Ex Parte Binley et al

Board of Patent Appeals and Interferences

Oct 30, 2009

10402115 (B.P.A.I. Oct. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GARY NORMAN BINLEY, TERENCE RICHARD COCKINGS,
and WEI WANG-NOLAN
____________

Appeal 2009-004258
Application 10/402,115
Technology Center 1700
____________

Decided: October 30, 2009
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Before EDWARD C. KIMLIN, TERRY J. OWENS, and
PETER F. KRATZ, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

Appeal 2009-004258
Application 10/402,115

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 2, 4, 5 and 10.
Claim 1 is illustrative:
1. A process for dispensing into a container at a point of sale an
individualized portion of a consumable product comprising a frozen
aerated product with particulate inclusions of a specified size range
wherein the process comprises the steps of;
i) loading a serving of particulate inclusions of specified size
range into a supplying means from where the particulate
inclusions can pass into an inlet of a vane feeder, wherein said
particulate inclusions are tailored to a customer’s requirement at
a point of sale
ii) metering the flow of a serving of frozen aerated product from a
source of frozen aerated product through a mixing chamber,
said mixing chamber comprising a cavity of the vane feeder
iii) transferring the serving of particulate inclusions from the
supplying means to the mixing chamber throughout the time
said serving of frozen aerated product is flowing through the
mixing chamber
iv) mixing the particulate inclusions and the frozen aerated product
within the mixing chamber to form the consumable product
v) dispensing at a point of sale an individualized portion of the
consumable product into the container.

The Examiner relies upon the following references as evidence of
obviousness:
Mugrauer 612,806 Oct. 18, 1898
Mita 4,310,559 Jan. 12, 1982
Grandi 5,271,572 Dec. 21, 1993

Appellants’ claimed invention is directed to a process for dispensing a
frozen aerated product, such as ice cream, into a container at a point of sale.
The product comprises particulate material, such as nut pieces, chopped
fruits, chocolate pieces, etc. The particulate material is loaded into an inlet
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Application 10/402,115

of a vane feeder which comprises a cavity which serves as a mixing chamber
for the particulate material and frozen product.
Appealed claims 1, 2, 5 and 10 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Mita in view of Grandi. Claim 4 stands
rejected under 35 U.S.C. § 103(a) over the stated combination of references
further in view of Mugrauer.
We have carefully considered each of Appellants’ arguments for
patentability. However, we find ourselves in complete agreement with the
Examiner’s reasoned analysis and application of the prior art, as well as his
cogent and thorough disposition of the arguments raised by Appellants.
Accordingly, we will adopt the Examiner’s reasoning as our own in
sustaining the rejections of record, and we add the following for emphasis
only.
Mita, as set forth by the Examiner, discloses a process like
Appellants’ for dispensing into a container a portion of a frozen aerated
product that comprises particles of ice that may be flavored with chocolate,
coffee, etc. The ice particles are mixed with soft ice cream in vane feeder
(7) from which it is discharged to a customer. While the Examiner
acknowledges that Mita does not expressly state that the product is
dispensed at the point of sale, we fully concur that it would have been
obvious to one of ordinary skill in the art that the apparatus of Mita may be
located at the point of sale to a customer. Contrary to Appellants’ argument,
it is of no moment whether the customer is a distributor, wholesaler, retailer
or a person on the street. Moreover, we agree with the Examiner that Grandi
provides further evidence of the obviousness of offering a soft ice cream
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Application 10/402,115

product comprising particulates, such as fruit pieces, at the point of sale to a
consumer.
Appellants contend that Mita “is silent regarding the use of a vane
feeder” (Br. 8, para. 2). However, as pointed out by the Examiner, ““mixer
7” of Mita is shown in the drawing as having five vanes” (Ans. 4, last para.).
As for Appellants’ remark that “Grandi is silent about the use of a vane
feeder to make individual portions of ice cream containing customized
inclusions” (Br. 8, last para.), Appellants have not refuted the Examiner’s
reasonable finding that Grandi discloses vane feeder (21) or (22) (Ans. 5,
para. 1).
Appellants maintain that their loading and metering of an
individualized portion of particulate inclusions that is tailored to a
customer’s requirements is a point of distinction over the prior art.
However, the Examiner correctly points out that “there is no requirement in
the claim that a customer make such a selection” (Ans. 5, para. 2). We agree
with the Examiner that “the claims are open to a vendor tailoring inclusions
based upon knowledge of the consumer” (id), be the consumer a child, adult,
etc. Furthermore, we find that Grandi evidences the obviousness of
metering an individualized portion of particulates into the frozen product.
The process of Grandi allows the consumer to select the particular fruit
particulates for mixing with the ice cream, and we are convinced that one of
ordinary skill in the art would have found it obvious to substitute other food
particulates, such as nuts and candy, for the fruit of Grandi.
Appellants also argue that their process is a small scale, batch process,
as opposed to the continuous, industrial process of Mita. However, it is
axiomatic that limitations disclosed in the Specification are not to be read
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Application 10/402,115

into the claims, and the Examiner properly notes that “there is no claim
requirement that the process is “small scale” or a “batch process”” (Ans. 7,
para.1).
Appellants further submit that “it is not possible with the apparatus
disclosed by Grandi to prepare mixtures of fruits because the fruits are
individually dispensed and mixed with freshly dispensed neutral cream” (Br.
12, para. 2). However, there is no requirement recited in the claimed process
for dispensing mixtures of different types of particulate materials. Also, we
find that it would have been obvious for one of ordinary skill in the art to
provide a mixture of fruits in one of the compartments for mixing with the
ice cream.
Appellants do not provide a separate, substantive argument against the
§ 103 rejection of claim 4 over the additional disclosure of Mugrauer, but
rely upon the asserted deficiencies of the combination of Mita and Grandi.
As a final point, we note that Appellants base no argument upon
objective evidence of nonobviousness, such as unexpected results.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims 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)(1)(iv).

AFFIRMED
tc
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