Ex Parte Behle et al

Patent Trial and Appeal Board

Jun 30, 2016

13923418 (P.T.A.B. Jun. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/923,418 06/21/2013 Martin BERLE
27623 7590 06/30/2016
OHLANDT, GREELEY, RUGGIERO & PERLE, LLP
ONE LANDMARK SQUARE, IOTH FLOOR
STAMFORD, CT 06901
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
315.8623USQX 3075
EXAMINER
NGUYEN, HOA! AND
ART UNIT PAPER NUMBER
2868
MAIL DATE DELIVERY MODE
06/30/2016 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN BERLE, JAN CLAESSON,
and
JANICE M. K. JAFERIAN
Appeal2015-002745
Application 13/923,418
Technology Center 2800
Before ROBERT E. NAPPI, CARLA M. KRIVAK, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
KRIVAK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2015-002745
Application 13/923,418
STATEMENT OF THE CASE
Appellants' invention is directed to an "oil quality sensor and adapter
for deep fryers" for "measuring the state of degradation of cooking oil or
fat" (Title; Abstract).
Independent claims 1 and 20, reproduced below, are exemplary of the
subject matter on appeal.
1. A system for measuring the state of degradation of
cooking oils or fats in a deep fryer comprising:
at least one fryer pot;
a conduit fluidly connected to said at least one fryer pot
for transporting cooking oil from said at least one fryer pot and
returning the cooking oil back to said at least one fryer pot;
a pump for re-circulating said cooking oil to and from
said fryer pot; and
a sensor external to said at least one fryer pot and
disposed in fluid communication with said conduit to measure
an electrical property that is indicative of total polar materials
of said cooking oil as the cooking oil flows past said sensor and
is returned to said at least one fryer pot;
wherein said conduit comprises a drain pipe that
transports oil from said at least one fryer pot and a return pipe
that returns oil to said at least one fryer pot, and
wherein said sensor is disposed in either said drain pipe
or said return pipe.
20. A system for measuring the state of degradation of
cooking oils or fats in a deep fryer comprising:
a plurality of fryer pots,
a filtration loop comprising a filter pan and drain
plumbing that collects used cooking oil from said plurality of
fryer pots and a return conduit that returns filtered cooking oil
to each of said plurality of fryer pots;
a pump for re-circulating said cooking oil through said
filtration loop to and from said plurality of fryer pots; and
a sensor external to said plurality of fryer pots and
disposed in fluid communication with said cooking oil to
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Application 13/923,418
measure an electrical property that is indicative of total polar
materials of said cooking oil as the cooking oil flows past said
sensor and is returned to said plurality of fryer pots;
wherein said drain plumbing comprises at least one drain
pipe associated with each said fryer pots, wherein said drain
pipe transports oil from said fryer pot, and said return conduit
that returns oil to each of said plurality of fryer pots, and
wherein said sensor is disposed in said return pipe and
positioned to ensure that the flow of oil cleans the sensor before
measurement of the electrical property.
REFERENCES and REJECTION
The Examiner rejected claims 1-21under35 U.S.C. § 103(a) based
upon the teachings of Davis (US 5,776,530; July 7, 1998), Mittal (US
5,818, 731; Oct. 6, 1998), and Stahlmann (US 7 ,030,629 B 1; Apr. 18, 2006).
ANALYSIS
With respect to claim 1, Appellants contend Mittal does not teach or
suggest a sensor external to a fryer pot and disposed in fluid communication
with a conduit to measure cooking oil as the cooking oil flows past the
sensor and is returned to the fryer pot, as required by claim 1 (Br. 7, 8).
According to Appellants, Mittal at most describes measurements by
immersing a sensor in oil and pouring oil into a sensor, but does not teach or
suggest "the measurement is taken 'as the cooking oil flows past said sensor
and is returned to said at least one fryer pot'" (Br. 7, 8 (citing Mittal Figs.
3-5, 13)). Appellants further contend Mittal's teaching as applied to Davis
does not teach a sensor as claimed (Br. 8).
We are not persuaded by Appellants' arguments, which do not address
the Examiner's rejection based on the combination of Mittal and Davis in
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Application 13/923,418
further combination with Stahlmann. We agree with the Examiner's
findings that Mittal teaches cooking oil flows past a sensor, and Stahlmann
teaches a fluid sensor is disposed in fluid communication with a conduit to
measure a fluid of interest as the fluid flows past the sensor (Ans. 4, 5 (citing
Mittal Fig. 13); Final Act. 5-7 (citing Mittal Fig. 3, Abstract; Stahlmann
Figs. 1, 3, Abstract, 1:61---65)). Further, Davis teaches cooking oil is
returned to a fryer pot via a return pipe (Ans. 3, 5; Final Act. 3 (citing Davis
Figs. 1, 5, 6:13--40)). The combination ofMittal's cooking oil sensor with
Stahlmann' s fluid sensor construction along a fluid passageway teaches and
suggests the claimed sensor measuring cooking oil as the cooking oil flows
past the sensor (Ans. 5; Final Act. 7, 8). Further, the combination of Mittal's
cooking oil sensor with Davis' cooking oil return pipe teaches and suggests
the claimed sensor measuring as the cooking oil is returned to a fryer pot
(Ans. 3, 5; Final Act. 8). Appellants have not responded to or rebutted the
Examiner's findings and conclusions in a Reply Brief.
Appellants additionally contend Stahlmann is not analogous art with
respect to Appellants' device and Mittal' s device because Stahlmann is not
in Appellants' and Mittal' s field of invention nor is it reasonably pertinent to
the problem of identifying when cooking oil should be changed (Br. 9, 10).
We are not persuaded by Appellants' contentions. The Examiner finds
Stahlmann is reasonably pertinent to the topic of measuring a fluid's quality
of interest with a capacitance sensor, with which both Appellants and Mittal
are involved (Ans. 7, 8 (citing Mittal Abstract, 8:20-50; Stahlmann Fig. 1,
Abstract, 3:37--40)). We agree with the Examiner's findings. Mittal,
Stahlmann, and Appellants are all concerned with the use of a capacitance
sensor to measure a fluid quality of interest (Ans. 7, 8; see Spec. 2: 14--17;
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Application 13/923,418
Mittal Abstract ("capacitor is used to measure the capacitance to provide a
reliable measure of concentration of total polar materials."); Stahlmann
Abstract ("[a] fluid quality sensor ... operate[s] as a capacitor for making
fluid quality determinations.")).
Appellants' contention the Examiner relied on impermissible
hindsight by failing to provide adequate reasoning to combine Stahlmann
with Davis and Mittal is also without merit (Br. 10). The Examiner has
provided a reasoned rationale to combine the teachings of Stahlmann with
Davis and Mittal (Ans. 9, 12 (citing Davis 1:35--42, 62-64; Mittal Abstract,
8:20-50; Stahlmann Abstract, 3:64--4:3); Final Act. 7, 8). We have
reviewed the Examiner's rationale and the evidence cited in support of it and
we concur with the Examiner's findings and conclusions, which Appellants
have not rebutted in a Reply Brief.
In light of the above, we sustain the Examiner's rejection of
independent claim 1 and independent claims 12, 15, and 21 argued for the
same reasons as claim 1 (Br. 6, 11 ). We also sustain the rejection of
dependent claims 2-11, 13, 14, and 16-19, which Appellants do not
separately argue (Br. 6, 11 ).
With respect to independent claim 20, the Examiner finds
Stahlmann's sensor positioned in-line with a fluid passageway "inherently
ensures that the flow of fluid cleans the sensor before measurement,"
thereby teaching a sensor positioned to ensure that a fluid flow cleans the
sensor before measurement as required by the claim (Final Act. 8).
Appellants contend Stahlmann does not disclose its sensor is cleaned by the
fluid being measured, and the Office Action has not provided any rationale
or evidence to establish inherency based on Stahlmann (Br. 11, 12).
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In response, the Examiner finds Stahlmann's sensor construction in-
line with a fluid passageway is so similar to the sensor and pipe system of
claim 20, that Stahlmann's construction would exhibit a similar cleaning
property as claimed, by "the continuous flow of the fluid ... remov[ing] or
clean[ing] any clog and/or suspended particles to fill a space between the
two plates of [Stahlmann's] capacitor with a fresh batch of the fluid" (Ans.
14, 15 (citing Stahlmann 1:62-2: 1 )).
It is well settled that:
where the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent
characteristic of the prior art, it possesses the authority to
require the applicant to prove that the subject matter shown to
be in the prior art does not possess the characteristic relied on.
In re Best, 562 F.2d 1252, 1254--55 (CCPA 1977) (quoting In re Swinehart,
439 F.2d 210, 212-13 (CCPA 1971)).
In the instant case, the Examiner has provided sufficient evidence and
reasoning to establish a finding of sufficient structural similarity between
Stahlmann' s fluid sensor system and the claimed sensor system that the
claimed cleaning features would necessarily be present in Stahlmann. As
such, Appellants have the burden of establishing that those features would
not be present. In re Spada, 911 F.2d 705, 708 (Fed Cir. 1990) ("[W]hen the
PTO shows sound basis for believing that the products of the applicant and
the prior art are the same, the applicant has the burden of showing that they
are not."). Here, Appellants have not addressed the Examiner's findings in a
Reply Brief, and have not pointed to any evidence or provided any
persuasive reasoning to establish the Examiner erred in the findings and
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conclusions presented that Stahlmann' s construction inherently produces the
claimed cleaning features.
Appellants also contend Mittal and Stahlmann' s teachings are distinct
from the cleansing of Appellants' sensors produced by an approaching oil
flow that contacts the sensor front at an optimal angle of 20° to 50° (Br. 12
(citing Spec. 8:22-9:9)). Appellants' argument is not commensurate with
the scope of claim 20 as Appellants' claim does not recite a specific angle
between the approaching oil flow and the sensor front.
In light of the above, we sustain the Examiner's rejection of
independent claim 20.
DECISION
The Examiner's decision rejecting claims 1-21 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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