Paper No. 01 Filed: December 18, 2014 Filed on behalf of: Morris...

Paper No. 01 Filed: December 18, 2014

Filed on behalf of: Morris & Associates, Inc. By: Andrew Crain ([email protected]) Robert Gravois ([email protected]) Kenneth Knox ([email protected]) THOMAS | HORSTEMEYER, LLP 400 Interstate North Parkway, SE Suite 1500 Atlanta, Georgia 30339 Tel: (770) 933-9500 Fax: (770) 951-0933

UNITED STATES PATENT AND TRADEMARK OFFICE

__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD __________

MORRIS & ASSOCIATES, INC.

Petitioner,

v.

COOLING & APPLIED TECHNOLOGY, INC.

Patent Owner _________

Case No. To Be Assigned

U.S. Patent No. 6,397,622 _________

PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 6,397,622

UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R. § 42.100 et seq.

Case No. To Be Assigned Patent No. 6,397,622

i

TABLE OF CONTENTS

I. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(B) .......................... 1

A. Real Party-In-Interest (37 C.F.R. § 42.8(b)(1)) ................................... 1

B. Related Matters (37 C.F.R. § 42.8(b)(2)) ............................................. 1

C. Lead and Backup Counsel (37 C.F.R. § 42.8(b)(3)) and Service Information (37 C.F.R. § 42.8(b)(4)) ................................................... 1

II. COMPLIANCE WITH REQUIREMENTS FOR INTER PARTES REVIEW PETITION .................................................................................... 2

A. Grounds for Standing (37 C.F.R. § 42.104(a)) .................................... 2

B. Challenged Claims and Statutory Grounds (37 C.F.R. §§ 42.104(b)(1)-(2)) .................................................................................. 2

C. Claim Construction (37 C.F.R. § 42.104(b)(3)) ................................... 3

D. Unpatentability of the Construed Claims (37 C.F.R. § 42.104(b)(4)) ..................................................................................... 3

E. Supporting Evidence (37 C.F.R. § 42.104(b)(5))................................. 3

F. Fees (37 C.F.R. § 42.103) .................................................................... 4

III. OVERVIEW OF THE ’622 PATENT ......................................................... 4

A. Subject Matter of the ’622 Patent ......................................................... 4

B. Prosecution and Reexamination History of the ’622 Patent ................ 5

IV. PERSON OF ORDINARY SKILL IN THE ART ...................................... 8

V. CLAIM CONSTRUCTION .......................................................................... 9

A. semi-cylinder ........................................................................................ 9

B. at least one flight ................................................................................ 10

C

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VI. CC

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irety of saiallel to said................

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aid tank sid at least on.................

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ide walls isne flight o.................

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und III: Cla.................

Claim 1 .

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Claim 7 .

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and Morris.................

and Morris.................

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gned 7,622

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iv

TABLE OF AUTHORITIES

CASES

In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359 (Fed. Cir. 2004) ........................... 9 In re Donaldson Co., 16 F.3d 1189 (Fed. Cir. 1994) ................................................ 9 J.T. Eaton & Co. v. Atlantic Paste & Glue Co., 106 F.3d 1563 (Fed. Cir. 1997) ..... 7 MacAuto U.S.A. v. BOS GmbH & KG, IPR2012-00004, Paper 18 (Jan. 24, 2013) 15 MacAuto U.S.A. v. BOS GmbH & KG, IPR2012-00004, Paper 18, p. 19 (Jan. 24, 2013) ................................................................................................................. 17, 18 Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299 (Fed. Cir. 2006) ........................... 7 Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573 (Fed. Cir. 1983) ............................. 7

STATUTES

35 U.S.C. § 112 ¶ 6 ................................................................................. 9, 12, 13, 14 37 C.F.R. § 42.100(b) ................................................................................................ 9


v

LIST OF EXHIBITS

Exhibit Description

Ex. 1001 U.S. Patent No. 6,397,622, including Ex Parte Reexamination Certificate (“the ’622 Patent”)

Ex. 1002 U.S. Patent Application No. 09/298,364, which is incorporated by reference in the ’622 Patent

Ex. 1003 File History for U.S. Patent No. 6,397,622

Ex. 1004 U.S. Patent No. 4,860,554 to Innes et al. (“Innes”)

Ex. 1005 U.S. Patent No. 4,788,831 to Crawford et al. (“Crawford”)

Ex. 1006 U.S. Patent No. 5,868,000 to Morris et al. (“Morris ’000”)

Ex. 1007 U.S. Patent No. 3,410,101 to Morris (“Morris ’101”)

Ex. 1008 Declaration of Douglas Smith, Ph.D.

Ex. 1009 Patent Owner’s Responses to Interrogatories

Ex. 1010 Deposition Transcript of Andrew C. Estes (with redactions)

Ex. 1011 Exhibit 6 to the Deposition of Andrew C. Estes

Ex. 1012 Patent Owner’s Infringement Contentions

Ex. 1013 Exhibit 7 to the Deposition of Andrew C. Estes


1

I. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(B)

A. Real Party-In-Interest (37 C.F.R. § 42.8(b)(1))

The real party-in-interest for this Petition for Inter Partes Review is Morris

& Associates, Inc. (“Petitioner”).

B. Related Matters (37 C.F.R. § 42.8(b)(2))

U.S. Patent No. 6,397,622 (“the ’622 Patent”) is the subject of litigation

pending in the United Stated District Court for the Eastern District of Arkansas in

the action captioned Cooling & Applied Technology, Inc. v. Morris & Associates,

Inc. (Civil Action No. 4:14-cv-0368-BRW (E.D. Ark.)).

C. Lead and Backup Counsel (37 C.F.R. § 42.8(b)(3)) and Service Information (37 C.F.R. § 42.8(b)(4))

Lead Counsel Back-up Counsel N. Andrew Crain (Reg. No. 45,442) [email protected] T: (770) 933-9500; F: (770) 951-0933 Postal & Hand-Delivery Address Thomas | Horstemeyer 400 Interstate North Parkway, SE Suite 1500 Atlanta, GA 30339

Robert Gravois (Reg. No. 67,224) [email protected] T: (770) 933-9500; F: (770) 951-0933 Kenneth Knox (Reg. No. 71,306) [email protected] T: (770) 933-9500; F: (770) 951-0933 Postal & Hand-Delivery Address Thomas | Horstemeyer 400 Interstate North Parkway, SE Suite 1500 Atlanta, GA 30339


2

II. COMPLIANCE WITH REQUIREMENTS FOR INTER PARTES REVIEW PETITION

A. Grounds for Standing (37 C.F.R. § 42.104(a))

Pursuant to 37 C.F.R. § 42.104(a), Petitioner certifies that the ’622 Patent is

available for inter partes review and that Petitioner is not barred or estopped from

requesting an inter partes review challenging the ’622 Patent.

B. Challenged Claims and Statutory Grounds (37 C.F.R. §§ 42.104(b)(1)-(2))

Petitioner relies on the patents and printed publications listed below.

Exhibit Reference Filing Date Availability as Prior Art

Ex. 1004 U.S. Patent No. 4,860,554 to Innes et al. (“Innes”)

September 19th, 1988

35 U.S.C. § 102(b)

Ex. 1005 U.S. Patent No. 4,788,831 to Crawford et al. (“Crawford”)

September 8th, 1987

35 U.S.C. § 102(b)

Ex. 1006 U.S. Patent No. 5,868,000 to Morris et al. (“Morris ’000”)

September 8th, 1997

35 U.S.C. § 102(b)

Ex. 1007 U.S. Patent No. 3,410,101 to Morris (“Morris ’101”)

November 10th, 1966

35 U.S.C. § 102(b)

The relief requested by Petitioner is that claims 1-8 of the ’622 Patent be

found unpatentable and cancelled based on the following grounds:

Ground Claims Basis I 1 and 3-8 Obvious under 35 U.S.C. § 103(a) in view of Innes and

Crawford.

II 2 Obvious under 35 U.S.C. § 103(a) in view of Innes, Crawford, and Morris ’101.

III 1 and 3-8 Obvious under 35 U.S.C. § 103(a) in view of Innes and Morris ’000.


3

IV 2 Obvious under 35 U.S.C. § 103(a) in view of Innes, Morris ’000, and Morris ’101.

C. Claim Construction (37 C.F.R. § 42.104(b)(3))

Petitioner submits the broadest reasonable construction in light of the

specification for a number of claim terms of the ’622 Patent in Section V below.

For claim elements that invoke means-plus-function treatment under 35 U.S.C.

§ 112 ¶ 6, Petitioner identifies the specific portions of the specification that

describe the structure that correspond to each claimed function in Section V below.

D. Unpatentability of the Construed Claims (37 C.F.R. § 42.104(b)(4))

An explanation of why claims 1-8 of the ’622 Patent are unpatentable under

the grounds identified above is provided in Section VI below.

E. Supporting Evidence (37 C.F.R. § 42.104(b)(5))

The exhibit numbers of the evidence relied upon to support the challenges

set forth herein and the relevance of the evidence to the challenges raised,

including identifications of the specific portions of the evidence that support the

challenges, are provided in the text and claim charts in Section VI below.

Additionally, an Exhibit List, including exhibit numbers and a brief description of

each exhibit, is provided above.


4

F. Fees (37 C.F.R. § 42.103)

The undersigned submits that the fees ($9000 request fee and $14,000 post-

institution fee) set forth in 37 C.F.R. § 42.15(a) have been paid for this Petition.

The undersigned further authorizes payment for any additional fees that might be

due in connection with this Petition to be charged to Deposit Account No. 20-0778.

III. OVERVIEW OF THE ’622 PATENT

A. Subject Matter of the ’622 Patent

In a poultry processing facility, poultry carcasses are subjected to an

evisceration process. Ex. 1008, ¶ 12. After the evisceration process, the carcasses

are cleaned and chilled in a device known as a chiller to reduce the likelihood of

the growth of harmful bacteria, such as e. coli, salmonella, etc. Id.

The ’622 Patent claims a counter flow, re-circulating, externally refrigerated,

auger type of chiller having a semi-cylindrical tank. Ex. 1001, claims 1 and 8. As

described in the background of the ’622 Patent, in a “counter flow” chiller, chilled

water moves in an opposite direction relative to the direction in which poultry

carcasses move. Id. at 1:28-33. The background of the ’622 Patent admits that

counter flow chillers were well known in the art. Id.

The ’622 Patent admits that recirculation systems were well known in the

art. Id. at 1:43-53. In such systems, “[t]he chilled water enters the chiller at one

end, circulates through the chiller, and after being warmed by contact with the


5

poultry carcasses, exits the chiller. The warmed water is again chilled by the

refrigeration unit and re-circulated through the chiller.” Id. at 1:49-53.

The background of the ’622 Patent also admits that auger type chillers

having walls of semi-cylindrical cross-sections were known in the art. Id. at 2:48-

49. According to the ’622 Patent, the semi-cylindrical shape results in water being

forced to flow in a helical path determined by the auger. Id. at 2:42-3:6.

B. Prosecution and Reexamination History of the ’622 Patent

The application that resulted in the ’622 Patent was filed on August 11, 2000

with two claims: independent claim 1 and dependent claim 2. Ex. 1003, p. 20.

During prosecution of the application that resulted in the ’622 Patent, one Office

Action was issued. Cooling & Applied Technology, Inc. (“Patent Owner”)

responded to the rejection of independent claim 1 by arguing that the cited

references did not teach “means for discharging chilling water from said inlet end

of said tank” and “means for ... introducing chilling water into said outlet end of

said tank.” Id. at 49. A Notice of Allowability issued thereafter. Id. at 60.

After waiting eleven years, Patent Owner filed a request for ex parte

reexamination of the ’622 Patent, claiming that previously-considered prior art had

not been adequately considered. Id. at 69 and 78-80. The Patent Office found that

Morris ’000 (Ex. 1006) and U.S. Patent No. 5,456,091 to Zittel (“Zittel”), raised

substantial new questions of patentability and ordered ex parte reexamination of


6

the ’622 Patent. Id. at 173-175. In the Office Action that followed, the Examiner

rejected independent claim 1 as being anticipated by, or in the alternative obvious

over, Morris ’000. Id. at 183. The Examiner also rejected independent claim 1 as

being anticipated by, or in the alternative obvious over, Zittel. Id. at 185. The

Office Action also rejected claim 2 as being obvious over (i) Morris ’000 in view

of U.S. Patent No. 4,697,508, to Tallafus (“Tallafus”), and (ii) Zittel in view of

Tallafus. Id. at 186-187.

In response to the Office Action, Patent Owner substantially amended

independent claim 1 and added new claims 3-8. Id. at 264-267. Patent Owner

argued that the prior art failed to show or suggest the amended claim elements. Id.

at 269-271. However, as discussed in Section VI below, the prior art shows or

suggests each and every element of the claims.

During the ex parte reexamination, Patent Owner also filed a declaration

under 37 C.F.R. § 1.132 that included sales numbers and statements made by

Patent Owner’s president. Id. at 275-282. Patent Owner used this declaration to

argue that the combination of “(1) a tank where the entire inner surface of the tank

side walls is positioned parallel to the outer edges of the flights of the auger; (2) a

tank filled with chilling water to a water level above the shaft of the auger and

below the top of the flights of the auger; and (3) a tank where the entire inner

surface of the tank side walls conforms closely to the outer edges of the flights of


7

the auger” resulted in commercial success, thereby demonstrating that the

independent claims of the ’622 Patent were not obvious. Id. at 271-272.

However, as discussed in Section VI below, all of these elements are indeed

shown or suggested by a single prior art reference, namely Innes (Ex. 1004).

Because the elements that Patent Owner contended resulted in commercial success

were known in the prior art, the purported commercial success should not have

been deemed pertinent to the obviousness inquiry. Ormco Corp. v. Align Tech.,

Inc., 463 F.3d 1299, 1312 (Fed. Cir. 2006) (“[I]f the feature that creates the

commercial success was known in the prior art, the success is not pertinent [to the

obviousness inquiry].”); see J.T. Eaton & Co. v. Atlantic Paste & Glue Co., 106

F.3d 1563, 1571 (Fed. Cir. 1997) (“[T]he asserted commercial success of the

product must be due to the merits of the claimed invention beyond what was

readily available in the prior art.”); see also, Richdel, Inc. v. Sunspool Corp., 714

F.2d 1573, 1580 (Fed. Cir. 1983) (finding commercial success immaterial to the

obvious inquiry when the patent owner failed to show that the commercial success

was due to features that were not already available in the prior art).


8

Nonetheless, the Examiner issued a Notice of Intent to Issue Inter Partes

Reexamination Certificate,1 finding claims 1 and 2 patentable as amended. Ex.

1003, p. 302. The newly added claims 3-8 were also found patentable by the

Examiner. Id. In the Statement of Reasons for Patentability and/or Confirmation,

the Examiner stated that the prior art did not teach certain claim elements and that

the declaration under 37 C.F.R. § 1.132 was “found to be persuasive” and

“convincing.” Id. at 302-303. Patent Owner did not respond to the Examiner’s

Statement of Reasons for Patentability and/or Confirmation.

IV. PERSON OF ORDINARY SKILL IN THE ART

The technical field of the ’622 Patent is poultry chillers. Ex. 1001, 1:5-9

(“The present invention relates to auger type poultry chillers[.]”); Ex. 1008, ¶ 12.

A person of ordinary skill in the art of the of ’622 Patent at the time of the alleged

invention would typically have had a bachelor’s degree in science or engineering,

or a related field, and approximately two years of practical experience working

directly with poultry chillers in a poultry processing facility that operates poultry

chillers or by designing and manufacturing poultry chillers. Id. at ¶¶ 24-25.

1 The ’622 Patent was subject to an ex parte reexamination—not an inter partes

reexamination.


9

V. CLAIM CONSTRUCTION

A claim subject to inter partes review is given its “broadest reasonable

construction in light of the specification of the patent in which it appears.” 37

C.F.R. § 42.100(b). “[C]laim language should be read in light of the specification

as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of

Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond, 910 F.2d

831, 833 (Fed. Cir. 1990)). Petitioner submits the broadest reasonable construction

for a number of claim terms below. Petitioner reserves the right to apply different

claim constructions in different forums, as different claim construction standards

may be applicable.

As identified below, several claim limitations invoke means-plus-function

treatment under 35 U.S.C. § 112 ¶ 6. The broadest reasonable construction of a

claim limitation that invokes 35 U.S.C. § 112 ¶ 6 is the structure, material, or act

described in the specification as performing the entire claimed function and

equivalents to the disclosed structure, material, or act. In re Donaldson Co., 16

F.3d 1189, 1193 (Fed. Cir. 1994).

A. semi-cylinder

The term “semi-cylinder” is recited in claims 1 and 8. The ’622 Patent states

that “the longitudinal walls 70 form a semi-cylinder which conforms closely to the


10

outer edges 72 of the auger 71.” Ex. 1001, 4:61-62. FIGS. 1 & 5 of the ’622 are

shown below and illustrate a semi-cylinder, as the term is used in the ’622 Patent.

As shown in FIGS. 1 and 5, the cylindrical tank has a longitudinal opening. So, for

the purposes of this inter partes review, the broadest reasonable interpretation of

“semi-cylinder” is “cylinder having a longitudinal opening.” See Ex. 1008, ¶ 27.

B. at least one flight

The phrase “at least one flight” is recited in claims 1 and 8. The ’622 Patent

states, “[t]he auger 10 may comprise one or more flights 11 which together form a

helical structure.” Ex. 1001, 4:2-4. In the ongoing litigation on the ’622 Patent,

Patent Owner submitted that the ordinary and accustomed meaning of “flight”

includes “one complete turn of something.” Ex. 1009, p. 8. Thus, for the purposes

of this inter partes review, Petitioner submits Patent Owner’s proposed

construction of this term, such that the phrase “at least one flight” means “at least

one complete turn of something.”


11

C. wherein an entirety of said inner surface of said tank side walls is positioned parallel to said outer edges of said at least one flight of said auger

The phrase “wherein an entirety of said inner surface of said tank side walls

is positioned parallel to said outer edges of said at least one flight of said auger” is

recited in claims 1 and 8. The term “parallel” does not appear in the specification

of the ’622 Patent. However, Patent Owner acted as its own lexicographer and

clearly set forth and specified a definition of “parallel.” Specifically, during the ex

parte reexamination of the ’622 Patent, Patent Owner declared, “As used herein,

‘parallel’ means ‘everywhere equally distant.’” Ex. 1003, p. 268.

Thus, for the purposes of this inter partes review, Petitioner adopts Patent

Owner’s definition of “parallel.” As such, the phrase “wherein an entirety of said

inner surface of said tank side walls is positioned parallel to said outer edges of

said at least one flight of said auger” therefore means “wherein an entirety of said

inner surface of said tank side walls is positioned everywhere equally distant to

said outer edges of said at least one flight of said auger.” See Ex. 1012, pp. 8-9. It

should also be noted that the very dictionary definition of “parallel” cited and

relied upon by Patent Owner during the reexamination also provides as part of the

definition the term “concentric,” which is also relevant to this analysis. See Ex.

1003, pp. 256 and 268.


12

D. means for removing the food product from said outlet end

The phrase “means for removing the food product from said outlet end” is

recited in claims 1 and 3 and invokes means-plus-function treatment under 35

U.S.C. § 112 ¶ 6. In the ongoing litigation on the ’622 Patent, Patent Owner has

submitted that the structure in the ’622 Patent that performs this recited function is

“an unloader,” mentioned in col. 4, lines 29-32, of the ’622 Patent. Ex. 1009, p. 8.

For the purposes of this inter partes review, Petitioner submits Patent Owner’s

position that the “unloader” in col. 1, lines 31-32,2 of the Ex Parte Reexamination

Certificate for the ’622 Patent is the structure that performs this recited function.

E. means for discharging chilling water from said inlet end of said tank

The phrase “means for discharging chilling water from said inlet end of said

tank” is recited in claims 1 and 4 and invokes means-plus-function treatment under

35 U.S.C. § 112 ¶ 6. In the ongoing litigation on the ’622 Patent, Patent Owner

has submitted that a “chilling water line” is provided in col. 4, lines 20-29, and

FIG. 2 of the ’622 Patent and performs the recited function. Ex. 1009, p. 8. For

the purposes of this inter partes review only, Petitioner submits Patent Owner’s

2 Col. 1, lines 31-32, of the Ex Parte Reexamination Certificate amends col. 4,

lines 29-32, of the ’622 Patent as originally issued.


13

position that a chilling water line, provided in col. 4, lines 20-29, of the ’622

Patent, performs this recited function.

F. refrigerating means external to said outer surface of said tank for refrigerating the chilling water discharged from said inlet end of said tank

The phrase “refrigerating means external to said outer surface of said tank

for refrigerating the chilling water discharged from said inlet end of said tank” is

recited in claims 1, 6, and 7 and invokes means-plus-function treatment under 35

U.S.C. § 112 ¶ 6. The structure in the ’622 Patent that performs the recited

function is a refrigeration system and/or a heat exchanger mentioned in col. 4, lines

23-27, and FIG. 2 of the ’622 Patent. Ex. 1008, ¶ 31.

G. means for re-circulating chilling water from said refrigerating means and introducing chilling water into said outlet end of said tank

The phrase “means for re-circulating chilling water from said refrigerating

means and introducing chilling water into said outlet end of said tank” is recited in

claims 1 and 5 and invokes means-plus function treatment under 35 U.S.C.

§ 112 ¶ 6. In the ongoing litigation on the ’622 Patent, Patent Owner has

submitted that a “chilling water line” is provided in col. 4, lines 20-29, and FIG. 2

of the ’622 Patent and performs the recited function. Ex. 1009, p. 8. For the

purposes of this inter partes review, Petitioner submits Patent Owner’s position

that a c

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§ 112 ¶

on is a tan

he ’622 Pat

OF THEPRIOR AR

w of the C

nes (Ex. 1

unter-flow

cal form”

of the tank

ely approac

270° or m

he tank suc

14

in col. 4,

ing said ard said in

said tank

n claim 2

6. The

nk base or

tent. Ex. 1

E ’622 PART REFER

Cited Prior

004)

auger-styl

with a wo

k. Ex. 1

ch the sur

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ch that the

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tank frnlet end

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structure

stand that

1008, ¶ 33.

ATENT ARENCES

r Art Refe

le poultry

orm (i.e.,

1004, 3:38

rface of th

d the worm

e worm’s

Case No. TPatent

-29, of the

rom said

d outlet en

kes means

in the ’62

t is referre

ARE OBV

erences

chiller ha

an auger)

8-44. “Th

he tank 3 w

m.” Id. at

shaft is co


e ’622 Pa

d outlet

nd downwa

s-plus-func

22 Patent

ed to in co

VIOUS OV

aving a tan

mounted

he worm

which may

t 3:44-46.

oaxial with

gned 7,622

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15

During operation, water, which may be pre-chilled by an external

refrigeration system, is provided to the tank through an inlet at the end of the tank

where poultry carcasses are unloaded from the tank. Id. at 4:12-14. The chilled

water flows towards an overflow pipe that is located on the end of the tank where

eviscerated carcasses are added. Id. at 3:50-52 and 2:37-38.

Innes discloses that the worm rotates, causing the poultry carcasses to

proceed from the input end to the output end of the tank. Id. at 2:51-52, 3:21-24,

and 4:17-25. When a carcass arrives at the output end of the tank, the carcasses are

removed using an unloader. Id. at 4:25-27; see, Ex. 1008, ¶ 15; see also, Ex. 1010,

171:14-172:4 (Andrew Estes, one of the inventors of the ’622 Patent, identifying

the discharge mechanism of Innes as being an unloader).

Although Innes was considered during the prosecution of the application that

resulted in the ’622 Patent, Innes was not later relied upon as a basis for rejection

during the ex parte reexamination, when all of the independent claims were either

substantially amended or added. See Ex. 1003, pp. 264-267. Therefore, arguments

presented herein using Innes as a basis for invalidity have not been previously

considered by the Patent Office. Moreover, even if the Patent Office had

previously considered the arguments presented herein (which it has not), the Board

would still be permitted to institute trial. MacAuto U.S.A. v. BOS GmbH & KG,

IPR2012-00004, Paper 18, p. 19 (Jan. 24, 2013) (“[The Board] is not required by

statute t

previou

C

carcasse

Chilled

discharg

1005, 3

A

through

the tank

provide

refriger

1005, 2

near the

A

that resu

rejection

were ei

the argu

to reject a

usly consid

Crawford

es through

water en

ged and flo

:10-13.

A portion o

h an overflo

k through

es this wate

ation syste

2:68-3:5. A

e outlet end

Although C

ulted in th

n during t

ther substa

uments pre

a Petition b

ered by the

Cr2.

describes

an elonga

nters the t

ows to the

of the chille

ow line. Id

a chilling

er to a refr

em chills th

Another ch

d of the tan

Crawford w

he ’622 Pat

the ex par

antially am

esented he

based upon

e Office[.]”

rawford (E

a drag-st

ated, open-

tank near

end of the

ed water, a

Id. at 3:5-1

water line

frigeration

he received

hilling wat

nk. Id. at 2

was conside

tent, Craw

rte reexam

mended or

rein using

16

n the fact

”).

Ex. 1005)

tyle poult

top tank.

the end

e tank wher

along with

0. Anothe

e that is in

system. I

d water thr

er line pro

2:68-3:5; E

ered during

wford was n

ination, w

added. E

Crawford

C

that certai

try chiller

Ex. 1005,

of the tan

re the carc

grease and

er portion o

n communi

Id. at 3:5-1

rough use

ovides the

Ex. 1008, ¶

g the prose

not later re

when all of

Ex. 1003, p

d as a basi

Case No. TPatent

in argumen

r that con

2:46-60; E

nk where

casses enter

d particles

of the chil

ication wit

13; Ex. 10

of a heat e

chilled wa

¶ 45.

ecution of

elied upon

f the indep

pp. 264-26

s for inval


nts or art w

nveys pou

Ex. 1008, ¶

carcasses

r the tank.

, exits the

led water e

th a pump

008, ¶ 44.

exchanger.

ater to the

the applica

n as a basis

pendent cla

67. There

lidity have

gned 7,622

were

ultry

¶ 16.

s are

Ex.

tank

exits

that

The

Ex.

tank

ation

s for

aims

fore,

e not

been pr

Office h

not), th

BOS Gm

is not r

argumen

M

rotates t

1006, 1

the tank

35. Th

carcasse

unloade

A

the ’622

invalidi

even if

(which

MacAut

reviously c

had previo

e Board w

mbH & KG

required by

nts or art w

Morris ’000

to move po

:6-8 and 1

k and is pro

he re-chille

es are outp

er removes

Although M

2 Patent, t

ity have no

f the Offic

they have

to U.S.A. v

considered

ously cons

would still

G, IPR2012

y statute t

were previo

M3.

0 describe

oultry carc

:18-30. Th

ovided to a

d water is

put. Id.

the carcas

Morris ’000

the argume

ot been pr

ce had pr

e not), the

v. BOS Gm

d by the P

sidered the

be permitt

2-00004, P

to rejected

ously cons

Morris ’000

s a counte

casses from

he water e

a refrigera

then return

When a p

ss from the

0 was cons

ents presen

reviously c

reviously c

Board wo

mbH & KG

17

atent Offi

e argumen

ted to insti

Paper 18, p

d a Petition

idered by t

0 (Ex. 1006

er-flow aug

m an inlet e

xits the tan

ation unit th

ned to the t

poultry car

e tank. Ex.

sidered du

nted herein

considered

considered

ould still b

G, IPR201

C

ce. More

nts present

itute trial.

p. 19 (Jan.

n based up

the Office[

6)

ger-style c

end to an o

nk at the e

hat re-chill

tank near t

rcass arriv

. 1008, ¶¶ 7

uring the ex

n using M

d by the Pa

d the argu

be permitte

2-00004, P

Case No. TPatent

eover, even

ted herein

See MacA

24, 2013)

pon the fa

[.]”).

chiller in w

outlet end

nd where c

ls the wate

the end of

es at the o

73 and 80.

x parte ree

Morris ’000

atent Offic

uments pre

ed to insti

Paper 18, p


n if the Pa

(which it

Auto U.S.A

(“[The Bo

act that ce

which an a

of a tank.

carcasses e

er. Id. at 1

the tank w

output end

.

examinatio

as a basis

ce. Moreo

esented he

tute trial.

p. 19 (Jan

gned 7,622

atent

t has

A. v.

oard]

rtain

auger

Ex.

enter

1:29-

where

d, an

on of

s for

over,

erein

See

n. 24,

2013) (“

fact that

M

Ex. 100

downwa

particul

sloped p

claims i

T

and 3-8

[1.P] chiller,

[1.A] aside waoutlet einlet enoutlet eside waand anlongitudand sai

“[The Boa

t certain ar

Morris ’101

07, 1:9-11.

ardly from

lar, a sadd

position. I

in either th

B.

The followi

are obviou

Claim LAn augercomprising

a tank comalls havingend, an inlnd, an outend, wherealls compr

n outer sudinal side d outlet w

ard] is not r

rguments o

M4.

1 describes

The tank

m the discha

dle beam 1

Id. Morris

he prosecut

Ground Crawfor

ing claim

us over Inn

Cl1.

Limitationr type foog:

mprising log an inlet elet wall cllet wall clein said lorise an innurface, whwalls, said

wall togeth

required by

or art were

Morris ’101

s a poultry

k is moun

arge end to

9 rises fro

s ’101 was

tion or the

I: Claimrd

charts and

nes and Cr

laim 1

ns od produc

ongitudinaend and anlosing saidlosing saidongitudinaner surfaceherein saidd inlet walher form a

18

y statute to

previously

(Ex. 1007

chiller tha

nted on a b

o the feed

om the ba

s not used

reexamina

s 1 and 3

d discussion

rawford.

Dct Ex. 10

flow foscillati

al n d d al e d ll a

Ex. 10consistscylindricontainand winterior Ex. 100coils 7

C

o rejected a

y considere

7)

at has an el

base such

end of the

se frame t

as a basis

ation of the

3-8 Are O

n below d

Disclosure04 (Innes)food chiling screw-

004 (Inness of a tankical form

n the desireater and

r a worm 4

04 (Innes),are mount

Case No. TPatent

a Petition b

ed by the O

longated cy

that the

e tank. Id.

to position

s for reject

e ’622 Pate

Obvious ov

demonstrate

e by the Pr), abstractler provi-feed.” s), 3:38-42k 3 of subs

of a sizeed quantitwhich in

[.]”

, 3:47-52: ted on the


based upon

Office[.]”).

ylindrical t

tank is slo

at 3:58-65

n the tank

ting any of

ent.

ver Innes

e that claim

rior Art t: “A counded with

2: “the chstantially se sufficienty of carcancludes in

“Refrigeraexterior o

gned 7,622

n the

.

tank.

oped

5. In

in a

f the

and

ms 1

nter-h an

hiller emi-

nt to asses n its

ation f the


19

semi-cylinder having an inner surface and an outer surface;

tank 3 ... , and a suitable water inlet [is] provided at 8 at the output end of the chiller. A water overflow is provided at the input end 10[.]” Ex. 1004 (Innes), FIG. 1.

[1.B] an auger comprising a shaft and a helical blade, wherein said helical blade forms at least one flight having outer edges, wherein said helical blade and said inner surface of said tank side walls forms a helical path between said inlet end of said tank and said outlet end of said tank, said auger mounted for rotation within said tank and having an axis of rotation whereby rotation of said auger moves a food product along said helical path from said inlet end of said tank to said outlet end of said tank;

Ex. 1004 (Innes), 3:38-44: “the chiller consists of ... a worm 4 mounted on a shaft 5. The shaft 5 passes through a suitable seal in the end of the tank and is connected to and driven by a reciprocating drive 6.” Ex. 1004 (Innes), 4:10-12: “The worm picks up the carcasses and tumbles them about by the action of the paddles and the steps in the worm.” Ex. 1004 (Innes), 4:21-25: “because the average motion of the worm is such as to cause the carcasses to proceed down the tank from the evisceration line to the discharge end, the net motion of the carcasses is towards the discharge.” Ex. 1004 (Innes), 4:30-36: “By selecting a suitable rate of rotation, the carcasses can be agitated in the tank ... and, at the same time, the ratio of forward motion to backward motion can be adjusted to ensure that the dwell time in the tank is optimized to produce sufficient chilling of the carcass[.]” Ex. 1004 (Innes), 3:14-19: “Revolutions are indexed so that reverse revolutions are less than the forward revolutions and a net forward action occurs at a rate appropriate to retaining the carcasses in the chill


20

system long enough to extract the body heat necessary to reduce the internal meat temperature[.]”

[1.C] a volume of chilling water, wherein said tank is filled with said volume of said chilling water to a water level above said shaft of said auger and below a top of said at least one flight of said auger,

Ex. 1004 (Innes), 3:49-52: “a suitable water inlet [is] provided at 8 at the output end 9 of the chiller. A water overflow is provided at the input end 10 and is designated 11.” Ex. 1004 (Innes), 2:32-38: “To chill poultry most efficiently, it would be preferable to use water as a chilling medium, ... with a surplus of water being added to the tank at the end of the tank where the chilled poultry is exited and the overflow of water occurring at the end where the unchilled poultry is received into the tank.” Ex. 1004 (Innes), 4:12-15: “Water from inlet 8, which may be prechilled, is introduced adjacent the output end of the tank tending to chill the carcasses at that end and is further cooled by the refrigeration coils 7[.]” Ex. 1004 (Innes), FIG. 1.

[1.D] wherein an entirety of said inner surface of said tank side walls is positioned parallel to said outer edges of said at least one flight of said auger and wherein said entirety of said inner surface of said tank side walls conforms closely to said outer edges of said one or more flights of said auger, thereby forcing said chilling water to flow along said helical path when said auger rotates and impeding a flow of said chilling water between said tank

Ex. 1004 (Innes), 3:44-47: “The worm 4 is dimensioned so as to closely approach the surface of tank 3 which may be semicylindrical and extend 270° or more around the worm.” Ex. 1004 (Innes), 4:67-5:1: “a screw-feed mechanism mounted within said tank with its axis coaxial with axis of said tank and its outer edges closely approaching the inner surface of said tank.”


21

side walls and said outer edges of said at least one flight of said auger when said auger rotates; [1.E] means from removing the food product from said outlet end;

Ex. 1004 (Innes), 3:54-56: “A discharge mechanism 14 at the output end removes the carcasses from the chiller and discharges them for further processing.” Ex. 1004 (Innes), 4:25-27: “After tumbling and chilling in the cold water, the carcasses are discharged into the discharge chute 14.” Ex. 1004 (Innes), FIG. 1.

[1.F] means for discharging chilling water from said inlet end of said tank;

Ex. 1004 (Innes), 3:50-51: “A water overflow is provided at the input end 10 and is designated 11.” Ex. 1004 (Innes), FIG. 1. Ex. 1005 (Crawford), 3:5-10: “The chilled liquid then flows downstream through the tank 12 and exists [sic] adjacent the loading end of the tank 12 at either position 28 as water overflow which is discarded as waste water along with floating grease and particles, or at position 30 as water for recycle.” Ex. 1005 (Crawford), 5:8-9: “Further details of the tank 12 include an outlet 128 at position 30 for providing liquid to pump 32 for recycle.” Ex. 1005 (Crawford), FIG. 4.

[1.G] refrigerating means external to said outer surface of said tank for refrigerating the chilling water discharged from said inlet end of said

Ex. 1005 (Crawford), 3:10-13: “Recycled water exiting at position 30 enters pump 32 and is pumped through a cooling system 34, wherein the recycled water is


22

tank; and cooled by giving off heat to a heat exchanger 36, such as a refrigeration unit.”

[1.H] means for re-circulating chilling water from said refrigerating means and introducing chilling water into said outlet end of said tank.

Ex. 1004 (Innes), 3:49-50: “[A] suitable water inlet provided at 8 at the output 9 of the chiller.” Ex. 1004 (Innes), 4:12-14: “Water from inlet 8, which may be prechilled, is introduced adjacent the output end[.]” Ex. 1004 (Innes), FIG. 1. Ex. 1005 (Crawford), 5:10-13: “Known in the art but not shown is a liquid inlet at position 24 for return of the cooled recycled liquid to the tank 12 at position 26.”

Claim element [1.A] recites, “a tank comprising longitudinal side walls

having an inlet end and an outlet end, an inlet wall closing said inlet end, [and] an

outlet wall closing said outlet end.” FIG. 1 of

Innes, a portion of which is shown to the right,

illustrates that Innes’s tank has longitudinal

side walls, an inlet wall, and an outlet wall.

Claim element [1.A] also recites, “wherein said

longitudinal side walls, said inlet wall and said

outlet wall together form a semi-cylinder.” The background of the ’622 Patent

admits that Innes discloses an auger chiller with a “semi-cylindrical” tank. Ex.

outlet wall

inlet wall side walls


23

1001, 2:48-51, 1:19-24. See also, Ex. 1008, ¶¶ 35-36. Furthermore, Andrew

Estes, one of the named inventors of the ’622 Patent, has admitted that Innes’s tank

is a “semi-cylindrical tank.” Ex. 1010, 146:13-147:16; see also, Ex. 1011, p. 2

(Andrew Estes’s annotations of FIG. 1 of Innes).

Claim element [1.B] recites, “wherein said helical blade and said inner

surface of said tank side walls forms a helical path between said inlet end of said

tank and said outlet end of said tank.” Innes discloses an auger that “closely

approach[es]” the surface of the tank. Ex. 1004, 3:44-46. By virtue of this

configuration, as one of ordinary skill in the art would know, the auger and the

interior walls of the tank disclosed in Innes form a helical path between the inlet

end and the outlet end of the tank. Ex. 1008, ¶¶ 35 and 37.

Claim element [1.B] also recites, “whereby rotation of said auger moves a

food product along said helical path from said inlet end of said tank to said outlet

end of said tank.” The auger in Innes rotates such that carcasses move from the

inlet end to the outlet end of the tank. Ex. 1008, ¶¶ 35 and 38. The background of

the ’622 Patent also admits that Innes’s chiller uses an auger to move carcasses

from the input end to the output end of the tank. Ex. 1001, 1:19-24.

Claim element [1.C] recites, “wherein said tank is filled with said volume of

said chilling water to a water level above said shaft of said auger and below a top

of said at least one flight of said auger.” FIG. 1 of Innes, a portion of which is


24

provided below, shows that the pipe for water overflow 11 is above the shaft 5,

indicating that the water level rises above the shaft of the auger. Ex. 1008, ¶¶ 35

and 39; see also Ex. 1010, 185:16-186:4 and 103:6-23 (Andrew Estes, one of the

named inventors of the ’622 Patent, describing how the overflow pipe 11 of Innes

sets the water level so that the water level

is above the auger shaft, and thereby

admitting the water level is above the

shaft). Additionally, FIG. 1 of Innes

shows that the top of the refrigeration

coils are higher than the shaft of the

auger, further indicating that the water

level is above the shaft of the auger, since the refrigeration coils would otherwise

be chilling air, which would be inefficient and contrary to the goal of chilling

poultry carcasses. Ex. 1008, ¶ 39. Because the top of the flight of Innes’s auger is

above the tank’s open top, the water level cannot be above the top of the flight. Id.

Accordingly, the chilling water in the tank in Innes satisfies claim element [1.C].

Claim element [1.D] recites, “said inner surface of said tank side walls is

positioned parallel to said outer edges of said at least one flight of said auger.”

Innes discloses that the auger is “coaxial” with the axis of the tank, and the outer

edges of the auger “closely approach” the inner surface of the tank. Ex. 1004,

top of flight

top of tank

top of coils

overflow pipe

shaft


25

4:67-5:1, 3:44-47. To be coaxial is to have a common axis, or to be concentric,

which, notably, is the very term contained in the definition relied upon by Patent

Owner during the reexamination of the ’622 Patent. See Ex. 1003, pp. 256 and

268. In order to be “parallel” or “everywhere equally distant,” the axis of the tank

and the axis of the auger flights have to be the same, or concentric/coaxial. Thus,

in Innes, the inner surface of the tank side walls is positioned equally distant to the

outer edges of the flight of the auger. See Ex. 1008, ¶¶ 35 and 40.

Claim [1.D] also recites, “said inner surface of said tank side walls conforms

closely to said outer edges of said one or more flights of said auger.” The outer

edges of the auger in Innes “closely approach” the surface of the tank. Ex. 1004,

3:44-47 and 4:67-5:1. Thus, the inner surface of Innes’s tank has a similar shape,

and is near in space relative to, the outer edges of the one or more flights of the

auger. Ex. 1008, ¶¶ 35 and 41. By virtue of the auger being “coaxial” with the

axis of the tank and the auger’s outer edges “closely approaching” the inner surface

of the tank, chilling water in Innes is (i) forced to flow in a helical path along the

tank and (ii) impeded from flowing between the tank side walls and the outer edges

of the auger to the same extent as described in the ’622 Patent. Id.

Claim [1.E] recites, “means for removing the food product from said outlet

end.” Innes discloses a discharge mechanism, which includes an unloader that

removes food product from the outlet end of the tank. Ex. 1008, ¶¶ 35 and 42. In


26

particular, a step associated with the auger uplifts carcasses and delivers the

carcasses to a discharge chute, thereby unloading the carcass from the tank. Id.

Innes’s unloader discharges birds from the tank

and is at least an equivalent to the unloader of

the ’622 Patent. Id. Indeed, Andrew Estes, one

of the named inventors of the ’622 Patent,

identified Innes’s discharge mechanism as being

an unloader. Ex. 1010, 171:14-172:4.

Claim element [1.F] recites, “means for

discharging chilling water from said inlet end of

said tank.” In Innes, the overflow pipe 11 at the input end 10 of the tank 3

performs the claimed function of discharging chilling water from the inlet end of

the tank. Ex. 1004, 3:50-51. Ex. 1008, ¶¶ 35 and 43. Also, Crawford discloses a

chilling water line that performs this recited function as well. Ex. 1005, 3:5-10,

5:8-9; Ex. 1008, ¶¶ 35 and 43. FIG. 4 of Crawford, a portion of which is provided

below, also illustrates this chilling water line. Additionally, the background of the

’622 Patent admits that Crawford discloses this claim element. See Ex. 1001, 1:27-

37, 1:43-53. Furthermore, during the reexamination of the ’622 Patent, Patent

Owner stated, “Crawford arguably teaches ‘means for discharging chilling water

from said inlet end of said tank[.]’” See Ex. 1003, pp. 85-86.

unloader

discharge chute

step


27

Claim element [1.G] recites,

“refrigerating means external to said

outer surface of said tank for

refrigerating the chilling water

discharged from said inlet end of said

tank.” The cooling system and/or the

heat exchanger in Crawford is a refrigeration system that performs this recited

function while being outside of the tank. Ex. 1005, 3:10-13; Ex. 1008, ¶¶ 35 and

44. FIG. 4 of Crawford, a portion of which is provided above, also illustrates the

disclosed refrigeration system. Additionally, the background of the ’622 Patent

admits that Crawford discloses this claim element. See Ex. 1001, 1:25-37, 1:43-53.

Furthermore, during the reexamination of the ’622 Patent, Patent Owner stated,

“Crawford arguably teaches ... ‘refrigeration means external to said outer surface

of said tank for refrigerating the chilling water discharged from said inlet end of

said tank[.]’” See Ex. 1003, pp. 85-86.

Claim element [1.H] recites, “means for re-circulating chilling water from

said refrigerating means and introducing chilling water into said outlet end of said

tank.” Crawford discloses a chilling water line that performs this recited function.

Ex. 1005, 5:10-13; Ex. 1008, ¶¶ 35 and 45. FIG. 4 of Crawford, a portion of which

is provided above, illustrates this chilling water line. Additionally, the background

chilling water line [1.F]

chilling water line [1.H]

refrigeration system


28

of the ’622 Patent admits that Crawford discloses this claim element. See Ex.

1001, 1:25-37, 1:43-53. Furthermore, during the reexamination of the ’622 Patent,

Patent Owner stated, “Crawford arguably teaches ... ‘means for re-circulating

chilling water from said refrigeration means[.]’” See Ex. 1003, pp. 85-86. In

addition, Innes also discloses a chilling water line that introduces prechilled water

into the outlet end of the tank. Ex. 1004, 3:49-50, 4:12-14; Ex. 1008, ¶¶ 35 and 45.

It would have been obvious to a person of ordinary skill in the art to

combine the water refrigeration/recirculation system of Crawford with the chiller

of Innes. See Ex. 1008, ¶ 46. For example, Crawford’s chilling water line at point

30 in FIG. 4 could easily be coupled to the end of Innes’s tank where carcasses are

input. Id. In addition, Crawford’s chilling water line (at point 24 in FIG. 4) could

easily be coupled to the end of Innes’s tank where carcasses are unloaded. Id.

Essentially, the chiller tank 12 in FIG. 4 of Crawford could easily be replaced with

the chiller tank 3 of Innes at Innes’s water inlet 8 and water overflow 11. Id.

Additionally, Innes suggests the use of an external refrigeration system by

discussing the use of pre-chilled water from an external refrigeration system being

provided to the tank. See Ex. 1004, 4:12-15. Furthermore, a person having

ordinary skill in the art would be motivated to use Crawford’s water

refrigeration/recirculation system with Innes’s chiller to, for example, conserve

water being used to chill carcasses through recirculation. Ex. 1008, ¶ 46. Plus,

one of

refriger

chilling

tank 3,

Id. Ind

of a “m

system.

Crawfor

system

Ex. 100

been an

person h

[3] The of claimremovinoutlet en

f ordinary

ation/recir

g versus th

thereby re

deed, the ba

more comm

See Ex

rd and Inn

for its inte

05, 3:5-13.

n obvious

having ord

Claim Lauger type

m 1, wheng the foond compris

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e refrigera

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ackground

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x. 1001, 1

nes would

ended purp

Therefore

combinatio

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Cl2.

Limitatione food prodrein said

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the art

ystem to

ation coils

n greater ch

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1:28-37, 1

be using

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laim 3

ns duct chillemeans fo

t from saidoader.

29

would b

achieve a

7 of Inne

hilling cap

22 Patent e

tion system

:43-53.

Crawford

h is refrige

mbination o

ould have

See Ex. 1

Der or d

Ex. 100mechanthe cadischarg Ex. 1tumblinthe cardischarg 14.”

C

e motivat

a higher ef

s that jack

pabilities f

even cites

m that has

Furthermo

’s water r

erating and

of Innes wi

been well

1008, ¶ 46.

Disclosure04 (Innes)nism 14 at arcasses fges them f

004 (Innng and chircasses arge chute

Case No. TPatent

ted to us

fficiency l

ket the out

for the pou

Crawford

an externa

ore, the co

refrigeratio

d recirculat

ith Crawfo

within the

.

e by the Pr), 3:54-56,t the outpufrom the for further

nes), 4:2illing in thre dischar


se Crawfo

level of w

ter shell of

ultry carca

as an exam

al refrigera

ombination

on/recircula

ing water.

ord would h

e abilities

rior Art , “A dischut end rem

chiller processing

25-27, “Ahe cold wrged into

gned 7,622

ord’s

water

f the

sses.

mple

ation

n of

ation

See

have

of a

harge moves

and g.”

After water,

the

A

to remo

Additio

identifie

171:14-

[4] The of claimdischarginlet enchilling

As discusse

ove carca

nally, And

ed Innes’s

-172:4.

Claim Lauger type

m 1, wheging chilli

nd of said tg water line

ed above in

sses from

drew Este

s discharge

Cl3.

Limitatione food prodrein said ing water tank compre.

n Section V

m the tank

es, one of

e mechani

laim 4

ns duct chillemeans fofrom said

rises a firs

30

VI.B.1, In

k. See E

f the nam

ism as be

Der or d st

Ex. 10overflowand is d Ex. 100 Ex. 100liquid thtank 1loadingpositiondiscardfloatingposition Ex. 10details 128 at ppump 3 Ex. 100

C

nnes teache

Ex. 1008,

med invento

eing an un

Disclosure004 (Innew is provi

designated

04 (Innes),

05 (Crawfothen flows 2 and ex

g end of n 28 as wed as wa

g grease n 30 as wat

005 (Crawof the tanposition 3

32 for recyc

05 (Crawfo

Case No. TPatent

es the use

¶¶ 35, 42

ors of the

nloader. S

e by the Prs), 3:50-5ided at the11.”

FIG. 1.

ord), 3:5-10downstrea

xists [sic] the tank

water overaste wate

and parater for recy

wford), 5:nk 12 inc0 for provcle.”

ord), FIG. 4


of an unlo

2, and 47

e ’622 Pa

See Ex. 1

rior Art 52: “A we input end

0: “The cham through

adjacent 12 at e

flow whicer along rticles, orycle.”

:8-9: “Furlude an o

viding liqui

4.

gned 7,622

oader

7-48.

atent,

010,

water d 10

hilled h the

the ither

ch is with r at

rther outlet id to

A

a chillin

Ex. 100

[5] The of claimcirculatrefrigerchillingsaid tanwater li

A

water l

introduc

and 51-

introduc

As discusse

ng water li

08, ¶¶ 35, 4

Claim Lauger type

m 1, whereing chillinating mea

g water intnk comprisne.

As discusse

line to rec

ce the chill

-52. In ad

cing prechi

ed above in

ne to disch

43, and 49-

Cl4.

Limitatione food prod

ein said meng water ans and ito said ouses a seco

ed above i

circulate c

ling water

ddition, Inn

illed water

n Section V

harge chill

-50.

laim 5

ns duct chilleeans for refrom said

introducingutlet end ond chilling

in Section

chilling w

into the ou

nes disclos

r into the ta

31

VI.B.1, bot

ing water

Der e-d g

of g

Ex. 10overflowand is d Ex. 100inlet 8introdutank[.]” Ex. 100 Ex. 100the art positionrecycledfor entrtank 12

VI.B.1, C

water from

utlet end o

ses that a w

ank 3. Id.

C

th Innes an

from the in

Disclosure004 (Innew is provi

designated

04 (Innes)8, which ced adjace

”

04 (Innes),

05 (Crawfobut not sh

n 24 for d liquid tory of the

2 at position

Crawford t

the refri

of the tank.

water inle

Case No. TPatent

nd Crawfo

nlet end of

e by the Prs), 3:50-5ided at the11.”

), 4:12-14:may be

ent the out

FIG. 1.

ord), 5:10-hown is a

return oo the tank 1

make-up n 26.”

teaches us

geration s

. See Ex.

et 8 to tank


rd teach us

f the tank.

rior Art 51: “A we input end

: “Water fprechilled

tput end of

13: “Knowliquid inl

of the co12, and an water into

e of a chi

system an

1008, ¶ 35

k 3 is used

gned 7,622

se of

See

water d 10

from d, is f the

wn in et at

ooled inlet

o the

lling

d to

5, 45,

d for

[6] The of claimmeans esaid tanwater disaid tasystem.

A

exchang

chilling

[7] The of claimmeans esaid tanwater disaid tan

A

that is u

1008, ¶¶

Claim Lauger type

m 1, whereexternal tonk for refrischarged f

ank compr

As discuss

ger disclos

g water disc

Claim Lauger type


nk comprise

As discusse

used to re

¶ 35, 44, an

Cl5.

Limitatione food prodein said re said outerigerating tfrom said irises a re

ed above

sed by Cr

charged fro

Cl6.

Limitatione food prodein said re said outerigerating tfrom said ies a heat ex

ed above in

efrigerate t

nd 55-56.

laim 6

ns duct chilleefrigeratingr surface othe chillinginlet end oefrigeration

in Sectio

rawford is

om the tank

laim 7

ns duct chilleefrigeratingr surface othe chillinginlet end oxchanger.

n Section V

the chilling

32

Der g

of g

of n

Ex. 100water e32 andsystem cooled exchangunit.” Ex. 100

on VI.B.1,

a refriger

k. See Ex.

Der g

of g

of

Ex. 100water e32 andsystem cooled exchangunit.” Ex. 100

VI.B.1, Cr

g water di

C

Disclosure05 (Crawfoexiting at pd is pump

34, whereby givin

ger 36, s

05 (Crawfo

, the cool

ration syst

. 1008, ¶¶

Disclosure05 (Crawfoexiting at pd is pump

34, whereby givin

ger 36, s

05 (Crawfo

rawford di

ischarged

Case No. TPatent

e by the Prord), 3:10-position 3ped throuein the recng off hesuch as a

ord), FIG. 4

ling system

tem that r

35, 44, and

e by the Prord), 3:10-position 3ped throuein the recng off hesuch as a

ord), FIG. 4

scloses a h

from the t


rior Art -13: “Recy0 enters p

ugh a coocycled wateat to a a refrigera

4.

m and/or

refrigerates

d 53-54.

rior Art -13, “Recy0 enters p

ugh a coocycled wateat to a a refrigera

4.

heat excha

tank. See

gned 7,622

ycled pump oling ter is heat

ation

heat

s the

ycled pump oling ter is heat

ation

anger

e Ex.

[8.P] chiller, [8.A] aside waoutlet einlet enoutlet eside waoutlet cylinderan outer

[8.B] ana helicablade foouter edand saidwalls fsaid inloutlet emounteand havrotationproductsaid inleend of s


a tank comalls havingend, an inlnd, an outend, wherealls, said wall toger having ar surface;

n auger coal blade, orms at ledges, wherd inner surforms a hlet end ofend of sad for rotat

ving an axin of said at along saet end of sasaid tank;

Cl7.


mprising log an inlet elet wall cllet wall clein said loinlet wall

ether forman inner s

omprising awherein sast one fli

rein said herface of saihelical patf said tankaid tank, tion withins of rotatioauger movid helical aid tank to

laim 8

ns od produc

ongitudinaend and anlosing saidlosing saidongitudinal and said

m a semisurface and

a shaft andsaid helicaight havingelical bladeid tank sideth betweenk and saidsaid augen said tankon wherebyves a foodpath from

o said outle

33

Dct Ex. 10

flow foscillati

al n d d al d i-d

Ex. 10consistscylindricontainand winterior Ex. 100coils 7 tank 3 providechiller. the inpu Ex. 100

d al g e e n d

er k y d

m et

Ex. 10consistsshaft 5suitableconnectreciproc Ex. 10picks uabout bsteps in Ex. 100averagecause thtank frdischargcarcasse

C




r a worm 4

04 (Innes),are mount... , and a

ed at 8 at A water

ut end 10[.

04 (Innes), 004 (Inness of ... a

5. The she seal in thted to cating driv

04 (Innesup the carcby the action the worm

04 (Innes)e motion ohe carcassrom the ege end, tes is towar

Case No. TPatent

e by the Pr), abstractler provi-feed.” s), 3:38-42k 3 of subs


[.]”

, 3:47-52: ted on the a suitable wt the outpoverflow

.]”

FIG. 1. s), 3:38-44

worm 4 mhaft 5 pashe end of t

and drve 6.”

), 4:10-12casses and on of the p

m.”

), 4:21-25:of the wormses to procevisceratiothe net mrds the disc





water inletput end of

is provide

4: “the chmounted o

sses througthe tank anriven by

2: “The wtumbles t

paddles and

: “becausem is such aceed down

on line to motion of charge.”

gned 7,622

nter-h an

hiller emi-

nt to asses n its

ation f the t [is] f the ed at

hiller on a gh a nd is

y a

worm them d the

e the as to n the the

f the


34

Ex. 1004 (Innes), 4:30-36: “By selecting a suitable rate of rotation, the carcasses can be agitated in the tank ... and, at the same time, the ratio of forward motion to backward motion can be adjusted to ensure that the dwell time in the tank is optimized to produce sufficient chilling of the carcass[.]” Ex. 1004 (Innes), 3:14-19: “Revolutions are indexed so that reverse revolutions are less than the forward revolutions and a net forward action occurs at a rate appropriate to retaining the carcasses in the chill system long enough to extract the body heat necessary to reduce the internal meat temperature[.]”


Ex. 1004 (Innes), 3:49-52: “a suitable water inlet [is] provided at 8 at the output end 9 of the chiller. A water overflow is provided at the input end 10 and is designated 11.” Ex. 1004 (Innes), 2:32-38: “To chill poultry most efficiently, it would be preferable to use water as a chilling medium, ... with a surplus of water being added to the tank at the end of the tank where the chilled poultry is exited and the overflow of water occurring at the end where the unchilled poultry is received into the tank.” Ex. 1004 (Innes), 4:12-15: “Water from inlet 8, which may be prechilled, is introduced adjacent the output end of the tank tending to chill the carcasses at that end and is further cooled by the


35

refrigeration coils 7[.]” Ex. 1004 (Innes), FIG. 1.

[8.D] wherein an entirety of said inner surface of said tank side walls is positioned parallel to said outer edges of said at least one flight of said auger and wherein said entirety of said inner surface of said tank side walls conforms closely to said outer edges of said one or more flights of said auger, thereby forcing said chilling water to flow along said helical path when said auger rotates and impeding a flow of said chilling water between said tank side walls and said outer edges of said at least one flight of said auger when said auger rotates;


[8.E] an unloader for removing the food product from said outlet end;

Ex. 1004 (Innes), 3:54-56: “A discharge mechanism 14 at the output end removes the carcasses from the chiller and discharges them for further processing.” Ex. 1004 (Innes), 4:25-27: “After tumbling and chilling in the cold water, the carcasses are discharged into the discharge chute 14.”

[8.F] a first chilling water line for discharging chilling water from said inlet end of said tank;

Ex. 1004 (Innes), 3:50-51: “A water overflow is provided at the input end 10 and is designated 11.” Ex. 1004 (Innes), FIG. 1. Ex. 1005 (Crawford), 3:5-10: “The chilled liquid then flows downstream through the tank 12 and exists [sic] adjacent the loading end of the tank 12 at either position 28 as water overflow which is discarded as waste water along with


36

floating grease and particles, or at position 30 as water for recycle.” Ex. 1005 (Crawford), 5:8-9: “Further details of the tank 12 include an outlet 128 at position 30 for providing liquid to pump 32 for recycle.” Ex. 1005 (Crawford), FIG. 4.

[8.G] a refrigeration system external to said outer surface of said tank for refrigerating the chilling water discharged from said inlet end of said tank; and

Ex. 1005 (Crawford), 3:10-13: “Recycled water exiting at position 30 enters pump 32 and is pumped through a cooling system 34, wherein the recycled water is cooled by giving off heat to a heat exchanger 36, such as a refrigeration unit.”

[8.H] a second chilling water line for re-circulating chilling water from said refrigerating means and introducing chilling water into said outlet of said tank.

Ex. 1004 (Innes), 3:49-50: “[A] suitable water inlet provided at 8 at the output 9 of the chiller.” Ex. 1004 (Innes), 4:12-14: “Water from inlet 8, which may be prechilled, is introduced adjacent the output end[.]” Ex. 1004 (Innes), FIG. 1. Ex. 1005 (Crawford), 5:10-13: “Known in the art but not shown is a liquid inlet at position 24 for return of the cooled recycled liquid to the tank 12, and an inlet for entry of the make-up water into the tank 12 at position 26.

Claim element [8.A] recites, “a tank comprising longitudinal side walls

having an inlet end and an outlet and, an inlet wall closing said inlet end, [and] an

outlet wall closing said outlet end.” As discussed above in Section VI.B.1, FIG. 1


37

of Innes illustrates that Innes’s tank has longitudinal side walls, an inlet wall, and

an outlet wall. Claim element [8.A] also recites, “wherein said longitudinal side

walls, said inlet wall and said outlet wall together form a semi-cylinder.” The

background of the ’622 Patent also admits that Innes discloses an auger chiller

having a “semi-cylindrical tank.” Ex. 1001, 2:48-51, 1:19-24. See also, Ex. 1008,

¶¶ 57-58. Plus, Andrew Estes, one of the named inventors of the ’622 Patent, has

admitted that Innes’s tank is a “semi-cylindrical tank.” Ex. 1010, 146:13-147:16;

see also, Ex. 1011, p. 2 (Andrew Estes’s annotations of FIG. 1 of Innes).

Claim element [8.B] recites, “wherein said helical blade and said inner

surface of said tank side walls forms a helical path between said inlet end of said

tank and said outlet end of said tank.” Innes discloses an auger that “closely

approach[es]” the surface of the tank. Ex. 1004, 3:44-46; Ex. 1008, ¶¶ 57, 59, and

37. As such, the auger and the interior walls of the tank in Innes form a helical

path between the inlet end and the outlet end of the tank. Ex. 1008, ¶¶ 37 and 59.

Claim element [8.B] recites, “whereby rotation of said auger moves a food

product along said helical path from said inlet end of said tank to said outlet end of

said tank.” The auger in Innes rotates such that the net movement of the carcasses

is from the inlet end to the outlet end of the tank. Ex. 1008, ¶¶ 38, 57, and 60. The

’622 Patent also admits that Innes’s chiller uses an auger to move carcasses from

the input end to the output end of the tank. Ex. 1001, 1:19-24.


38

Claim element [8.C] recites, “wherein said tank is filled with said volume of

said chilling water to a water level above said shaft of said auger and below a top

of said at least one flight of said auger.” As discussed above in Section VI.B.1,

FIG. 1 of Innes shows that the water overflow 11 is above the shaft 5, indicating

that the water level must be above the shaft of the auger. Ex. 1008, ¶¶ 39, 57, and

61; see also Ex. 1010, 185:16-186:4 (Andrew Estes, one of the named inventors of

the ’622 Patent, describing how the overflow pipe in Innes sets the water level

above the shaft of the auger). Additionally, FIG. 1 of Innes shows that the top of

the refrigeration coils are higher than the shaft of the auger, further indicating that

the water level is above the shaft of the auger, since the refrigeration coils would

otherwise be chilling air, which is inefficient and contrary to the goal of chilling

poultry carcasses. Ex. 1008, ¶¶ 39 and 61. As the top of the flight of Innes’s auger

is above the tank’s open top, the water level cannot be above the top of the flight.

Id. Thus, the chilling water in the tank in Innes satisfies claim element [8.C].

Claim element [8.D] recites, “said inner surface of said tank side walls is

positioned parallel to said outer edges of said at least one flight of said auger.” The

auger in Innes is “coaxial” with the axis of the tank, and the outer edges of the

auger “closely approach” the inner surface of the tank. Ex. 1004, 4:67-5:1, 3:44-

47. To be coaxial is to have a common axis, or to be concentric, which is also a

word contained in the very definition relied upon by Patent Owner during the


39

reexamination of the ’622 Patent. See Ex. 1003, pp. 256 and 268. In order to be

“parallel” or “everywhere equally distant,” the axis of the tank and the axis of the

auger flights have to be the same, or concentric/coaxial. Thus, the inner surface of

the tank side walls is positioned equally distant to the outer edges of the flight of

the auger in Innes. Ex. 1008, ¶¶ 40, 57, and 62.

Claim element [8.D] also recites “wherein said entirety of said inner surface

of said tank side walls conforms closely to said outer edges of said one or more

flights of said auger.” The outer edges of the auger in Innes “closely approach” the

surface of the tank. Ex. 1004, 3:44-47 and 4:67-5:1. Thus, the inner surface of

Innes’s tank has a similar shape, and is near in space relative to, the outer edges of

the one or more flights of the auger. Ex. 1008, ¶¶ 41, 57, and 63. By virtue of the

auger being “coaxial” with the axis of the tank and the auger’s outer edges “closely

approaching” the inner surface of the tank, chilling water is (i) forced to flow in a

helical path along the tank and (ii) impeded from flowing between the tank side

walls and the outer edges of the auger. Id.

Claim element [8.E] recites, “an unloader for removing the food product

from said outlet end.” As discussed above in Section VI.B.1, the discharge

mechanism in Innes includes an unloader that removes carcasses from the outlet

end of the tank. Ex. 1008, ¶¶ 42,57, and 64. Additionally, Andrew Estes, one of


40

the named inventors of the ’622 Patent, has admitted that the discharge mechanism

in Innes is an unloader. See Ex. 1010, 171:14-172:4.

Claim element [8.F] recites, “a first chilling water line for discharging

chilling water from said inlet end of said tank.” As discussed in Section VI.B.1,

FIG. 4 of Crawford shows a chilling water line that discharges chilling water from

the inlet end of the tank, and Innes teaches using a chilling water line to discharge

chilling water from the inlet end of the tank. See Ex. 1008, ¶¶ 43, 57, and 65.

Claim element [8.G] recites, “a refrigeration system external to said outer

surface of said tank for refrigerating the chilling water discharged from said inlet

end of said tank.” As discussed above in Section VI.B.1, Crawford discloses a

refrigeration system that comprises a cooling system and a heat exchanger. Ex.

1008, ¶¶ 44, 57, and 66. FIG. 4 of Crawford also illustrates the refrigeration

system. Additionally, the background of the ’622 Patent admits that Crawford

discloses a refrigeration system that is external to the outer surface of a tank. See

Ex. 1001, 1:27-37, 1:43-53.

Claim element [8.H] recites, “a second chilling water line for re-circulating

chilling water from said refrigerating means and introducing chilling water into

said outlet of said tank.” The “said refrigerating means” recited in claim element

[8.H] appears to refer to “[the] refrigeration system” recited in claim element

[8.G]. As discussed above in Section VI.B.1, FIG. 4 of Crawford illustrates a


41

chilling water line that re-circulates chilling water from the refrigeration system

and introduces the chilling water into the outlet end of the tank. Ex. 1008, ¶¶ 45,

57, and 67. Additionally, the background Section of the ’622 Patent admits that

Crawford discloses this claim element. Ex. 1001, 1:27-37, 1:43-53. Furthermore,

Innes discloses a chilling water line that introduces prechilled water into the outlet

end of the tank. Ex. 1004, 3:49-50, 4:12-14.


combine the water refrigeration and recirculation of Crawford with the chiller of

Innes for the same reasons that are discussed above in Section VI.B.1. Ex. 1008,

¶¶ 46 and 68.

C. Ground II: Claim 2 Is Obvious over Innes, Crawford, and Morris ’101

The following claim chart and discussion below demonstrate that claim 2 is

obvious over Innes, Crawford, and Morris ’101.

Claim Limitations Disclosure by the Prior Art [2] The auger type food product chiller of claim 1, further comprising means for sloping said tank from said outlet end downwardly toward said inlet end.

Ex. 1007 (Morris ’101), 3:57-65, “The drum 15 is disposed on a slight grade rising from the feed end 17 to the discharge end 18, for example in a tank 15 having an axial length of about 16 feet and a diameter of about seven feet, the discharge end 18 is about 3 to 4 inches above the level of the feed end 17.” Ex. 1007 (Morris ’101), FIG. 1.

T

outlet e

been ob

a base s

Id. It w

tanks fo

within t

T

and 3-8

[1.P] chiller,

[1.A] aside waoutlet einlet enoutlet eside waand anlongitudand saisemi-cyand an o

The tank in

end downw

bvious to a

so that the

was well kn

or cleaning

the abilities

D.

The followi

are obviou


a tank comalls havingend, an inlnd, an outend, wherealls compr

n outer sudinal side d outlet w

ylinder havouter surfa

n Morris ’1

wardly tow

person of

tank slope

nown to slo

g. Id. In

s of a perso

Ground Morris ’

ing claim

us over Inn

Cl1.


mprising log an inlet elet wall cllet wall clein said lorise an innurface, whwalls, said

wall togethving an innace;

01 is posit

ward the inl

f ordinary s

es from the

ope chiller

addition,

on of ordin

III: Claim’000

charts and

nes and Mo

laim 1

ns od produc

ongitudinaend and anlosing saidlosing saidongitudinaner surfaceherein saidd inlet walher form aner surface

42

tioned on a

let end. E

skill in the

e outlet end

r tanks to,

such a mo

nary skill in

ms 1 and

d discussion

orris ’000.

Dct Ex. 10

flow foscillati

al n d d al e d ll a e

Ex. 10consistscylindricontainand winterior Ex. 100coils 7 tank 3 providechiller.

C

a base that

Ex. 1008, ¶

art to posi

d downwar

for examp

odification

n the art. I

3-8 Are O

n below d




r a worm 4

04 (Innes),are mount... , and a

ed at 8 at A water

Case No. TPatent

t slopes the

¶¶ 69-70.

ition the ta

rdly toward

ple, facilita

of Innes

Id.

Obvious ov

demonstrate

e by the Pr), abstractler provi-feed[.]” s), 3:38-42k 3 of subs


[.]”

, 3:47-52: ted on the a suitable wt the outpoverflow


e tank from

It would h

ank of Inne

d the inlet

ate draining

would be

ver Innes

e that claim




water inletput end of

is provide

gned 7,622

m the

have

es on

end.

g the

well

and

ms 1

nter-h an

hiller emi-

nt to asses n its

ation f the t [is] f the ed at


43

the input end 10[.]” Ex. 1004 (Innes), FIG. 1.


Ex. 1004 (Innes), 3:38-44: “the chiller consists of ... a worm 4 mounted on a shaft 5. The shaft 5 passes through a suitable seal in the end of the tank and is connected to and driven by a reciprocating drive 6.” Ex. 1004 (Innes), 4:10-12: “The worm picks up the carcasses and tumbles them about by the action of the paddles and the steps in the worm.” Ex. 1004 (Innes), 4:21-25: “because the average motion of the worm is such as to cause the carcasses to proceed down the tank from the evisceration line to the discharge end, the net motion of the carcasses is towards the discharge.” Ex. 1004 (Innes), 4:30-36: “By selecting a suitable rate of rotation, the carcasses can be agitated in the tank ... and, at the same time, the ratio of forward motion to backward motion can be adjusted to ensure that the dwell time in the tank is optimized to produce sufficient chilling of the carcass[.]” Ex. 1004 (Innes), 3:14-19: “Revolutions are indexed so that reverse revolutions are less than the forward revolutions and a net forward action occurs at a rate appropriate to retaining the carcasses in the chill system long enough to extract the body heat necessary to reduce the internal meat temperature[.]”


44



[1.D] wherein an entirety of said inner surface of said tank side walls is positioned parallel to said outer edges of said at least one flight of said auger and wherein said entirety of said inner surface of said tank side walls conforms closely to said outer edges of said one or more flights of said auger, thereby forcing said chilling water to flow along said helical path when said auger rotates and impeding a flow of said chilling water between said tank side walls and said outer edges of said at least one flight of said auger when said auger rotates;



45

[1.E] means from removing the food product from said outlet end;

Ex. 1006 (Morris ’000), 1:41-42: “the product exits the chiller at end 120.” Ex. 1006 (Morris ’000), FIG. 2. Ex. 1004 (Innes), 3:54-56: “A discharge mechanism 14 at the output end removes the carcasses from the chiller and discharges them for further processing.” Ex. 1004 (Innes), 4:25-27: “After tumbling and chilling in the cold water, the carcasses are discharged into the discharge chute 14.” Ex. 1004 (Innes), FIG. 1.

[1.F] means for discharging chilling water from said inlet end of said tank;

Ex. 1006 (Morris ’000), 1:29-32: “During the chilling process, chilled water ... exits at point 140, the water flowing in a direction opposite to that of the poultry product.” Ex. 1006 (Morris ’000), FIG. 2. Ex. 1004 (Innes), 3:50-51: “A water overflow is provided at the input end 10 and is designated 11.” Ex. 1004 (Innes), FIG. 1.

[1.G] refrigerating means external to said outer surface of said tank for refrigerating the chilling water discharged from said inlet end of said tank; and

Ex. 1006 (Morris ’000), 1:32-35: “The water being warmed by contact with the initially-warmer poultry product, is recirculated and re-chilled by a refrigeration unit 150 before being returned to the auger housing. Ex. 1006 (Morris ’000), FIG. 2.

[1.H] means for re-circulating chilling water from said refrigerating means

Ex. 1006 (Morris ’000), 1:29-32: “During the chilling process, chilled water enters


46

and introducing chilling water into said outlet end of said tank.

the housing at entry points 130 ... , the water flowing in a direction opposite to that of the poultry product.” Ex. 1006 (Morris ’000), FIG. 2. Ex. 1004 (Innes), 3:49-50: “[A] suitable water inlet provided at 8 at the output 9 of the chiller.” Ex. 1004 (Innes), 4:12-14: “Water from inlet 8, which may be prechilled, is introduced adjacent the output end[.]” Ex. 1004 (Innes), FIG. 1.

As discussed above in Section VI.B.1, Innes discloses claim elements [1.P]

and [1.A]-[1.F] and [1.H]. See Ex. 1008, ¶ 72-75, and 77.

Claim element [1.E] recites, “means for removing the food product from

said outlet end.” Although a different unloader is disclosed in Innes, in Morris

’000, carcasses are also removed from the outlet end of the tank using an unloader.

Ex. 1008, ¶¶ 72 and 74. FIG. 2 of Morris ’000, a portion of which is provided

below, illustrates the unloader that is at the outlet end of the tank. Additionally,

Andrew Estes, one of the named inventors

of the ’622 Patent, confirmed that Morris

’000 discloses an unloader. Ex. 1010,

174:12-175:2; see also, Ex. 1013 (Andrew

unloader


47

Estes’ annotations of FIG. 2 of Morris ’000).

Notably, the unloader in Morris ’000 (shown

above) is the same type of unloader

illustrated in FIG. 4 of Application No.

09/298,364 (shown right), which is

incorporated by reference in the ’622 Patent at col. 2, lines 9-11. Ex. 1008, ¶ 74.

Claim element [1.F] recites, “means for discharging chilling water from said

inlet end of said tank.” As discussed above, Innes discloses element [1.F] via the

water overflow 11. Ex. 1008, ¶ 75. Additionally, FIG. 2 of Morris ’000, which is

provided below, illustrates a chilling water line that discharges chilling water from

the inlet end of the tank. Id. See also, Ex. 1013 (Andrew Estes’s annotations of

FIG. 2 of Morris ’000 identifying chilling water lines).

Claim element [1.G] recites, “refrigerating means external to said outer


end of said tank.” The refrigeration unit 150 in Morris ’000 is a refrigeration

system that refrigerates chilling water that is discharged from the inlet end of the

tank. Ex. 1008, ¶¶ 72 and 76. FIG. 2 of Morris ’000, which is provided below,

illustrates the refrigeration system.

Claim element [1.H] recites, “means for re-circulating chilling water from

said refrigerating means and introducing chilling water into said outlet end of said

unloader


48

tank.” FIG. 2 of Morris ’000, which is provided below, illustrates a chilling water

line that recirculates chilling water from the refrigeration unit 150 and introduces

chilling water into the outlet end of the tank. Ex. 1008, ¶¶ 72 and 77. See also, Ex.

1013 (Andrew Estes’s annotations identifying chilling water lines in FIG. 2 of

Morris ’000). Additionally, Innes discloses the water inlet 8, which introduces

prechilled water to the tank 3. Ex. 1004, 4:12-14; Ex. 1008, ¶ 77.


combine the water refrigeration/recirculation system of Morris ’000 with the

chiller of Innes. See Ex. 1008, ¶ 78. For example, the chilling water line at point

140 of FIG. 2 in Morris ’000 could easily be coupled to the water overflow 11 of

Innes near where carcasses are input. Id. In addition, the chilling water line near

the end 120 in FIG. 2 of Morris ’000 could easily be coupled to the water inlet 8 of

Innes near where carcasses are unloaded. Id. Essentially, the chiller tank in FIG. 2

of Morris ’000 could easily be replaced with the chiller tank 3 of Innes at Innes’s

water inlet 8 and water overflow 11.

chilling water line [1.F.] refrigeration

system

chilling water line [1.H.]


49

Additionally, Innes suggests the use of an external refrigeration system. See

Ex. 1004, 4:12-15 (discussing the use of pre-chilled water being provided to the

tank). Furthermore, a person having ordinary skill in the art would be motivated to

use the water refrigeration/recirculation system of Morris ’000 with Innes’s chiller

to, for example, conserve water being used to chill carcasses through recirculation.

Ex. 1008, ¶ 78. Plus, one of ordinary skill in the art would be motivated to use the

water refrigeration/recirculation system of Morris ’000 to achieve a higher

efficiency level of water chilling versus the refrigeration coils 7 of Innes that jacket

the outer shell of the tank 3, thereby resulting in greater chilling capabilities for the

poultry carcasses. Id. Indeed, the background of the ’622 Patent even cites Morris

’000 as an example of a “more common” water recirculation system that has an

external refrigeration system. See Ex. 1001, 1:28-37, 1:43-53. Furthermore, the

combination of Morris ’000 and Innes would be using the water

refrigeration/recirculation system of Morris ’000 for its intended purpose, which is

refrigerating and recirculating water. See Ex. 1006, 1:32-34.

Additionally, it would have been obvious to a person of ordinary skill in the

art to combine the unloader of Morris ’000 with the chiller of Innes. See Ex. 1008,

¶ 79. Such a combination would be a simple substitution of one type of unloader

for an equivalent type of unloader and would not require undue experimentation.

Id. Therefore, the combination of Innes with Morris ’000 would have been an

obvious

having o

[3] The of claimremovinoutlet en

A

an unlo

Additio

identifie

also Ex

FIG. 1 o

[4] The

s combinat

ordinary sk

Claim Lauger type

m 1, wheng the foond compris

As discusse

oader to rem

nally, And

ed the unlo

x. 1013 (A

of Innes (s

Claim Lauger type

tion that w

kill in the a

Cl2.

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od productses an unlo

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move carc

drew Este

oader in FI

Andrew Es

ee Ex. 101

Cl3.


would have

art. Id.

laim 3

ns duct chillemeans fo

t from saidoader.

n Section

casses from

es, one of

IG. 2 of M

stes’s anno

0, 171:14-

laim 4

ns duct chille

50

e been we

Der or d

Ex. 10product Ex. 100 Ex. 100mechanthe cadischarg Ex. 1tumblinthe cardischarg 14.”

VI.D.1, bo

m the tank

f the nam

Morris ’000

otations of

-172:4).

Der Ex. 100

C

ell within

Disclosure006 (Morrt exits the c

06 (Morris

04 (Innes)nism 14 at arcasses fges them f

004 (Innng and chircasses arge chute

oth Morris

k. See Ex.

med invento

0 (see Ex.

f FIG. 2 o

Disclosure06 (Morris

Case No. TPatent

the abilitie

e by the Prris ’000), chiller at e

’000), FIG

), 3:54-56:t the outpufrom the for further

nes), 4:2illing in thre dischar

s ’000 and

1008, ¶¶

ors of the

1010, 174

of Morris

e by the Prs ’000), 1:2


es of a pe

rior Art 1:41-42:

end 120.”

G. 2.

“A dischut end rem

chiller processing

25-27: “Ahe cold wrged into

Innes disc

74 and 80

e ’622 Pa

4:12-175:2;

’000)) an

rior Art 29-32: “Du

gned 7,622

erson

“the

harge moves

and g.”

After water,

the

close

0-81.

atent,

; see

nd in

uring

of claimdischarginlet enchilling

A

chilling

Ex. 100

[5] The of claimcirculatrefrigerchillingsaid tanwater li

m 1, wheging chilli

nd of said tg water line

As discusse

g water line

08, ¶¶ 75 an

Claim Lauger type

m 1, whereing chillinating mea

g water intnk comprisne.

rein said ing water tank compre.

ed above in

e to discha

nd 82-83.

Cl4.


ein said meng water ans and ito said ouses a seco

means fofrom said

rises a firs

n Section V

arge chillin

laim 5

ns duct chilleeans for refrom said

introducingutlet end ond chilling

51

or d st

the chilat poindirectioproduct Ex. 100 Ex. 10overflowand is d Ex. 100

VI.D.1, bot

ng water fr

Der e-d g

of g

Ex. 100the chilthe houwater fthat of t Ex. 100 Ex. 100water in9 of the Ex. 100inlet 8introdu Ex. 100

C

lling procent 140, thon oppositt.”

06 (Morris

004 (Innew is provi

designated

04 (Innes),

th Morris ’

from the in

Disclosure06 (Morrislling proceusing at enflowing inthe poultry

06 (Morris

04 (Innes)nlet provide chiller.”

04 (Innes)8, which ced adjace

04 (Innes),

Case No. TPatent

ess, chilledhe water te to that

’000), FIG

s), 3:50-5ided at the11.”

FIG. 1.

’000 and In

nlet end of

e by the Prs ’000), 1:2ess, chilledntry point

n a directioy product.”

’000), FIG

), 3:49-50:ded at 8 at

, 4: 12-14may be

ent the outp

FIG. 1.


d water ... eflowing iof the pou

G. 2.

51: “A we input end

nnes disclo

f the tank.

rior Art 29-32: “Dud water ens 130 ... ,on opposit”

G. 2.

: “[A] suitthe output

4: “Water fprechilled

put end[.]”

gned 7,622

exits in a ultry

water d 10

ose a

See

uring nters , the te to

table t end

from d, is ”

A

line to r

water in

that intr

[6] The of claimmeans esaid tanwater disaid tasystem.

A

Morris

[7] The of claimmeans esaid tanwater disaid tan

As discusse

recirculate

nto the out

roduces pre

Claim Lauger type


ank compr

As discusse

’000 is a re

Claim Lauger type


nk comprise

ed above in

e chilling w

tlet end of

echilled wa

Cl5.

Limitatione food prodein said re said outerigerating tfrom said irises a re

ed above

efrigeration

Cl6.

Limitatione food prodein said re said outerigerating tfrom said ies a heat ex

n Section V

water from

the tank.

ater to the

laim 6

ns duct chilleefrigeratingr surface othe chillinginlet end oefrigeration

in Section

n system.

laim 7

ns duct chilleefrigeratingr surface othe chillinginlet end oxchanger.

52

VI.D.1, Mo

m the refrig

Additiona

tank 3. Se

Der g

of g

of n

Ex. 10water binitiallyrecirculrefrigerreturned Ex. 100

n VI.D.1,

See Ex. 10

Der g

of g

of

Ex. 10water binitiallyrecirculrefrigerreturned Ex. 100

C

orris ’000 d

geration un

ally, Innes

ee Ex. 1008

Disclosure06 (Morri

being warmy-warmer lated anration und to the au

06 (Morris

the refrige

008, ¶¶ 76

Disclosure06 (Morri

being warmy-warmer lated anration und to the au

06 (Morris

Case No. TPatent

discloses a

nit and intr

discloses

8, ¶¶ 77 an

e by the Pris ’000), med by co

poultry nd re-chinit 150 uger housin

’000), FIG

eration un

and 86-87

e by the Pris ’000), med by co

poultry nd re-chinit 150 uger housin

’000), FIG


a chilling w

roduce chi

a water in

nd 84-85.

rior Art 1:32-35: “

ontact withproduct,

illed bybefore b

ng.

G. 2.

it disclose

7.

rior Art 1:32-35: “

ontact withproduct,

illed bybefore b

ng.

G. 2.

gned 7,622

water

lling

nlet 8

“The h the

is y a being

ed in

“The h the

is y a being

T

which i

Morris

was wel

[8.P] chiller, [8.A] aside waoutlet einlet enoutlet eside waoutlet

heat

The refrige

s illustrate

’000 show

ll known f


a tank comalls havingend, an inlnd, an outend, wherealls, said wall toge

exchange

eration unit

ed in FIG.

ws the U-tur

for refrigera

Cl7.


mprising log an inlet elet wall cllet wall clein said loinlet wall

ether form

er

t disclosed

2 below.

rns of pipi

ation syste

laim 8

ns od produc

ongitudinaend and anlosing saidlosing saidongitudinal and said

m a semi

53

d in Morri

Ex. 1008,

ing for the

ems to inclu

Dct Ex. 10

flow foscillati

al n d d al d i-

Ex. 10consistscylindricontainand winterior

C

is ’000 inc

¶¶ 88-89.

heat excha

ude heat ex




r a worm 4

Case No. TPatent

cludes a h

In particu

anger. Id.

xchangers

e by the Pr), abstractler provi-feed[.]” s), 3:38-42k 3 of subs


[.]”


heat exchan

ular, FIG.

In additio

. Id.



gned 7,622

nger,

2 of

on, it

nter-h an

hiller emi-

nt to asses n its


54

cylinder having an inner surface and an outer surface;

Ex. 1004 (Innes), 3:47-52: “Refrigeration coils 7 are mounted on the exterior of the tank 3 ... , and a suitable water inlet [is] provided at 8 at the output end of the chiller. A water overflow is provided at the input end 10[.]” Ex. 1004 (Innes), FIG. 1.


Ex. 1004 (Innes), 3:38-44: “the chiller consists of ... a worm 4 mounted on a shaft 5. The shaft 5 passes through a suitable seal in the end of the tank and is connected to and driven by a reciprocating drive 6.” Ex. 1004 (Innes), 4:10-12: “The worm picks up the carcasses and tumbles them about by the action of the paddles and the steps in the worm.” Ex. 1004 (Innes), 4:21-25: “because the average motion of the worm is such as to cause the carcasses to proceed down the tank from the evisceration line to the discharge end, the net motion of the carcasses is towards the discharge.” Ex. 1004 (Innes), 4:30-36: “By selecting a suitable rate of rotation, the carcasses can be agitated in the tank ... and, at the same time, the ratio of forward motion to backward motion can be adjusted to ensure that the dwell time in the tank is optimized to produce sufficient chilling of the carcass[.]” Ex. 1004 (Innes), 3:14-19: “Revolutions are indexed so that reverse revolutions are less than the forward revolutions and a net


55

forward action occurs at a rate appropriate to retaining the carcasses in the chill system long enough to extract the body heat necessary to reduce the internal meat temperature[.]”



[8.D] wherein an entirety of said inner surface of said tank side walls is positioned parallel to said outer edges of said at least one flight of said auger and wherein said entirety of said inner surface of said tank side walls conforms closely to said outer edges of said one or more flights of said auger, thereby forcing said chilling water to flow along said helical path when said

Ex. 1004 (Innes), 3:44-47: “The worm 4 is dimensioned so as to closely approach the surface of tank 3 which may be semicylindrical and extend 270° or more around the worm.” Ex. 1004 (Innes), 4:67-5:1: “a screw-feed mechanism mounted within said tank with its axis coaxial with axis of said tank and its outer edges closely approaching the


56

auger rotates and impeding a flow of said chilling water between said tank side walls and said outer edges of said at least one flight of said auger when said auger rotates;

inner surface of said tank[.]”

[8.E] an unloader for removing the food product from said outlet end;

Ex. 1006 (Morris ’000), 1:41-42: “the product exits the chiller at end 120.” Ex. 1006 (Morris ’000), FIG. 2. Ex. 1004 (Innes), 3:54-56: “A discharge mechanism 14 at the output end removes the carcasses from the chiller and discharges them for further processing.” Ex. 1004 (Innes), 4:25-27: “After tumbling and chilling in the cold water, the carcasses are discharged into the discharge chute 14.” Ex. 1004 (Innes), FIG. 1.

[8.F] a first chilling water line for discharging chilling water from said inlet end of said tank;

Ex. 1006 (Morris ’000), 1:29-32: “During the chilling process, chilled water ... exits at point 140, the water flowing in a direction opposite to that of the poultry product.” Ex. 1006 (Morris ’000), FIG. 2. Ex. 1004 (Innes), 3:50-51: “A water overflow is provided at the input end 10 and is designated 11.” Ex. 1004 (Innes), FIG. 1.

[8.G] a refrigeration system external to said outer surface of said tank for refrigerating the chilling water discharged from said inlet end of said tank; and

Ex. 1006 (Morris ’000), 1:32-35: “The water being warmed by contact with the initially-warmer poultry product, is recirculated and re-chilled by a refrigeration unit 150 before being


57

returned to the auger housing. Ex. 1006 (Morris ’000), FIG. 2.

[8.H] a second chilling water line for re-circulating chilling water from said refrigerating means and introducing chilling water into said outlet of said tank.

Ex. 1006 (Morris ’000), 1:29-32: “During the chilling process, chilled water enters the housing at entry points 130 ... , the water flowing in a direction opposite to that of the poultry product.” Ex. 1006 (Morris ’000), FIG. 2. Ex. 1004 (Innes), 3:49-50: “[A] suitable water inlet provided at 8 at the output 9 of the chiller.” Ex. 1004 (Innes), 4:12-14: “Water from inlet 8, which may be prechilled, is introduced adjacent the output end[.]” Ex. 1004 (Innes), FIG. 1.

As discussed above in Section VI.B.7, Innes discloses claim elements [8.P],

[8.A]-[8.E], and [8.H]. See Ex. 1008, ¶¶ 90-97 and 100.

Claim element [8.E] recites, “an unloader for removing the food product

from said outlet end.” Although a different unloader is disclosed in Innes, in

Morris ’000, carcasses are also removed from the outlet end of the tank using an

unloader. Ex. 1008, ¶¶ 74, 90, and 97. As discussed above in Section VI.D.1,

FIG. 2 of Morris ’000 illustrates the unloader that is at the outlet end of the tank.

Id. at 97.


58

Claim element [8.F] recites, “a first chilling water line for discharging

chilling water from said inlet end of said tank.” As discussed above in Section

VI.D.1, FIG. 2 of Morris ’000 illustrates a chilling water line that discharges

chilling water from the inlet end of the tank. Ex. 1008, ¶¶ 75, 90, and 98.

Additionally, Innes discloses element [8.F] via the water overflow 11. Id.

Claim element [8.G] recites, “a refrigeration system external to said outer


end of said tank.” The refrigeration unit in Morris ’000 is a refrigeration system

that refrigerates chilling water that is discharged from the inlet end of the tank. Ex.

1008, ¶¶ 90 and 99. As discussed above in Section VI.D.1, FIG. 2 of Morris ’000

illustrates the refrigeration system.

Claim element [8.H] recites, “a second chilling water line for re-circulating

chilling water from said refrigerating means and introducing chilling water into

said outlet of said tank.” The “said refrigerating means” recited in claim element

[8.H] appears to refer to “[the] refrigeration system” recited in claim element

[8.G]. As discussed above in Section VI.D.1, FIG. 2 of Morris ’000 illustrates a

chilling water line that recirculates chilling water from the refrigeration system and

introduces chilling water into the outlet end of the tank. Ex. 1008, ¶¶ 77, 90, and

100. Additionally, Innes discloses the water inlet 8, which can introduce prechilled

water to the tank 3. Id. at ¶¶ 90, 100.


59


combine the water refrigeration and recirculation of Crawford with the chiller of

Innes for the same reasons that are discussed above in Section VI.D.1. Ex. 1008,

¶¶ 78-79 and 101.

E. Ground IV: Claim 2 Is Obvious over Innes, Morris ’000, and Morris ’101

The following claim chart and discussion below demonstrate that claim 2 is

obvious over Innes, Morris ’000, and Morris ’101.

Claim Limitations Disclosure by the Prior Art [2] The auger type food product chiller of claim 1, further comprising means for sloping said tank from said outlet end downwardly toward said inlet end.

Ex. 1007 (Morris ’101), 3:57-65, “The drum 15 is disposed on a slight grade rising from the feed end 17 to the discharge end 18, for example in a tank 15 having an axial length of about 16 feet and a diameter of about seven feet, the discharge end 18 is about 3 to 4 inches above the level of the feed end 17.” Ex. 1007 (Morris ’101), FIG. 1.

The tank in Morris ’101 is positioned on a base that slopes the tank from the

outlet end downwardly toward the inlet end. Ex. 1008, ¶¶ 102-103. It would have

been obvious to a person of ordinary skill in the art to position the tank of Innes on

a base so that the tank slopes from the outlet end downwardly toward the inlet end.

Id. It was well known to slope chiller tanks to, for example, facilitate draining the


60

tanks for cleaning. Id. In addition, such a modification of Innes would be well

within the abilities of a person of ordinary skill in the art. Id.

VII. CONCLUSION

For the reasons set forth above, there is a reasonable likelihood that

Petitioner will prevail with respect to at least one of the claims challenged in this

Petition. Accordingly, Petitioner respectfully requests that the Board institute inter

partes review of claims 1-8 of the ’622 Patent and that the Board issue a final

written decision under 35 U.S.C. § 318 holding claims 1-8 of the ’622 Patent

unpatentable.

Dated: December 18, 2014

Respectfully submitted, /N. Andrew Crain/_____ N. Andrew Crain (Reg. No. 45,442) Lead Counsel for Petitioner Thomas | Horstemeyer, LLP 400 Interstate North Pkwy Ste. 1500 Atlanta, Georgia 30339 Tel: (770) 933-9500 Fax: (770) 951-0933


CERTIFICATE OF SERVICE

In accordance with 37 C.F.R. §§ 42.6(e) and 42.107, the undersigned

certifies that on the 18th day of December, 2014, a complete and entire copy of the

foregoing Petition for Inter Partes Review of U.S. Patent No. 6,397,622 Under 35

U.S.C. §§311-319 and 37 C.F.R. § 42.100 et seq., including exhibits relied upon,

was served on counsel of record for Patent Owner at the correspondence address as

follows,

Richard Blakely Glasgow [email protected]

Wright, Lindsey & Jennings LLP

200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201

Attorney for Patent Owner

via Federal Express No. 8019 4601 2020, postage prepaid because this is likely to

effect service.

THOMAS | HORSTEMEYER, LLP

/N. Andrew Crain/ N. Andrew Crain (Reg. No. 45,442) Lead Counsel for Petitioner

December 18, 2014 Date

Paper No. 01 Filed: December 18, 2014 Filed on behalf of: Morris...

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Transcript of Paper No. 01 Filed: December 18, 2014 Filed on behalf of: Morris...