Ex Parte Zhu et al

Patent Trial and Appeal Board

Mar 30, 2016

12343541 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/343,541 12/24/2008
33375 7590
THOMPSON HINE LLP
Intellectual Property Group
10050 Innovation Drive
Suite 400
DAYTON, OH 45342-4934
04/01/2016
FIRST NAMED INVENTOR
Guangshan Zhu
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. CONFIRMATION NO.
006593-02227 4600
EXAMINER
AYALA, FERNANDO A
ART UNIT PAPER NUMBER
3724
NOTIFICATION DATE DELIVERY MODE
04/01/2016 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):
ipdocket@thompsonhine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUANGSHAN ZHU, SAMUEL A. RUMMEL, and
RAYMOND A. CARR
Appeal2014-001857
Application 12/343 ,541
Technology Center 3700
Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's
rejections of claims 1-15. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
We AFFIRM.
1 The Appellants identify "Premark PEG L.L.C." as the real party in interest.
(Appeal Br. 1.)
Appeal2014-00857
Application 12/343,541
STATEMENT OF THE CASE
The Appellants' invention "relates generally to food product slicers of
the type commonly used to slice bulk food products." (Spec. i-f 2.)
Illustrative Claim2
1. A food product slicer, comprising:
a base;
a knife mounted for rotation relative to the base;
a carriage mounted to the base for reciprocal movement
back and forth past a cutting edge of the knife via a carriage
drive, the carriage repeatedly slowing down, reversing direction
and speeding up during the reciprocal movement;
an adjustable gauge plate mounted for movement to vary
slicing thickness;
a carriage control associated with the carriage drive and
configured such that during a manual assist slicing operation a
level of assistance provided by the carriage drive during
movement of the carriage is varied according to detected loading
on the knife so that more assistance is provided during higher
loading on the knife.
Richards
Cartwright
Smith
Mueller
BrainDust
References
us 5,043,907
us 5,862,730
US 6,701,816 B2
US 2005/0045007 Al
DE 2820618
Rejections
Aug. 27, 1991
Jan.26, 1999
Mar. 9, 2004
Mar. 3, 2005
May 11, 1978
The Examiner rejects claims 1-7 and 9-15 under 35 U.S.C. § 103(a)
as unpatentable over Mueller in view of BrainDust, Smith, and Richards.
(Final Action 2.)
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") set forth on pages 9-11 of the Appeal Brief.
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Application 12/343,541
The Examiner rejects claim 8 under 35 U.S.C. § 103(a) as
unpatentable over Mueller in view of BrainDust, Smith, Richards, and
Cartwright. (Id. at 5.)
ANALYSIS
Independent Claims 1 and 11
Independent claims 1 and 11 are each directed to "[a] food product
slicer" comprising, among other things, "a carriage mounted to [a] base for
reciprocal movement back and forth past a cutting edge of [a] knife" via "a
carriage drive" or "a carriage drive motor." (Claims App.) The Examiner
finds that the primary reference, Mueller, discloses a food product slicer
comprising such a carriage. (See Final Action 2.)
Independent claims 1 and 11 also each requires "a carriage control"
that is "associated with" the carriage drive or the carriage drive motor.
(Claims App.) Independent claim 1 requires the carriage control to be
"configured such that during a manual assist slicing operation a level of
assistance provided by the carriage drive during movement of the carriage is
varied." (Id.) Independent claim 11 requires the carriage control to be
"configured such that an energization level of the carriage drive motor is
varied." (Id.) The Examiner finds that Mueller's food product slicer
includes such a carriage control. (See Final Action 2-3.)
Independent claim 1 further requires the carriage control to be
configured such that the level of assistance provided by the carriage drive is
varied "according to detected loading on the knife so that more assistance is
provided during higher loading on the knife." (Claims App.) Independent
claim 11 further requires the carriage control to be configured such that the
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Application 12/343,541
energization level of the carriage drive motor is varied "according to
detected loading on the knife so that the motor is energized at a high level
during higher loading on the knife." (Id.) The Examiner acknowledges that
"Mueller does not detect load/ current on the knife in order to vary
assistance." (Answer 7 .) However, the Examiner determines it would have
been obvious to one of ordinary skill in the art to modify Mueller's food
product slicer to do so. (See Final Action 4--5.)
The Appellants argue that "Mueller discloses a food product slicer
with a carriage assist mode" but "Mueller teaches that you vary the current
to the carriage drive according to the velocity of the carriage." (Appeal
Br. 3.) However, as found by the Examiner (see Final Action 3), Mueller
also teaches:
In the case of hard types of cold meats, a greater force has to be
fundamentally used for the movement of the carriage 16 during
the cutting procedure than, for example, for soft types of cold
meats or for cheese. Consequently, an assistance profile may
be provided which is adapted to hard types of cold meats and an
assistance profile which is adapted to soft types of cold meats
or cheese.
(Mueller i-f 101.) Thus, contrary to the Appellants' implications otherwise
(see Appeal Br. 3), Mueller does teach looking to knife loading to determine
the level of carriage assistance to be provided, and Mueller does teach
providing more assistance to the carriage as knife loading gets higher.
In other words, the primary reference, Mueller, teaches a carriage
controller as required by independent claims 1 and 11 except that it does not
expressly disclose that the loading of the knife can be "detected."
The Appellants advance arguments premised upon the secondary prior
art references not teaching that carriage assistance can be varied according to
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Application 12/343,541
knife loading and/or not teaching that more carriage assistance is provided as
the knife loading gets higher. (See Appeal Br. 4--7; Reply Br. 2-5.)
However, these claimed characteristics are taught by the primary reference,
Mueller. As such, the secondary references can be relied upon solely to
show that a claimed feature (i.e., detecting blade load) not expressly
disclosed in the primary reference, would have been known to one of
ordinary skill in the art when modifying Mueller's carriage control.
Specifically, for example, BrainDust can be relied upon to show it is
"known in food product slicing devices that an interaction between a food
product and a blade can be monitored by using a sensor to monitor the
current/load of a drive motor of [the] blade." (Answer 5---6, reference
numbers omitted.)
The Appellants do not dispute the Examiner's finding that blade-load
detection is a known feature for food product slicers. (See, e.g., Appeal Br.
3.) As such, the Appellants do not adequately explain why the Examiner's
combination of the prior art (i.e., modifying Mueller's carriage control to
include blade-load detection) does not involve "only knowledge which was
within the level of ordinary skill in the art at the time the claimed invention
was made." (Answer 7.) We note that the Examiner "need not seek out
precise teachings directed to the specific subject matter of the challenged
claim" as he can take into account "the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex
Inc., 550 lJ.S. 398, 419 (2007).
Thus, we sustain the Examiner's rejection of independent claims 1
and 11 under 35 U.S.C. § 103(a) as unpatentable over Mueller in view of
BrainDust, Smith, and Richards.
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Application 12/343,541
Dependent Claims 2-5 and 12-15
These claims depend from either independent claim 1 or independent
claim 11 (see Claims App.) and they are not argued separately. Thus, we
sustain the Examiner's rejections of dependent claims 2-5 and 12-15 under
35 U.S.C. § 103(a) as unpatentable over Mueller in view ofBrainDust,
Smith, and Richards.
Dependent Claims 6-9
Claim 6 depends ultimately from independent claim 1 and claims 7-9
depend directly or indirectly from claim 6. (Claims App.) Dependent
claim 6 further requires that "the carriage control is configured to implement
at least a two stage assistance methodology, including apply a baseline
assistance when knife motor load is below a threshold level and an
additional assistance when knife motor load is above the threshold level."
(Id.) The Examiner finds that Mueller's modified carriage control would
provide such two-stage assistance. (See Final Action 4--5; see also
Answer 7-8.)
The Appellants argue that, in Mueller, "no threshold level of
assistance is disclosed." (Reply Br. 4.) However, the Examiner finds that
Smith shows it is known to vary "the level of assistance provided in a
cutting operation based on the work load experienced by a knife."
(Answer 4.) Smith also teaches, in the text cited by the Examiner (see Final
Action 4 ), that "maximum amps can then be used to either inhibit feed rate
increases or drop the feed [rate]." (Smith, col. 11, lines 21-24.) Hence,
Smith teaches it is known to adjust the feed rate (which equates to carriage
movement in a food product slicer) based on when the load exceeds
predetermined values (i.e., above predetermined threshold levels). This
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adjustment technique would result in a two stage assistance methodology
wherein certain feed-rate assistance is provided when the detected load is
below a threshold level and different feed-rate assistance is provided when
the detected load is above the threshold level.
The Appellants argue that "Smith suggests that feed rate be decreased
during higher knife loading." (Reply Br. 3.) However, as discussed above,
Mueller teaches that the carriage control can provide more assistance during
higher loading on the knife. Consequently, Smith can be relied upon solely
to show that a claimed feature (i.e., a two-stage assist methodology) not
expressly disclosed in the primary reference would have been known to one
of ordinary skill in the art when modifying Mueller's carriage control. 3
As such, the Appellants do not adequately explain why the
Examiner's combination of the prior art (i.e., modifying Mueller's carriage
control to implement a two stage assistance methodology) does not involve
"only knowledge which was within the level of ordinary skill in the art at the
time the claimed invention was made." (Answer 7 .)
Thus, we sustain the Examiner's rejection of dependent claims 6, 7,
and 9 under 35 U.S.C. § 103(a) as unpatentable over Mueller in view of
BrainDust, Smith, and Richards; and we sustain the Examiner's rejection of
dependent claim 8 under 35 U.S.C. § 103(a) as unpatentable over Mueller in
view of BrainDust, Smith, Richards, and Cartwright.
3 As Smith need not be relied upon to teach that feed rate should be
increased during higher knife loading, we are not persuaded by the
Appellants' argument that it "teaches away from the claimed invention."
(See Reply Br. 3.)
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Dependent Claim 10
Claim 10 depends directly from dependent claim 9, and ultimately
from independent claim 1. (See Claims App.) Claim 10 recites that "the
carriage end of slicing stroke turnaround assistance is dependent upon
loading upon the knife during a prior return stroke movement of the
carriage." (Id.) The Examiner finds that Mueller's modified carriage
control would provide such turnaround assistance. (See Final Action 3; see
also Answer 8.)
The Appellants argue that the turnaround assistance disclosed in
Mueller is based upon the speed of the carriage prior to return stroke
movement and "does not relate in any way to loading upon the knife prior to
return stroke movement." (Reply Br. 5, emphasis omitted.) However, as
noted by the Examiner (see Answer 8), Mueller's express teachings in this
regard show that it is known to base turnaround assistance on prior
parameters. The Examiner's rejection involves this teaching "in
combination with the knife load detection" and other known features
incorporated into Mueller's modified carriage control. (Id.) The
Appellants' arguments address why Mueller's expressly disclosed
turnaround assistance does not satisfy the requirements of claim 8, but they
do not adequately explain why one of ordinary skill in the art would not
appreciate that turnaround assistance in Mueller's modified carriage control
could be dependent upon prior knife-loading parameters, e.g., the loading
during a prior return stroke movement of the carriage.
Thus, we sustain the Examiner's rejection of dependent claim 10
under 35 U.S.C. § 103(a) as unpatentable over Mueller in view of
BrainDust, Smith, and Richards.
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Appeal2014-00857
Application 12/343,541
DECISION
We AFFIRM the Examiner's rejections of claims 1-15.
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 )(iv).
AFFIRMED
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