Ex Parte Moncavage

Patent Trial and Appeal Board

Jul 17, 2013

11880304 (P.T.A.B. Jul. 17, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CHARLES MONCAVAGE
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Appeal 2011-005788
Application 11/880,304
Technology Center 3700
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Before: WILLIAM V. SAINDON, JEREMY M. PLENZLER, and
BEVERLY M. BUNTING, Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/880,304

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1,
2 and 5-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM and enter a NEW GROUND OF REJECTION of
claims 1, 2, and 5- 9 pursuant to our authority under 37 C.F.R. § 41.50(b).

CLAIMED SUBJECT MATTER
The claims are directed to a food chiller. Claims 1, 10 and 17 are
independent. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A food cooling assembly comprising:
a container having:
a plurality of walls defining a reservoir
adapted to retain a fluid, wherein one of the walls
includes an opening extending therethrough the
opening providing fluid communication between
the reservoir and an exterior of the container;
a drain plug removably coupled to the
opening; and
a chiller comprising:
a plug releasably insertable into the opening;
a pump having a suction end and a discharge
end;
a supply conduit having:
a first supply end extending into the
plug and being in fluid communication with the
reservoir when the plug is inserted into the
opening; and
a second supply end coupled to the
suction end of the pump;
a cooling conduit having:
a first cooling end coupled to the
discharge end of the pump; and
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a second cooling end extending into
the plug and being in fluid communication with the
reservoir when the plug is inserted into the
opening; and
a heat transfer device in physical contact
with the cooling conduit between the first cooling
end and the second cooling end, such that heat is
transferred between the heat transfer device and
the cooling conduit.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Perez
Middlemiss
Warren
Wehrly
US 4,280,335
US 5,495,725
US 5,921,096
US 6,302,094 B1
Jul. 28, 1981
Mar. 5, 1996
Jul. 13, 1999
Oct. 16, 2001
Tedder US 2004/0069009 A1 Apr. 15, 2004

REJECTIONS
The Examiner made the following rejections:
Claims 1, 2, 5, 6, 8 and 9 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wehrly, Tedder, Middlemiss and Perez. Ans. 3.
Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Wehrly, Tedder, Middlemiss, Perez and Gleason. Ans. 8.
Claims 10, 11, 15 and 16 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wehrly and Perez. Ans. 9.
Claims 12-14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wehrly, Perez and Middlemiss. Ans. 11.
Claims 17-19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wehrly, Tedder and Middlemiss. Ans. 12.
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Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Wehrly, Tedder, Middlemiss and Gleason. Ans. 14.

ANALYSIS
Claims 1, 2, 5, 6, 8 and 9: Wehrly, Tedder, Middlemiss and Perez
Appellant argues claims 1, 2, 5, 6, 8 and 9 as a group. App. Br. 10-11.
We select claim 1 as representative, treating claims 2, 5, 6, 8 and 9 as
standing or falling with representative claim 1. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
The Examiner found that Wehrly teaches a food cooling assembly
including a container 30 having one wall with an opening 38, and a chiller
having a pump 35, a cooling conduit 39,40, and a heat transfer device 100 in
communication with the cooling conduit. Ans. 4, citing Wehrly, fig. 1.
Acknowledging that Wehrly does not teach a drain plug coupled to the
opening, the Examiner relied on Tedder to teach a drain plug 29 removably
coupled to the opening in a reservoir 11 capable of retaining a fluid. Ans. 4,
citing Tedder, fig.1. The Examiner reasoned it would have been obvious to
“include a drain plug removably coupled to an opening in a reservoir to
prevent melted ice water from sitting in the reservoir,” so as to prevent the
water from becoming stagnant and promote the growth of bacteria within the
container. Ans. 4-5. The Examiner also relied on Middlemiss to teach a
(chiller) plug 18 with coolant tubes releasably insertable into the opening of
the reservoir. Noting that the “use of an insertable plug into an opening of a
container will prevent any contents of the container from spilling,” the
Examiner further pointed out that the use of a plug with coolant tubes will
also protect the coolant tubes from becoming damaged from external
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conditions, as the plug acts as a protective barrier. Ans. 5. The Examiner
reasoned that it would have been obvious to combine the teachings of
Wehrly and Tedder with those of Middlemiss to include a (chiller) plug
releasably insertable into a container opening, and the second cooling end
extends into the plug and is in fluid communication with the reservoir to
prevent fluid from within the reservoir from draining into the environment.
Id. The Examiner relied on Perez to teach a supply conduit having a first
supply end and second supply end coupled to the suction end of the pump.
Ans. 6. The Examiner reasoned that it would have been obvious to combine
the teachings of Wehrly, Tedder and Middlemiss with the teachings of
Perez, so that the first supply end would extend into the (chiller) plug and be
in fluid communication with the reservoir when the (chiller) plug is inserted
into the opening in order to have the capability of using a less expensive
non-submersible pump. Id.
Appellant only challenges the Examiner’s rejection with respect to the
reasoning applied to include a drain plug from Tedder in the reservoir
opening of Wehrly. See App. Br. 11; Reply Br. 5-6. Appellant argues that
one of skill in the art would not need to add a drain to Wehrly’s reservoir to
“properly drain the reservoir” since Wehrly already discloses “[t]he entire
system is capable of being drained to empty all of the fluid therefrom for
ease of transport.” App. Br. 11, citing Wehrly, col. 7, lines 22-23; Reply Br.
5. Accordingly, Appellant asserts that the modification of Wehrly’s
reservoir with Tedder’s plug “adds a superfluous fitting to Wehrly’s
reservoir and that one of skill in that art would see no need to do so in order
to drain Wehrly’s reservoir 30.” Reply Br. 5. Appellant notes that if Tedder
were removed (i.e., disqualified as a reference), none of the other references
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disclose a drain plug removably coupled to an opening in a wall of a
container or an opening into which a plug may be releasably inserted, thus
there would be “no place to insert the plug disclosed by Middlemiss.” App.
Br. 11; Reply Br. 6.
While Appellant argues that the addition of the drain plug to the
reservoir of Wehrly is superfluous and would not be needed, we conclude
that one skilled in the art would have considered it obvious to utilize the
drain plug from Tedder coupled to Wehrly’s opening, in order to prevent
liquid from spilling out of the existing opening in the container of Wehrly
when the chiller plug is not inserted in the opening. See Spec. pg. 3 ll. 1-13.
As such, the drain plug from Tedder would be removable from the opening
so that the liquid can drain or for the chiller plug to be inserted in the
opening. This reasoning also aligns with the Examiner’s explanation
regarding the plug from Middlemiss preventing water from spilling out of
the opening in Wehrly when the chiller is coupled to the container. See Ans.
5.
For these reasons, we sustain the rejection of claim 1 and claims 2, 5,
6, 8 and 9. Because our reasoning for sustaining the rejection of claims 1, 2,
5, 6, 8 and 9 based on Wehrly, Tedder, Middlemiss and Perez differs
somewhat from the reasoning relied on by the Examiner, we designate our
affirmance of the rejection of claims 1, 2, 5, 6, 8 and 9 as a NEW
GROUND OF REJECTION so as to provide Appellants with a full and
fair opportunity to respond to the thrust of the rejection. See In re Kronig,
539 F.2d 1300, 1302 (CCPA 1976) (“the ultimate criterion of whether a
rejection is considered ‘new’ in a decision by the board is whether appellants
have had [a] fair opportunity to react to the thrust of the rejection.”).
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Claim 7: Wehrly, Tedder, Middlemiss, Perez and Gleason
Appellant does not provide a separate argument in addressing the
rejection of claim 7, and relies on the arguments provided with respect to
claim 1. App. Br. 15. For the reasons discussed supra with respect to claim
1, we likewise sustain the rejection of claim 7, which depends therefrom.
Because our reasoning for sustaining the rejection of claim 7 based on
Wehrly, Tedder, Middlemiss, Perez and Gleason differs somewhat from the
reasoning relied on by the Examiner, we designate our affirmance of the
rejection of claim 7 as a NEW GROUND OF REJECTION so as to
provide Appellants with a full and fair opportunity to respond to the thrust of
the rejection.

Claims 10, 11, 15 and 16: Wehrly and Perez
Appellant argues claims 10, 11, 15, and 16 as a group. App. Br. 10-
11. We select independent claim 10 as representative, treating claims 11, 15
and 16 as standing or falling with representative claim 10.
The Examiner found that Wehrly teaches an apparatus for cooling
food that includes a pump 35, a cooling circuit 39, 40 having a second
cooling end releasably couplable to an opening 38 and a heat transfer device
100 in contact with the cooling circuit. Ans. 9, citing Wehrly, figs. 1, 5.
Further, the Examiner relied on Perez to teach a supply conduit having a first
supply end “releasably couplable to an opening (hole where pipe is coming
out in 20) in a receptacle 20 capable of retaining a fluid” and a second
supply end coupled to the suction end of the pump 34. Ans. 10, citing Perez
col. 4, ll. 17-59, fig. 1. Based on these findings, the Examiner determined it
would have been obvious to modify Wehrly’s apparatus with the teachings
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of Perez to “include a supply conduit coupled to the opening and the suction
end of the pump in order to have the capability of using a pump that does not
have to be rated for operating underwater” and further that a non-
submersible pump “allows for a lower manufacturing cost because the
housing does not have to be water tight”. Id.
Appellant first argues the references individually and contends that
since Wehrly discloses a pump 35 disposed within the reservoir 30 there is
no need for a supply conduit “having a first supply end releasably couplable
to an opening in a receptacle adapted to retain a fluid and a second supply
end coupled to the suction end of the pump”. App. Br. 12-13. Although
Appellant admits that Wehrly discloses the use of a non-submersible pump,
Appellant contends that Wehrly does not disclose how an external pump
would be coupled to the reservoir. Id. at 13; Reply Br. 5-6. Appellant’s
argument is unpersuasive and ultimately not directed to the rejection, which
is predicated on a combination of teachings. The Examiner reasonably
noted that since Wehrly discloses the use of any type of pump, one of
ordinary skill in the art would have known how to utilize and connect the
non-submersible pump of Perez to the Wehrly system. Ans. 16.
Next, Appellant argues that Wehrly does not teach that the second
cooling end of the cooling conduit and first supply end of the supply conduit
of Wehrly are each “releasably couplable to the opening”, since the conduits
extend through the opening 38 and are not coupled to the opening. App. Br.
13; Reply Br. 7. Appellant contends that the broadest reasonable
interpretation of “releasably couplable” consistent with the Specification
would be “a device that can be coupled/decoupled by hand and that provides
a physical connection to the cooler that prevents water inside the cooler 110
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from leaking out of the cooler 110 through the drain 114.” Id. at 14. Based
on this narrow interpretation, Appellant argues that Wehrly does not disclose
a “physical connection between the first end 132 of a conduit 130 that
extends into and through a plug 122 that is inserted into a drain 114 in a
fluid cooler 110.” Id. at 13-14, citing Spec. p. 4, ll. 9-15, fig. 1.
We decline to apply Appellant’s narrow interpretation of “releasably
couplable” in construing claim 10.1 The portion of the Specification cited by
the Appellant only refers to the plug as being “releasably insertable into
drain 114” and not the supply conduit first end 132 or cooling conduit
second end 154, each of which “extends into and through the plug.” See
Spec. pg. 4, ll. 9, 14-15, 30-31, and fig. 1. Given the minimal disclosure in
the Specification regarding connection of the conduits to the plug, and the
lack of any plug in claim 10, the Examiner reasonably interpreted this
limitation “as capable of being coupled to the opening”, such that either the
first supply end of the supply conduit or the second cooling end of the
cooling conduit “is capable of being linked to or associated with the opening
38 as disclosed by Wehrly.” Ans. 17-18. Appellant’s argument that since
the plug is releasably insertable into the drain and the conduits extend into
and through the plug, then the conduits are releasably couplable with the
opening, is not commensurate with the scope of claim 10. As such, the
rejection of claim 10 and claims 11, 15, and 16 under 35 U.S.C. § 103(a) is
sustained.

1 See In re American Academy of Science Tech Center, 367 F. 3d
1359, 1364 quoting In re Bass, 314 F.3d 575, 577 (Fed.Cir.2002), “[T]he
PTO must apply the broadest reasonable meaning to the claim language,
taking into account any definitions presented in the specification.”

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Claims 12-14: Wehrly, Perez and Middlemiss
Appellant does not provide a separate argument in addressing the
rejection of claims 12-14, and relies on the arguments provided with respect
to claim 10. App. Br. 15. For the reasons discussed supra with respect to
claim 10, we likewise sustain the rejection of claims 12-14, which depend
therefrom.

Claims 17-19: Wehrly, Tedder and Middlemiss
Appellant argues claims 17-19 as a group. App. Br. 15-17. We select
independent claim 17 as representative, treating claims 18 and 19 as
standing or falling with representative claim 17.
The Examiner found that Wehrly teaches a method of cooling food by
circulating water out of a reservoir 30 to a food receptacle 100 and back to
the reservoir. Ans. 12, citing Wehrly figs. 1 and 5. Additionally, the
Examiner relied on Tedder to teach a drain plug 29 removably coupled to the
opening in a reservoir 11 capable of retaining a fluid and Middlemiss to
teach a plug 18 disposed around two tubes 12, 15 and adapted to be
removably coupled to an opening 19 of bottle 3. Id. citing Middlemiss, fig.
2. Based on these teachings, the Examiner reasoned it would have been
obvious to combine the teachings of Wehrly and Tedder with the teachings
of Middlemiss “to include inserting a chiller plug into an opening on a
reservoir, that when combined with Wehrly, water would be circulated from
the reservoir, out of the reservoir through the chiller plug, to the receptacle
and back to the reservoir through the chiller plug in order to protect the tubes
that allow for the circulation of water in and out of the reservoir.” Ans. 14.
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Appellant argues that Middlemiss does not disclose a system for
circulating water in a complete circuit since Middlemiss teaches two
different types of fluids (water and air) that each complete a partial circuit,
i.e. air pumped from atmosphere to bottle and water forced from bottle to
drain. App. Br. 16; Reply Br. 9-10. We first note that the Examiner relied
on Wehrly and not Middlemiss to disclose the feature of circulating water
between the reservoir and receptacle. Therefore, Appellant’s argument does
not apprise of error in the Examiner’s conclusion that it would have been
obvious to incorporate the drain plug of Tedder with the opening in the
reservoir of Wehrly, and inserting the chiller plug of Middlemiss into the
opening, that when combined with Wehrly’s water circulating method, cools
food by circulating water out of a reservoir 30 to a food receptacle 100 and
back to the reservoir. Ans. 13-14 and 18-19. Further, the Examiner’s reason
to combine the teachings of Wehrly, Tedder and Middlemiss is expressly
articulated and Appellant does not seek to apprise us of error in this
articulation. As such, the rejection of claim 17 and claims 18 and 19 under
is sustained.

Claim 20
Appellant does not provide a separate argument in addressing the
rejection of claim 20, and relies on the arguments provided with respect to
claim 17. App. Br. 17. For the reasons discussed supra with respect to
claim 17, we likewise sustain the rejection of claim 20, which depend
therefrom.

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DECISION
The Examiner’s decision to reject claims 1, 2, and 5-9 is AFFIRMED.
Insofar as our reasoning differs from that of the Examiner, we denominate
our affirmance a NEW GROUND OF REJECTION.
The Examiner’s decision to reject claims 10-20 is AFFIRMED.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds 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. . . .
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011).

AFFIRMED; 37 C.F.R. § 41.50(b)

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