Ex Parte Davis

Patent Trial and Appeal Board

Sep 21, 2016

14177997 (P.T.A.B. Sep. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/177,997 02/11/2014
26231 7590 09/23/2016
FISH & RICHARDSON P.C. (DA)
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
FIRST NAMED INVENTOR
Raymond E. Davis
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.
23365-0072001 9417
EXAMINER
MATHEW, HEMANT MATHAI
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
09/23/2016 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):
P ATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAYMOND E. DA VIS
Appeal2016-007145
Application 14/1 77 ,997
Technology Center 3700
Before NEALE. ABRAMS, THOMAS F. SMEGAL, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellant, Raymond E. Davis, 1 appeals under 35 U.S.C. § 134 from
the Examiner's decision rejecting claims 1-12 and 25-35.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appellant identifies the real party in interest as ADCO Industries -
Technologies, L.P. Appeal Br. 4.
2 Claims 13-24 are withdrawn from consideration. Final Act. 2.
Appeal2016-007145
Application 14/177 ,997
THE CLAIMED SUBJECT MATTER
The claims are directed to "a roller grill or griddle for heating and/or
reheating precooked food product." Spec. i-f 1. Claims 1 and 25 are
independent. Appeal Br. 9. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A roller grill, comprising:
a housing structure adapted to support the roller grill;
a plurality of tubular heating surfaces mounted between a
first end of the housing structure and a second end of the housing
structure;
a first side housing coupled to the first end of the housing
structure;
a second side housing coupled to the second end of the
housing structure, at least one of the first side housing or the
second housing comprising a pressurized plenum maintainable
at a plenum air pressure that is greater than a tubular air pressure
of an inner volume of the plurality of tubular heating surfaces;
and
a drive assembly at least partially enclosed in the first side
housing or the second side housing, the drive assembly
configured to rotatably drive the plurality of tubular heating
surfaces.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Othmer
Tomita
Brown
Archer
Schmid
Lee
Huegerich
Hunot
us 3,617,699
us 3,841,299
us 4,372,199
us 4,873,107
us 5,562,022
US 6,354,193 Bl
US 2003/0197005 Al
US 2005/0061161 Al
2
Nov. 2, 1971
Oct. 15, 1974
Feb. 8, 1983
Oct. 10, 1989
Oct. 8, 1996
Mar. 12, 2002
Oct. 23, 2003
Mar. 24, 2005
Appeal2016-007145
Application 14/177 ,997
REJECTIONS
The Examiner made the following rejections:
1. Claims 1, 11, 25, and 34 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hunot and Othmer.
2. Claims 2, 3, 6, 7, 26, 27, 30, and 31 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Hunot, Othmer, and Archer.
3. Claims 4, 5, 28, and 29 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Hunot, Othmer, Archer, and Tomita.
4. Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hunot, Othmer, and Huegerich.
5. Claims 9 and 32 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hunot, Othmer, and Lee.
6. Claims 10 and 33 stand rejected under 35U.S.C§103(a) as
being unpatentable over Hunot, Othmer, Lee, and Brown.
7. Claims 12 and 35 stand rejected under 35U.S.C§103(a) as
being unpatentable over Hunot, Othmer, and Schmid.
Appellant seeks our review of these rejections.
ANALYSIS
In Rejections 1-7, the Examiner finds that Hunot discloses the
"pressurized plenum" limitation recited in independent claims 1 and 25. The
Examiner and Appellant dispute the meaning of "plenum." Citing to one
dictionary, the Examiner states the definition of plenum is a "condition,
space, or enclosure in which air or other gas is at a pressure greater than that
of the outside atmosphere." Final Act. 3, fn. 1 (citing
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Application 14/177 ,997
). The Examiner also states
that:
the definition taken on by the Examiner is consistent with that of
the Applicant's specification since Applicant's specification
recites "the pressurized plenum may be substantially sealed
against unwanted air leakage out of the plenum (e.g., into an
ambient environment) while also allowing some airflow out of
the plenum" (see Applicant's specification para. 0042).
Examiner interprets Applicant's pressurized plenum as having a
positive pressure that is capable of being greater than the ambient
environment."
Adv. Act. 3 (mailed November 30, 2015).
In response, Appellant, citing to another dictionary, disagrees with the
Examiner's definition, asserting that:
The meaning of "plenum," as one of ordinary skill in the art
would understand in view of the present disclosure, carries with
it no implied relative pressure differential from atmospheric, and
is simply, for example, "an air-filled space in a structure." [citing
to http://www.merriam-webster.com/dictionary/plenum.]
Indeed, Appellant's meaning is in accord with the present
disclosure, which, in some embodiments, describes a
"pressurized plenum" as a plenum in which an air pressure is
maintained "greater (e.g., slightly or significantly) than an air
pressure of the heating tubes (e.g., an air pressure of an interior
volume of the tubular heating surfaces)." Application at [0042].
Thus, in accord with the present disclosure, the bare term,
"plenum," includes no implied relative pressure differential from
atmospheric (or any other relative point).
Appeal Br. 13.
In addition to Appellant's assertion that air pressure in the plenum
may be greater than the pressure in the heating tubes, the Specification also
states the air pressure may be the same. Spec. i-f 42 ("the air pressure in a
pressurized plenum of the roller grill may be equal to the air pressure inside
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Application 14/177 ,997
the heating tubes to prevent or help prevent the heat (e.g., generated by an
electric resistance heater positioned in the interior volume of the tubes) from
escaping into the plenum rather than the tube surface and into food
product."). In light of these passages, the Examiner's proposed definition is
inconsistent with the Specification's usage of the term.
The Examiner's proposed definition that a plenum must have an
internal pressure that is greater than outside pressure is also inconsistent with
the "pressurized plenum" limitation in claim 1. If a plenum must be
pressurized, as defined by the Examiner, than the term "pressurized" is
redundant- claim 1 could merely recite a "plenum," and would not need to
recite a "pressurized" plenum. Based upon the usage of the term plenum in
the Specification, the broadest reasonable interpretation of plenum is an air-
filled space in an enclosed structure.
Turning to Hunot, the Examiner states that paragraph 56 of Hunot
discloses "a 'pressurized plenum' since Hunot teaches 'housing (24)
comprises ... two generally rectangular side support frames 46 and 48' in
paragraph 0056." Ans. 3--4. While Hunot discloses a plenum- an air-
filled space in an enclosed structure, the Examiner does not explain how or
why this plenum is pressurized, as recited in claim 1. Contrary to the
Examiner's finding that Hunot's plenum is pressurized, Hunot explicitly
states that "[s]heet 44 can have vent holes (not shown) formed therethrough
for allowing air circulation from the exterior to within the interior of the
housing 24." Hunot i-f 56. Thus, the vent holes expose the plenum to outside
atmospheric air conditions, and the internal plenum is not pressurized. Even
under the Examiner's proposed definition of plenum, Hunot's internal space
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Application 14/177 ,997
is not, and cannot be, pressurized so that its internal pressure is larger than
the outside pressure.
For these reasons, the Examiner's finding that Hunot discloses a
"pressurized" plenum is in error. The Examiner does not explain how the
other prior art references remedy the deficiencies of Hunot. Thus, we cannot
sustain the rejections of independent claims 1 and 25, or claims 2-12 and
26-35 which depend from claims 1 and 25.
DECISION
For the above reasons, the Examiner's rejections of claims 1-12 and
25-35 under 35 U.S.C. § 103(a) are REVERSED.
REVERSED
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