Ex Parte Keller

Patent Trial and Appeal Board

Feb 25, 2019

13974718 (P.T.A.B. Feb. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/974,718 08/23/2013
136476 7590 02/27/2019
Shumaker & Sieffert, PA/Keller Technologies Inc.
1625 RADIO DRIVE
SUITE 100
WOODBURY, MN 55125
A. Kent Keller
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.
1237-00lUSOl 7160
EXAMINER
WONG, LESLIE A
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
02/27/2019 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):
pairdocketing@ssiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte A. KENT KELLER
Appeal2018-003857
Application 13/974,718
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134 the final rejection of claims
16-25. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We REVERSE.
Appellant's invention is directed to a system for drying a whey
composition, which is a byproduct of Greek yogurt manufacturing (Spec.
,r 4). Greek yogurt producers typically dispose liquid acid whey as waste,
but there are environmental concerns associated with such disposal, such as
decreased amounts of oxygen in waterways (id. at ,r 27). The Specification
1 The named inventor A. Kent Keller is identified as the real party in interest
(Appeal Br. 3).
Appeal2018-003857
Application 13/974,718
describes a system for drying liquid acid whey that results in a solid powder
product, which is said to be more easily and economically stored,
transported, and commercially sold (id. at ,r 28).
Claim 16 is illustrative ( emphasis added):
16. A system comprising:
a supply system for supplying a first whey composition
comprising lactose;
a concentration system comprising two or more
evaporators connected in series, wherein at least one of the
evaporators comprises an evaporator configured to agitate the
whey composition within the at least one evaporator, the two or
more evaporators configured to concentrate the whey
composition to form a concentrated whey composition
comprising at least about 75 weight% solids;
a crystallization system configured to receive the
concentrated whey composition from the concentration system,
the crystallization system comprising a crystallization cascade
comprising one or more crystallizing stages configured to
crystallize at least a portion of the lactose in the concentrated
whey composition to form an at least partially-crystallized
whey composition, wherein the crystallization system is
separate from the concentration system; and
a dryer configured to dry the at least partially-crystallized
whey composition to form a dried product, wherein the dryer is
separate from the concentration system and the crystallization
system.
Appellant appeals the following rejection:
1. Claims 16-25 are rejected under 35 U.S.C. § 103 as unpatentable
over Henningfield et al. (US 2003/0196957 Al, published Oct. 23,
2003, "Henningfield") in view of Keller (US 7,651,711 B2, issued
Jan. 26, 2010), and L. Mockus et al., "Continuous Time
Representation Approach to Batch and Continuous Process
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Application 13/974,718
Scheduling. 1. MINLP Formulation," Ind. Eng. Chem. Res.
38: 197-203 (1999) ("Mockus").
FINDINGS OF FACT & ANALYSIS
The Examiner's findings and conclusions regarding Henningfield,
Keller, and Mockus are located on pages 2-3 of the Final Office Action and
pages 4--6 of the Answer.
It is well understood that "[r]ejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The
fact that a reference may be modified to reflect features of the claimed
invention does not make the modification, and hence the claimed invention,
obvious unless the prior art, knowledge of a person having ordinary skill in
the art, or the nature of the problem to be solved suggested the desirability of
such modification. In re Mills, 916 F.2d 680, 682 (Fed. Cir. 1990).
In this case, the Examiner finds Henningfield teaches that "a lactose-
containing liquid is subjected to simultaneous heating, removal of
evaporated vapor and mechanical agitation at high shear . . . to
progressively concentrate the agitated liquid and simultaneously crystallize
lactose therefrom" (Final Act. 2) ( emphasis added). Although the Examiner
acknowledges that Henningfield is silent regarding, inter alia, the requisite
separation of the crystallization, concentration, and dryer systems, the
Examiner finds that Mockus "disclose[s] the conventional use of both batch
and continuous processes in the food art" (id. ( citing Mockus Introduction)).
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Application 13/974,718
The Examiner determined that "[i]t would have been obvious to a person of
ordinary skill in the art, at the time the invention was filed, to use
[Mockus' s] batch process ... [with] that of Henningfield[] because the
specific choice of a batch or continuous process is conventional and well-
known in the art" (Final Act. 3).
Appellant argues, inter alia, that Henningfield's device uses the same
stage to perform evaporation and crystallization and, thus, "does not include
a crystallization system that is separate from a concentration system, as
recited by claim 16" (Appeal Br. 7-8). Appellant further argues that the
Examiner has not established that Mockus would have prompted a person
having ordinary skill in the art to have modified Henningfield' s single stage
device "into a multi-stage device in which the crystallization system is
separate from the concentration system, as recited by claim 16." (id. at 8).
According to Appellant, absent "a 'clear articulation of the reason(s) why
the claimed invention would have been obvious,' ... the Examiner failed to
establish a prima facie case of non-patentability of claim 16" (id. at 12
(citing MPEP § 2143)).
The Examiner responds to Appellant's arguments by finding that
Henningfield teaches "a supply system, a concentration system, a
crystallization system, and a dryer" (Ans. 4 ( citing Henningfield Fig. 1,
,r,r 58-80) and provides no additional findings regarding Mockus ( compare
Ans. 4--5 with Final Act. 3).
The Examiner's conclusory response, however, does not persuasively
address or rebut Appellant's arguments as set forth above. Moreover, we
find that Mockus' s disclosure is directed to issues regarding decision timing
in batch and continuous process scheduling (see Mockus Abstract). We,
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Application 13/974,718
thus, agree with Appellant that "Mockus nowhere describes or suggests
modifying a system that implements a continuous process into a system that
implements a batch process" (Appeal Br. 13). As Appellant argues, the
Examiner has failed to identify the specific elements of Henningfield' s
device that would have been modified by the ordinarily skilled artisan in
view of Mockus's teachings (id. at 11-12).
Consequently, the Examiner has not provided any argument or
reasoning supported by adequate facts to explain why a person of ordinary
skill in the art would have found that the combination of Henningfield's and
Mockus' s teachings disclose or suggest the disputed limitations. In
particular, the Examiner has not adequately explained why the ordinary
skilled artisan would have incorporated Mockus' s batch processing to
modify Henningfield' s single stage into a crystallization system separate
from a concentration system. Therefore, the Examiner has not established a
prima facie case of obviousness based upon articulated reasoning with
rational underpinnings.
Thus, the facts and reasons relied on by the Examiner are insufficient
to establish a prima facie case of obviousness as to independent claim 16.
Accordingly, we reverse the obviousness rejection of claims 17-25.
37 C.F.R. § 4I.37(c)(l)(iv). In light of our reversal for the reasons given
above, we do not address the Declaration under 37 C.F.R. § 1.132 dated
March 27, 2017 or Appellant's remaining arguments (see, e.g., Appeal Br.
6-7; 9-11; 14--19).
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Application 13/974,718
DECISION
The Examiner's decision is reversed.
ORDER
REVERSED
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