Ex Parte BEN-SHMUEL et alDownload PDFPatent Trials and Appeals BoardMay 7, 201912563180 - (D) (P.T.A.B. May. 7, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/563, 180 09/21/2009 156823 7590 05/09/2019 Finnegan/Goji 901 New York A venue, NW WASHINGTON, DC 20001-4413 FIRST NAMED INVENTOR Eran BEN-SHMUEL 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. l 1254.0021-04000 5881 EXAMINER DUNNER, DIALLO IGWE ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 05/09/2019 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): Regional-desk@finnegan.com paralegal@hobart-group.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERAN BEN-SHMUEL and ALEXANDER BILCHINSKY Appeal2017-008043 Application 12/563, 180 Technology Center 3700 Before LYNNE H. BROWNE, MICHELLE R. OSINSKI, and LEE L. STEPINA, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Eran Ben-Schmuel and Alexander Bilchinsky ("Appellants") 1 appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 21- 35, 50, 51, and 53-58.2 An oral hearing was held on April 18, 2019. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). 1 Appellants identify the real party in interest as Goji Limited. Appeal Br. 3. 2 Claims 1-20, 36-49, and 52 are cancelled. Appeal Br. 22, 25 (Claims App.). Appeal2017-008043 Application 12/563, 180 We AFFIRM and designate our affinnance of the rejections of claims 21-35, 50, 51, and 53-58 as NEW GROUNDS OF REJECTION pursuant to our authority under 3 7 C.F .R. § 41. 50(b ). THE CLAIMED SUBJECT MATTER Claims 21, 5 3, and 5 6 are independent. Claim 21, reproduced below, is illustrative of the subject matter on appeal. 21. A method of processing an object m a cavity by electromagnetic heating, comprising: determining a desired amount of energy to be absorbed by the object; subjecting the object to UHF or microwave energy; measuring UHF or microwave energy reflected from the cavity; and calculating, using a controller, an amount of energy absorbed by the object, based on the measured energy reflected from the cavity during electromagnetic heating or during a short hiatus in the electromagnetic heating, and adjusting the electromagnetic heating when the calculated amount of energy absorbed reaches the desired amount of energy. Lentz Fagrell Ishikawa EVIDENCE us 4,210,795 US 6,403,939 B 1 US 7,060,953 B2 REJECTIONS July 01, 1980 June 11, 2002 June 13, 2006 I. Claims 21, 22, 24-35, 50, 51, and 53-58 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz. Final Act. 2-20. II. Claim 23 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Fagrell, Lentz, and Ishikawa. Id. at 7-8. 2 Appeal2017-008043 Application 12/563, 180 OPINION Rejection I Independent Claims 21, 53, and 56 The Examiner finds, among other things, that "Fagrell discloses determining a desired amount of energy to be absorbed by [an] object 1." Final Act. 2 (citing Fagrell, 10:39-65; 11:6-20; 13:6-16, 33-42, 52-67; Figures 1-6). More particularly, in a first position, the Examiner determines that "through the use of Fagrell's power meters and data sent to the controller's memory[,] the operator can obtain a desired amount of energy to be absorbed." Id. at 3. In a second position, the Examiner finds that "Fagrell teaches [] a predetermined reflection factor range based on a user's desire." Ans. 21 ( citing Fagrell, 4:52-6:66). The Examiner also finds that "Fagrell teaches that by subtracting the reflected power and the loss power of an empty applicator[,] the absorbed power can be calculated." Id. ( citing Fagrell, 10:34-65; 13:4-16). The Examiner determines that "[s]ince Fagrell teaches [] the combination of predetermined reflection factor ranges based on the user and that the energy absorbed can be determined from the energy reflected by the sample, Fagrell teaches [] determining a desired amount of energy to be absorbed by the object." Id. As to the Examiner's first position, we agree with Appellants that in taking this position, the Examiner has not adequately explained "where each claim limitation [i.e., the claimed step of "determining a desired amount of energy to be absorbed by the object"] is disclosed in the cited prior art documents" or adequately explained "why one of ordinary skill in the art would have modified the prior art to arrive at the claimed invention." Reply Br. 5. Rather, it appears that the Examiner has only explained that such a 3 Appeal2017-008043 Application 12/563, 180 determination of a desired amount of energy to be absorbed by the object would be possible. As to the Examiner's second position, even acknowledging Fagrell's teaching of comparing a determined reflection factor of electromagnetic radiation from the sample with a "predetermined reflection factor" and adjusting frequency so that "the determined reflection factor is within a predetermined range around the predetermined reflection factor" (Fagrell, 6: 18-24), the Examiner has not adequately established that desirability of a particular reflection factor range corresponds to desirability of a particular amount of energy to be reflected (and conversely, a particular amount of energy to be absorbed, as claimed). For example, Appellants argue that "at any given average reflection coefficient, any amount of energy can be absorbed, depending on the power used and the length of the heating." Appeal Br. 15; Reply Br. 8. Thus, the Examiner has not adequately explained how Fagrell's determination of a desired reflection factor is indicative of a desired amount of energy to be reflected ( and conversely absorbed) because the Examiner has not explained how Fagrell also teaches a particular desired power level and particular desired length of heating that, in combination with the reflection factor, determine a particular amount of energy being absorbed. 3 3 The Examiner finds that Lentz teaches that "the average value of [a] reflection coefficient is compared to a pre-determined value and the magnetron is switched from initial high-power output to a low-power output when the average value has a pre-determined relationship to said pre- determined value." Final Act. 5 ( citing Lentz, 2:3-13, 2:60-3: 14, Figs. 1- 6). The Examiner relies on Lentz for suggesting adjusting the electromagnetic heating "using the ref[l]ection and absorption power information of Fagrell" in order to "decreas[ e] the time for defrost in the 4 Appeal2017-008043 Application 12/563, 180 However, in a portion of Fagrell identified by the Examiner (Final Act. 2-3), Fagrell discloses that "[i]n order to control the operation of the signal generator and amplifier in response to the power absorbed in the sample ... , some measure of the total power absorbed in-and reflected by-the applicator has to be obtained." Fagrell, 10:34-38. Although Fagrell does not explicitly call out any amount of power absorbed in the sample as being a "desired amount" (independent claims 21 and 56) or a "target amount" (independent claim 53), it would seem that any amount of power absorbed in the sample that triggers controlling the signal generator and amplifier "in response" thereto as set forth in Fagrell (id.) is reasonably considered to be a "desired amount" or "target amount" in that it is an amount that is wanted and/or needed for the purposes of controlling the signal generator and amplifier. Moreover, Fagrell' s disclosure of its controller controlling and monitoring a parameter such as temperature so as to respond if the parameter reaches a predetermined value (Fagrell, 13:22-29), coupled with Fagrell's disclosure that feedback regarding the amount of energy absorbed "makes it feasible to control e.g.[,] the temperature of the samples to a very high degree (id. at 7:59-64) (thereby suggesting a correlation between energy absorbed in the sample and sample temperature), 4 would have led one of microwave oven." Id. at 6. The Examiner, however, does not rely on Lentz for teaching a determination of a desired amount of energy to be absorbed, nor for establishing that desirability of a particular reflection factor range corresponds to desirability of a particular amount of energy to be reflected (and conversely, a particular amount of energy to be absorbed). 4 Fagrell also describes that "[t]he output from such sensors [i.e., temperature sensors for microwave cavities described in WO 94/24532] can also provide a measure of the amount of power absorbed in the sample." 5 Appeal2017-008043 Application 12/563, 180 ordinary skill in the art to determine a desired amount or target amount of energy to be absorbed by the sample that would correlate to and be indicative of a desired or target temperature of the sample. See, e.g., Fagrell, 14: 10-13 ("When two or more starting materials react[] chemically they are subject to changes in their physical and chemical properties. These changes in properties are usually temperature dependent."); id. at 2:64-67 ("It is an[] object of the present invention to provide an apparatus capable of performing parallel processing of many samples, with individual[] settings of process parameters such as ... temperature .... "); id. at 2: 10-13 ("One way of controlling the reaction is to monitor pressure and temperature in all individual wells. This may give information of the conditions in a specified well during a particular run."). Fagrell's disclosure also suggests that one of ordinary skill in the art would have been led to then adjust the heating of the samples when the amount of energy absorbed by the samples reaches the desired or target amount of energy that correlates to and is indicative of the desired or target temperature of the samples, for purposes of controlling temperature so as to facilitate a desirable chemical reaction. See id. at 7:60- 64 ("[T]he signal generator can be controlled in response to the actual level of signal energy supplied to-and/or absorbed in-the applicator. This feedback makes it feasible to control e.g. the temperature of the samples to a very high degree."). For the foregoing reasons, we sustain the rejection of independent claims 21, 53, and 56 as unpatentable under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz. We however, designate the affirmance Fagrell, 11 :2-9. 6 Appeal2017-008043 Application 12/563, 180 of the rejection of these claims as a NEW GROUND OF REJECTION pursuant to 3 7 C.F .R. § 41. 50(b) because our analysis relies upon facts and reasoning that the Examiner did not specifically use. Dependent Claim 22 Dependent claim 22 recites "measuring a value indicative of an amount of energy that is absorbed by the object; and adjusting the electromagnetic heating according to the measured value." Appeal Br. 22 (Claims App.). Appellants argue that the Examiner cites various portions of the Specification and Figures of Fagrell without adequate explanation. Appeal Br. 16. We are not persuaded of error in that Fagrell measures the amount of energy absorbed by the sample (Fagrell, 10:39-65) and adjusts the heating according to the amount of energy absorbed (id. at 10:34-39). We sustain the rejection of claim 22 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz. For the same reasons discussed above in the context of the independent claims, we likewise designate our affirmance of the rejection of claim 22 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz as a new ground of rejection. Dependent Claim 24 Dependent claim 24 recites "feeding said UHF or microwave energy into the cavity via at least one feed." Appeal Br. 23 (Claims App.). Appellants' discussion of claim 24 in the Appeal Brief merely points out that the same teaching in Fagrell was used by the Examiner to meet limitations in both of claims 24 and 25. See Appeal Br. 17. We are not persuaded of error in that Appellants have not adequately explained why elements 13, 16, 18, and 28 identified by the Examiner as the feed (Final Act. 8) fail to constitute a feed. We sustain the rejection of claim 24 under 35 U.S.C. § 103(a) as 7 Appeal2017-008043 Application 12/563, 180 unpatentable over Fagrell and Lentz. For the same reasons discussed above in the context of the independent claims, we likewise designate our affirmance of the rejection of claim 24 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz as a new ground of rejection. Dependent Claims 25 and 31 Dependent claim 25 recites "a field adjusting element, which is provided on, in, or near to the object, to cause a concentration of energy at selected locations in or on the object." Appeal Br. 23 (Claims App.). Dependent claim 31 recites "adjusting the electromagnetic heating includes moving at least one field adjusting element." Id. at 24 (Claims App.). Appellants argues that Fagrell does not disclose the claimed field adjusting element, and consequently, also fails to disclose adjustment of it. Id. at 17- 18. We are not persuaded of error in the Examiner finding resonator rod 16 to constitute a field adjusting element that moves because Fagrell describes that the resonator rod is an example of a certain geometrical parameter that can be adjusted to adjust the resonance frequency of the cavity (Fagrell, 11:25-29; 15:32-35), and the Examiner has made a finding that "the area of concentration of heating can be changed based on the changing of the frequency (i.e. even or uneven heating)" (Ans. 24). As to Appellants' specific argument that describing adjusting the length of the resonator rod does not involve moving any element (Appeal Br. 17-18), we are not persuaded of error in that an adjustment in length necessarily involves a change in the overall position of the resonator rod within the applicator. We sustain the rejection of claims 25 and 31 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz. For the same reasons discussed above in the context of the independent claims, we likewise designate our 8 Appeal2017-008043 Application 12/563, 180 affirmance of the rejection of claims 25 and 31 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz as a new ground of rejection. Dependent Claim 26 Claim 26 recites "feeding said UHF or microwave energy into the cavity via at least two feeds, and wherein a frequency associated with the energy fed to a first of the at least two feeds differs by at least 8 MHz from a frequency associated with the energy feed to a second of the at least two feeds." Appeal Br. 23 (Claims App.). Appellants argue that Fagrell merely discloses broad frequency ranges of electromagnetic energy generation, not a specific difference between the frequencies associated with the two feeds. Id. at 1 7. We are not persuaded of error based on the Examiner's finding that because "Fagrell teaches ... using multiple input loop antennas with multiple sample applicators, wherein the frequency is varied between 500 MHz - 100 GHz (i.e., is more than 8 MHz), Fagrell reads on the language of claim 26." Ans. 25 (citing Fagrell, 13:33-51). We sustain the rejection of claim 26 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz. For the same reasons discussed above in the context of the independent claims, we likewise designate our affirmance of the rejection of claim 26 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz as a new ground of rejection. Dependent Claims 27-31, 33-35, 51, 57, and 58 Appellants rely on the same arguments and reasoning we found unpersuasive in connection with the independent claims. Appeal Br. 16. For the same reasons discussed above in the context of the independent claims, we sustain the rejection of claims 2 7-31, 3 3-3 5, 51, 5 7, and 5 8 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz, and we 9 Appeal2017-008043 Application 12/563, 180 likewise designate our affinnance of the rejection of these claims as a new ground of rejection. Dependent Claim 32 Claim 32 recites "adjusting the electromagnetic heating includes moving the object." Appeal Br. 24 (Claims App.). The Examiner asserts that it would have been obvious "to adjust the object being heated during the heating operation since a skilled artisan performs this action during object heating within a conventional microwave." Final Act. 10; see also Non- Final Act. (Sept. 30, 2015), 11 (Examiner making identical assertion). Appellants argue that "[ s Juch a statement without any underlying support constitutes improper taking of Official Notice." Appeal Br. 18. We are not persuaded that a determination that a skilled artisan adjusts an object being heated during object heating within a conventional microwave (Final Act. 10; Non-Final Act. 11) constitutes an improper taking of Official Notice. Appellants have not stated why the assertion is not considered to be common knowledge or well-known in the art. To the extent the Examiner's finding regarding adjusting an object being heated during object heating within a conventional microwave constitutes official notice, we note that Appellants did not timely traverse the Examiner's assertion when it was first made in the Non-Final Action. See Response to Office Action (Dec. 21, 2015) (not presenting any arguments regarding the rejection of claim 32). We sustain the rejection of claim 32 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz. For the same reasons discussed above in the context of the independent claims, we likewise designate our affirmance of the rejection of claim 32 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz as a new ground of rejection. 10 Appeal2017-008043 Application 12/563, 180 Dependent Claim 5 0 Claim 50 recites "determining a desired amount of energy to be absorbed is based on an electromagnetic feedback." Appeal Br. 25 (Claims App.). Appellants argue that Fagrell's disclosure of "'adjusting the amplification of the electromagnetic heating signal' has nothing to do with the claimed 'determining a desired amount of energy to be absorbed."' Id. at 18. Appellants' argument is unpersuasive in that it remains focused on the step of determining a desired amount of energy and does not address the newly explained reasoning supporting the new ground of rejection. We sustain the rejection of claim 50 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz. For the same reasons discussed above in the context of the independent claims, we likewise designate our affirmance of the rejection of claim 50 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz as a new ground of rejection. Dependent Claims 54 and 55 Claim 54 recites "setting the target amount of energy to be absorbed by the object based on information received through a user interface." Appeal Br. 26 (Claims App.). Claim 55 recites "setting the target amount of energy to be absorbed by the object based on information received from a remote site." Id. Appellants argue that the Examiner merely speculates that the operator can set the target energy. Id. at 19. The Examiner responds that Fagrell's controller is connected to computing devices on a network, rendering it obvious to receive information through a user interface or from a remote site regarding an amount of energy. Ans. 27 (citing Fagrell, 12:16- 54). We sustain the rejection of claims 54 and 55 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz. For the same reasons discussed 11 Appeal2017-008043 Application 12/563, 180 above in the context of the independent claims, we likewise designate our affirmance of the rejection of claims 54 and 55 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz as a new ground of rejection. Rejection II The Examiner finds that Fagrell and Lentz fails to teach "determining the desired amount of energy to be absorbed by the object based on information read from an RFID element or a bar-code," as required by dependent claim 23. Final Act. 7. The Examiner relies on Ishikawa for its "RFID element or bar code memory system" (Ans. 29) and concludes that it would have been obvious to use it with the computer memory storage system of Fagrell "because Ishikawa provides optimum cooking conditions on the basis of the information read from the noncontact IC tag by the reader" (Final Act. 8). Appellants argue that even if Ishikawa "discloses reading information from a noncontact IC tag, ... the references do not disclose or suggest 'determining the desired amount of energy to be absorbed by the object based on' such information." Appeal Br. 20. This argument is not persuasive because it does not address the combination of Fagrell and Lentz rendering obvious the step of determining a desired amount of energy to be absorbed by an object as described in more detail above in connection with Rejection I. For the foregoing reasons, Appellants do not apprise us of error in the Examiner's conclusion that Fagrell, Lentz, and Ishikawa renders obvious the subject matter of dependent claim 23, and we sustain the rejection of claim 23 under 35 U.S.C. § 103(a) as unpatentable over Fagrell, Lentz, and Ishikawa. For the same reasons discussed above in the context of 12 Appeal2017-008043 Application 12/563, 180 Rejection I, we likewise designate our affirmance of the rejection of claim 23 under 35 U.S.C. § 103(a) as unpatentable over Fagrell, Lentz, and Ishikawa as a new ground of rejection. DECISION The Examiner's decision to reject claims 21, 22, 24-35, 50, 51, and 53-58 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz is AFFIRMED, and we designate our affirmance of the rejection of these claims as a NEW GROUND OF REJECTION. The Examiner's decision to reject claim 23 under 35 U.S.C. § 103(a) as unpatentable over Fagrell, Lentz, and Ishikawa is AFFIRMED, and we designate our affirmance of the rejection of this claim as a NEW GROUND OF REJECTION. This decision contains NEW GROUNDS OF REJECTION pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection 13 Appeal2017-008043 Application 12/563, 180 designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under§ 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure§ 1214.01. AFFIRMED; 37 C.F.R. § 41.50(b) 14 Copy with citationCopy as parenthetical citation