Ex Parte Butcher et al

Patent Trial and Appeal Board

Sep 29, 2016

12543781 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/543,781 08/19/2009
116 7590 10/03/2016
PEARNE & GORDON LLP
1801EAST9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
FIRST NAMED INVENTOR
Joel Butcher
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.
WTR-44075US1 8026
EXAMINER
WARD, THOMAS JOHN
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
10/03/2016 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):
patdocket@peame.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOEL BUTCHER, DEREK HUGHES,
JERREMY EDWARD DONOHO, and
MARGARET MARY STERLING
Appeal2014-009885
Application 12/543,781
Technology Center 3700
Before JAMES P. CALVE, WILLIAM A. CAPP, and LEE L. STEPINA,
Administrative Patent Judges.
Opinion for the Board filed by CAL VE, Administrative Patent Judge.
Opinion Concurring filed by CAPP, Administrative Patent Judge
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2014-009885
Application 12/543,781
CLAHv1ED SUBJECT ~v1ATTER
Claims 1, 9, and 17 are independent. Claim 1, is reproduced below.
1. A cooking appliance with a cooking cavity including:
a reflective tray mounted in the cooking cavity, the
reflective tray having a first side and a second side;
a vent provided in the reflective tray, wherein the vent is
configured to allow at least moisture from the cooking cavity to
pass through the reflective tray from the first side to the second
side;
a heating element mounted to and within a perimeter of
the reflective tray wherein the reflective tray is configured to
reflect heat emitted by the heating element; and
wherein the heating element is mounted to the first side
of the reflective tray and relative to the vent such that the vent
is horizontally spaced from the heating element at a distance
greater than a thickness of the heating element.
REJECTIONS
Claims 1-5, 9-13, and 17-20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Holtkamp (US 3,470,353, iss. Sept. 30, 1969) and Tilus
(US 3,470,354, iss. Sept. 30, 1969).
Claims 6 and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Holtkamp, Tilus, and Walkoe (US 2,922,018, iss. Jan. 19, 1960).
Claims 7 and 15 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Holtkamp, Tilus, and Arntz (US 6,222, 163 B 1, iss. Apr. 24, 2001 ).
Claims 8 and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Holtkamp, Tilus, and Lockwood (US 6,570,136 Bl, iss. May 27, 2003).
2
Appeal2014-009885
Application 12/543,781
ANALYSIS
Claims 1-5, 9-13, and 17-20 as unpatentable over Holtkamp and Tilus
Regarding independent claims 1, 9, and 17, the Examiner found that
Holtkamp discloses a cooking appliance 10, with a reflective tray having a
first side (lower wall 26) and a vent (opening 36) but vent 36 is not spaced
horizontally from heating element 2 8 greater than a thickness of the heating
element. Final Act. 3. The Examiner found that Tilus teaches a catalytic
smoke eliminator with embossments 50 spaced away from broil elements 20.
Id.; see also Ans. 3 (citing Tilus, Fig. 6). The Examiner determined that it
would have been obvious to modify Holtkamp with Tilus to provide an oven
for eliminating smoke discharge during a cleaning operation. Final Act. 4.
In the Answer, the Examiner elaborated on this point, reasoning that
openings 36 of Holtkamp can be adapted for use in the same manner as
embossments 50 of Tilus to increase air flow and avoid having heating
element 20 interact with vented air. Ans. 3. The Examiner also found that
even though Tilus does not use embossments 50 as vents, the embossments
dictate a placement where vents can be used with Holtkamp. Id.
Appellants argue that Holtkamp forms openings 3 6 by punching tabs
32, 34 from lower wall 26 and suspending heating element 28 from tabs 32,
34. Appeal Br. 9. As a result, Appellants argue that openings 36 are not
spaced apart from tabs 32, 34 and heating element 28, as claimed, but are
formed directly above tabs 32, 34 and heating element 28 that is held by tabs
32, 34. Id. at 9, 10, 11. Because openings 36 are formed by punching tabs
32, 34 from lower wall 26, Appellants argue that it would not be possible or
obvious to space or locate openings 36 horizontally apart from any of the
heating element 28, which is held by the same tabs 32, 34.
3
Appeal2014-009885
Application 12/543,781
Holtkamp teaches openings 36 that are spaced vertically over heating
element 28 by embossments 38 formed in lower wall 26. Holtkamp, 3:9-14.
Holtkamp teaches that heating element runs 28A are secured by tabs 32, 34
over openings 3 6 so that part of each opening 3 6 is spaced horizontally from
heating element 28, and part of each opening 36 is above element 28. Id. at
2:63-3:8, Figs. 4, 5. This partial horizontal spacing allows openings 36 to
be inlet openings to the plenum so oven gas passes through lower wall 26 to
exhaust plenum 24. Id. at 3:1-3, Figs. 3-5; Final Act. 3. This spacing does
not teach a vent "horizontally spaced from the heating element at a distance
greater than a thickness of the heating element" (claim 1 ), "horizontally
spaced apart from" the heating element (claim 9), or a "different horizontal
location" (claim 1 7), as the Examiner recognizes. See Final Act. 3.
Tilus does not remedy these deficiencies of Holtkamp. Tilus teaches
an arrangement of embossments 50 (indentations) formed in lower wall 30
to direct air flow to outlet vent 32. Tilus, 3:33--43, Figs. 5, 6; see Appeal Br.
7; Reply Br. 2. Embossments 50 are not formed through lower wall 30, and
they do not permit air to flow through lower wall 30. The Examiner has not
explained sufficiently why a skilled artisan would consider an embossment
pattern that directs air to vent 32 as a pattern for arranging vents. Reply Br.
2. A comparison of embossments 50 in Figure 5 to heating elements 20 in
Figure 3 shows embossments 50 are not spaced horizontally from heating
elements 20. See Appeal Br. 8. Further, because Holtkamp supports heating
element 28 with tabs 32, 34 at vents 36 (formed from the tabs), it is unclear
how heating element 28 would be spaced horizontally from openings 36 or
why there is a reason to do so if air already flows through vents 36. Id. at 9.
We do not sustain the rejection of claims 1-5, 9-13, and 17-20.
4
Appeal2014-009885
Application 12/543,781
Claims 6-8 and 14-16 as unpatentable over Iloltkarnp, Tilus, and either
Walkoe, Arntz, or Lockwood
The Examiner's reliance on Walkoe, Arntz, and Lockwood to teach
features of claims 6-8 and 14--16 (Final Act. 5-7) does not overcome the
deficiencies of Holtkamp and Tilus as to claims 1 and 9 from which these
claim depend, respectively. Thus, we do not sustain the rejection of claims
6-8 and 14--16.
DECISION
We REVERSE the rejections of claims 1-20.
REVERSED
OPINION CONCURRING
CAPP, Administrative Patent Judge
I concur in the result to reverse the Examiner's rejection as to all
pending claims. Nevertheless, I write separately to clarify my reasoning for
doing so with respect to independent claims 9 and 1 7.
Claims 9 and 17 differ in scope from claim 1. Claims App. Whereas
claim 1 requires that the vent is "horizontally spaced" from the heating
element a distance "greater than a thickness of the heating element," claim 9
merely requires that the heating element is horizontally spaced apart from
the vent "such that heat and moisture from the cooking cavity are able to
pass freely through the vent." Id. Similarly, claim 17 merely requires that
the vent is provided at a different horizontal location than the heating
element and is configured to allow moisture to pass therethrough. Id.
5
Appeal2014-009885
Application 12/543,781
In the Final Rejection, the Examiner lumped the findings of fact for
the rejection of claims 1, 9, and 17 into a single paragraph. Final Action 3.
The Examiner finds that:
Holtkamp does not disclose the vent being horizontally spaced
from the heating element at a distance greater than a thickness of
the heating element such that heat and moisture can pass freely.
Final Action 3. That finding is directed to the "thickness of the heating
element" limitation that is specific to claim 1 only. The Examiner does not
make separate findings of fact specific to the broader claim language found
in the corresponding horizontal spacing limitations is claims 9 and 17.
Having reviewed Holtkamp, Fig. 5, it is my opinion that vent 36 is
sufficiently spaced apart from heating element 28 to meet the claim language
of claims 9 and 17. I do not construe the "spaced apart" limitation of
claim 9 to require that the structure defining the entire perimeter outlining
the vent must be horizontally spaced apart from the heating element. To me,
the claim limitation is satisfied if the if the vent, or at least a portion thereof,
is horizontally spaced apart from the heating element " ... such that heat
and moisture from the cooking cavity are able to pass freely through the vent
without interference from the heating element." Claims App., claim 9. In
my review Figure 5 of Holtkamp, it does not appear that heating element 28
is superimposed over vent 3 6 in such a manner as to interfere with the flow
of heat and moisture. If the Examiner would have made separate findings of
fact for claims 1 and 9, and if the Examiner would have made a finding that
Holtkamp's vent is spaced apart, as actually claimed in claim 9, I would
have been inclined to affirm a rejection of claim 9.
I would have been inclined to reach a similar result with respect to
independent 17. In my opinion, Holtkamp discloses a vent at a "different
6
Appeal2014-009885
Application 12/543,781
horizontal location than the heating element," within the meaning of
claim 17. See Holtkamp, Fig. 5. In my opinion, the fact that Holtkamp
discloses some superimposition of the heating element over a mere portion
of the vent does not detract from the fact that Holtkamp discloses a vent at a
"different horizontal location." As with claim 9, if the Examiner would have
made separate findings of fact for claims 1 and 17, and if the Examiner
would have made a finding that Holtkamp' s vent is spaced apart, as actually
claimed in claim 17, I would have been inclined to affirm a rejection of
claim 17.
Apart from the foregoing, I concur in the result reached by my
colleagues.
7