Ex Parte Cafferty et al

Patent Trial and Appeal Board

Aug 4, 2017

13275368 (P.T.A.B. Aug. 4, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/275,368 10/18/2011 Alicia Cafferty 2011P01487US 6284
46726 7590 08/08/2017
RS»H Home. Annlianrp.s Pomoratinn
EXAMINER
100 Bosch Boulevard
NEW BERN, NC 28562
CHOU, JIMMY
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
08/08/2017 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):
MBX-NBN-IntelProp@bshg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALICIA CAFFERTY, JOHN FARLEY, CLAUDIA HAPP,
BENJAMIN KING, AND JURGEN RIESMEYER1
Appeal 2015-003523
Application 13/275,368
Technology Center 3700
Before EDWARD A, BROWN, AMANDA F. WIEKER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
WIEKER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Alicia Cafferty et al. (“Appellants”) appeal under 35 U.S.C. § 134(a)
from the Examiner’s final rejection of claims 1, 3—13, and 40-45.2 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the Real Party in Interest is BSH Home
Appliances Corporation. Appeal Br. 3 (filed Aug. 6, 2014).
2 Claims 2 and 14—39 have been cancelled, and claims 46—67 have been
withdrawn. Id. at 6.
Appeal 2015-003523
Application 13/275,368
CLAIMED SUBJECT MATTER
The invention concerns “intelligent home cooking appliances.” Spec.
11. Claim 1 is illustrative of the subject matter on appeal, and recites:
1. A domestic cooking appliance, comprising:
one or more controls operable by a user to adjust settings
of the domestic cooking appliance;
a display; and
processing resources including at least one processor
configured to:
present a user interface to the user using the display,
access a cooking program distributable based on a
user selection from the user interface,
obtain video content and at least one instruction
from the cooking program distributable, each said at least
one instruction specifying an action to be taken by a user
and a time at which the action is to be taken,
cause the video content obtained from the cooking
program distributable to be displayed on the display,
determine whether the user has taken the action by
the time at which the action is to be taken, and
control the domestic cooking appliance in response
to the at least one instruction wherein the one or more
controls is configured to communicate with the processing
resources.
Appeal Br. 21 (Claims App.) (emphasis added).
REJECTIONS
The claims stand rejected as follows:
I. Claims 1, 3—13 and 40-45 under 35 U.S.C. § 112, second
paragraph.
II. Claims 1, 3—6, and 40-43 under 35 U.S.C. § 103(a) as
unpatentable over Ishikawa (US 6,744,026 B2, iss. June 1,
2004) and Crosby (US 2009/0287644 Al, pub. Nov. 19, 2009).
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Application 13/275,368
III. Claims 7 and 9—13 under 35 U.S.C. § 103(a) as unpatentable
over Ishikawa, Crosby, and Richardson (US 2011/0132201 Al,
pub. June 9, 2011).
IV. Claim 8 under 35 U.S.C. § 103(a) as unpatentable over
Ishikawa, Crosby, and Ishikawa ’050 (US 6,064,050, iss.
May 16, 2000).
V. Claim 44 under 35 U.S.C. § 103(a) as unpatentable over
Ishikawa, Crosby, and Breunig (US 2010/0050119 Al, pub.
Feb. 25,2010).
VI. Claim 45 under 35 U.S.C. § 103(a) as unpatentable over
Ishikawa, Crosby, and Vargas (US 6,809,295 Bl, iss. Oct. 26,
2004).
ANALYSIS
Rejection I—Indefiniteness
Claims 1, 3—13, and 40—45
Regarding independent claim 1, the Examiner finds that it is “unclear”
how the processor performs the claimed function of “determin[ing] whether
the user has taken the action by the time at which the action is to be taken”
because a “processor cannot perform this function without a sensor.” Final
Act. 3. Appellants disagree, arguing that a person of ordinary skill in the art
would understand the scope and meaning of this language, especially in light
of the supporting disclosure in the Specification. Appeal Br. 6 (citing Spec.
1167-68,70-71).
We agree with Appellants. The Examiner has not explained
persuasively how or why the claim language is unclear. Rather, claim 1
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Application 13/275,368
plainly requires that a processor is configured to perform the “determining”
function. Id. at 21 (Claims App.). It is not dispositive that additional
structure also may be utilized to effect this function, e.g., a sensor. See Final
Act. 3. The claim is drafted broadly, insofar as any additional structure
utilized to effect this function is not defined. See, e.g., Spec. 159 (“Further
checks may be performed, e.g., to determine whether the turkey actually has
been removed. This may be accomplished in certain implementations by
providing optical detection means, a weight sensor or strain gauge on a
cooking rack, or in any other suitable manner.”). However, as Appellants
correctly note, this does not render the claim indefinite. See, e.g., In re
Gardner, 427 F.2d 786, 788 (CCPA 1970) (“We do not find any
indefmiteness in any of the claims by reason of their failure to name a host.
They are merely broad in this respect and cover the composition and the
method when administered or applied to any host capable of enjoying the
benefits of an antidepressant drug. Breadth is not indefmiteness.”).
Accordingly, we do not sustain the Examiner’s rejection of claims 1, 3—13
and 40-45 on this basis.
Regarding claim 41, the Examiner also finds that it is “unclear [what]
‘an image of food items cooked pursuant to the cooking program
distributable’ means.” Final Act. 3. In their briefing, Appellants do not
address this ground of rejection and have not apprised us of error. See
Appeal Br. 6—7. Accordingly, we sustain the rejection of claim 41 on this
basis.
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Rejections II—VI— Obviousness
Regarding independent claim 1, the Examiner finds that Ishikawa
discloses a cooking appliance including, inter alia, at least one processor.
Final Act. 4. The Examiner finds that the claim language requiring the
processor be “configured to” perform certain functions “is merely functional
language” because claim 1 is an apparatus claim, which “cover[s] what a
device is, not a device does.” Id. (citing MPEP 2114). Thus, according to
the Examiner, “any CPU is capable of performing the above intended
functions because [a] CPU is a processor that carries out the instructions of a
computer program . . . .” Ans. 15. Additionally, the Examiner finds that
certain claimed functions, e.g., “control[ling] the domestic cooking
appliance,” can be performed manually by a user. Final Act. 5 (finding that
“one can manually control the control panel of [the] cooking appliance via
controller based on instruction of recipes/cooking data”); see also id. at 4
(finding that “[o]ne can manually follow the instruction of recipes and
setting up the cooking time via a controller”); Ans. 13.
Appellants argue that the Examiner errs by improperly treating as
“mere[] functional language” limitations drawn to a specifically configured
processor. Appeal Br. 11—12; Reply Br. 12 (filed Jan. 20, 2015). For
example, Appellants argue that claim 1 requires a processor specifically
configured to control the cooking appliance, such that it is irrelevant if a user
can control Ishiwaka’s appliance manually. Appeal Br. 10; Reply Br. 9.
According to Appellants, the Examiner has failed to show that Ishikawa’s
processor is capable of performing the claimed functions. Reply Br. 9.
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We agree with Appellants. First, the Examiner’s finding that a user
can perform certain functions, such as “manually control [ling] the control
panel of [the] cooking appliance,” is not pertinent to the question of whether
Ishikawa teaches a processor configured to control the domestic cooking
appliance, as claimed. See Final Act. 4—5. The relevant limitations of claim
1 concern a configured processor, not the capabilities of a human user.
Second, the Examiner’s statement that any CPU is capable of performing the
claimed functions is contrary to established law. See Ans. 15. When
treating an apparatus claim, the Examiner must provide a sufficient reason to
believe that the prior art device is capable of performing any recited
functional limitations. When the claimed functional language is associated
with programming or some other structure required to perform the function,
e.g., a “processor configured to” perform recited functions, that
programming or structure must be present in order to meet the claim
limitation. Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1380
(Fed. Cir. 2011) (discussing Microprocessor Enhancement Corp. v. Tex.
Instruments, Inc., 520 F.3d 1367 (Fed. Cir. 2008)). Indeed, the prior art
structure must be capable of performing the claimed functions without
further programming. Id.
In this case, the Examiner has not provided sufficient reason to
believe that the processor disclosed by Ishikawa is “configured to” perform,
inter alia, the recited function of “controlling] the domestic cooking
appliance . . . .” See Final Act. 5; Ans. 13. The Examiner does not identify
any persuasive disclosure in Ishikawa that supports this position, and does
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not otherwise explain how Ishiwaka’s processor would be capable of
performing the claimed function without further programming.
Accordingly, we do not sustain the Examiner’s rejection of claim 1 as
unpatentable over Ishikawa and Crosby, or the rejection of claims 3—6 or
40-43, which depend therefrom. The Examiner’s reliance on Richardson,
Ishikawa ’050, Breunig, or Vargas with respect to claims 7—13, 44, and 45
does not cure this deficiency of claim 1. Accordingly, we do not sustain the
Examiner’s rejections of claims 7—13, 44, or 45.
DECISION
The Examiner’s decision to reject claims 1, 3—13, 40, and 42 45 is
REVERSED; and
The Examiner’s decision to reject claim 41 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).
AFFIRMED-IN-PART
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