Ex Parte DE LUCA et al

Patent Trial and Appeal Board

Nov 2, 2017

13284426 (P.T.A.B. Nov. 2, 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.
13/284,426 10/28/2011 Nicholas P. DE LUCA 701-0005 5857
106165 7590
Jasbir Singh - General
Capitol City TechLaw
333 Maple Ave East, #900
Vienna, VA 22180
11/06/2017 EXAMINER
HOANG, MICHAEL G
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
11/06/2017 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):
eofficeaction @ appcoll.com
j singh @ CapCityTechLaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICHOLAS P. DE LUCA, ANDREW PERKINS, and
WILLIAM RUDWALL
Appeal 2017-0022901
Application 13/284,4262
Technology Center 3700
Before PHILIP J. HOFFMANN, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 from the rejection of
claims 1—19, 22—25, 27, and 28. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Our Decision references the Appeal Brief (“Appeal Br.,” filed Mar. 30,
2016) and Reply Brief (“Reply Br.,” filed Nov. 27, 2016), and the
Examiner’s Answer (“Ans.,” mailed Sept. 30, 2016) and Final Office Action
(“Final Act.,” mailed Aug. 28, 2015).
2 According to Appellants, the real party in interest is De Luca Oven
Technologies, LLC. Appeal Br. 3.
Appeal 2017-002290
Application 13/284,426
BACKGROUND
According to the Specification, “the disclosure relates to a high speed
cooking system utilizing radiative heat along with another food cooking
system to evenly and quickly cook a food product.” Spec. 12.
REPRESENTATIVE CLAIM
Claim 1 is illustrative of the appealed claims and recites:
1. A method of cooking a food product comprising:
providing a radiative oven comprising a heating element
and a stored energy element to power the heating element;
selectively heating primarily an interior of a food product;
and
searing an exterior of the food product using the radiative
oven in less than 120 seconds,
wherein the heating element comprises a wire mesh
element operating at greater than 800° Fahrenheit and the wire
mesh element is positioned to heat the food product.
Appeal Br. 13.
REJECTIONS
1. The Examiner rejects claims 1—3, 15—19, 22—25, 27, and 28 under 35
U.S.C. § 103(a) as unpatentable over Leykin3 in view of De Luca.4
2. The Examiner rejects claims 1, 4, 5, 7, 8, 10—12, 15, 22, and 23 under 35
U.S.C. § 103(a) as unpatentable over Rudewicz 4235 in view of De Luca.
3 Leykin et al., US 6,518,553 Bl, iss. Feb. 11,2003.
4 De Luca, US 2010/0166397 Al, pub. July 1, 2010.
5 Rudewicz et al., US 5,688,423, iss. Nov. 18, 1997.
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3. The Examiner rejects claim 6 under 35 U.S.C. § 103(a) as unpatentable
over Rudewicz 423 in view of De Luca and Dominguez.6
4. The Examiner rejects claim 9 under 35 U.S.C. § 103(a) as unpatentable
over Rudewicz 423 in view of De Luca and Rudewicz 822.7
5. The Examiner rejects claim 13 under 35 U.S.C. § 103(a) as unpatentable
over Rudewicz 423 in view of De Luca and Golder.8
6. The Examiner rejects claim 14 under 35 U.S.C. § 103(a) as unpatentable
over Rudewicz 423 in view of De Luca and Bakx.9
DISCUSSION
Rejection 1
With respect to this rejection, Appellants argue the claims as a single
group. See Appeal Br. 8—10. We select claim 1 as representative, and the
remaining claims rejected here stand or fall with claim 1.
With respect to claim 1, the Examiner finds that Leykin discloses a
method of cooking as claimed, except that Leykin does not disclose the use
of a wire mesh element operating at greater than 800 degrees Fahrenheit and
positioned to heat a food product and searing the exterior of the food product
in less than 120 seconds. Final Act. 3 (citing Leykin Figs. 1, 3D; col. 2,
11. 5—8, 16—17; abstract). For these missing limitations, the Examiner relies
on De Luca. Specifically, the Examiner finds that De Luca discloses a wire
mesh heating element that operates at greater than 800 degrees Fahrenheit
and is capable of searing the exterior of a food product. Final Act. 4 (citing
6 Dominguez et al., US 2002/0195002 Al, pub. Dec. 26, 2002.
7 Rudewicz et al., US 5,799,822, iss. Sept. 1, 1998.
8 Golder, GP 1,368,607, pub. Oct. 2, 1974.
9 Bakx, EP 0 416712 Al, pub. Mar. 13, 1991.
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Application 13/284,426
De Luca claim 1; Abstract; || 38-43, 61; Fig. 3). The Examiner concludes
that it would have been obvious to modify Leykin by applying the teachings
of De Luca to arrive at the claimed method “in order to utilize a heating
element capable of delivering the same power and cooking characteristics as
bulbs yet be significantly less expensive, as suggested by De Luca in
para.0039.” Final Act. 4.
We agree with and adopt the Examiner’s findings regarding the
rejection of claim 1 here. See id. at 3^4; see also Ans. 2-4. As discussed
below, we are not persuaded of reversible error by Appellants’ arguments.
Appellants first argue that “[t]he Examiner has failed to account that
there was a general industry prejudice and skepticism against using infrared
lamp technology to sear food products where the searing was accomplished
in less than 120 seconds.” Appeal Br. 9 (citing Declaration of Nicholas P.
De Luca, Aug. 10, 2015 (“Declaration”)). Appellants acknowledge that De
Luca teaches that the wire mesh element can be used when heating
characteristics of a bulb are needed, and thus De Luca teaches that the mesh
element “can replace a lamp in heating application per general industry
norms.” Appeal Br. 9. According to Appellants, “[tjhis teaching does not
mean that a wire mesh heating element can be used instead of an infrared
lamp where high density heat generation is needed.” Id. (citing Declaration
19).
We are not persuaded of reversible error by this argument. Rather, the
rejection seeks to modify Leykin to replace an infrared lamp with a wire
mesh cooking element to obtain the advantages of using a mesh element and
to avoid certain disadvantages of using an infrared lamp. We agree with the
Examiner that Appellants’ argument regarding the general industry prejudice
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Application 13/284,426
and skepticism with respect to the use of an infrared lamp is not particularly
relevant to the combination proposed, because the proposed combination
does not include an infrared lamp. To the extent that it is relevant, the
argument appears to support the Examiner’s proposed modification and
conclusion, which proposes to use a wire mesh element to avoid the
disadvantages of using an infrared lamp, i.e. thus, addressing prejudice and
skepticism against using such lamps.
Further, we disagree that “De Luca is silent as to overcoming the
general industry prejudice and skepticism against using an infrared lamp for
searing.” Appeal Br. 9. Rather, De Luca sets forth that radiant heat bulbs
may be used in applications for quick cooking times, De Luca addresses
several disadvantages for using such bulbs, and De Luca seeks to remedy
those disadvantages through the use of a wire mesh heating element. See
De Luca 3—8. Thus, De Luca is clearly concerned with overcoming any
disadvantages of using a radiant heat bulb, which would seem to address the
prejudice and skepticism regarding the use of such bulbs.
Next, Appellants argue that “the Examiner erroneously asserts an
unsupported opinion that conflates and inaccurately shifts between high
operating temperatures and high density heat generation applications.”
Appeal Br. 9. Appellants contend that although infrared lamps can reach
high operating temperatures in less than two seconds, this does not imply a
high density heating capability. Id. at 9-10 (citing Declaration | 8). We are
not persuaded of reversible error. First, we note that claim 1 does not
specifically require “high density heating capability.” The claim only
requires that the heating element is operated at greater than 800 degrees and
sears food in less than 120 seconds. We agree with the Examiner’s
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conclusion that these operating parameters would have been obvious in view
of De Luca, which teaches the use of wire mesh element that achieves the
claimed temperatures and is designed to provide cooking characteristics
similar to a radiant heat bulb capable of providing cooking times well
below 120 seconds. See De Luca 13.
Finally, to the extent that Appellants argue that the rejection is based
on impermissible hindsight, we disagree. Appellants have not pointed to any
knowledge that the Examiner gleaned only from Appellants’ disclosure in
arriving at the conclusion that claim 1 would have been obvious here. See
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Based on the foregoing, we are not persuaded of reversible error with
respect to the rejection of claim 1 as obvious over Leykin in view of De
Luca. Accordingly, we sustain the rejection of claim 1 here. We also
sustain the rejection of claims 2, 3, 15—19, 22—25, 27, and 28, which fall
with claim 1.
Rejections 2—6
With respect to the rejections over Rudewicz 423 and De Luca,
Appellants argue the claims as a single group. See Appeal Br. 10—11. We
select claim 1 as representative, and the remaining claims rejected here stand
or fall with claim 1.
With respect to claim 1, the Examiner finds that Rudewicz 423
discloses a method of cooking as claimed, except that Rudewicz 423 does
not disclose the use of a wire mesh element operating at greater than 800
degrees Fahrenheit and positioned to heat a food product and searing the
exterior of the food product in less than 120 seconds. Final Act. 9 (citing
Rudewicz 423 Figs. 2, 4A2; col. 5,11. 60-61; col. 15,11. 4—8). For these
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missing limitations, the Examiner relies on De Luca. Specifically, the
Examiner finds that De Luca discloses a wire mesh heating element that
operates at greater than 800 degrees Fahrenheit and is capable of searing the
exterior of a food product. Final Act. 9—10 (citing De Luca claim 1;
abstract; H 38-43, 61; Fig. 3). The Examiner concludes that it would have
been obvious to modify Rudewicz 423 by applying the teachings of De Luca
to arrive at the claimed method “in order to utilize a heating element capable
of heating up quickly, which would be desirable in an apparatus requiring a
fast operation, i.e. Rudewicz[ 423’s] vending machine.” Final Act. 10.
We agree with and adopt the Examiner’s findings and conclusions
with respect to the rejection of claim 1 as obvious over Rudewicz 423 and
De Luca. See id. at 9-10; see also Ans. 4—5. As discussed below, we are
not persuaded of reversible error by Appellants’ arguments.
Appellants argue here that
the Examiner has failed to account that there was a general
industry prejudice and skepticism against using a jet (air)
impingement oven where the oven needs to be used without oven
warmup less than 120 seconds, especially as this would change
the heating characteristics of the oven, namely from a convection
oven to a radiant oven.
Appeal Br. 10 (citing Declaration 110). To the extent this argument relates
generally to industry prejudice and skepticism against using a jet
impingement oven, we are not persuaded for reasons similar to those
addressed above. Specifically, the rejection proposes to replace jet
impingement heating with a wire mesh heating element, and thus, any
prejudice or skepticism against using a jet impingement oven is not
particular relevant to the proposed combination.
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Further, to the extent Appellants are arguing that the proposed
modification would either change the principle of operation of
Rudewicz 423 ’s device or would render it unsatisfactory for its intended
purposes, we disagree. We find that Rudewicz 423 is concerned with
providing a vending machine with multiple heat sources and with
programming to allow for simple operation to cook food based on a user’s
selections. See Rudewicz 423 Abstract; col. 1,1. 65—col. 2,1. 37.
Rudewicz 423 specifically does not limit the use of the invention to an air
impingement apparatus. Rudewicz 423 discloses the use of multiple heat
sources and indicates that other heat sources beyond a microwave and air
impingement apparatus may be used. Id. col. 5,11. 60—67. Based on these
disclosures, we agree with the Examiner’s conclusion that one of ordinary
skill in the art would have found it obvious to use De Luca’s device to
provide faster cooking times, which would not change Rudewicz 423
principle of operation related to the use of a vending machine to provide
cooked foods through pre-programmed options.
Based on the foregoing, we are not persuaded of reversible error with
respect to the rejection of claim 1 here. Accordingly, we sustain the
rejection. For the same reasons, we also sustain the rejections of claims 4—
15, 22, and 23, which fall with claim 1.
CONCLUSION
We AFFIRM the rejections of claims 1—19, 22—25, 27, and 28 for the
reasons set forth herein.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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