Ex Parte Brown

Patent Trial and Appeal Board

Oct 26, 2017

12694164 (P.T.A.B. Oct. 26, 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.
12/694,164 01/26/2010 Dennis Brown 4171 5478
66714 7590 10/26/2017
INTELLECTUAL PROPERTY CENTER, LLC
7101 College Boulevard
SUITE 1520
OVERLAND PARK, KS 66210
EXAMINER
DAVIES, SAMUEL ALLEN
ART UNIT PAPER NUMBER
3724
MAIL DATE DELIVERY MODE
10/26/2017 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 DENNIS BROWN
Appeal 2016-001527
Application 12/694,164
Technology Center 3700
Before: CHARLES N. GREENHUT, ERIC C. JESCHKE, and
PAUL J. KORNICZKY, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134 from a rejection of claims
1—7. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 Appellant identifies Midwest Metalcraft, Inc. as the real party in interest.
App. Br. 4.
Appeal 2016-001527
Application 12/694,164
CLAIMED SUBJECT MATTER
The claims are directed to a double-blade meat sheer. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A device for producing a spiral cut on a single non-
symmetrical meat product having a meat surface and a central
bone, said device comprising:
a first blade assembly having a mechanical output fixed to
an angularly selectable first cutting blade, said first blade
assembly operable to rotate about a first vertical axis;
a second blade assembly having a mechanical output fixed
to an angularly selectable second cutting blade, said second blade
assembly operable to rotate about a second vertical axis, said first
and second vertical axis being spaced along a top surface
associated with a meat rotation assembly;
said meat rotation assembly adapted for rotation of the
received meat product and including a tailstock assembly in
communication with a headstock assembly and adapted for
rotational receipt of said meat product; and
a processor and controller in communication with said first
and second blade assemblies and operable to simultaneously
reciprocally engage the meat product in at least two positions
with said first blade assembly at a lower position and said second
blade assembly at an upper position, whereby a spiral slice is
formed from the simultaneous operation of both said first and
second blade assemblies slicing in opposing directions from the
meat surface of the meat product to the meat bone.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Barnhart
Nishi
Takeshi
US 2003/0070525 A1
US 2008/0168860 A1
JP2002321119
Apr. 17, 2003
July 17, 2008
Dec. 30, 2014
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Appeal 2016-001527
Application 12/694,164
REJECTIONS
Claims 1, 2, and 5—7 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Barnhart and Takeshi.
Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Barnhart, Takeshi, and Nishi.
OPINION
There does not appear to be any dispute concerning the content of the
Barnhart and Takeshi references cited against sole independent claim 1.
Barnhart teaches a single-blade spiral sheer. Takeshi teaches a dual-blade
cutter. The Examiner’s rejection lacks adequate evidence supporting the
conclusion that it would have been obvious to cut Barnhart’s meat product
“from both ends in order to reduce the amount of time to complete the
desired operation upon the work piece by providing two blade assemblies
capable of cutting the meat from either end.” Final Act. 3^4; Ans. 7—8; App.
Br. 13—14. Contrary to the Examiner’s position, the modification to
Barnhart needed to arrive at the claimed subject matter involves more than
just a duplication of blade assemblies. See Ans. 7—8. Claim 1 requires:
a processor and controller in communication with said first and
second blade assemblies and operable to simultaneously
reciprocally engage the meat product in at least two positions
with said first blade assembly at a lower position and said second
blade assembly at an upper position, whereby a spiral slice is
formed from the simultaneous operation of both said first and
second blade assemblies slicing in opposing directions from the
meat surface of the meat product to the meat bone.
There is no evidence of record to demonstrate this type of control was
known in the art, or to support the Examiner’s conclusion that such
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Appeal 2016-001527
Application 12/694,164
operation would have been obvious. App. Br. 13. “[T]he precise language
of 35 U.S.C. § 102 that ‘(a) person shall be entitled to a patent unless,’
concerning novelty and unobviousness, clearly places a burden of proof on
the Patent Office which requires it to produce the factual basis for its
rejection of an application under sections 102 and 103.” In re Warner, 379
F.2d 1011, 1016 (CCPA 1967). “With respect to core factual findings in a
determination of patentability^ the PTO] must point to some concrete
evidence in the record in support of these findings.” In re Zurko, 258 F. 3d
1379, 1386 (Fed. Cir. 2001). Anything less prohibits a meaningful appellate
review. Id. Nishi is not relied upon by the Examiner to cure this deficiency.
Thus, the rejection of independent claim 1 is not sustained. Similarly,
the rejections of claims 2—7, which depend from claim 1, are not sustained.
DECISION
The Examiner’s rejections of claims 1—7 are reversed.
REVERSED
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