In Re Johannes ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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IN RE ADRIANUS JOHANNES AND
MARIA REIJERS
______________________
2014-1052
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Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 11/718,322.
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Decided: June 5, 2014
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TIMOTHY J. ZARLEY, Zarley Law Firm, P.L.C., of Des
Moines, Iowa, for appellant.
NATHAN K. KELLEY, Deputy General Counsel for Intel-
lectual Property Law and Solicitor, for appellee. With
him on the brief were MARY L. KELLY and MICHAEL S.
FORMAN, Associate Solicitors.
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Before PROST, ∗ Chief Judge, TARANTO and CHEN, Circuit
Judges.
∗
Sharon Prost assumed the position of Chief Judge
on May 31, 2014.
2 IN RE REIJERS
PER CURIAM.
Adrianus Johannes Maria Reijers appeals the decision
of the United States Patent and Trademark Office’s Board
of Patent Appeals and Interferences (“Board”) affirming
the rejection of four claims of Reijers’s patent application.
Reijers challenges the Board’s finding that independent
Claim 11 is anticipated under 35 U.S.C. § 102(b) by U.S.
Patent No. 2,211,490 (“Braun”). 1 Because substantial
evidence supports the Board’s conclusion that Braun
anticipates Claim 11, we affirm.
I
Reijers’s application claims a method of removing liq-
uid from the surface of a “food strand.” The strand is
moved through a series of “gas flows” or “gas knives” that
blow liquid from the strand. Independent Claim 11
states:
11. Method for removing liquid from the surface of a
food product, characterised [sic] in that
the food product is supplied as a food strand, which
food strand is successively carried through a plural-
ity of gas flows
wherein a supply means for gas is placed adjacently
of a transport route of the food product and
1 The Board also affirmed the Examiner’s rejection
of dependent Claims 12, 13, and 14. Reijers does not
argue that the three dependent claims are patentable if
Claim 11 is not. Accordingly, we do not separately ad-
dress dependent Claims 12, 13, and 14. Those claims fall
with Claim 11. See In re Nielson, 816 F.2d 1567, 1572
(Fed. Cir. 1987).
IN RE REIJERS 3
the supply means for gas are adapted to generate
the plurality of gas flows crossing the transport
route successively in the direction of transport
wherein the separate gas flows originate from
placed-apart slots to blow liquid from the food
product in a number of phases by a number of suc-
cessive and mutually separated gas knives.
J.A. 32.
The Examiner rejected Claim 11 as anticipated by
Braun. Similar to Claim 11 in Reijers’s application, the
Braun patent claims a method for drying food products.
Claim 5 reads:
5. A method of drying tubular structures which
comprises inflating a tubular structure with a gas,
then passing said tubular structure over a conduit
and ejecting a hot gas from openings in said con-
duit directed towards said tubular structure in
order to suspend said tubular structure in said hot
gas and thereby dry the same.
Braun, col. 5:33–6:2. As an example of a “tubular struc-
ture,” Braun describes “artificial sausage skins, from
solutions or fibrous masses of vegetable or animal origin.”
Id. col. 1:2–4. Braun further discloses that the claimed
conduit “openings” may take the form of “parallel contin-
uous rows of openings separated by a small interval . . . .”
Id. col. 3:24–26. The pressure of the gas ejected through
the openings may be varied depending on the type of
tubular product to be dried. See id. col. 2:38–46 (con-
trasting the relatively low minimum pressures needed to
dry most tubular products with the higher pressures
needed to dry the “special case[]” of “coronary sausage”).
In rejecting Claim 11 as anticipated, the Examiner
concluded that Braun discloses “a plurality of gas flows”—
ejected from “placed-apart slots”—that separately flow
“over the sausage food product to dry the sausage.”
4 IN RE REIJERS
J.A. 57. Reijers appealed the rejection to the Board,
arguing that “Braun does not teach that the openings
blow liquid from the product or that the openings repre-
sent successive, mutually separate gas knives that blow
liquid from the product in phases.” J.A. 3. In affirming
the Examiner’s rejection, the Board found that Braun
necessarily would anticipate the claim elements that
Reijers argued were not expressly disclosed.
Braun’s openings are in the form of placed-apart
slots. These placed-apart slots/openings of Braun,
like those recited in claim 11, necessarily would
create successive and mutually separated gas
knives, and Appellant provides the appeal record
with no explanation to the contrary. Likewise, the
separate gas flows originating from Braun’s
slots/openings necessarily would blow liquid from
food product in the course of achieving the drying
objective desired by Braun. Again, Appellant does
not offer a contrary explanation in the record of
this appeal.
J.A. 3–4 (internal citations omitted).
Reijers timely appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(4)(A).
II
Anticipation is a question of fact, as is the subsidiary
question of whether a prior art reference discloses—either
expressly or inherently—a claim limitation. In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). We
uphold decisions of the Board on factual matters if there
is substantial evidence in the record to support the
Board’s findings. In re Hyatt, 211 F.3d 1367, 1372 (Fed.
Cir. 2000). A finding is supported by substantial evidence
if a reasonable mind might accept that evidence as ade-
quate to support a conclusion. Consol. Edison Co. of New
York v. N.L.R.B., 305 U.S. 197, 229 (1938).
IN RE REIJERS 5
Reijers’s principal argument on appeal is that Braun
does not disclose a method for blowing liquid from a food
product, as required by Claim 11. Reijers argues that
“there is no express disclosure in Braun that there is
liquid on the surface of the sausage casing.” Appellant’s
Br. 12. Moreover, Reijers contends that Braun “teaches a
gentle drying process,” not a blowing drying process.
Quoting language from Braun’s specification, Reijers
notes that Braun’s gas flows merely “play over” the con-
veyed casing.
We note that the Board did not find, and the Director
need not show, that Braun expressly discloses the blowing
of liquid from the surface of a sausage casing. The Board
found that “gas flows originating from Braun’s
slots/openings necessarily would blow liquid from food
product in the course of achieving the drying objective
desired by Braun.” J.A. 3–4 (emphasis added). We have
long held that such inherent disclosure may serve as a
basis for a finding of anticipation. “It is well settled that
a prior art reference may anticipate when the claim
limitations not expressly found in that reference are
nonetheless inherent in it. Under the principles of inher-
ency, if the prior art necessarily functions in accordance
with, or includes, the claimed limitations, it anticipates.”
In re Cruciferous Sprout Litig., 301 F.3d 1343, 1349 (Fed.
Cir. 2002) (citations and internal quotation marks omit-
ted). Moreover, an inherent disclosure may anticipate a
method claim. See id.; see also Perricone v. Medicis
Pharm. Corp., 432 F.3d 1368, 1378 (Fed. Cir. 2005)
(“[W]hen considering a prior art method, the anticipation
doctrine examines the natural and inherent results in
that method without regard to the full recognition of those
benefits or characteristics within the art field at the time
of the prior art disclosure.”).
Based on the disclosures in Braun, we find that suffi-
cient evidence exists for a reasonable mind to conclude
that Braun would necessarily blow liquid off a food prod-
6 IN RE REIJERS
uct as part of its drying process. The Board could reason-
ably conclude that Braun’s sausage casings—which, after
all, need to be dried—necessarily include the presence of
at least some liquid on their surface. And even if Braun
did not contemplate using its claimed method specifically
for blowing surface liquid off a sausage casing, its disclo-
sure of ejected gas delivered at varying pressures, see
Braun, col. 2:38–46, supports the Board’s conclusion that
performing the method would result in blowing liquid off
the casing. See Perricone, 432 F.3d at 1378.
We find unpersuasive Reijers’s arguments to the con-
trary. Reijers contends that Braun teaches that the
ejected gas flows “countercurrent” to the casing. Appel-
lant’s Br. 12 (citing Braun, col. 1:45–55). Reijers suggests
that a countercurrent gas flow—that is, a flow that moves
in the opposite direction as the conveyed casing—would
be incapable of blowing liquid off a food product. There
are two problems with this argument. First, as the Direc-
tor points out, Braun elsewhere describes its gas stream
as flowing “perpendicular” to the tubular food product.
Braun, col. 4:22–32; see also id. at Fig. 6. The angle of the
ejected gas in Braun appears similar to the angle of the
ejected gas described in Reijers’s application. Compare
Braun at Fig. 6, with J.A. 130 at Fig. 2. Second, even if
Reijers is correct that the gas flow disclosed in Braun
runs countercurrent to the casing, Reijers does not ex-
plain why such a flow would fail to blow liquid off the
casing’s surface. Reijers points to language in Braun
suggesting that the flow of gas ensures that the casing is
not blown away. The fact, however, that the gas flow does
not blow away the casing itself does not therefore mean
that the flow would not blow away liquid from the surface
of the casing.
Reijers also argues that Braun does not teach the use
of a food strand; instead, Reijers maintains, Braun dis-
closes only the drying of an artificial sausage skin. This
argument, which would require us to construe the claim
IN RE REIJERS 7
term “food strand,” was not raised before the Board and
we therefore decline to consider it for the first time on
appeal. We note that the Examiner was not obligated to
construe every claim term when examining Reijers’s
patent application. See In re Jung, 637 F.3d 1356, 1365
(Fed. Cir. 2011) (“There has never been a requirement for
an examiner to make an on-the-record claim construction
of every term in every rejected claim and to explain every
possible difference between the prior art and the claimed
invention in order to make out a prima facie rejection.”).
For the reasons stated above, the Board’s decision is
affirmed.
AFFIRMED
COSTS
No costs.