Ex Parte Barrows

Patent Trial and Appeal Board

Sep 28, 2017

13492163 (P.T.A.B. Sep. 28, 2017)

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.
13/492,163 06/08/2012 Ryan H. Barrows 3030.161US01 7677
24113 7590 09/28/2017
PATTERSON THUENTE PEDERSEN, P.A.
80 SOUTH 8TH STREET
4800 IDS CENTER
MINNEAPOLIS, MN 55402-2100
EXAMINER
LAUX, DAVID J
ART UNIT PAPER NUMBER
3743
MAIL DATE DELIVERY MODE
09/28/2017 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 RYAN H. BARROWS
____________________

Appeal 2016-001681
Application 13/492,163
Technology Center 3700
____________________

Before JENNIFER D. BAHR, ARTHUR M. PESLAK, and
ANTHONY KNIGHT, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Ryan H. Barrows (Appellant)1 appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision, set forth in the Final Action (dated Mar. 31, 2015),
and repeated in the Answer (dated Sept. 22, 2015, hereinafter “Ans.”),
rejecting claims 1, 3–5, 7–15, 17, and 19–22. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 The Appeal Brief (filed July 7, 2015, hereinafter “Appeal Br.”) identifies
National Presto Industries, Inc. as the real party in interest. Appeal Br. 2.
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Application 13/492,163

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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A food dehydrator, comprising:
a base portion;
at least one tray comprising at least one aperture, wherein
the at least one aperture defines an air flow passage;
and a cover,
wherein the at least one tray is placed on the base
portion to define an air supply plenum proximate a circular
perimeter, and wherein the cover is placed on the at least
one tray to define a dehydrating configuration having a
dehydrating height; and
wherein the at least one tray is flipped upside down
to nest within a corresponding coupling feature of the base
portion and the cover is placed on the at least one tray to
define a storage configuration, wherein the at least one
tray interfaces with the base portion to define a storage
height that is less than the dehydrating height.

REJECTIONS
I. Claims 1, 7, 8, 15, and 22 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Su (US 5,215,004, issued June 1, 1993),
Solheim (US 4,457,432, issued July 3, 1984), and Alseth
(US 5,437,108, issued Aug. 1, 1995).
II. Claims 3–5, 17, and 19–21 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Su, Solheim, Alseth, and Glucksman
(US 4,236,063, issued Nov. 25, 1980).
III. Claims 9 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Su, Solheim, Alseth, and Erickson
(US 4,536,643, issued Aug. 20, 1985).
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IV. Claims 11–14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Su, Solheim, Alseth, and Horng (US 8,684,661
B2, issued Apr. 1, 2014).

DISCUSSION
Rejection I
Appellant groups all of the claims together in contesting the rejection.
Appeal Br. 7–10. Pursuant to See 37 C.F.R. § 41.37(c)(1)(iv), we select
claim 1 as representative of the group and decide the appeal of the rejection
as to claims 1, 7, 8, 15, and 22 on the basis of claim 1.
The Examiner finds that Su discloses a dehydrator as called for in
claim 1, except that Su fails to disclose that “the at least one tray is flipped
upside down to nest within the base portion in the storage configuration” and
the trays define an air supply plenum proximate a circular perimeter of a tray
portion. Ans. 3. Instead of flipping the trays (circular containers 12a, 12b),
Su provides corresponding annular protuberances and/or annular recesses on
opposite sides of containers 12a, 12b, base members 11a, 11b, and cover
members 13a, 13b. Su 1:56–2:6. When the dehydrator is not in use, Su
rotates the containers downwardly to further engage the protuberances into
the respective recesses, bringing the containers and base member closer
together, while also inverting cover member 13b and base member 11b and
reversing the positions of base members 11a, 11b, thereby decreasing the
volume of the dehydrator to facilitate storage thereof. Id. 2:7–15.
The Examiner finds that Alseth teaches adjacent trays defining an air
supply plenum proximate a circular perimeter of a tray portion, and
determines it would have been obvious to combine the air circulation
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teachings of Alseth with Su to provide “the added benefit of allowing a more
efficient way to move air throughout the dehydrator which leads to a faster
process time.” Ans. 3. Appellant does not contest either the Examiner’s
findings regarding the teachings of Alseth or the Examiner’s determination
that it would have been obvious to combine the teachings of Su and Alseth.
See Appeal Br. 7–10.
The Examiner finds that “Solheim teaches flipping a tray upside down
to nest with another tray in a storage configuration.” Ans. 3 (citing Solheim,
Fig. 5, 5:39–41). The Examiner determines it would have been obvious to
provide Su’s containers with this inverting/nesting feature, instead of
rotating them to further engage protuberances into corresponding recesses,
to provide the added benefit of “faster disassembly for cleaning while
maintaining a reduced volume during a storage configuration.” Ans. 3.
Appellant argues that “[f]lipping a tray over is a significant departure
from rotating circular containers relative to one another as described and
claimed in Su and would fundamentally change the principle of operation of
Su.” Appeal Br. 8. Appellant adds that “such a change would require
substantial reconstruction/redesign of Su” because the protuberances and
recesses that facilitate expansion and collapse of Su’s dehydrator “would no
longer be required and instead, could interfere with” the nesting
arrangement. Id. at 8–9. Appellant also contends that because Su’s
“dehydrator already achieves a reduced storage height design,” a person
having ordinary skill in the art would have had no reason to undertake the
substantial changes in principle of operation and redesign necessary to arrive
at the claimed subject matter. Id. at 9. Further, Appellant argues that
altering the protuberance/recess design of Su to accommodate flipping and
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nesting of the trays “would likely render the Su dehydrator as inoperable and
unfit for its intended purpose, i.e., rotatable collapsing.” Id.
We do not agree with Appellant that redesigning the circular
containers of Su’s dehydrator so that they can be flipped into a nesting
configuration for storage would change the principle of operation of Su’s
dehydrator. The Examiner finds that “the principle [of] operation of Su is to
provide a dehydrator having a reduced height storage design.” Ans. 7. Su
supports this finding. More specifically, Su teaches that “[i]t is the primary
object of the present invention to provide a dehydrator which may be
collapsed when not in use.” Su 1:16–18. Su points out that “the invention is
not limited in its application to the details of construction and arrangement
of parts illustrated in the accompanying drawings, since the invention is
capable of other embodiments and of being practiced or carried out in
various ways.” Id. 1:47–52.
Appellant contends that the Examiner’s statement of the principle of
operation of Su is “impermissibly broad” because it ignores Su’s “express
disclosure and interaction of the described and claimed elements, i.e., the
protuberances, recesses and the rotatable interaction of the container
members.” Reply Br. 3. Su’s disclosure with respect to the protuberances
and recesses, and the rotatable interaction of the container members, alluded
to by Appellant, relates to the particular embodiment, or means, by which
Su’s principle of operation (i.e., providing “a dehydrator which may be
collapsed when not in use”) is achieved. Our reviewing court’s decision in
In re Mouttet, 686 F.3d 1322, 1331, 1334 (Fed. Cir. 2012), is instructive
here. In that case, the combination supporting an obviousness determination
involved replacing the optical components with electrical components used
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in the primary reference. In re Mouttet, 686 F.3d at 1332. Our reviewing
court held that such a change would not destroy the principle of operation
of the primary reference because it only changed how the reference
accomplished its operability, rather than the operations themselves. Id. at
1332.
Appellant’s argument that modifying the protuberance/recess design
of Su to accommodate flipping and nesting of the trays “would likely render
the Su dehydrator as inoperable and unfit for its intended purpose, i.e.,
rotatable collapsing” (Appeal Br. 9) is similarly unavailing. The intended
purpose of Su’s invention, as discussed above, is “to provide a dehydrator
which may be collapsed when not in use.” Su 1:16–18. Modifying Su’s
dehydrator so that the circular containers are flipped, rather than rotated, to
collapse the dehydrator to decrease its volume and facilitate storage thereof
(see Su 2:14–15) would not render Su’s dehydrator inoperable or unfit for its
intended purpose.
As for Appellant’s arguments with respect to the substantial redesign
involved in changing from a design in which collapse is effected by rotation
to a design in which collapse is effected by flipping the trays, even assuming
that the protuberances and recesses of Su’s circular containers would have to
be removed in order to accommodate flipping the trays into a nesting
configuration, as Appellant contends, Appellant does not explain with any
specificity why any such modifications would have been beyond the
technical grasp of a person having ordinary skill in the art. Thus,
Appellant’s argument does not identify error.
As for Appellant’s argument that a person of ordinary skill in the art
would have had no reason to modify Su to provide trays that are flipped,
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rather than rotated, to collapse the dehydrator, the Examiner responds that
“[t]he combination of Su with Solheim would have been the simple
substitution of one known design (a rotatable collapsing tray) for another (a
flipped tray design) yielding only predictable results (a dehydrator having a
reduced height during storage)” and that the “combination would have
provided the added benefit of providing for faster disassembly for cleaning
while still providing for a reduced volume during a storage configuration.”
Ans. 7.
The modification proposed by the Examiner merely substitutes one
technique for collapsing stacked trays (i.e., flipping the trays from a non-
nested orientation to a nested orientation with adjacent components) for
another (i.e., rotating the trays (circular containers) to further engage
corresponding protuberances and recesses in adjacent components). Further,
the results of such a modification are predictable—a dehydrator in a
dehydrating configuration, with the trays in a first orientation, when in use,
and a dehydrator in a storage configuration, with the trays in a flipped
orientation, for storage. “[W]hen a patent claims a structure already known
in the prior art that is altered by the mere substitution of one element for
another known in the field, the combination must do more than yield a
predictable result.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007).
Moreover, the Examiner reasons that the modification would have been
obvious because it yields “the added benefit of providing for faster
disassembly for cleaning while still providing for a reduced volume during a
storage configuration” (Ans. 3, 7), and Appellant does not identify any flaw
in that reasoning.
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For the above reasons, Appellant does not apprise us of error in the
Examiner’s rejection of claim 1 as unpatentable over Su, Solheim, and
Alseth. Accordingly, we sustain the rejection of claim 1, as well as claims 7,
8, 15, and 22, which fall with claim 1, as unpatentable over Su, Solheim, and
Alseth.

Rejections II–IV
In contesting these rejections, Appellant relies on the same arguments
advanced against Rejection I. Appeal Br. 7–10. For the reasons discussed
above, these arguments also fail to apprise us of error in Rejections II–IV.
Accordingly, we sustain the rejection of claims Claims 3–5, 17, and 19–21
as unpatentable over Su, Solheim, Alseth, and Glucksman; the rejection of
claims 9 and 10 as unpatentable over Su, Solheim, Alseth, and Erickson; and
the rejection of claims 11–14 as unpatentable over Su, Solheim, Alseth, and
Horng.

DECISION
The Examiner’s decision rejecting claims 1, 3–5, 7–15, 17, and 19–22
is AFFIRMED.
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