Ex Parte Barrows

Patent Trial and Appeal Board

Jul 31, 2018

14737833 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/737,833 06/12/2015
24113 7590 07/31/2018
PATTERSON THUENTE PEDERSEN, P.A.
80 SOUTH 8TH STREET
4800 IDS CENTER
MINNEAPOLIS, MN 55402-2100
FIRST NAMED INVENTOR
Ryan H. Barrows
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.
3030.161 US02 6959
EXAMINER
LAUX, DAVID J
ART UNIT PAPER NUMBER
3743
MAIL DATE DELIVERY MODE
07/31/2018 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
Exparte RY ANH. BARROWS 1
Appeal2017-007650
Application 14/737,833
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
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 23-36, which are the only claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant is the Applicant, National Presto Industries, Inc., as provided in
37 C.F.R. § 1.46, and is identified as the real party in interest. Appeal Br. 2.
Appeal2017-007650
Application 14/737,833
THE CLAIMED SUBJECT MATTER
Claim 23, reproduced below, is illustrative of the claimed subject
matter.
23. A food dehydrator, comprising:
a base portion; and
at least one tray level, wherein each tray level is defined
by a first tray and a second tray,
wherein the first tray is placed on the base portion and
the second tray is placed on the first tray to define the tray level
having a dehydrating configuration defining a perimeter air
supply plenum, wherein the base portion and at least one tray
level define a dehydrating height; and
wherein the first tray and second tray can be positioned
in a nested arrangement and said nested arrangement is placed
on the base portion to define a storage configuration having a
storage height that is less than the dehydrating height.
REJECTIONS
I. Claims 23 and 28-35 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Su (US 5,215,004, iss. June 1, 1993), Solheim
(US 4,457,432, iss. July 3, 1984), and Alseth (US 5,437,108, iss.
Aug. 1, 1995).
II. Claims 24--27 and 36 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Su, Solheim, Alseth, and Glucksman
(US 4,236,063, iss. Nov. 25, 1980).
DISCUSSION
Rejection I
Appellant groups claims 23 and 28-35 together in contesting the
rejection. Appeal Br. 7-10. Pursuant to See 37 C.F.R. § 4I.37(c)(l)(iv), we
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select claim 23 as representative of the group and decide the appeal of the
rejection as to all the claims of the group on the basis of claim 23.
The Examiner finds that Su discloses a dehydrator as called for in
claim 23, except that Su fails to disclose "a perimeter air supply plenum"
and that "the first tray and the second tray can be positioned in a nesting
arrangement." Final Act. 2-3.
Su provides a dehydrator having corresponding annular protuberances
121 and annular recesses 122 on opposite sides of containers 12a, 12b, base
members I la, I lb, and cover members 13a, 13b. Su 1:56-2:6. When the
dehydrator is not in use, Su teaches rotating the containers downwardly to
further engage protuberances into respective recesses, bringing the
containers and base members closer together, while also inverting cover
member 13b and base member 11 b and reversing the positions of base
members I la, I lb, in order to decrease the volume of the dehydrator and
facilitate storage thereof. Id. 2:7-15.
The Examiner finds that Alseth teaches a perimeter air supply plenum
and determines it would have been obvious to combine the fan assembly of
Alseth with the dehydrator of 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." Final Act. 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." Final Act. 3 (citing
Solheim, Fig. 5; 5:39-45). The Examiner determines it would have been
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obvious to provide Su's containers with the inverted nesting feature of
Solheim, instead of rotating them to further engage protuberances into
corresponding recesses, "because doing so would have provided the added
benefit of a reduced volume during a storage configuration and would have
been the simple substitution of one known element ( a collapsing
configuration) for another (a nesting configuration) yielding predictable
results (a food dehydrator having a nested storage configuration)." Id.
Appellant argues that "in making these combinations, the Examiner
has fundamentally changed the 'principle of operation' of the primary
reference to Su." Appeal Br. 7; see also Reply Br. 4 (arguing that "[i]f Su
were to be modified ... as suggested by the Examiner, such modification
would destroy the principle of operation of Su"). According to Appellant,
"[ r ]emoving the tray level and repositioning the components of the tray level
into a nested configuration 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; see
also Reply Br. 2 (arguing that the Examiner has impermissibly disregarded
"the single disclosed, and claimed, embodiment that utilizes the rotational
interaction of protuberances and recesses on adjacent base portions and
circular containers to either expand or collapse the base portions and circular
containers").
Appellant argues that "[s]imilar to Plas-Pak [Industries Inc. v. Sulzer
Mixipac AG, 600 Fed. Appx. 755 (Fed. Cir. 2015)], Su teaches various
structure (protuberance, recesses) on adjacent base portion and circular
containers that rotatably interact to allow for expansion or collapse of the
dehydrator." Reply Br. 3. According to Appellant, "Su expressly describes
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its operation as, ' ... , said stacked plurality of container members being
collapsible by application of both rotatable and downward forces to thereby
increase a depth of engagement of said third protuberances within respective
recesses."' Id. ( citing Su 4:2---6, claim 1 ).
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. 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. Thus, we find that the principle of operation of Su is to provide a
dehydrator that may be collapsed when not in use.
In Plas-Pak, the proposed modification (replacing the valves and
pumps of one reference with cylindrical cartridges and mixing guns of
another reference) failed to achieve comparable backflow prevention to that
achieved using the valves and pumps, thereby fundamentally altering the
principle of operation of the first reference. Plas-Pak, 600 Fed. Appx. at
758. In contrast to the proposed modification in Plas-Pak, the proposed
modification in the present case (replacing one means of collapsing with
another means of collapsing) achieves a comparable result, namely, a
collapsed configuration. Further, in the present case, just as in In re 1\1outtet,
686 F.3d 1322, 1331-32 (Fed. Cir. 2012), the proposed modification would
not destroy or fundamentally change the principle of operation of Su because
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Application 14/737,833
the modification would only change the type of mechanism by which the
collapsed configuration is accomplished, rather than the operation
( collapsing) itself. Accordingly, Appellant's argument does not identify
error.
Appellant argues that the proposed modification "would require
substantial reconstruction/redesign of Su as the structures that facilitate
rotatable expansion and collapse of the circular containers
(protuberances/recesses) would no longer be required and instead, could
interfere with the presently claimed nesting arrangement." Appeal Br. 8; see
also Reply Br. 3--4 ( arguing that "[ t ]here is no reason to believe that the
design of Su (the base portion and container members) is capable of being
modified to a nesting arrangement as presently claimed without substantially
redesigning Su" and that "[ c ]onverting Su such that the base portion and
container members can 'nest' would almost assuredly include the removal of
the described and claimed protuberances and recesses").
Appellant's argument is not persuasive. 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. Accordingly, we
agree with the Examiner that the proposed modification would "be the
simple substitution of one known element (a collapsing configuration) for
another (a nesting configuration) yielding predicable results (a food
dehydrator having a nested storage configuration)." Ans. 2.
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Appellant also argues that "one of ordinary skill in the art would have
no motivation to" make the proposed modification because "such a change
would likely render the Su dehydrator as inoperable and unfit for its
intended purpose, i.e., rotatable collapsing." Appeal Br. 9.
As discussed above, 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). "[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'! Co. v. Teleflex, Inc., 550 U.S. 398,416 (2007). As
discussed above, the proposed modification yields the predictable result of a
food dehydrator having a nested storage configuration. Moreover, the
Examiner states that the modification would have been obvious because it
yields "the added benefit of allowing the height of the dehydrator when in
storage configuration to be further reduced as compared to the collapsible
trays used by Su" (Ans. 2-3), and Appellant does not specifically address
this statement.
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
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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 the Examiner points out, "[ m ]odifying the food trays
of Su to nest (as taught by Solheim) instead of collapse would not render Su
inoperable, but would instead be an obvious way to achieve the same
purpose, because doing so would be the simple substitution of one known
element (a collapsing configuration) for another (a nesting configuration)
yielding predicable results ( a food dehydrator having a nested storage
configuration)." Ans. 2.
For the above reasons, Appellant does not apprise us of error in the
Examiner's rejection of claim 23 as unpatentable over Su, Solheim, and
Alseth. Accordingly, we sustain the rejection of claim 23, as well as claims
28-35, which fall with claim 32, as unpatentable over Su, Solheim, and
Alseth.
Rejection II
In contesting this rejection, 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 Rejection II.
Accordingly, we sustain the rejection of claims 24--27 and 36 as
unpatentable over Su, Solheim, Alseth, and Glucksman.
DECISION
The Examiner's decision rejecting claims 23-36 is AFFIRMED.
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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)(l )(iv).
AFFIRMED
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