Ex Parte Lang et al

Board of Patent Appeals and Interferences

May 7, 2012

12101555 (B.P.A.I. May. 7, 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.
12/101,555 04/11/2008 Gary Dee Lang 21711-1 8460
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, NARSIMHA R. NAYINI, and
BRYCE MARK RAMPERSAD
__________

Appeal 2011-000759
Application 12/101,555
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 and, provisionally, for obviousness-type double patenting. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm the obviousness
rejection with respect to all claims except claim 10.
Appeal 2011-000759
Application 12/101,555

2
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
extensive movement, thereby reducing the burden to the worker and
reducing the risk of damage to the bird” (Spec. 1, ¶ 5).
Claims 1-4 and 6-10 are on appeal.
1
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 a plurality of
cages into a stunning chamber;
(ii) sealably enclosing the one or more batches of poultry confined in
the plurality of cages in the stunning chamber to isolate the atmosphere
proximate the poultry;
(iii) introducing a gaseous mixture to the isolated atmosphere to stun
the one or more batches of poultry confined in the plurality of cages;
(iv) forcibly exhausting the gaseous mixture from the isolated
atmosphere after stunning the one or more batches of poultry confined in the
plurality of cages; and
(v) advancing the stunned poultry confined in the plurality of cages
from the stunning chamber.

10. A system for controlled atmosphere stunning of poultry confined
in a plurality of cages comprising:
a stunning chamber having a sealable entrance and a sealable exit and
adapted for receiving poultry confined in a plurality of cages, the stunning
chamber defining a sealed isolated atmosphere;
a gas introduction subsystem adapted to introduce prescribed levels of
carbon dioxide into the isolated atmosphere in the stunning chamber;

1
Claim 11 is also pending and stands rejected (Answer 3) but Appellants
state that the rejection of claim 11 is not being appealed (Appeal Br. 3).
Appeal 2011-000759
Application 12/101,555

3
an atmosphere re-circulating subsystem adapted to recirculate the
isolated atmosphere within the stunning chamber to stun the poultry
confined in the plurality of cages;
an exhaust subsystem adapted to forcibly evacuate the carbon dioxide
from the stunning chamber after stunning the poultry confined in the
plurality of cages;
a control system adapted to control the operation of the atmosphere
recirculating subsystem, the gas introduction subsystem, and the exhaust
subsystem.

The Examiner has rejected claims 1-4 and 6-11 under 35 U.S.C.
§ 103(a) as obvious based on Jacobs
2
and Cattaruzzi
3
(Answer 3). The
Examiner finds that Jacobs discloses a method meeting the limitations of
claim 1 except that Jacobs‟ method does not treat poultry confined to cages
that are stationary (id. at 4). The 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. at 5).
Appellants contend that Jacobs discloses a conveyorized system, not a
system for treating poultry in batches while confined in cages, as required by
claim 1 (Appeal Br. 9). Appellants also argue that Jacobs‟ system has strip
curtains, not doors that sealably enclose a chamber (id.) and does not
forcibly exhaust the stunning gas (id. at 10). Appellants also contend that it
would not have been obvious to modify Jacobs based on Cattaruzzi because
the systems disclosed by the two references are very different (id. at 11-13).

2
Jacobs et al., US 6,126,534, issued Oct. 3, 2000.
3
Cattaruzzi, US 2006/0009142 A1, issued Jan. 12, 2006.
Appeal 2011-000759
Application 12/101,555

4
The main issues with respect to this rejection are: Does the evidence
of record support the Examiner‟s position that it would have been obvious,
based on Cattaruzzi, to modify Jacobs‟ system to treat poultry confined in
cages?
If so, does the evidence of record support the Examiner‟s position that
the combination of Jacobs and Cattaruzzi would have made obvious all of
the limitations of claim 1?
Findings of Fact
1. Jacobs discloses a “method and apparatus for anaesthetizing
animals for slaughter using gas by transporting the animals for
anaesthetizing [through] a gas-filled anaesthetizing space” (Jacobs, col. 1, ll.
6-9).
2. Jacobs discloses that “the anaesthetizing space is divided into at
least two segments. . . . By anaesthetizing the livestock in at least two stages
it is possible first of all to lightly anaesthetize the livestock rapidly and
without convulsions, and thus without stress, and then to convert this light
anaesthesia into a deep anaesthesia.” (Id. at col. 3, ll. 12-26.)
3. Jacobs discloses that “[d]epending on the animals for slaughter, the
conveyor can be adapted for poultry transport” (id. at col. 5, ll. 12-13).
4. Jacobs‟ Figure 1 is reproduced below:
Appeal 2011-000759
Application 12/101,555

5

The figure shows a partially cut-away view of an embodiment of
Jacobs‟ apparatus (id. at col. 5, ll. 38-39).
5. Jacobs states that “pigs 2 are . . . placed on an endless supporting
conveyor 3” and “carried over a downward sloping part of conveyor 3 into a
first segment 5 of anaesthetizing space 6” (id. at col. 5, ll. 45-53).
6. “In this first segment 5 gas is introduced by a gas feed 7 and gas is
discharged by a gas discharge 8” (id. at col. 5, ll. 53-55).
7. “After passing through first segment 5 of anaesthetizing space 6
the lightly anaesthetiz[ed] pigs 2 are carried to a second segment 14 of
anaesthetizing space 6” (id. at col. 6, ll. 1-4).
8. “Connecting onto second segment 14 of anaesthetizing space 6 is a
gas circulation system 15 which . . . comprises a gas feed 16 and a gas
discharge 17” (id. at col. 6, ll. 4-9).
9. “After leaving the second segment 14 of the anaesthetizing space,
the now deeply anaesthetized pigs 2 are carried upward . . . to a following
processing” (id. at col. 6, ll. 22-25).
Appeal 2011-000759
Application 12/101,555

6
10. Jacobs discloses that the two segments of the anesthetizing space
are separated from each other and from the outside environment by strip
curtains (id. at col. 6, ll. 30-40, 58-61) “to prevent direct leakage into the
environment of anaesthetizing gases” (id. at col. 6, ll. 56-57).
11. The instant Specification states that “[a]lternate embodiments of
the poultry stunning system that include a plurality of stunning chambers or
stunning areas, each having a different concentration of carbon dioxide is
contemplated. . . . An air lock, sealed doors, flexible curtain or other barrier
means is used to maintain the carbon dioxide concentrations.” (Spec. 13,
¶ 48.)
12. The instant Specification states that, after stunning, the “ranks of
cages with stunned poultry is then advanced from the housing . . . for further
processing. Advancing the cages may be accomplished via fork lift,
movement of the cages along a roller platform, movement of the cages along
a conveyor system or other means” (id. at 5, ¶ 23).
13. Cattaruzzi discloses a method of stunning or killing poultry
(Cattaruzzi 1, ¶ 3) in which the animals can be in a single container or a
succession of crates (id. at 1, ¶ 29).
14. Cattaruzzi‟s system is based on placing the animals in a chamber,
hermetically sealing the chamber, and extracting air from the chamber in
order to stun or kill the animals (id. at 1, ¶ 26).
Analysis
Jacobs discloses a method for anesthetizing (stunning) animals,
including poultry, using an anesthetizing gas. In Jacobs‟ method, animals
are loaded via a conveyor into an anesthetizing space that is sealed from the
Appeal 2011-000759
Application 12/101,555

7
outside environment with strip curtains; anesthetizing gas is introduced via
gas feed 7 and gas feed 16 to stun the animals; the anesthetizing gas is
forcibly exhausted via gas discharge 17 after the animals are stunned; and
the stunned animals are advanced for processing. We agree with the
Examiner that it would have been obvious to modify Jacobs‟ method to stun
poultry confined in cages, because Cattaruzzi discloses stunning poultry
while the birds are in cages.
We also agree with the Examiner that the method suggested by the
combined references meets all of the limitations of claim 1. Claim 1 recites
“loading one or more batches of poultry” into a stunning chamber, but this
claim language does not exclude using a conveyor belt, as in Jacobs. The
Specification does not define what comprises a “batch” of poultry, and
expressly suggests moving cages using a conveyor system (FF 12; see also
Spec. 7-8, ¶¶ 31-33). Jacobs‟ method treats groups of animals
simultaneously: specifically, the group of animals that have been moved into
the stunning chamber and have not yet been moved out. A “batch” is
reasonably interpreted to read on the group of animals that is contained in
Jacobs‟ stunning chambers at a given time; a new batch of animals is loaded
into Jacobs‟ stunning chamber each time another animal or set of animals is
advanced into the stunning chamber.
Appellants argue that Jacobs “does NOT disclose loading batches of
poultry in cages” (Appeal Br. 9) but point to no evidentiary basis for
concluding that claim 1 excludes Jacobs‟ method.
Appellants also argue that Jacobs “does NOT disclose one or more
doors to seal the entrance and exit. The so called „doors‟ of Jacobs et al. are
Appeal 2011-000759
Application 12/101,555

8
mere strip curtains that . . . do NOT sealably enclose the poultry in the
stunning chamber” (Appeal Br. 9). However, as the Examiner has pointed
out (Answer 9), the claims do not require hermetically sealing the stunning
chamber. The Specification states that a “flexible curtain or other barrier
means” (FF 11) can be used in place of sealed doors to maintain carbon
dioxide concentrations. We conclude that the broadest reasonable
interpretation of “sealably enclosing” poultry in a stunning chamber
encompasses passing the animals through a strip curtain that “prevent[s]
direct leakage into the environment of anaesthetizing gases” (FF 10).
Appellants argue that Jacobs does not disclose forcibly exhausting the
stunning gas from its stunning chamber (Appeal Br. 10), but do not explain
why Jacobs‟ gas discharge 8 and gas discharge 17 fail to meet this
limitation. Appellants also argue that claim 1 requires closing the door to
the stunning chamber and opening the door after stunning is completed (id.)
but these steps are not required by claim 1.
Appellants also take issue with the Examiner‟s reason for combining
the stunning-in-cages aspect of Cattaruzzi with Jacobs‟ method (Appeal Br.
12-13) but do not provide any specific reason why a skilled worker would
not have considered it obvious to practice Jacobs‟ method using caged
poultry or any reason why this modification would not have been expected
to work. The argument is therefore unpersuasive.
Appellants also argue that they have presented evidence of
nonobviousness that rebuts the prima facie case (Appeal Br. 15-16).
Specifically, Appellants argue that Exhibits A, B, and C attached to the
Appeal Brief show “the invention‟s commercial success, the long felt but
Appeal 2011-000759
Application 12/101,555

9
unresolved needs, praise by others, and the failure of others to design a CAS
[controlled atmosphere stunning] system as efficient and cost effective as the
Praxair CAS system” (id. at 16).
This argument is also unpersuasive. Each of Exhibits A, B, and C
emphasizes that the advantages of the Praxair commercial CAS system
result from its feature of treating poultry while they are still in cages on the
trailer that delivered them. See Exhibit A, first page (“[T]his proprietary
system stuns turkeys while they are still in cages on the transport trailer
using a multi-stage gas mixture-based cycle.”); Exhibit B, pages 281-282
(“All of the CAS systems on the market required removable cages of some
type. Converting to using a CAS would mean changing the cages on the
trailers as well as major modifications to the live receiving and hanging
areas. . . . Praxair came back to Cooper with the concept of a CAS system
that would stun the birds while they were on the trailer.”); and Exhibit C,
page 322 (“CAS systems that stun individual cages require the processor to
modify trailers and make modifications to the plant‟s live receiving area.
Praxair, Inc. has developed a CAS system which stuns turkeys while they
are still on the trailers.”).
Claim 1, however, does not require stunning poultry in cages without
removing the cages from the transport trailer. Thus, Appellants have not
shown a nexus between the proffered evidence and the merits of the claimed
invention. See Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir.
2010) (“„For objective [evidence of secondary considerations] to be
accorded substantial weight, its proponent must establish a nexus between
the evidence and the merits of the claimed invention.‟”)(quoting In re GPAC
Appeal 2011-000759
Application 12/101,555

10
Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995); In re Huai-Hung Kao, 639 F.3d
1057, 1068 (Fed. Cir. 2011) (“Where the offered secondary consideration
actually results from something other than what is both claimed and novel in
the claim, there is no nexus to the merits of the claimed invention.”).
With regard to claim 3, which requires introducing and recirculating a
gaseous mixture serially at three different concentrations, Appellants argue
that “in Jacobs et al. system, the first and second concentrations of stunning
gas are maintained in separate stunning chambers referred to as a first
anaesthetizing space 30 and a second anaesthetizing space 38 . . . and NOT a
single stunning chamber as claimed” (Appeal Br. 13).
This argument is not persuasive. Jacobs‟ method transports animals
through two segments of a single anesthetizing space (see FF 7). The
“stunning chamber” of claim 3 therefore reads on the “anaesthetizing space
6” of Jacobs‟ apparatus, which Jacobs discloses as having two segments
with different concentrations of stunning gas circulating in them (FF 2).
Jacobs also suggests that its method employs “at least two segments” (FF 2,
emphasis added). We agree with the Examiner that this disclosure would
have made it obvious to modify Jacobs‟ method to include a third segment in
its anesthetizing space, with a third concentration of stunning gas, and to
circulate that atmosphere in the third segment for a time sufficient to kill the
animals.
With regard to claim 10, Appellants argue that neither Jacobs nor
Cattaruzzi meet the limitation of claim 10 regarding the recirculation
subsystem (Appeal Br. 14).
Appeal 2011-000759
Application 12/101,555

11
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 recirculating subsystem, and an exhaust subsystem. The
Examiner points to “9,15,29,36 in figures 1-2” of Jacobs as the recirculating
subsystem (Answer 7). However, Jacobs describes elements 9 and 15 of
Figure 1 as the entire gas circulation systems of the two segments of the
anesthetizing space (see Jacobs, col. 6, ll. 9-11). These elements therefore
do not correspond to gas introduction, recirculation, or exhaust subsystems.
Jacobs describes elements 29 and 36 of Figure 2 as pumps that provide gas
circulation in the first and second anesthetizing spaces (see id. at col. 6, ll.
31, 52), which is not a “subsystem adapted to recirculate the isolated
atmosphere within the stunning chamber,” as required by claim 10.
Because the Examiner has not persuasively shown that the disclosures
of Jacobs and Cattaruzzi would have made obvious a system meeting all of
the limitations of claim 10, we reverse the obviousness rejection of that
claim.
Conclusions of Law
The evidence of record supports the Examiner‟s position that it would
have been obvious, based on Cattaruzzi, to modify Jacobs‟ system to treat
poultry confined in cages, and that the combination would have made
obvious all of the limitations of claims 1 and 3. Claims 2, 4, 6-9, and 11
were not argued separately and therefore fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii).
Appeal 2011-000759
Application 12/101,555

12
The evidence of record does not support the Examiner‟s position that
Cattaruzzi and Jacobs would have made obvious all of the limitations of
claim 10.
SUMMARY
We affirm the rejection of claims 1-4, 6-9, and 11 as obvious based on
Jacobs and Cattaruzzi, but reverse the rejection of claim 10 on this basis.
We also affirm the provisional rejections for obviousness-type double
patenting because Appellants have not disputed the merits of these rejections
(Appeal Br. 7). Although we reverse the obviousness rejection of claim 10,
this decision is designated an affirmance because the provisional rejections
apply to all of the claims.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc