Ex Parte Lee et al

Patent Trial and Appeal Board

Dec 20, 2018

14512905 (P.T.A.B. Dec. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/512,905 10/13/2014 Robert E. Lee
38550 7590 12/25/2018
CARGILL, IN CORPORA TED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
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.
N00043US02
(CAROl 86/US/2)
CONFIRMATION NO.
1801
EXAMINER
COX, STEPHANIE A
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
12/25/2018 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):
patent_docketing@cargill.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT E. LEE,
AARON K. MARTIN, and DONALD R. ROBERTS
Appeal2018-000979 1
Application 14/512,905
Technology Center 1700
Before JEFFREY T. SMITH, MICHAEL P. COLAIANNI,
and DEBRA L. DENNETT, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 21-34. We have jurisdiction under 35 U.S.C. § 6.
Appellant's invention is generally directed to producing homestyle
egg product portions on a commercial scale. (Spec. i-f4 ). Claim 21 illustrates
the subject matter on appeal and is reproduced below:
21. A method for producing homestyle egg product portions
on a commercial scale comprising the steps of:
(a) providing a plurality of moving heated pockets;
1 Appellant is the Applicant, Cargill, Incorporated, which is also identified
as the real party in interest. (App. Br. 3).
Appeal2018-000979
Application 14/512,905
(b) placing a liquid egg product portion into each heated pocket;
( c) providing a plurality of mechanical fingers,
( d) inserting mechanical fingers into the egg product portions
and moving the mechanical fingers in a predetermined pattern
to mix the egg product portions within the heated pockets to
yield stirred egg product portions having a roughened surface;
( e) mechanically gathering the stirred egg product portions to
yield gathered egg product portions having an irregular shape
within the heated pockets; and
( f) further cooking the gathered egg product portions to yield
homestyle egg product portions.
The Examiner maintains the following rejections from the Final
Office Action for our review:
I. Claims 21-23 and 26-34 rejected under 35 U.S.C. § I03(a) as
obvious over the combination ofHairsine (US 2005/0136172 Al;
June 23, 2005), Perez Gonzalvo (US 6,244,164 Bl; June 12, 2001),
Weimer (US 4,522,117; June 11, 1985), and Roberts (US
2005/0268795 Al; Dec. 8, 2005).
II. Claims 24 and 25 rejected under 35 U.S.C. § I03(a) as obvious
over the combination of Hairsine, Perez Gonzalvo, Weimer, Roberts,
and Rabotski (US 4,891,237; Jan. 2, 1990).
OPINION
Rejection I
Appellant addresses the appealed claims together. We will address
the claims as argued by Appellant. Any claim not separately argued will
stand or fall with its independent claim 21. (See generally App. Br.)
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Application 14/512,905
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, we affirm the Examiner's
rejection for the reasons set forth in the Answer to the Appeal Brief and
Final Office Action appealed from, which we adopt as our own. We
highlight and address specific findings and arguments for emphasis as
follows.
Appellant's principal argument is that there is no reason to combine
Hairsine ( drawn to methods for mass producing cooked, cooled eggs having
a grill fried egg appearance) with Perez Gonzalvo ( directed to a method for
cooking a solid product such as meat or fish), Weimer (directed to preparing
scrambled eggs), and Roberts ( directed to an egg folding apparatus). (App.
Br. 9--13). Appellant contends that the Examiner has not provided a proper
basis for modifying Hairsine, which is drawn to producing cooked eggs
having a grill fried egg appearance, with the mixing apparatus as shown in
Perez Gonzalvo and Weimer to produce a scrambled egg product. (App. Br.
11). Appellant further argues Roberts' egg folding apparatus does not
overcome Hairsine's, Perez Gonzalvo's, and Weimer's deficiencies. (App.
Br. 12).
Appellant's arguments are not persuasive of reversible error. In KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398, 419-20 (2007), the Supreme Court
observed that:
In determining whether the subject matter of a ... claim is
obvious, neither the particular motivation nor the avowed
purpose of the patentee controls. What matters is the objective
reach of the claim. If the claim extends to what is obvious, it is
... [ unpatentable] under § 103. One of the ways in which a
patent's subject matter can be proved obvious is by noting that
there existed at the time of the invention a known problem for
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Application 14/512,905
which there was an obvious solution encompassed by the
patent's claims.
See also Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010)
("The Supreme Court's decision in KSR . .. directs us to construe the scope
of analogous art broadly," stating that "familiar items may have obvious
uses beyond their primary purposes, and a person of ordinary skill often will
be able to fit the teachings of multiple patents together like pieces of a
puzzle.") ( emphasis omitted).
The industry making various forms of cooked egg products is well
known and well developed. Hairsine describes methods for mass producing
cooked egg products by depositing egg products (including whole eggs,
formulated eggs, or eggs made from scrambled egg mixes) into molds
having a variety of shapes as depicted in the figures. (Hairsine ,r 8).
Weimer discloses processes for preparing scrambled egg products which
include placing eggs into molds ( egg rings) which are to be scrambled
utilizing mixing device (54). (Weimer cols. 1 and 4). Perez Gonzalvo also
describes its known to use mixing devices within cooking container. (Perez
Gonzalvo col. 3). Given the teachings of the cited prior art, a person of
ordinary skill in the art would have recognized the techniques for
formulating cooked egg products. The cited prior art establishes that
scrambled act products could have been formed in molds utilizing mixing
devices which extend within the mold. Cited prior art also establishes there
was a desire for mass producing cooked egg products. A person of ordinary
skill would have sufficient skill to modify a cooking apparatus such as
described by Hairsine to incorporate known mixing apparatus within the
molds to produce scrambled egg products. See In re Kubin, 561 F.3d 1351,
1360 (Fed. Cir. 2009) (obviousness only requires a reasonable expectation of
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Application 14/512,905
success). See also In re Keller, 642 F.2d 413,425 (CCPA 1981) ("The test
for obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference .... Rather,
the test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art."); In re Nievelt, 482 F.2d 965,
968 (CCPA 1973) ("Combining the teachings of references does not involve
an ability to combine their specific structures.") ( emphasis omitted).
Consequently, after consideration of Appellant's arguments, we are
unpersuaded of error in the Examiner's determination of obviousness.
Rejection II
Appellant contends claims 24 and 25 are patentable because of their
dependence from independent claim 21. (App. Br. 13-14). We sustain the
rejection of claims 24 and 25 for the reasons presented above when
discussing independent claim 21.
Accordingly, we affirm the 35 U.S.C. § 103(a) rejections of claims
21-34 for the reasons given above and presented by the Examiner.
DECISION
The Examiner's prior art rejections of claims 21-34 are affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l ).
AFFIRMED
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