Wolfgang SteinerDownload PDFPatent Trials and Appeals BoardJul 1, 20202019002505 (P.T.A.B. Jul. 1, 2020) Copy Citation 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. 13/993,688 06/17/2013 Wolfgang Steiner 000034-013 1065 44012 7590 07/01/2020 WRB-IP LLP 801 N. Pitt Sreet , Suite 123 ALEXANDRIA, VA 22314 EXAMINER MICHALSKI, SEAN M ART UNIT PAPER NUMBER 3724 NOTIFICATION DATE DELIVERY MODE 07/01/2020 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): HARRY@WRB-IP.COM USPTO@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WOLFGANG STEINER Appeal 2019-002505 Application 13/993,688 Technology Center 3700 Before DANIEL S. SONG, BENJAMIN D. M. WOOD, and BRETT C. MARTIN, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1 and 5–7. Oral arguments were heard in this case on June 4, 2020. A transcript of the hearing will be entered into the record in due course. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Novis AG. Appeal Br. 1. Appeal 2019-002505 Application 13/993,688 2 CLAIMED SUBJECT MATTER The claims are directed “to an apparatus for extracting juice and pulp from fruit or vegetables.” Spec. 1, ll. 4–5. Claim 1, reproduced below, is illustrative of the claimed subject matter: l. An apparatus for extracting juice and pulp from fruit or vegetables in order to obtain a flowable mass, comprising: a receptacle; a cylindrical strainer located within the receptacle and rotatable about an axis of symmetry of the strainer, the strainer having a bottom and a perforated side wall; a motor unit configured to rotate the strainer about its axis of symmetry; an inlet unit configured to permit introduction of fruit or vegetables into the strainer; an outlet unit configured to permit collection of flowable mass from the receptacle, and a flexible element having an elongated surface that extends in a direction of the axis of symmetry, the flexible element being located within the strainer and being urged against an inside surface of the perforated side wall to contact the inside surface of the perforated side wall along a line of contact when the strainer is rotated about the axis of symmetry of the strainer, the flexible element forming a wedge-shaped space with the inside surface which narrows towards the line of contact when the strainer is rotated about the axis of symmetry of the strainer. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Spino Ramirez Le Rouzic Le Rouzic et al. Sugino US 2,246,641 US 4,506,601 US 5,289,763 US 7,044,051 US 7,217,439 B2 June 24, 1941 Mar. 26, 1985 Mar. 1, 1994 May 16, 2006 May 15, 2007 Appeal 2019-002505 Application 13/993,688 3 “Lemon-Apricot Sandwiches,” Martha Stewart Living, June 2006 (“Martha Stewart”). REJECTIONS Claims 6 and 7 stand rejected under 35 U.S.C. § 112, first paragraph as failing to comply with the written description requirement. Ans. 3. Claims 1 and 5 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over LeRouzic, LeRouzic et al., Ramirez, Spino, and Martha Stewart. Ans. 6. Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over LeRouzic, LeRouzic et al., Ramirez, Spino, Martha Stewart, and Sugino. Final Act. 11. OPINION Written Description The Examiner asserts that “[t]he disclosure, taken as a whole at the time of filing does not demonstrate enough detail for a person of ordinary skill to conclude that the appellant had demonstrated possession of the invention as set forth in claims 6 and 7.” Ans. 4. As Appellant points out, however, “[t]he grounds for this rejection are unclear in view of the fact that the subject matter is expressly disclosed in the original application.” Appeal Br. 4. Written description deals with whether Appellant had possession of the invention and the fact that the claims at issue are original claims suggests possession of the invention. Appellant is correct regarding the subject matter of claims 6 and 7 that “persons skilled in the art certainly understand how to mount a roller and the Examiner cannot reasonably assert that mountings for rollers are unconventional or not known in the art.” Reply Br. 3. We agree that “[t]he Examiner has failed to overcome the presumption Appeal 2019-002505 Application 13/993,688 4 that an adequate written description of the claimed invention is present when the application is filed.” Id. Accordingly, we do not sustain this rejection. Obviousness Appellant argues the claims at issue as a group, and does not separately address the Examiner’s rejection of claims 6 and 7 under 35 U.S.C. § 103. Appeal Br. 6–9. We select claim 1 as representative of the rejected claims. 37 C.F.R. § 41.37(c)(1)(iv). Appellant does not generally argue that the Examiner’s combination lacks any particular claimed element. Appellant mainly argues that the Examiner’s combination is improper. Specifically, Appellant argues that the Examiner’s combination “would have destroyed the alleged invention of LeRouzic for its intended manner of operation.” Appeal Br. 9. This is allegedly so because LeRouzic achieves juicing of soft-flesh fruits and vegetables by disclosing “that there is a spacing between the wall of the strainer and the blade” and that “[t]his spacing is necessary . . . to let a layer of crushed fruit accumulate on the wall of the strainer until the thickness of the layer exceeds the width of the spacing between blade and strainer.” Id. 8. Although it is true that LeRouzic teaches a specialized juicing device that includes a gap, LeRouzic also recognizes that such a juicing device is only necessary with soft-flesh fruits and that prior art devices “function well with hard products such as carrots and apples.” LeRouzic col. 1, ll. 25–26. The only specialized aspect of LeRouzic is the gap. Nothing else in LeRouzic deviates from juicing devices already known in the art and LeRouzic recognizes that a juicing device without such a gap would still be an effective juicer in certain applications. The Examiner finds “that the objective of LeRouzic was to provide a good amount of juice, and the art as a whole recognized (specifically Appeal 2019-002505 Application 13/993,688 5 Ramirez and Spino) that pressing blades against a strainer was an effective means of adding pressure to the pulp and therefor obtain juice or pulp.” Ans. 18. In that sense, the Examiner’s combination still provides for a juicing device, it simply eliminates the gap, which may be less effective with soft-flesh fruit. The Examiner’s combination is still adequate for juicing hard products as recognized in LeRouzic. Furthermore, the Examiner also finds that “the objective of LeRouzic in allowing (and desiring) the accumulation of fruit on the blade was because this accumulation creates a force vector of fruit against the strainer resulting in juice.” Ans. 20. According to the Examiner “[t]his creation of a force vector of pulp is what the contacting blades of Spino and Ramirez achieve as well” and that “it is the choice of the amount of pressure to be applied, or the exact mechanism to apply the pressure, from within a subset of known mechanisms (flexible/inflexible, contacting/non-contacting) all of which were present in the prior art.” Id. In other words, the Examiner’s rejection assumes that one of skill in the art could have determined the force vector achieved via the gap and stiff blade and designed a blade of sufficient flexibility to also apply the same force vector achieved via the gap. As the Examiner states, the gap is one way to achieve this, but the important teaching in LeRouzic is not necessarily the gap, but the magnitude of the force vector to achieve the desired result. In this manner, the rejection does not go against LeRouzic’s intended purpose at all, it merely achieves the lower force vector via a flexible blade rather than a gap. Either way, the Examiner is correct that the proposed modification of LeRouzic is proper. Accordingly, we sustain the Examiner’s rejection. Appeal 2019-002505 Application 13/993,688 6 CONCLUSION The Examiner’s written-description rejection is REVERSED, and the Examiner’s rejections under 35 U.S.C. § 103 are AFFIRMED. More specifically, DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 6, 7 112, 1st paragraph Written description 6, 7 1, 5 103 LeRouzic, LeRouzic et al., Ramirez, Spino, Martha Stewart 1, 5 6, 7 LeRouzic, LeRouzic et al., Ramirez, Spino, Martha Stewart, Sugino 6, 7 Overall Outcome: 1, 5–7 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). See 37 C.F.R. § 1.136(a)(1)(iv). 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