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In re Durance

United States Court of Appeals, Federal Circuit

June 1, 2018

IN RE: TIMOTHY D. DURANCE, JUN FU, PARASTOO YAGHMAEE, Appellants

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 12/682, 989.

          Jonathan Kennedy, McKee, Voorhees & Sease, P.L.C., Des Moines, IA, argued for appellants. Also represented by Kirk M. Hartung, Michael Gilchrist, Robert Scott Johnson, Christine Marie Lebron-Dykeman.

          Mary L. Kelly, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Andrei Iancu. Also represented by Nathan K. Kelley, Thomas W. Krause, Philip J. Warrick.

          Before Lourie, Reyna, and Chen, Circuit Judges.

          Reyna, Circuit Judge.

         Timothy D. Durance, Jun Fu, and Parastoo Yaghmaee appeal from a decision by the Patent Trial and Appeal Board affirming an examiner's obviousness rejection of their patent application claims related to a microwave vacuum-drying apparatus and method. Because the Board failed to consider arguments in applicants' reply brief that were properly made in response to the examiner's answer, we vacate the Board's determination of obviousness and remand for the Board to consider applicants' reply-brief arguments in the first instance.

         Background

         A. The '989 Application

         On April 14, 2010, inventors Durance, Fu, and Ya-ghmaee (together, "Durance") filed Patent Application No. 12/682, 989 ("'989 application") with the United States Patent and Trademark Office. Durance filed the '989 application as part of the national stage of the Patent Cooperation Treaty pursuant to 35 U.S.C. § 371. J.A. 663. The '989 application is directed to improved methods and apparatuses for "microwave vacuum-drying of organic materials, such as food products and medicinal plants." J.A. 673. It describes dehydrating organic material, such as fruits and berries, by placing the material in a container, transferring the container to a vacuum chamber, and rotating the container as it moves through the vacuum chamber while applying microwave radiation to the organic material. J.A. 685.

         Independent claim 1 is representative of the apparatus claims and provides:

1. An apparatus for dehydrating organic material, comprising:
(a) a vacuum chamber having an input end for introduction of a container for the organic material into the vacuum chamber and a discharge end for removal of the container;
(b)a microwave generator;
(c) a microwave-transparent window for transmission of microwave radiation from the microwave generator into the vacuum chamber;
(d) means for reducing pressure inside the vacuum chamber;
(e) means for loading the container into the input end of the vacuum chamber;
(f) means for rotating the container inside the vacuum chamber so as to tumble the organic material in the container;
(g) means for moving the rotating container through the vacuum chamber from the input end to the discharge end thereof; and
(h) means for unloading the container of dehydrated organic material from the vacuum chamber at the discharge end thereof.

J.A. 106 (emphasis added). Independent claim 16 is representative of the method claims. J.A. 109. It recites a method of dehydrating organic material using an apparatus like that described in claim 1, including a step for "rotating the container inside the vacuum chamber so as to tumble the organic material in the container." Id. At issue in this appeal is the above-emphasized "means for rotating . . . so as to tumble" limitation, which we refer to as the "tumbling limitation."

         Figure 4 depicts the claimed apparatus:

         (IMAGE OMITTED)

         J.A. 703. As shown in Figure 4 and described in the '989 application's specification, piston 114 pushes the containers into vacuum chamber 22 from input end 30. J.A. 680. Inside the vacuum chamber, the containers are rotated about their longitudinal, horizontal axes in rotatable cage 64 using ring gears 66 and 68, which are engaged by a motorized gear set. J.A. 679.

         Figure 5 depicts the interior of the vacuum chamber, including the interior of a container and motorized gear set 76 and 78 that actuate ring gear 66:

         (IMAGE OMITTED)

         J.A. 704. The interior of the container shows divider walls 146 that "divide the interior space into four segments, to promote the tumbling of the materials in the baskets, as the ...


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