Ex Parte Ciancimino et al

Board of Patent Appeals and Interferences

Jun 21, 2011

11041634 (B.P.A.I. Jun. 21, 2011)

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.
11/041,634 01/24/2005 Rosario Ciancimino US20030412 4565
7590 06/22/2011
WHIRLPOOL PATENTS COMPANY - MD 0750
Suite 102
500 Renaissance Drive
St. Joseph, MI 49085
EXAMINER
PAIK, SANG YEOP
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
06/22/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ROSARIO CIANCIMINO and JULIO C. MOREIRA
____________________

Appeal 2009-012280
Application 11/041,634
Technology Center 3700
____________________

Before: WILLIAM F. PATE III, STEVEN D.A. MCCARTHY, and
CHARLES N. GREENHUT, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-012280
Application 11/041,634
2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
3, 4, 6-13, 15-26, and 28-33. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The claims are directed to a variable heat distribution cooking
appliance. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A portable electric cooking device arranged to operate at a
predetermined maximum power input comprising:
a cooking surface;
a first heating element arranged for relatively uniform
heating of substantially the entire cooking surface with a first
power density;
a second heating element arranged for relatively uniform
heating of a portion of the cooking surface with a second power
density; and
a selector connected to the first heating element and the
second heating element arranged to selectively connect either
the first heating element or the second heating element to an
electrical outlet wherein substantially the predetermined
maximum power input to the cooking device is either applied
over substantially the entire cooking surface when the first
heating element is connected or is applied over a portion of the
cooking surface when the second heating element is connected.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Beasley
Giguere
Higgins
Glucksman
US 3,317,709
US 3,848,110
US 5,171,973
US 6,064,042
May 2, 1967
Nov. 12, 1974
Dec. 15, 1992
May 16, 2000

Appeal 2009-012280
Application 11/041,634
3
REJECTIONS
Claims 1, 3, 4, 6-13, 15-24, 26 and 28-33 stand rejected under 35
U.S.C §103(a) as being unpatentable over Beasley and Higgins. Ans. 3.
Claim 25 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Beasley, Higgins, Giguere, or Glucksman. Ans. 4.

OPINION
Independent claim 1 requires that a “predetermined maximum power
input to the cooking device is either applied over substantially the entire
cooking surface when the first heating element is connected or is applied
over a portion of the cooking surface when the second heating element is
connected.” Independent claims 26, 30, 31 and 33 recite the same or similar
limitations.
Claims directed to an apparatus must be distinguished from the prior
art in terms of structure rather than function. See, e.g., In re Schreiber, 128
F.3d 1473, 1477-78 (Fed. Cir. 1997).
“[W]here 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 Swinehart, 439 F.2d 210, 213 (CCPA 1971). All words in a claim must
be considered in judging the obviousness of the claimed subject matter. See
In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970). Thus, a functional
limitation must be evaluated and considered, just like any other limitation of
the claim, for what it fairly conveys to a person of ordinary skill in the
pertinent art in the context in which it is used. Where the Examiner believes
Appeal 2009-012280
Application 11/041,634
4
the prior art to be capable of performing a recited function, the Examiner
must provide sufficient evidence or scientific reasoning to establish the
reasonableness of the Examiner's belief that the functional limitation is an
inherent characteristic of the prior art.
We agree with Appellants that Beasley and Higgins, taken alone or in
combination, would not have been able to perform the recited function of
applying the maximum power input to the cooking device over either
substantially the entire cooking surface when the first heating element is
connected, or over a portion of the cooking surface when the second heating
element is connected. App. Br. 15. The functional recitation mentioned
above would convey to a person of ordinary skill in the art the presence of
two heating elements each capable of dissipating the maximum power
applied to the device and some structure for exclusively switching between
the two. See, e.g., Spec. 7 para. [0030], fig. 8. As Appellants point out, with
voltage dictated by outside factors and presumed constant, the power
dissipated is essentially dictated by the resistance or impedance of the
heating elements. App. Br. 15.
Regarding Beasley, the maximum power input to the device and
applied to each heating element 38, 39, 44 does not, as the Examiner
suggests, change based upon the position of Beasley’s thermostats 30-32 and
knobs 33-35. Contra Ans. 6; see Beasley, col. 2, l. 62 – col. 3, l. 54. While
Beasley does not expressly discuss the relative resistance or power
distribution of each element, since each of Beasley’s heating elements are
designed to operate simultaneously there is no way that the maximum power
that can be input or applied to the device can be alternatively individually
applied to each element.
Appeal 2009-012280
Application 11/041,634
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Turning to Higgins, a device is disclosed where the maximum voltage,
2V, can be selectively applied to heating element 24 (setting 7) or both
heating elements 22 and 24 (setting 10). See, e.g., Figs. 3, 4 and Table 1.
Although there is a switch arrangement that makes it possible, Higgins never
actually suggests applying the maximum available voltage to element 22
alone. Ultimately, Higgins, like Beasley, is also a system wherein all heating
elements are designed to be capable of simultaneous operation. Higgins
makes clear that the maximum power that can be input or applied to the
device is never applied to only one element or the other as required by the
claims. See, e.g., col. 1, ll. 26-31, col. 4, ll. 62-68.
For these reasons we are constrained to reverse the Examiner’s
rejection of independent claims 1, 26, 30, 31, and 33 along with dependent
claims 3, 4, 6-13, 15-24, 28, 29, and 32. Since neither Glucksman nor
Giguere, as applied by the Examiner, cure this deficiency, we must also
reverse the rejection of claim 25.

DECISION
For the above reasons, the Examiner’s rejection of claims 1, 3, 4, 6-
13, 15-26, and 28-33 are reversed.

REVERSED

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