Ex Parte Cornwell

Patent Trial and Appeal Board

Apr 28, 2014

11959210 (P.T.A.B. Apr. 28, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/959,210 12/18/2007 Christopher John Cornwell CFLAY.00412 2350
110933 7590 04/28/2014
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
DANG, KET D
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
04/28/2014 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 CHRISTOPHER JOHN CORNWELL
____________

Appeal 2012-004583
Application 11/959,210
Technology Center 3700
____________

Before STEFAN STAICOVICI, ANNETTE R. REIMERS and
THOMAS F. SMEGAL, Administrative Patent Judges.

SMEGAL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
Final rejection of claims 13-15 and 18-24, the only claims pending in the
application on appeal. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM and enter a new ground of rejection pursuant to 37
C.F.R. § 41.50(b).
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CLAIMED SUBJECT MATTER
Claims 13 and 19, the only independent claims on appeal, are
reproduced below as illustrative of the appealed subject matter.
13. A microwave device comprising:
a vacuum microwave having a cavity having a peripheral
region; and
a rotatable carousel having a length and a plurality of
compartments, wherein when said carousel is placed into said cavity,
wherein said plurality of compartments are encompassed within said
peripheral region of said cavity, wherein said rotatable carousel is
rotatable within said cavity of said vacuum microwave, wherein each
of said plurality of compartments extends substantially for said length
of said carousel.

19. A microwave device comprising:
a vacuum microwave having a cavity having a peripheral
region; and
a rotatable carousel having a plurality of compartments,
wherein when said carousel is placed into said cavity, wherein said
plurality of compartments are encompassed within said peripheral
region of said cavity, wherein said rotatable carousel is rotatable
within said cavity of said vacuum microwave, wherein said rotatable
carousel further comprises a first concentric cylinder and a second
concentric cylinder defining an annular region therebetween; and
a plurality of dividers disposed in said annular region thereby
defining said plurality of compartments.

REJECTIONS ON APPEAL
The following Examiner’s rejections are before us for review1:
1. Claims 13-15 and 18 are rejected under 35 U.S.C. § 103(a) as

1 The rejection of claims 13-15, 18, and 24 under 35 U.S.C. § 112,
second paragraph, as being indefinite, has been withdrawn by the Examiner.
Ans. 14.
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unpatentable over Durance (US 5,672,370, issued Sep. 30, 1997) and Stokes
(US 3,174,229, issued Mar. 23, 1965).
2. Claims 19-24 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Durance, Stokes and Lamb (US 2,850,809, issued Sep. 9,
1958).
ANALYSIS
The rejection of claims 13-15 and 18 as unpatentable over Durance
and Stokes.
Claim 13
While Appellant’s argument for the patentability of claim 13 covers
pages 5-11 of the Appeal Brief and pages 1-6 of the Reply Brief, it can be
summarized as a single assertion, i. e., that Durance fails to disclose a
rotatable carousel having a plurality of compartments each of which extend
substantially the length of the carousel-as recited by claim 13 (App. Br. 8)-
and the Examiner can’t combine the teachings of Stokes with Durance to
make the structure of claim 13 obvious to one of ordinary skill in the
art.With this assertion in mind, Appellant argues that it is improper to
combine Durance and Stokes because Stokes “teaches away” from the batch
process taught by Durance (App. Br. 6). In particular, Appellant contends
that “Durance’s batch process requires manually loading the baskets, placing
the baskets on the rollers inside the vacuum chamber, removing the baskets
after dehydration, and pouring the dehydrated products out. Stokes teaches
away from Durance, and the continuous versus batch process difference
alone is [what] makes it unreasonable to combine the two references” (Id.).
We do not agree. Prior art does not teach away from claimed subject matter
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merely by disclosing a different solution to a similar problem unless the
prior art also criticizes, discredits or otherwise discourages the solution
claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Furthermore, Appellants’ argument is not commensurate with the scope of
claim 13 which is not limited to a “batch process.” (Claim App’x, App. Br.
27).
Still further, Appellant’s argument is also without merit, as the
manner or method in which a machine is to be utilized is not germane to the
issue of patentability of the machine itself. In re Casey, 370 F.2d 576, 580
(CCPA 1967). A statement of intended use does not qualify or distinguish
the structural apparatus claimed over the reference. In re Sinex, 309 F.2d
488, 492 (CCPA 1962). There is an extensive body of precedent on the
question of whether a statement in a claim of purpose or intended use
constitutes a limitation for purposes of patentability. See, generally, Kropa
v. Robie, 187 F.2d 150, 155-59 (CCPA 1951) and the authority cited therein.
Even while acknowledging that “Stokes does teach increasing the
uniformity of its articles as well as increased productivity. (Col. 2, lines 8-
9),” Appellant argues that “Stokes does not attribute the increased
production rate to ‘plurality of compartments extend[ing] substantially for
the length of said carousel; and wherein at least one of said compartments
comprises perforations’ as alleged by the Examiner” (App. Br. 6). Here
again, Appellant’s argument is not commensurate with the scope of claim 13
which is not limited to a microwave device having an “increased production
rate” (Claim App’x, App. Br. 27).
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Appellant also argues that “Durance uses rotary drum drying method
where krill are ‘subjected to a tumbling action applied thereto by rotation of
the basket or the like in which it is contained during the stages or steps 22,
24, 26 and 28[.]’ (Col. 4, lines 56-58.). By contrast, Stokes never utilizes
rotation in his dehydration process. Thus Stokes is not an analogous art to
Durance, which discloses dehydration process using a rotary drum” (App.
Br. 7-8).
We agree with the Examiner that “the prior art[s] of record are
analogous/applicable art with the same endeavor, i. e., drying articles using
microwave energy” (Ans. 9). Furthermore, nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Continuing this argument in the Reply Brief at page 2, Appellant
asserts that “[t]he key flaw with the Examiner’s argument-(l) that Durance
discloses a rotatable carousel having a length, and (2) that a plurality of
compartments is disclosed by Stokes-is that he is using hindsight to find
claim elements by bits and pieces rather than considering the claimed
invention as a whole.”
Again we not persuaded by Appellant’s argument, as the Examiner’s
rejection does not include knowledge gleaned only from the Appellant’s
disclosure, but rather takes into account the teachings of Durance and
Stokes; i.e., knowledge which was within the level of ordinary skill at the
time the claimed invention was made. See In re McLaughlin, 443 F.2d
1392, 1395 (CCPA 1971). See also Radix Corp. v. Samuels, 13 USPQ2d
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1689, 1693 (D.D.C. 1989) (“[A]ny obviousness inquiry necessarily involves
some hindsight.”).
In particular, the Examiner finds that
Durance et al. discloses a vacuum microwave chamber
(see figure 2, not labeled), a cavity (60), a rotatable carousel
(64, i.e. the basket) and where the basket is within the chamber.
Stokes teaches an apparatus and method for continuously
vacuum drying articles using an elongated conduit with
cartridges (42) or compartments includes perforations as seen in
figure 6. The desire[d] of Stokes's invention is to increase
product rate. Durance is needed to add and/or modify with
more baskets as shown three baskets in figure 2 in order to
increase productivity, for example, it is a similar well known
commercial electric rotisserie oven.
(Ans. 9-10).
We also agree with the Examiner that Stokes is an example of “a
plurality of compartments wherein each of said plurality of compartments
extends substantially for the length of said carousel is known in the art”
(Ans. 5). In particular, the Examiner determined Stokes teaches, inter alia,
that “the plurality of compartments 84 (fig. 6, i.e. the spacers) extends
substantially for the length of said carousel 42 (fig. 6) (col. 4, lines 23-37)”
(Id.). Furthermore, Appellant does not provide any evidence that designing
a rotary drum for a dehydration process having a plurality of compartments
extending substantially the length of a carousel would have been uniquely
challenging to a person of ordinary skill in the art.
Appellant also contends that in restating his grounds of rejection for
claim 13 in the Answer, “[t]he Examiner’s argument regarding the
differences between Durance and claim 13 has changed from his Final
Office Action to his Answer. But the Examiner did not follow the proper
procedures for entering new grounds of rejection under MPEP § 1207.03”
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(Reply Br. 2). However, Appellants’ contention relates to a petitionable
matter and not to an appealable matter. See In re Schneider, 481 F.2d 1350,
1356-57 (CCPA 1973) and In re Mindick, 371 F.2d 892, 894 (CCPA 1967).
See also the MPEP § 1002.02(c), item 3(a) and § 1201.
Appellant also argues that to establish a prima facia case of
obviousness requires [a finding that there was] a reasonable expectation of
success” (App. Br. 6). However, “[t]he test for obviousness is not whether
. . . the claimed invention must be expressly suggested in any one or all of
the references. Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted).
Thus in rejecting claim 13 over Durance and Stokes, the Examiner
determined that Durance “discloses all the limitations of the claimed
invention [] except for a plurality of compartments wherein each . . . extends
substantially for the length of said carousel” (Ans. 5). See also Durance, col.
4, line 66-col. 5, line 16 (disclosing a vacuum microwave device with a
cavity (microwave chamber 60) having a peripheral region containing a
plurality of compartments, i.e., “cylindrically shaped containers (baskets
64)” as illustrated in figure 2 that collectively extend substantially the length
of the microwave chamber 60).
Furthermore the Examiner found that Stokes teaches, inter alia, “‘. . . .
the plurality of compartments 84 (fig. 6, i.e. the spacers) extends
substantially for the length of said carousel 42 (fig. 6) (col. 4, lines 23-37)’”
(Ans. 5). Thus we agree with the Examiner that the combination of Durance
and Stokes is suggested by the teaching in the references, e.g., Stokes
teaches a plurality of compartments 84 extending the length of carousel 42
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while Durance teaches a rotatable carousel 64 in a vacuum microwave
device (Ans. 10-11).
We also agree with the Examiner that given the combined teachings
of Durance and Stokes, that “a rotatable carousel having a length and a
plurality of compartments…wherein each [] extends substantially for said
length of said carousel,” as recited by claim 13 would have been predictable
and therefore obvious to one of ordinary skill in the art (Id.). The Examiner
is not relying upon either the Durance or Stokes references alone to teach all
aspects of this feature, but rather the Examiner relies upon Durance in
combination with Stokes to show that this feature would have been
predictable. Accordingly, we find Appellant’s arguments unpersuasive that
the cited references have been improperly combined by the Examiner.
For the forgoing reasons, we sustain the Examiner’s rejection of claim
13 as being obvious over Durance and Stokes.
Claim 14
While reincorporating the prior arguments for patentability of claim
13 in asserting the patentability of claim 14 at pages 11-13 of the Appeal
Brief, Appellant further contends that Stokes discloses a cartridge 42 where
“the plurality of compartments is not cylindrical but pie-slice-like wedges
within a cylinder.” However, Appellant has provided no evidence that the
cylindrical compartments recited by claim 14 would perform any differently
than the wedge-shaped compartments taught by Stokes. Furthermore, the
portion of Stokes relied upon by the Examiner also teaches that “[o]ther
configurations for the spacer 84 may be provided as desired.” See Stokes,
col. 4, lines 30-32. Thus, Appellant’s argument is nothing more than a
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naked assertion of what the prior art does not show which is insufficient to
overcome an obviousness rejection.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 14 as being obvious over Durance and Stokes.
Claim 15
While again reincorporating the prior arguments for patentability of
claim 13 in asserting the patentability of claim 15 at pages 13-15 of the
Appeal Brief, Appellant further contends that “[b]oth Durance and Stokes
fail to teach ‘wherein at least one of said compartments comprises a
removable cylinder’ as disclosed in Applicants’ claim 15.” However this
additional argument is also without merit, as we have previously found that
the manner or method in which a machine is to be utilized is not germane to
the issue of patentability of the machine itself.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 15 as being obvious over Durance and Stokes.
Claim 18
While again reincorporating the prior arguments for patentability of
claim 13 in asserting the patentability of claim 18 at pages 15-16 of the
Appeal Brief, Appellant further contends that while “Stokes’s cartridge 42
comprises perforations,” claim 18 discloses “wherein at least one of said
compartments comprises perforations.” However the Examiner found at
page 12 of the Answer that “Stokes teaches a perforated cylinder (42),”
illustrated in figure 6 of Stokes as having perforations 60 that form a portion
of each of the plurality of compartments 84. See Stokes, col. 4, lines 23-32.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 18 as being obvious over Durance and Stokes.
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The rejection of claims 19-24 as unpatentable over Durance, Stokes
and Lamb.
At page 24 of the Appeal Brief, Appellant contends that “Durance,
Stokes, and Lamb teach away from one another, and are not combinable
references for the purposes of disproving the patentability of Applicants’
claims 19 through 24” and “[t]he Examiner has also failed to demonstrate a
reasonable expectation of success in combining Durance, Stokes, and
Lamb.” We are not persuaded that Durance, Stokes or Lamb teach away
from each other or fail to demonstrate a reasonable expectation of success in
being combined for reasons such as we have already set forth for dismissing
similar arguments in sustaining the rejection of claims 13-15 and 18 over the
Examiner’s combination of Durance and Stokes.
Appellant erroneously argues at page 6 of the Reply Brief that “[a]ll
of the pending claims in the Appellants’ application include the element ‘a
rotatable carousel having a length and a plurality of compartments,’ whether
explicitly or by dependence.” Furthermore, claims 19 (and dependent
claims 20-24) also do not include “wherein each of said plurality of
compartments extends substantially for said length of said carousel,” as
recited by claim 13. Thus, Appellants’ previous arguments as to the
patentability of claim 13 asserted in the Appeal Brief and Reply Brief do not
support patentability of claims 19-24. In particular, they are not
commensurate with the scope of claim 19 which is not limited to a rotatable
carousel having “a length….wherein each of said plurality of compartments
extends substantially for said length of said carousel” as recited by claim 13.

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Claim 19
As with Stokes, Appellant contends that “the Examiner fails to
recognize that Lamb’s concentric cylinders are designed for use in a
continuous process” and that “[o]ne of ordinary skill in the art reading Lamb
would be discouraged from using such apparatus in vacuum microwave-it is
very difficult to form a complete vacuum inside a conduit with two open
ends” (App. Br. 19). Appellant also argues that “[a] rotatable carousel
having plurality of dividers disposed in an annular region of two concentric
cylinders cannot render Applicants’ claim 19 obvious if such carousel
cannot be used in a vacuum microwave” (Id.) and that “[i]n much the same
manner as with Stokes, though Lamb conveniently discloses a plurality of
dividers in an annual region, Lamb cannot be combined with Durance to
render the Appellants’ claims obvious” (Reply Br. 6).
However, Appellant’s argument is again without merit, and as we
have already noted, the manner or method in which a machine is to be
utilized is not germane to the issue of patentability of the machine itself.
Appellant then argues that while “[m]uch of the limitations in claim
13 are reintroduced in the independent claim 19.[] Claim 19 has additional
limitations ‘wherein said rotatable carousel further comprises a first
concentric cylinder and a second concentric cylinder defining an annular
region therebetween; and a plurality of dividers disposed in said annular
region thereby defining said plurality of compartments” and that the
“Examiner acknowledges that Durance fails to disclose this limitation”
asserting that “Stokes discloses this limitation” (App. Br. 16-17).
However we find that these additional limitations are taught by the
rotatable carousel disclosed by Lamb which “further comprises a first
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concentric cylinder and a second concentric cylinder defining an annular
region therebetween; and a plurality of dividers disposed in said annular
region thereby defining said plurality of compartments”, as recited by claim
19. Insofar as our analysis of the obviousness of claims 19-24 over Durance,
Stokes and Lamb differs from that set forth by the Examiner, we denominate
it a NEW GROUND of rejection under 35 U.S.C. § 103(a). See 37 C.F.R. §
41.50(b).
We agree with the Examiner “that obviousness may be established by
combining or modifying the teachings of the prior art to produce the claimed
invention where there is some teaching, suggestion, or motivation to do so
found either in the references themselves or in the knowledge generally
available to one of ordinary skill in the art” (Ans. 9). Furthermore, it is well
established that ordinary creativity is presumed on the part of one of
ordinary skill in the art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421
(2007) (“A person of ordinary skill is also a person of ordinary creativity,
not an automaton.”).
Here Appellant acknowledges that “Durance uses rotary drum drying
method where krill are ‘subjected to a tumbling action applied thereto by
rotation of the basket or the like in which it is contained during the stages or
steps 22, 24, 26 and 28[.]’ (Col. 4, lines 56-58.)” (App. Br. 7). Appellant
also acknowledges at page 19 of the Appeal Brief that Lamb discloses “[a]
rotatable carousel having plurality of dividers disposed in an annular region
of two concentric cylinders.”
Furthermore the Examiner found that Lamb “teaches a plurality of
dividers 128/140 (fig. 4) disposed in said annular region (col. 8, lines 10-19;
col. 9, lines 7-11)” and further “teaches such a configuration provides the
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drying medium largely because of the accurate channeling and control of
such medium so as to effectively contact it with all of the food particles
charged to the unit (col. 1, lines 23-28)” (Ans. 7-8).
We agree with the Examiner that “the test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in anyone or all of the references.
Rather, the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art” (Ans. 13).
Thus we agree with the Examiner that it would be obvious to combine
Durant, Stokes and Lamb with the reasonable expectation of success as each
teaches a microwave device for the purpose of producing dried food
products. Accordingly, we sustain the Examiner’s rejection of claim 19 as
being unpatentable over Durant, Stokes and Lamb.
Claim 20
While reincorporating the prior arguments for patentability of claim
19 in asserting the patentability of claim 20 at page 20 of the Appeal Brief,
Appellant further contends that “nowhere in Stokes—whether by words or
drawings—does it suggest that the elongated conduit has a removable cover.
Contrary to Examiner's assertions, Stokes fails to disclose the limitations of
claim 20.” However the Examiner found that “[a]s seen in figure 5, Stokes
teaches a removable covering (62/64)” (Ans. 13). We agree and sustain the
rejection of claim 20 as being obvious over Durance, Stokes and Lamb.
Claim 21
While reincorporating the prior arguments for patentability of claim
19 in asserting the patentability of claim 21at pages 20-21 of the Appeal
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Brief, Appellant further contends that “[e]ven if Stoke’s cartridge 42 has
removable coverings [] cartridge 42 never rotates during the entire
dehydration process” However the Examiner finds, as with claim 20, that
“[a]s seen in figure 5, Stokes teaches a removable covering (62/64)” (Ans.
13). We agree and sustain the rejection of claim 21 as being obvious over
Durance, Stokes and Lamb.
Claim 22
While reincorporating the prior arguments for patentability of claim
19 in asserting the patentability of claim 22 at pages 21-22 of the Appeal
Brief, Appellant further contends that “Stokes does not disclose the
limitations of claim 22.” However the Examiner found that “[a]s seen
clearly in figure 5, Stokes teaches a perforated cylinder (60)” (Ans. 14).
Furthermore, Lamb teaches “a double drum unit having concentric, double,
perforate peripheral walls” (Ans.7-8). See Lamb, col. 1, lines 15-23. Thus,
we sustain the rejection of claim 22 as being obvious over Durance, Stokes
and Lamb.
Claim 23
While reincorporating the prior arguments for patentability of claim
19 in asserting the patentability of claim 23 at page 22 of the Appeal Brief,
Appellant further contends that “Stokes does not disclose the limitations of
claim 23.” However the Examiner found that “[a]s seen clearly in figure 5,
Stokes teaches a perforated cylinder (60)” (Ans. 14). Furthermore, Lamb
teaches “a double drum unit having concentric, double, perforate peripheral
walls” (Ans. 7-8). See Lamb, col. 1, lines 15-23. Thus, we sustain the
rejection of claim 22 as being obvious over Durance, Stokes and Lamb.

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Claim 24
Appellant argues that “Stokes’s process does not promote any
movement of food pieces at all” and that “Lamb clearly teaches away from
claim 24’s limitation of ‘wherein said compartment is so sized to permit
sufficient movement to said food pieces to permit moisture to escape from
the entire outer periphery of said food pieces’” (App. Br. 23-24).
Here again, Appellant’s argument is without merit, as the manner or
method in which a machine is to be utilized is not germane to the issue of
patentability of the machine itself. Thus we sustain the rejection of claim 24
as being obvious over Durance, Stokes and Lamb.

DECISION
The rejection of claims 13-15 and 18 as unpatentable over Durance
and Stokes is AFFIRMED.
The rejection of claims 19-24 as unpatentable over Durance, Stokes
and Lamb is AFFIRMED, but for the reasons discussed above, we
denominate our affirmance as a new ground of rejection pursuant to 37
C.F.R. § 41.50(b).
Regarding the affirmed rejections that have not been denominated as a
new ground of rejection, 37 C.F.R. § 41.52(a)(1) provides “Appellants may
file a single request for rehearing within two months from the date of the
original decision of the Board.”
Section 41.50(b) provides “[a] new ground of rejection pursuant to
this paragraph shall not be considered final for judicial review.”
Section 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
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the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an
appropriate amendment of the claims so rejected or
new evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the
examiner, in which event the proceeding will be
remanded to the examiner . . .

(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board
upon the same record . . .

Should Appellant elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance will be deferred until the prosecution
before the Examiner concludes unless, as a mere incident to the limited
prosecution, the affirmed rejection is overcome.
If Appellant elects prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.

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; 37 C.F.R. § 41.50(b).
rvb