Ex Parte Blomme et al

Patent Trial and Appeal Board

Sep 19, 2017

10535844 (P.T.A.B. Sep. 19, 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.
10/535,844 01/10/2006 Karel Alfons Blomme Q88149 7687
23373 7590 09/21/2017
SUGHRUE MION, PLLC
2100 PENNSYLVANIA AVENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
EXAMINER
LONG, DONNELL ALAN
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
09/21/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
USPTO@sughrue.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAREL ALFONS BLOMME and
PETER RENE ANNA SMET
Appeal 2015-006435
Application 10/535,844
Technology Center 3700
Before: CHARLES N. GREENHUT, ANNETTE R. REIMERS, and
SEAN P. O’HANLON, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
28, 30, 31, 34-46, and 57—77. An oral hearing was conducted on September
6, 2017. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-006435
Application 10/535,844
CLAIMED SUBJECT MATTER
The claims are directed to a yeast-cream-dosing device and method.
Claim 28, reproduced below, is illustrative of the claimed subject matter:
28. A device for dosing of stable bakers’ yeast cream in a bakery,
said device comprising:
a piece of furniture provided with a refrigerated
compartment having an internal temperature regulated at
between -2°C and 12°C;
an indicator showing the temperature inside said
refrigerated compartment;
an alarm alerting when the temperature inside the
refrigerated compartment does not correspond to a determined
temperature range;
an interchangeable transport reservoir located in the
refrigerated compartment and containing stable yeast cream, said
reservoir having a total internal volume of between 1 and 100
liters, and an outlet opening for the yeast cream;
an outlet conduit for dosing of the yeast cream, said
conduit connecting the outlet opening of the interchangeable
transport reservoir to a dispensing opening outside the
refrigerated chamber; and
an opening/closing mechanism for the outlet conduit,
enabling the opening of the outlet conduit for the dispensing of
the yeast cream and enabling the closure of the outlet conduit in
order to stop the dispensing of the yeast cream,
The prior art relied upon by the Examiner in rejecting the claims on
REFERENCES
appeal is:
Wamcke US 1,994,496
US 3,117,695
US 3,138,293
US 3,268,412
US 4,997,108
US 5,244,020
Mar. 19, 1935
Jan. 14, 1964
June 23, 1964
Aug. 23, 1966
Mar. 5, 1991
Sept. 14, 1993
Cox
Roak
Champagnat
Hata
Bruno
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Appeal 2015-006435
Application 10/535,844
US 5,464,120 Nov. 7, 1995
WO 02/30807 A1 Apr. 18, 2002
REJECTIONS
Claims 28, 30, 31, 3A-36, 39-42, 46, 57, 59, 60, 62-64, 66, 68-70,
72—74, 76, and 77 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cox, Alpers, and Hata.
Claims 43 and 58 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cox, Alpers, Hata, and Champagnat.
Claims 44 and 45 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cox, Alpers, Hata, and Wamcke.
Claims 61, 67, 71, and 75 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cox and Alpers.
Claim 36 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Cox, Alpers, Hata, and Bruno.
Claims 37 and 38 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cox, Alpers, Hata, Bruno, and Bedard.
Claim 65 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Cox, Alpers, Hata, and Roak.
Alpers
Bedard
OPINION
All claims and all rejections are argued under a single heading with no
separate subheadings. App. Br. 9—14. 37 C.F.R. § 41.37(c)(l)(iv) provides:
The arguments shall explain why the examiner erred as to each
ground of rejection contested by appellant. Except as provided
for in §§ 41.41, 41.47 and 41.52, any arguments or authorities
not included in the appeal brief will be refused consideration by
the Board for purposes of the present appeal. Each ground of
rejection contested by appellant must be argued under a separate
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Application 10/535,844
heading, and each heading shall reasonably identify the ground
of rejection being contested (e.g., by claim number, statutory
basis, and applied reference, if any). For each ground of rejection
applying to two or more claims, the claims may be argued
separately (claims are considered by appellant as separately
patentable), as a group (all claims subject to the ground of
rejection stand or fall together), or as a subgroup (a subset of the
claims subject to the ground of rejection stand or fall together).
When multiple claims subject to the same ground of rejection are
argued as a group or subgroup by appellant, the Board may select
a single claim from the group or subgroup and may decide the
appeal as to the ground of rejection with respect to the group or
subgroup on the basis of the selected claim alone.
Notwithstanding any other provision of this paragraph, the
failure of appellant to separately argue claims which appellant
has grouped together shall constitute a waiver of any argument
that the Board must consider the patentability of any grouped
claim separately. Under each heading identifying the ground of
rejection being contested, any claim(s) argued separately or as a
subgroup shall be argued under a separate subheading that
identifies the claim(s) by number. A statement which merely
points out what a claim recites will not be considered an
argument for separate patentability of the claim.
Thus, we will consider this appeal with regard to claim 28 and
consider those rejections not separately argued as not contested and those
claims not separately grouped as standing or falling with claim 28.
Appellants point out that “stable bakers’ yeast cream” is a positive
element recited in the claims and that none of the references cited against
claim 28 disclose stable bakers’ yeast cream specifically. App. Br. 10;
Reply Br. 5. Other than a passing mention in the Response to Argument
section of the Examiner’s Answer stating that “the material worked upon by
an apparatus does not limit apparatus claims” (see Ans. 13), the Examiner
does not appear to have considered the yeast cream as something not
required by the claimed combination. That is, claim 28 is directed to the
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Appeal 2015-006435
Application 10/535,844
device in combination with the yeast cream and is therefore not infringed
until the device compartment contains stable yeast cream as opposed to
when the device itself is made or sold. It is with this understanding that the
Examiner rejected claim 28 on the basis that it would have been obvious to
use the Cox device for dispensing stable bakers’ yeast cream because Cox
“teaches that the device is suitable for dispensing a variety of fluids” in
particular “milk and milk products” Final Act. 4 (citing Cox col. 1,11. 8—10;
col. 4,11. 59—65). The Examiner has not “ignored” the limitation (App. Br.
11), and an obviousness rejection is not necessarily defeated by the absence
of an express disclosure of a particular claim element in the applied
references. An artisan must be presumed to know something about the art
apart from what the references expressly disclose. See In re Jacoby, 309
F.2d 513, 516 (CCPA 1962). We must attribute skill to the hypothetical
person described in § 103(a). In re Sovish, 769 F.2d 738, 743 (Fed. Cir.
1985).
Appellants continue their argument by alleging that stable bakers’
yeast cream cannot be “considered as equivalent to any consumable liquid
since its properties are not equivalent to the properties of any other
consumable liquid, especially not equivalent to the properties of inert
beverages, such as milk or ice cream described in the cited references.”
App. Br. 11; Reply Br. 5—6. This attorney argument is neither supported by
any record evidence1 and also fails to inform us what specific properties of
stable bakers’ yeast cream are so different from those of milk and milk
1 In re Geisler, 116 F.3d 1465 (Fed. Cir. 1997) (“An assertion of what seems
to follow from common experience is just attorney argument and not the
kind of factual evidence that is required to rebut a prima facie case of
obviousness.”); see also MPEP § 716.01(c).
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Application 10/535,844
products that one skilled in the art would not reasonably expect2 Cox’s
device to be suitable for dispensing it. The new arguments on this point
raised for the first time in the Reply Brief (Reply Br. 7) are untimely. See 37
C.F.R. §41.41(b)(2).
For the foregoing reasons, we sustain the Examiner’s rejections.
DECISION
The Examiner’s rejections are 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)(l)(iv).
AFFIRMED
2 Absolute predictability that the substitution will be successful is not
required, all that is required is a reasonable expectation of success. See In re
O’Farr ell 853 F.2d 894, 903-04 (Fed. Cir. 1988).
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