow for the uniform frying a of fried food stuff.” Id. at 4. The benefit of “uniform frying a of fried food stuff” suggests strongly that the result of the Appeal 2017-011819 Application 14/475,039 4 modification is to have a frying tank that achieves uniform frying by maintaining a uniform temperature of oil throughout the tank. Consequently, the modification seeks a result that is not only unfitting of Schonauer’s frying system, but the claimed invention as well. Therefore, we determine that the Examiner’s rejection suffers from an inadequate rationale for combining the teachings of Eves with Schonauer. Additionally, the deficiency in the rationale is not remedied by the additional findings and/or reasoning associated with the Examiner’s rejection of claims 1–9. Thus, we do not sustain the Examiner’s rejection of claims 1–9 as unpatentable over Schonauer, Eves, and Mottur. New Ground of Rejection Claims 7–9 are newly rejected under pre-AIA 35 U.S.C. § 112, second paragraph, as indefinite. Dependent claim 7 recites, “[t]he system of claim 1, wherein the narrow region is less than half of a distance that the food pieces travel through the oil in the immersion fryer.” Appeal Br., Claims App. The recitation is similar to those in claims 8 and 9, which call for less than one- third and one-quarter, respectively, of the distance that the food pieces travel through the oil in the immersion fryer. Id. One of ordinary skill in the art would understand that the immersion fryer is a three-dimensional container and the claimed food pieces would not be expected to travel in only one dimension through the oil in the immersion fryer. Rather, one of ordinary skill in the art would understand that the food pieces may travel through the oil in the immersion fryer by moving up, down, left, right, and/or forward, and perhaps, backwards. Accordingly, the Appeal 2017-011819 Application 14/475,039 5 total distance travelled by the food pieces through the oil in the immersion fryer would vary. Moreover, the claimed portions of distance travelled by the respective food pieces would vary for the same reason. Therefore, we determine that the recitations of dependent claims 7–9 are unclear and indefinite. See Ex parte McAward, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential) (explaining that the USPTO considers a claim indefinite when it “contains words or phrases whose meaning is unclear”). Thus, we determine that dependent claims 7–9 are indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. DECISION We REVERSE the Examiner’s rejection of claims 1–9. NEW GROUND OF REJECTION of claims 7–9 under 35 U.S.C. § 112, second paragraph, as indefinite pursuant to our authority under 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. . . . Appeal 2017-011819 Application 14/475,039 6 (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. 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). REVERSED; 37 C.F.R. § 41.50(b) Copy with citationCopy as parenthetical citation