Ex Parte Lang et al

Board of Patent Appeals and Interferences

May 8, 2012

11893331 (B.P.A.I. May. 8, 2012)

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.
11/893,331 08/15/2007 Gary Dee Lang 21711 4628
27182 7590 05/08/2012
PRAXAIR, INC.
LAW DEPARTMENT - M1 557
39 OLD RIDGEBURY ROAD
DANBURY, CT 06810-5113
EXAMINER
PARSLEY, DAVID J
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
05/08/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte GARY DEE LANG and
NARSHIMHA R. NAYINI
__________

Appeal 2011-010278
Application 11/893,331
Technology Center 3600
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and LORA M. GREEN,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to methods
of, and a system for, stunning poultry. The Examiner has rejected the claims
as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
The Specification states that stunning poultry with gas before
slaughter “presents the advantage that the birds are less likely to engage in
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Application 11/893,331

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extensive movement, thereby reducing the burden to the worker and
reducing the risk of damage to the bird” (Spec. 1, ¶ 5).
Claims 1 and 3-10 are on appeal. Claims 1 and 10 are representative
and read as follows:
1. A method for controlled atmosphere stunning of poultry comprising
the steps of:
(i) loading one or more batches of poultry confined in cages in a
stunning chamber having an entrance and exit and one or more doors to seal
the entrance and exit;
(ii) closing the door to the stunning chamber to sealably enclose the
one or more batches of poultry in the stunning chamber to isolate the
atmosphere proximate the poultry;
(iii) introducing a gaseous mixture to the isolated atmosphere and
forcibly recirculating the gaseous mixture within the stunning chamber while
the cages are stationary to stun the one or more batches of poultry;
(iv) forcibly exhausting the gaseous mixture used to stun the poultry
from the isolated atmosphere in the sealed stunning chamber to a
surrounding atmosphere; and
(v) opening the door and advancing the stunned poultry confined in
cages from the stunning chamber.

10. A system for controlled atmosphere stunning a batch of caged
poultry comprising:
a non-conveyorized stunning chamber having an entrance and an exit
and one or more doors to seal the entrance and exit, the stunning chamber
defining an isolated atmosphere that is sealed from the surrounding
atmosphere when the doors are closed;
a gas introduction subsystem adapted to introduce prescribed levels of
carbon dioxide into the isolated atmosphere in the sealed stunning chamber;
an atmosphere re-circulating subsystem adapted to forcibly recirculate
the carbon dioxide in the isolated atmosphere within the sealed stunning
chamber for a prescribed duration to stun the batch of caged poultry;
an exhaust subsystem adapted to forcibly evacuate the carbon dioxide
from the sealed stunning chamber to a surrounding atmosphere after the
poultry have been stunned; and
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a control system adapted to control the operation of the atmosphere
recirculating subsystem, the gas introduction subsystem, and the exhaust
subsystem.

The claims stand rejected under 35 U.S.C. § 103(a) as follows:
• Claims 1, 3, 4, and 6-9 based on Jacobs1 and Cattaruzzi2 (Answer
4);
• Claim 5 based on Jacobs, Cattaruzzi, and Ovesen3 (Answer 7);
• Claim 10 based on Christensen,4 Cattaruzzi, and Jacobs (Answer 7);
and
• Claim 10 based on Scott,5 Cattaruzzi, and Jacobs (Answer 8).
I.
The Examiner has rejected claims 1, 3, 4, and 6-9 as obvious based on
Jacobs and Cattaruzzi, and claim 5 as obvious based on Jacobs, Cattaruzzi,
and Ovesen (Answer 4, 7). The same issue is dispositive with respect to
both rejections.
The Examiner finds that Jacobs discloses a method meeting the
limitations of claim 1 except that “Jacobs et al. does not disclose the poultry
is confined in cages and the cages are stationary during stunning and closing
the door to enclose the poultry in the stunning chamber and opening the door
to advance the poultry from the stunning enclosure” (id. at 5). The

1 Jacobs et al., US 6,126,534, Oct. 3, 2000.
2 Cattaruzzi, Patent Application Publication US 2006/009142 A1, Jan. 12,
2006.
3 Ovesen et al. US 7,097,552 B2, Aug. 29, 2006.
4 Christensen, Patent Application Publication US 2005/0164621 A1, July 28,
2005.
5 Scott et al., US 4,107,818, Aug. 22, 1978.
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Examiner finds that these limitations are disclosed by Cattaruzzi, and that it
would have been obvious “to take the device of Jacobs et al. and add the
poultry confined in cages of Cattaruzzi, so as to ensure that the animals
cannot move from the conveying apparatus during processing” (id.).
Appellants argue that Jacobs “employs a conveyorized tunnel system
for stunning the poultry as they progress along the conveyor in the tunnel”
not stunning poultry while they are in stationary cages, as claimed (Appeal
Br. 9). Appellants also argue that, while Jacobs “does disclose an entrance
and exit, Jacobs et al. does NOT disclose one or more doors to seal the
entrance and exit” (id.). Finally, Appellants argue that Jacobs does not teach
“forcible exhausting of the stunning gas to a surrounding atmosphere” (id. at
11).
We agree with Appellants that the Examiner has not persuasively
shown that the method of claim 1 would have been obvious based on Jacobs
and Cattaruzzi. “In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a prima facie case of obviousness.” In
re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993).
The Examiner concluded that, based on Cattaruzzi, it would have been
obvious “to take the device of Jacobs et al. and add the poultry confined in
cages of Cattaruzzi, so as to ensure that the animals cannot move from the
conveying apparatus during processing” (Answer 5). The proposed
modification would result in the conveyor belt of Jacobs carrying cages of
poultry rather than, for example, the pigs shown in Jacobs’ Figure 1. The
cages of poultry, therefore, would be treated with stunning gas while moving
on a conveyor belt, rather than while stationary as required by the claims.
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The proposed modification also provides no reason to substitute doors, as
required by the claims, for the strip curtains of Jacobs’ system (see Jacobs,
col. 6, ll. 30-32). Finally, the Examiner has provided no reason for
modifying Jacobs’ system to include exhausting the stunning gas “to a
surrounding atmosphere,” as claimed, rather than re-using it as disclosed by
Jacobs (see id. at col. 1, l. 66 to col. 2, l. 9).
We therefore conclude that the Examiner has not carried the initial
burden of showing that the method of claim 1 would have been obvious
based on Jacobs and Cattaruzzi. The Examiner finds that Ovesen would
have suggested treating batches of at least twenty chickens (Answer 7), as
recited in claim 5, but cites nothing in Ovesen to make up for the
deficiencies of Jacobs and Cattaruzzi.
II.
The Examiner has rejected claim 10 as obvious based on either of
Christensen or Scott, combined with Cattaruzzi and Jacobs (Answer 7, 8).
The Examiner finds that both Christensen and Scott disclose systems that
include the “non-conveyorized stunning chamber” and “gas introduction
subsystem” limitations of claim 10 (id.), but neither reference discloses an
atmosphere recirculation subsystem, an exhaust subsystem, or a control
system for controlling the operation of these subsystems (id. at 8, 9). The
Examiner finds that Jacobs discloses these limitations and concludes that it
would have been obvious to include them in the systems of Christensen and
Scott (id.).
Appellants contend that “the so-called recirculation subsystem of
Jacobs et al. does NOT forcibly recirculate the carbon dioxide in the isolated
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atmosphere within the sealed stunning chamber as required by claim 10”
(Appeal Br. 16).
We agree with Appellants that the Examiner has not established that
the cited references would have made obvious all the limitations of claim 10.
Claim 10 requires three subsystems: a gas introduction subsystem, an
atmosphere re-circulating subsystem, and an exhaust subsystem. The
Examiner points to “9,15,29,36 in figures 1-2” of Jacobs as the recirculating
subsystem (Answer 8, 9). However, Jacobs describes elements 9 and 15 of
Figure 1 as the entire gas circulation systems, respectively, of the first and
second segments of the anesthetizing space (see Jacobs, col. 6, ll. 9-11).
These elements therefore do not correspond to gas introduction, re-
circulation, or exhaust subsystems. Jacobs describes elements 29 and 36 of
Figure 2 as pumps that provide gas circulation in, respectively, the first and
second anesthetizing spaces (see id. at col. 6, ll. 31, 52), which is not a
“subsystem adapted to forcibly recirculate the carbon dioxide in the isolated
atmosphere within the stunning chamber,” as required by claim 10.
Because the Examiner has not persuasively shown that Jacobs would
have made obvious the limitations of claim 10 that are missing from
Christensen and Scott, we reverse the obviousness rejections of that claim.
SUMMARY
We reverse all of the rejections on appeal.

REVERSED

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