Ex Parte Elkasevic

Patent Trial and Appeal Board

Apr 24, 2014

11703558 (P.T.A.B. Apr. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte SAUD ELKASEVIC
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Appeal 2012-004722
Application 11/703,558
Technology Center 3700
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Before MURRIEL E. CRAWFORD, MICHAEL C. ASTORINO, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Suad Elkasevic (“Appellant”) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1-15. We have jurisdiction under 35
U.S.C. § 6(b).
Claimed Subject Matter
Claims 1 and 15 are the independent claims on appeal. Claim 1 is
illustrative of the claimed subject matter and is reproduced below.
1. An oven door assembly that selectively closes and
permits access to an access opening of an oven cavity of the
oven, the oven door assembly comprising:
a. an outside door panel having a non-opaque pane;
b. an inside door panel having a non-opaque pane,
the inside door panel being located closer to the oven cavity of
the oven than the outside door panel;
c. a middle non-opaque pane supported intermediate
the non-opaque pane of the outside door panel and the non-
opaque pane of the inside door panel, the non-opaque pane of
the outside door panel, the middle non-opaque pane, and the
non-opaque pane of the inside door panel being oriented
relative to one another such that the interior of the oven cavity
of the oven can be viewed from outside of the oven; and
d. a shield fitted relative to the middle non-opaque
pane for drawing heat away from the middle non-opaque pane.
App. Br. 10, Claims App’x.
References
The Examiner relies upon the following prior art references:
Katona US 4,023,554 May 17, 1997
Austin US 6,561,180 B1 May 13, 2003
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Rejections
Appellant seeks review of the following rejections:
I. Claims 1-15 are rejected under 35 U.S.C. § 102(b) as
anticipated by Austin;1

1 In his Reply Brief, Appellant explains that he thought the Examiner
withdrew this rejection in a “Notice of Panel Decision from Pre-Appeal
Brief Review” dated October 6, 2010. Reply Br. 1. Appellant asserts that
the Examiner’s inclusion of the rejection in the Answer amounts to a new
ground of rejection. Id. Appellant did not file a petition under 37 C.F.R.
§ 1.181(a), but does reply to the alleged new ground of rejection in his Reply
Brief. Id. at 1-3.
The record does not reflect a Notice of Panel Decision from
Pre-Appeal Brief Review dated October 6, 2010. Rather, the record reflects
that Appellant filed a Pre-Appeal Brief Request for Review on December
14, 2010. On March 15, 2011, the U.S. Patent and Trademark Office mailed
a Notice of Panel Decision from Pre-Appeal Brief Review in which box 2
(“Proceed to Board of Patent Appeals and Interferences”) was checked. The
status of the claims thereunder indicates that claims 1-15 are rejected and
next to “Claims(s) withdrawn from consideration,” the Notice states,
“Withdrawing 102(b) rejection of claim 15 of Austin & keeping same for
other.”
Appellant incorrectly interpreted the Notice as withdrawing the entire
102(b) rejection based on Austin (i.e., as applied to claims 1-15), rather than
interpreting the Notice as withdrawing the rejection as applied to claim 15,
but maintaining the 102(b) rejection as applied to claims 1-14 (which
appears to be the most reasonable interpretation). The Examiner’s Answer,
however, maintains the 102(b) rejection based on Austin as applied to each
claim (i.e., claims 1-15), and does not reflect a withdrawal of the rejection as
applied to claim 15.
Accordingly, because (1) the record is less than clear as to what
purpose the Examiner and Appellant understood the Notice of Panel
Decision from Pre-Appeal Brief Review to serve, (2) Appellant’s confusion
was at least partially warranted in that the Examiner maintained the rejection
of claim 15 as anticipated by Austin even after the Notice indicated the
rejection was withdrawn, and (3) Appellant addressed the rejection in his
Reply Brief, we will review the rejection of claim 15 on its merits.
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II. Claims 1-15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Austin and Katona; and
III. Claims 1 and 15 are rejected under 35 U.S.C. § 102(b) as
anticipated by Katona.
SUMMARY OF DECISION
We AFFIRM-IN-PART.
OPINION
Rejection I
The Examiner finds that Austin discloses each and every element of
claims 1-15. Ans. 4-6. In particular, the Examiner relies upon Austin’s
outer panel 73 and clear (i.e., non-opaque) area 193 of decorative panel 75
as disclosing the “outside door panel” and “non-opaque pane” elements
recited in claim 1. Id. at 4.
Appellant raises several arguments in response to this rejection,
including that “[a]lthough the decorative panel 75 in Austin may be secured
against the outer panel 73, the outer panel 73 does not in any manner
comprise a non-opaque pane.” Reply Br. 1-2.
As reflected above, claim 1 is directed to “[a]n oven door assembly
. . . comprising . . . an outside door panel having a non-opaque pane.”
App. Br. 10, Claims App’x. Independent claim 15 similarly recites “[a]n
oven door assembly . . . comprising . . . a first non-opaque glass pane
secured in the first window opening of the outside door panel.” App. Br. 11,
Claims App’x.
We interpret that claim language, where necessary, giving the claims
their broadest reasonable interpretation in light of the Specification.
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In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004). In determining the
ordinary and customary meaning of the claims as viewed by a person of
ordinary skill in the art, it is appropriate to consult a general dictionary
definition for guidance. Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348
(Fed. Cir. 2010).
The ordinary and customary meaning of “pane” in this context is “a
framed sheet of glass in a window or door.” See Merriam-Webster available
at http://www.merriam-webster.com/dictionary/pane (last visited Apr. 11,
2014). The use of “pane” in Appellant’s Specification is consistent with its
ordinary and customary meaning. See, e.g., fig. 3 (reference numeral 54);
Spec. 8 (“The oven door assembly 20, shown in an exploded perspective
view in Figure 3, may include an outside door panel 52 preferably including
a glass pane 54 (for viewing the contents of oven cavity 18).”).
Austin discloses “the construction and assembly of an oven door
which includes components that are snap-fit together in order to simplify
assembly and reduce production costs.” Austin, col. 1, ll. 8-11. Austin
discloses that the oven door includes, inter alia, an outer panel 73 and a
decorative panel 75. Id. at col. 4, ll. 23-36. Austin explains that “[a]lthough
decorative panel 75 is preferably made of glass, various other materials
could be employed for decoratively covering the outer surface of outer panel
73.” Id. at col. 4, ll. 31-34 (emphasis added). Austin further discloses that
“[d]ecorative panel 75 is preferably a glass panel having a substantially
opaque area 192 and a substantially clear inner window area 193.” Id. at
col. 5, ll. 5-7. Austin’s Figure 2 illustrates the clear inner window area 193
of decorative panel 75 and decorative panel 75’s employment as a cover for
outer panel 73. Id. at fig. 2.
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In light of the ordinary and customary meaning of “pane,” we agree
with Appellant that the non-opaque portion 193 of decorative panel 75 is not
a “pane” because it is not “a framed sheet of glass in a window or door.”
Specifically, non-opaque portion 193 is not disclosed as being framed or as
being “in” Austin’s outer door panel 73. Rather, it appears that decorative
panel 75 (including non-opaque portion 193) is simply secured against outer
panel 73.
Accordingly, because the Examiner has not established by a
preponderance of the evidence that non-opaque portion 193 discloses the
non-opaque pane of the outside door panel of claim 1, we do not sustain
Rejection I.
Rejection II
The Examiner concludes that the combination of Austin and Katona
would have rendered obvious the subject matter of claims 1-15 to one of
ordinary skill in the art at the time of invention. Ans. 6-8. In the context of
this rejection, the Examiner relied on Austin’s elements 193 and 140 as
disclosing the claimed “non-opaque pane.” See, e.g., id. at 7 (“the oven door
assembly comprising: a. an outside door panel (consist of door panel 73
with glass pane 193 and outer glass pane 140 which are secured together
in assembly condition) having a non-opaque pane (window 193,
non-opaque pane 140)”). The Examiner finds that Austin discloses the
elements of the claims, except Austin does not disclose “a middle
non-opaque pane supported intermediate the outside door panel and inside
door pane[l] so that the oven door has three independent and separate glass
windows.” Id.
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The Examiner finds that Katona discloses a middle glass pane
(reference numeral 11) that can be installed between glass panes 140 and
141 of Austin’s glass pack 70. Id. The Examiner concludes that it would
have been obvious to one of ordinary skill in the art at the time of invention
to provide Katona’s middle glass pane in Austin’s assembly “so the separate
and independent glass windows, middle window in particular, would
dissipate the heat efficiently.” Id.
Appellant raises several arguments in response to this rejection. We
address each.
Claim 12
First, Appellant raises the same argument with respect to the
Examiner’s reliance upon Austin’s element 193 as reflected in the context of
our discussion of Rejection I. App. Br. 6. Appellant, however, does not
address the Examiner’s finding that Austin’s glass pane 140 discloses the
claimed non-opaque pane of the outside door panel. See id. at 6-7;
Reply Br. 1-4. Notably, Appellant acknowledges that “[t]he front pane 140
of the glass pack 70 in fact is secured in the window opening 190 of the
outside door panel 73.” Reply Br. 2.
Because the Examiner relied upon glass pane 140 in the context of
this rejection, and not solely upon element 193, our discussion of
Rejection I, supra, is not dispositive of the issue presented here.
Additionally, we agree with Appellant that Austin’s outer glass pane 140 is
disclosed as being secured in window opening 190 of outside door panel 73,

2 Appellant does not separately argue claims 6, 7, 9-11, and 14.
See App. Br. 6-8; Reply Br. 1-4. We select claim 1 as representative.
Accordingly, claims 6, 7, 9-11, and 14 stand or fall with claim 1.
See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
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see id., and thus we agree with the Examiner that outer glass pane 140
constitutes a “pane.”3
Accordingly, the Examiner’s finding that Austin’s outer glass pane
140 discloses the claimed “non-opaque pane” is supported by a
preponderance of the evidence.
Second, Appellant contends that Austin does not disclose “a shield
fitted relative to the middle non-opaque pane for drawing heat away from
the middle non-opaque pane.” App. Br. 6. Appellant acknowledges that the
Examiner identified Austin’s second panel 71 as a shield, but asserts that
“[n]othing in Austin . . . even remotely suggests that the second panel 71
acts as a shield or serves in any manner to draw heat from any pane of the
window assembly, even if modified as suggested by the Examiner.” Id.
The Examiner explains, in response to Appellant’s argument, that
second panel 71 “would be in direct contact with the middle pane 140, 141
as it hold[s] the glass pack 70 and would draw away the heat from the
middle pane 140, 141.” Ans. 10. (emphasis omitted). The Examiner further
explains that Austin’s disclosure at column 4, lines 54-63, “shows the
securement of the glass pack 70 (includ[ing] middle pane 140) against panel
71. While securing the glass pack within two panels 71 and 67, the glass
pack would be physically touching these panels which would take away the
heat from the pane 140, 141 to [the] outside via panel 71.” Id. (emphasis
omitted).4

3 Appellant does assert that Austin’s front pane 140 is not a “pane.”
4 While the Examiner included the above-quoted portion in response to
Appellant’s arguments with respect to Rejection I, the Examiner referred to
the same findings in the context of Rejection II. See Ans. 11 (“For claim 1,
the second pane[l] 71 of Austin discloses to work as shield [sic] as in
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In the Reply Brief, Appellant contends that
[i]t is not clear from Fig. 2 in Austin, however, whether the
second panel 71 makes contact with either glass pane 140 or
141. Rather, from the construction, it appears that the window
opening 177 in the second panel 71 more likely supports the
rectangular metal frame 135 to which the glass panes 140, 141
are secured.
Reply Br. 3.
Austin discloses that “[a]fter window pack 70 is positioned on first
panel 67, second panel 71 is secured to first panel 67 through hinge
assemblies 68 and 69.” Austin, col. 4, ll. 54-56. When second panel 71 is
secured to first panel 67, “window pack 70 is secured therebetween.” Id. at
col. 4, ll. 58-62. Austin also discloses that “window pack 70 includes a
substantially rectangular metal frame 135 and opposing panes of glass 140
and 141.” Id. at col. 3, ll. 47-49.
First, we disagree with the Examiner that Austin’s second panel 71 is
“in direct contact with middle pane 140 141.” See Ans. 10. This is because,
as Appellant explains, Austin’s second panel 71 supports frame 135 and
panes 140 and 141 are surrounded by frame 135. See Reply Br. 3. That
being said, when Austin’s window pack 70 includes middle glass pane 11
from Katona, middle glass pane 11 will be in indirect contact with panel 71
via frame 135. Claim 1, unlike claim 15 discussed infra, does not recite that
the shield contacts any specific portion of the middle glass pane, only that
the shield is “fitted relative to the middle non-opaque pane for drawing heat
away from the middle non-opaque pane.”

assembly condition it would draw away heat from inside to its outer
periphery per fig 2 as described above.”).
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In light of the discussion above, the Examiner’s finding—when the
glass pack is secured within panels 67 and 71, the glass pack is physically
touching these panels such that the panels will draw heat away from the
middle pane (see Ans. 10)—is sufficient to establish that panel 71, when
combined as proposed in the rejection, is capable of drawing heat away from
middle non-opaque pane 11 of Katona. Thus, the Examiner satisfied the
initial burden of demonstrating that the structure is capable of performing
the claimed functional limitation.
Appellant’s argument fails to explain why the panel 71 would not be
capable of drawing heat away from middle non-opaque pane 11 of Katona
when combined as proposed by the Examiner and in indirect contact with
one another.
Accordingly, Appellant’s argument is not persuasive and we thus
sustain Rejection II as applied to claim 1 and claims 6, 7, 9-11, and 14,
which fall therewith.
Claim 15
Appellant raises several arguments in response to the Examiner’s
rejection of claim 15, including that second panel 71 of Austin is not in
contact with a perimeter of either glass pane of Austin’s window pack 70 as
recited in the claim. App. Br. 7.
Claim 15 is directed to “[a]n oven door assembly . . . comprising: . . .
a shield in contact with a perimeter of the middle non-opaque glass pane for
drawing heat away from the middle non-opaque glass pane.”
App. Br. 11-12, Claims Appx. Although similar to claim 1 in many regards,
claim 15 recites that the claimed shield contacts a perimeter of the middle
non-opaque glass pane.
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The Examiner’s rejection does not address this element of claim 15.
See Ans. 6-7. In the Examiner’s response to Appellant’s argument, the
Examiner finds that
[t]he intermediate supporting panel/shield 71 of Austin in view
of middle pane 11 of Katona (to be installed in glass pack 70 to
match the glass window) would be connected with the outer
metal panel 73 at its perimeter (col 4, lines 54-67, figs 2, 6) for
drawing heat away from the middle pane due to the physical
contact in assembly condition.
Id. at 11.
The Examiner’s finding, however, does not address Appellant’s
argument that second panel 71 is not in contact with the perimeter of the
middle non-opaque glass pane (element 11 from Katona). The only mention
of the term “perimeter” in the Examiner’s response is directed to the
perimeter of outer panel 73, rather than the perimeter of Katona’s pane 11.
See id.
Accordingly, because the Examiner does not find that second panel 71
is in contact with a perimeter of Katona’s middle non-opaque glass pane
when combined with Austin, the Examiner has failed to identify where the
combination of Austin and Katona discloses each and every element of
claim 15. Thus, we do not sustain Rejection II as applied to claim 15.
Claim 2
With respect to claim 2, the Examiner finds that “the middle non-
opaque pane (middle of glass pack 70) has a frame perimeter 135 Includes
[sic] perimeter retainer element 160 connected to front pane 140) and the
shield 71 would be in direct contact with a portion of the perimeter 160 in
assembly condition.” Ans. 8, 11.
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Appellant’s argument in response to this rejection of claim 2 is very
similar to that asserted with respect to claim 15. In particular, Appellant
asserts that claim 2 recites that “the shield is in contact with at least a portion
of the perimeter of the middle non-opaque pane” and that Austin’s metal
frame 135 is not the perimeter of the glass panes. App. Br. 7.
The Examiner’s finding regarding “frame perimeter 135” is not clear.
We acknowledge, as discussed above, that Austin’s window pack 70 has a
rectangular metal frame 135. The Examiner’s rejection, however, fails to
make any finding that panel 71 is in contact with at least a portion of the
perimeter of the middle non-opaque pane (i.e., element 11 from Katona that
the Examiner combined with Austin). That panel 71 is in direct contact with
what the Examiner refers to as “perimeter 160” does not specifically address
this element of the claim.
Accordingly, because the Examiner failed to identify where each and
every element of claim 2 is disclosed by the proposed combination of Austin
and Katona, we do not sustain Rejection II as applied to claim 2 and claims
3, 4, and 13, which depend therefrom.
Claim 5
With respect to claim 5, the Examiner finds that “the shield 71 in its
assembly condition would support the middle non-opaque pane 140 per fig
6.” Ans. 12; see id. at 5 (“shield 71 supports the middle non-opaque pane”).
Appellant asserts that “Austin and Katona teach that the panes are
supported via connections to adjacent pages, e.g., in the sub-assembly 10 of
Katona” and thus, the middle pane of Katona as combined with Austin
would not be supported by panel 71. App. Br. 8.
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Claim 5 depends from claim 1 and further recites “wherein the shield
supports the middle non-opaque pane.” App. Br. 10, Claims App’x.
Appellant’s argument is not persuasive because the second panel 71 supports
(at least in-part) glass pack 70 (see Austin, col. 4, ll. 54-63), which would
include the middle non-opaque pane 11 from Katona as combined by the
Examiner.
Accordingly, we sustain Rejection II as applied to claim 5.
Claims 8 and 12
With respect to claims 8 and 12, the Examiner finds that “the shield
71 includes elongated side and bottom lip members 181, 182 that include[] a
planar standoff to space the shield 71 from the inside door assembly 67 and
[are] substantially perpendicular to the inside door panel 67.” Ans. 8; see
also id. at 12.
Claim 8, which depends indirectly from claim 1, further recites
“wherein the planar standoff is substantially perpendicular to the inside door
panel.” App. Br. 11, Claims App’x. Claim 12 similarly recites “wherein
each said planar central portion is substantially perpendicular to a side wall
of the inside door panel.” Id.
Appellant asserts that “no part of the second panel is ‘substantially
perpendicular’ to the inside door panel. The angled surfaces appear to be set
closer to 45°.” App. Br. 8.
We agree with the Examiner that lip members 181 and 182 of second
panel 71 are substantially perpendicular to the inside door panel. Austin
discloses that “top lip 180” and “bottom lip 181” are “in-turned,” and “right
side lip 182” and “left side lip 183” are “out-turned.” Austin, col. 4,
ll. 14-19; see id. at figs. 2, 6. Because first panel 67 (i.e., inside door panel)
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and second panel 71 are parallel to each other, “in-turned” and “out-turned”
from 71 is in a direction “substantially perpendicular” to first panel 67.
See also Austin, fig. 8 (showing 185 in a position that, while not precisely
perpendicular to 71, is sufficient to disclose “substantially perpendicular” as
claimed).
Accordingly, because Appellant’s argument is not persuasive, we
sustain Rejection II as applied to claims 8 and 12.
Rejection III
The Examiner finds that Katona discloses each and every element of
claims 1 and 15. Ans. 9-10. In particular, the Examiner relies upon
Katona’s elements 26, 60, 66, and 68 as disclosing “an outside door panel”
and window sub-assembly 10 as disclosing “an inside door panel.” Id. at 9.
Appellant asserts that
Katona lacks the respective outside door panel and inside door
panel. Rather, the window sub-assembly 10 in Katona is
constructed with glass panes 11, 12 and a front glass pane 13
releasably secured to the sub-assembly 10 by mounting clips
14. These mounting clips 14 do not remotely amount to door
panels as claimed.
App. Br. 8.
The Examiner does not address Appellant’s assertion regarding the
door panels, instead responding to an additional argument raised by
Appellant directed to the shield element of the claims. See id. at 12.
We agree with Appellant that window sub-assembly 10 does not
disclose a door panel. Even assuming, however, that window sub-assembly
10 could constitute an inside door panel, the rejection is flawed. The
Examiner finds that glass pane 13 is the non-opaque pane of the outside door
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panel and glass pane 11 is the middle non-opaque pane. See id. at 9. Glass
panes 11 and 13, however, are part of window sub-assembly 10 and thus
cannot constitute both the outside door panel and at the same time a middle
non-opaque panel that is “supported intermediate the non-opaque pane of the
outside door panel” as recited in claim 1 or “a middle non-opaque glass pane
supported intermediate the first non-opaque glass pane of the outside door
panel” as recited in claim 15.
Accordingly, we do not sustain Rejection III.
DECISION
We REVERSE the Examiner’s decision rejecting claims 1-15
under 35 U.S.C. § 102(b) as anticipated by Austin.
We AFFIRM the Examiner’s decision rejecting claims 1, 5-12,
and 14 under 35 U.S.C. § 103(a) as unpatentable over Austin and
Katona.
We REVERSE the Examiner’s decision rejecting claims 2-4,
13, and 15 under 35 U.S.C. § 103(a) as unpatentable over Austin and
Katona.
We REVERSE the Examiner’s decision rejecting claims 1 and
15 under 35 U.S.C. § 102(b) as anticipated by Katona.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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