Ex Parte Van Der Eerden et al

Patent Trial and Appeal Board

Oct 26, 2016

13382845 (P.T.A.B. Oct. 26, 2016)

UNITED STA TES p A TENT 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.
13/382,845 03/27/2012 Hendricus Franciscus Jacobus Maria Van Der Eerden 1063-0193PUS 1 5041
127226 7590 10/28/2016
Birch, Stewart, Kolasch & Birch, LLP
P.O. Box 747
Falls Church, VA 22040-0747
EXAMINER
GUPTA, YOGENDRAN
ART UNIT PAPER NUMBER
1744
NOTIFICATION DATE DELIVERY MODE
10/28/2016 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):
mailroom@bskb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HENDRICUS FRANCISCUS JACOBUS MARIA
VAN DER EERDEN, DIRK MESKENDAHL,
THOMAS WILLEM DEKKER, and
FRANCISCUS QUIRINUS FREDRIK VEROUDEN
Appeal2015-006319
Application 13/382,845
Technology Center 1700
Before ADRIENE LEPIANE HANLON, JEFFREY W. ABRAHAM, and
AVEL YN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claim 1. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 In our decision below, we refer to the Specification filed January 6, 2012
(Spec.), the Final Office Action appealed from, mailed May 16, 2014 (Final
Act.); the Appeal Brief filed January 16, 2015 (Appeal Br.); the Examiner's
Answer mailed April 13, 2015 (Ans.); and the Reply Brief filed June 10,
2015 (Reply Br.).
2 Appellants identify the real party in interest as Marel Townsend Further
Processing B.V., the assignee of the instant application. Appeal Br. 1.
Appeal2015-006319
Application 13/382,845
STATEMENT OF CASE
The claims are directed to a moulding device for preparing a moulded
three dimensional food product. Claims Appendix at Appeal Br. 12. Claim
1 is illustrative of the claimed subject matter and is reproduced below, with
the disputed claim limitation emphasized:
1. A moulding device for moulding three dimensional
products from a mass of foodstuff starting material suitable for
consumption, comprising:
- a moulding drum having an outer circumferential
moulding surface which is provided with a plurality of mould
cavities, wherein at least one mould cavity is delimited by a
bottom and a peripheral wall defining a cavity opening in the
moulding surface, wherein the mould cavity has a cavity height
which is defined between the bottom and the cavity opening, said
moulding drum is rotatable so that the mould cavity passes along
a movement path from a fill position for filling the mass into the
mould cavity to a product release position for releasing at least
one of the three dimensional products from the mould cavity and
from the product release position to the fill position;
- a mass distribution device, which is arranged at the fill
position along the moulding drum for filling the mass into the
mould cavity via an outlet opening of said mass distribution
device, wherein the mass distribution device is configured to
contact the moulding drum in a sealing manner while the
moulding drum is rotated and the outlet opening of the mass
distribution device extends transversely to said movement path,
said outlet opening having a length greater than a largest
dimension of the mould cavity in a direction transverse to said
movement path, said outlet opening having a width smaller than
a largest dimension of the mould cavity in a direction parallel to
said movement path; and
- a movement device for rotating the moulding drum so
that a mould cavity passes along the movement path from the fill
position to the release position, and from the product release
position to the fill position,
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Application 13/382,845
wherein the mould cavity is provided with upright dividing
walls connected to the bottom, dividing walls define a plurality
of transverse rows of moulding cells, said transverse rows being
arranged behind one another in the direction of the movement
path, each transverse row comprising multiple moulding cells
and extending fully across the mould cavity, and
wherein each dividing wall has a height which is at least
50% of the cavity height of the mould cavity and less than the
cavity height, so that the mould cavity defines the three
dimensional product as having a continuous foodstuff mass layer
and a plurality of small foodstuff mass elements on a surface of
said continuous layer, said mass elements being formed by
foodstuff starting material introduced into the moulding cells and
the mass elements being separated by voids formed by said
dividing walls.
Id. (emphasis added).
REJECTIONS 3
The Examiner rejects claim 1, under 35 U.S.C. § 103(a), as being
unpatentable over Zuger4 in view of Van der Eerden5 and further in view of
Spiel. 6 Final Act. 7. Appellants seek our review of the rejection of claim 1.
Appeal Br. 5.
3 The Examiner also rejects claim 1 under 35 U.S.C. § 112(a) for failing to
comply with the written description requirement (Final Act. 3) as well as
under 35 U.S.C. § 112(b) as indefinite for failing to particularly point out
and distinctly claim the subject matter the inventor regards as the invention
(Final Act. 4---6). The Examiner later withdraws these rejections. See
Advisory Action, mailed September 5, 2014, 2.
4 Bettina Zuger, US 2008/0008799 Al, published January 10, 2008
(hereinafter "Zuger").
5 Van der Eerden et al., WO 2004/002229 A2, published January 8, 2004
(hereinafter "Van der Eerden").
6 Spiel et al., US 4,881,889, issued November 21, 1989 (hereinafter "Spiel").
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Application 13/382,845
OPfNION
The Examiner rejects claim 1 as obvious over Zuger in view of Van
der Eerden and Spiel. Final Act. 7. The Examiner finds that Zuger teaches a
molding device for manufacturing molded food products having the
structure claimed. Id. at 7-8. The Examiner acknowledges that Zuger fails
to teach that the outlet opening has "a length greater than a largest width of
the mould cavity in a direction transverse to said movement path, said outlet
opening of the mass distribution device having a width smaller than a largest
length of the mould cavity in a direction parallel to said movement path as
set forth in the claims" (id. at 8) and "fails to teach or suggest the at least
one cavity is provided with upright dividing walls connected to bottom as set
forth in the claim" (id. at 9). The Examiner finds, however, that Van der
Eerden-which "discloses an invention relates to mould three-dimensional
products from a mass of foodstuff starting material"-also teaches an outlet
opening configured as claimed. Id. at 8. And, the Examiner finds that Spiel
teaches a "mold element for use in a rotary dough molder" where the "mould
member is provided with walls or projections or upright dividing walls
(18,20,34)" that are at least 50% of the height of the mold but do not extend
to the top of the mold cavity. Id. at 9-10. The Examiner reasons that one of
skill in the art would have reason to modify the teachings of Zuger to
include the upright dividing walls of Spiel "to permit ease of removal of
dough from the respective mold depression (See col.8 lines 5-13 of Spiel et
al. ('899)) as taught by Spiel et al. ('899)." Id. at 10-11.
Appellants argue that the prior art fails to teach the claimed dividing
walls. Appeal Br. 6. Specifically, Appellants argue that the walls, ridges,
and spikes of Spiel are not dividing walls as claimed, but rather, Spiel
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Application 13/382,845
assigns "different meanings, structures and purposes" to these elements. Id.
at 7. According to Appellants, the internal structures, i.e., the ridges and
spikes, provide indentations in egg white dough and aid in the removal of
the dough, respectively. Id.
Appellants' argument does not convince us of reversible error by the
Examiner. Appellants have not directed our attention to any definition of
dividing walls, contained within the Specification or extrinsic evidence that
would exclude the spikes identified by the Examiner.
Next Appellants contend that the ridges and spikes of Spiel are not "at
least 50% of the cavity height of the mould cavity and less than the cavity
height" as required by claim 1. Appeal Br. 7. Appellants argue, in reference
to Figure 8 of Spiel, that the "ridges 32 and 36 and not at least 50% of the
height of the cavity while spikes 34, which are not dividing walls, have the
same height as that of the cavity." Id.
Again, we are not persuaded by Appellants' argument. The
Examiner's findings are based on Figures 3 and 7 of Spiel shown below.
Final Act. 10.
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Application 13/382,845
r.tq.J
Figures 3 and 7 depict dividing walls, i.e., spikes 9, 18, 20, and 34 that
extend at least 50% of the height of the cavity and are less than the height of
the mold cavity as claimed. Spiel further explains that "[ n ]one of the
projections extend above the level of the top of the surrounding body 1."
Spiel col. 7, 11. 54--55.
Lastly, Appellants urge that "one of ordinary skill in the art would not
look to modify Zuger and [Van der] Eerden to include dividing walls as the
presence of the dividing walls as claimed acts as a hindrance for the mass
flowing into the mould cavity from the outlet opening of the mass
distribution device" and as the prior art "provides [no] incentive to
deliberately create the dividing walls." Appeal Br. 7-8. And, according to
Appellants, "in Spiel there is no tendency of the foodstuff mass to flow to
the rear end of the mould cavity." Id. Rather, in Spiel, dough is pressed into
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Application 13/382,845
a mold cavity that has spikes and ridges to aid in the removal of dough from
the cavity.
Appellants again do not persuade us of reversible error by the
Examiner. The Examiner determined that the skilled artisan would have
reason to combine the molding device of Zuger to include the dividing walls,
i.e., spikes, of Spiel, "to permit ease of removal of dough from the respective
mold depression ... as taught by Spiel et al. ('889)." Final Act. 11.
Appellants admit that the spikes of Spiel serve this purpose and do not
dispute that the spikes would serve the same purpose in the molding device
of Zuger. Appeal Br. 8; Reply Br. 4. Appellants' argument that the prior art
does not recognize "the effect that the [claimed] dividing walls act as a
hindrance for the mass flowing into the mould cavity from the outlet
opening of the mass distribution device" (Reply Br. 3) is of little
consequence. It has been established that the reason for combining
references does not have to be identical to that of the applicant in order to
establish obviousness. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir.
1996). "As long as some motivation or suggestion to combine the references
is provided by the prior art taken as a whole, the law does not require that
the references be combined for the reasons contemplated by the inventor."
In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992). Thus, Appellants'
argument that "none of the cited art provides an incentive to deliberately
create the dividing walls" (Reply Br. 4) is without merit.
CONCLUSION
The Examiner did not err in rejecting claim 1, under 35 U.S.C.
§ 103(a), as unpatentable over Zuger, Van der Eerden, and Spiel.
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DECISION
For the above reasons, the Examiner's rejection of claim 1 is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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