Ex Parte Erikson et al

Patent Trial and Appeal Board

Sep 26, 2017

12595331 (P.T.A.B. Sep. 26, 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.
12/595,331 02/22/2010 Lars Erikson ABE-46014 2275
116 7590 09/28/2017
PFARNF fr GORDON T T P
EXAMINER
1801 EAST 9TH STREET MCALLISTER, STEVEN B
SUITE 1200
CLEVELAND, OH 44114-3108 ART UNIT PAPER NUMBER
3749
NOTIFICATION DATE DELIVERY MODE
09/28/2017 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):
patdocket@peame.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LARS ERIKSON, CRAIG WILLIAMSON,
SCOTT KING, LYNDON CRAIG, GREG WHITE,
LYALL THOMPSON, GREG WILD, and CRAIG STEVENS
Appeal 2016-000121
Application 12/595,3311
Technology Center 3700
Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1—9 and 56—65. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to the Appellants, “[t]he real party in interest is Aktiebolaget
Electrolux.” Appeal Br. 1.
Appeal 2016-000121
Application 12/595,331
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellants’ “invention relates to barbecues and in particular to
flame viewing systems, grilles, lids, hotplates or griddles, and grease
collector systems for such barbecues.” Spec. para. 1.
Claims 1 and 57 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A barbecue having an outer cabinet which is adapted to fit
into a bench top through a hole in said bench, said cabinet having
sides, a closed base, and an upper periphery adapted to engage
an upper surface of said bench, said barbecue including, along at
least a portion of one of said sides, a trough within the cabinet,
wherein the trough extends downwardly from said upper
periphery, said barbecue having a wall within the cabinet
separating said trough from a combustion chamber wherein there
is located at least one burner, whereby said wall is arranged
below at least one of a hot plate and a grille and includes a
viewing panel so that an operator standing close to said one of
said sides can look downwardly through said trough and through
said viewing panel to view a flame on said burner.
Grounds of Rejections
I. Claims 60 and 62 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
II. Claims 61 and 63 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
III. Claims 1—5, 7, 56, 58, 60, 61, and 64 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Fautz (US 3,842,726, issued
2
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Application 12/595,331
Oct. 22, 1974), Segroves (US 4,759,276, issued July 26, 1988), and
Carstensen (US 5,237,914, issued Aug. 24, 1993).2
IV. Claims 1 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Fautz, Segroves, and Hameit (US 6,260,478 Bl, issued
July 17, 2001).
V. Claims 1,3, and 7—9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wilson (US 2,175,333, issued Oct. 10, 1939), Segroves,
and Hameit.3
VI. Claims 57, 59, 62, 63, and 65 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wilson, Segroves, and Carstensen.4
ANALYSIS
Rejection I
Claims 60 and 62, which depend from independent claims 1 and 57,
respectively, recite, “wherein the at least one of the hot plate and the grille is
not see-through.” Appeal Br. Claims App. (emphasis added). The
Examiner rejects these claims because there is no support in the written
description for the negative limitation that at least one of the hot plate and
the grille is not see-through. See Final Act. 4; Ans. 20.
The Appellants argue that the written description “reasonably conveys
to one having ordinary skill in the relevant art that the applicant had
2 We agree with the Appellants that claims 60, 61, and 64 are rejected under
this ground. Appeal Br. 6; Final Act. 9—10.
3 We agree with the Appellants that claim 3 is rejected under this ground.
Appeal Br. 22; Final Act. 15.
4 We agree with the Appellants that claims 59, 62, 63, and 65 are rejected
under this ground. Appeal Br. 25; Final Act. 20-21.
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Application 12/595,331
possession of the subject matter claimed at the time the application was
filed.” Appeal Br. 6. The Appellants assert that Figure 1 depicts the hot
plate and grille as solid components, and that the grille, among other
barbeque components, is made of steel, stainless steel, or sheet metal. See
Appeal Br. 5—6 (citing Spec, paras. 152, 158, Fig. 1); Reply Br. 2.
The claim limitation at issue, “wherein the at least one of the hot plate
and the grille is not see-through,” can be separated into two possible claimed
features. Appeal Br., Claims App. First, the claim may require that a hot
plate is not see-through. And, second, the claim may require that a grille is
not see-through. As for the first possible claimed feature, the Examiner does
not explain why the claim requirement that a hot plate is not see-through is
not supported by the written description.5 As for the second possible
claimed feature, the Examiner does not explain persuasively why the claim
requirement that a grille is not see-through is not supported by the written
description.6 The Examiner suggests that the design of a hypothetical grate
can make a grille see-through even though the grille is made of solid metal
components. See Ans. 20. However, the Examiner fails to explain how the
Appellants’ grille applies to that hypothetical grate.
5 The Specification defines “hotplate” as a “structure having a cooking
surface which is not vented and which is a predominantly closed, such as a
griddle type structure having a flat or corrugated metal surface, which is
heated from underneath for the purpose of cooking on the upper side
thereof.” Spec. para. 57.
6 The Specification defines “grille” as a “vented cooking structure or
surface, such as a gridiron type structure made up of bars, rods or channels
through which heat can pass.” Spec. para. 58.
4
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Application 12/595,331
Thus, we do not sustain the Examiner’s rejection of claims 60 and 62
under 35U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement.
Rejection II
Claims 61 and 63, which depend from independent claims 1 and 57,
respectively, recite, “wherein the viewing panel provides the operator with
the only view of the flame on the burner.” Appeal Br. Claims App.
(emphasis added). The Examiner rejects these claims because there is no
support in the written description to “suggest that the apparatus is
completely sealed in such a manner that the flame can only be viewed
through the viewing panel.” Ans. 20; see Final Act. 4.
The Appellants assert that the application describes, “the viewing
panel provides the operator with a view of the flame on the burner” and the
drawings figures show that “the viewing panel can provide the operator with
the only view of the flame on the burner.” Appeal Br. 6. The Appellants
also assert, “the [Ejxaminer is unable to identify any such alternative
viewing angle by which an operator is capable of viewing the flame in the
present application.” Reply Br. 2.
We find the Examiner’s explanation persuasive. We note that the
term “only” in “the viewing panel provides the operator with the only view
of the flame on the burner” is a very restrictive term. This restrictive term
creates a restrictive limitation that requires there to be no other way an
operator may view the flame on the burner. Although the written description
has support for a viewing panel that provides an operator with a view of the
flame on the burner, the written description fails to support the restrictive
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Application 12/595,331
limitation. Moreover, the Appellants fail to explain how the written
description, including the drawings, shows possession of the claimed subject
matter, i.e., that the viewing panel provides the operator with the only view
of the flame on the burner. Hence, we find that the written description does
not reasonably convey to one having ordinary skill in the relevant art that the
Appellants had possession of the restrictive limitation — i.e., “the viewing
panel provides the operator with the only view of the flame on the burner”
— at the time the application was filed.
Thus, we sustain the Examiner’s rejection of claims 61 and 63 under
35U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement.
Rejection III
The Appellants argue that the combined teachings of Fautz, Segroves,
and Carstensen fail to teach “said wall. . . includes a viewing panel so that
an operator standing close to said one of said sides can look downwardly
through said trough and through said viewing panel to view a flame on said
burner,” as recited in claim 1. Appeal Br. 7 (emphasis omitted).
The Examiner’s rejection relies primarily on Carstensen to teach the
above-recited limitation of claim 1. Specifically, the Examiner finds that
“[a] viewer/user is capable of looking downward through element 28,
underneath the bottom edge of element 18, positioned below the grille
elements 22, and through grooves/opening elements 42.” Final Act. 7. This
finding is based on Carstensen’s cooking grill assembly in Figures 4—5.
Final Act. 7. Additionally, the Examiner explains that applying Carstensen’s
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Application 12/595,331
teaching to Fautz’s teaching would result in a viewer having the ability to
view the flame from Fautz’s burner. Final Act. 7.
The Appellants argue that the Examiner’s finding is unsupported and
based on speculation. Appeal Br. 8. We agree with the Appellants’
argument. We also agree with the Appellants that Carstensen’s
Specification does not describe the structures of Figures 4 and 5 in any
manner that adequately supports the Examiner’s finding. Appeal Br. 8—9.
Thus, we do not sustain the Examiner’s rejection of independent
claim 1 and dependent claims 2—5, 7, 56, 58, 60, 61, and 64 under 35 U.S.C.
§ 103(a) as unpatentable over Fautz, Segroves, and Carstensen.
Rejection IV
Independent claim 1 and dependent claim 7
The Appellants argue that the combined teachings of Fautz, Segroves,
and Hameit fail to suggest all of the features of claim 1. Appeal Br. 20.
Specifically, the Appellants assert that the combined teachings do not teach
“a wall within the cabinet separating said trough from a combustion chamber
. . . whereby said wall is arranged below at least one of a hot plate and a
grille and includes a viewing panel,” as recited in claim 1. Appeal Br. 20
(emphasis omitted).
The Examiner relies on Hameit’s heat dissipation panel 69 to teach
the argued limitation. See Final Act. 11—12 (citing Hameit, Figs. 4, 5).
Notably, Hameit discloses that the “[h]eat distribution panels are made of
glass,” which provides “the additional advantage of being transparent, so the
cook will be able to observe the burner flames from above.” Hameit, col. 3,
11. 47-50.
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Application 12/595,331
The Appellants assert that Hameit’s Figures 4 and 5 show “a grill
assembly with a heat dissipation panel 69 on which a grate 71 is placed” and
“at best, teaches a grate/panel assembly that forms the cooking surface
itself.” Appeal Br. 20. In response, the Examiner persuasively explains that
Hameit’s heat dissipation panel 69 is not a surface for cooking food.
Ans. 26. Indeed, Hameit’s cooking surface is grate 71 which is a separate
stmcture from heat dissipation panel 69. See Hameit, col. 6,11. 38-41.
The Appellants argue that one of ordinary skill in the art would not
have combined the teachings of cited references. Appeal Br. 20. The
Appellants’ argument is directed to the modification of Fautz’s grill
assembly in view of Hameit’s teaching of a heat distribution panel. See
Appeal Br. 20—21. The Appellants acknowledge that the Examiner provides
two alternative reasons why one of ordinary skill in the art would have
combined the teachings Fautz and Hameit. See Appeal Br. 21. One of those
reasons is “to allow more even cooking of the foods ... by providing a ‘heat
distribution panel’ (see Hameit element 69) to ‘ensure homogenous cooking
of the food being grilled’ (see Hameit column 6, lines 55-56).”7 Final
Act. 12. The Appellants assert,
Fautz already provides a uniformly heated grilling surface by
disclosing a solid grilling surface with ridges and grooves, where
“[t]he ridges between the griddle grooves are flat to provide
uniform sear stripes, and the grooves increase in depth from the
rear to front to facilitate grease drainage and promote uniform
heating of food placed on the griddle.”
Appeal Br. 21 (emphasis omitted) (quoting Fautz, col. 1; 11. 46—50).
7 In this case, we decline to address the Examiner’s additional reason to
combine the teachings of Fautz and Hameit as moot.
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Application 12/595,331
In response, the Examiner persuasively explains that Hameit teaches
“an alternative way to achieve the same functionality and advantages of. . .
Fautz.” Ans. 27. Additionally, we understand the modification of Fautz’s
grill assembly in view of Hameit’s teaching of a heat distribution panel to
include a modification of the ridges and grooves of Fautz’s grill to be similar
to the depth of the ridges and grooves of Hameit’s grill — along with adding
the heat dissipation panel 69. Further, we determine that the Examiner
articulates reasoning with rational underpinning sufficient to support the
conclusion of obviousness. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
418—419 (2007).
We have considered the remaining points advanced by the Appellants
in the Appeal Brief and the Reply Brief, and have determined they are
unpersuasive of Examiner error.
Thus, we sustain the Examiner’s rejection of claims 1 and 6 under 35
U.S.C. § 103(a) as unpatentable over Fautz, Segroves, and Hameit.
Rejection V
Independent claim 1 and dependent claim 7
The Appellants argue that the combined teachings of Wilson,
Segroves, and Hameit fail to suggest all of the features of claim 1 because
the combined teachings “at best, teach[] a grate/panel assembly that forms
the cooking surface itself’ and not “a wall within the cabinet separating said
trough from a combustion chamber . . . whereby said wall is arranged below
at least one of a hot plate and a grille and includes a viewing panel,” as
recited in claim 1. Appeal Br. 22 (emphasis omitted). The Appellants
advance this argument in Rejection IV. See Appeal Br. 20. For similar
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reasons as those discussed above, we do not agree with the Appellants’
argument.
The Appellants also argue that the Examiner’s rejection is based on
impermissible hindsight reasoning. Appeal Br. 23. The Appellants assert
that Wilson discloses positioning a grease pan 25 at the back edge of the
grill so that “refuse material will be completely hidden from view.” Appeal
Br. 23 (emphasis omitted) (citing Wilson, p. 1, col. 2,11. 15—23). And,
because Wilson’s trough or grease pan “is intentionally arranged behind the
grill in order to be hidden from view, contrary to the [Ejxaminer’s
conclusion, there is no teaching or suggestion in the prior art to include a
viewing panel in the wall.” Appeal Br. 23. We do not agree with the
Appellants.
The Examiner explains that:
Although the intent of the grease trough as taught by Wilson is
to be hidden from view, the trough is capable of being modified
with a viewing panel to allow an operator to see the flame there
beneath. Albeit inconvenient, the viewing panel on the back of
the cooking assembly of Wilson would structurally read on the
claim language and anticipate the present application’s
apparatus. A user could potentially walk behind the apparatus to
view the flame from the “hidden” grease trough. Furthermore,
the configuration of Wilson has its advantages in terms of user
safety, since the further the cooking grease is disposed from the
user, the likelihood of a grease bum is greatly reduced.
Ans. 28. We agree with the Examiner’s explanation.
Thus, we sustain the Examiner’s rejection of claim 1, and dependent
claim 7, which is not separately argued, under 35 U.S.C. § 103(a) as
unpatentable over Wilson, Segroves, and Hameit.
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Application 12/595,331
Dependent claim 3
Claim 3, which depends from independent claim 1 recites, “wherein
said wall is formed from an inner wall and an outer wall with an air gap
between said inner wall and outer wall.” Appeal Br., Claims App. The
Appellants argue that the Examiner’s rejection of claim 3 is in error because
it is based on a conclusory statement that lacks “articulated reasoning with
some rational underpinning to support the legal conclusion of obviousness.”
Appeal Br. 24. The Examiner finds that Wilson, i.e., the primary reference
in a rejection based on obviousness, teaches this limitation. Final Act. 15
(citing Wilson, p. 2, col. 2,11. 1—14, Fig. 2). The Appellants fail to advance
a cogent argument explaining why this finding is in error. And, we fail to
ascertain why the Examiner needs to provide further reasoning with some
rational underpinning when relying on disclosure from Wilson. The
Appellants’ remaining argument, that “Wilson, Segroves, and Hameit fail to
teach or suggest a wall with a viewing panel as required by claim 1” (Appeal
Br. 24), as discussed above, does not show Examiner error. Thus, we
sustain the Examiner’s rejection of claim 3 under 35 U.S.C. § 103(a) as
unpatentable over Wilson, Segroves, and Hameit.
Dependent claim 8
The Appellants provide a separate heading, but do not add further
arguments for the rejection of claim 8. Appeal Br. 24. Here, the Appellants
rely on the arguments presented for the Examiner’s rejection of claim 1 for
the rejection of claim 8. Appeal Br. 24. For similar reasons as those
discussed above, we sustain the Examiner’s rejection of claim 8 under
35 U.S.C. § 103(a) as unpatentable over Wilson, Segroves, and Hameit.
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Dependent claim 9
The Appellants provide a separate heading, but do not add further
arguments for the rejection of claim 9. Appeal Br. 24—25. Here, the
Appellants rely on the arguments presented for the Examiner’s rejection of
claim 1 for the rejection of claim 9. Appeal Br. 24. For similar reasons as
those discussed above, we sustain the Examiner’s rejection of claim 9 under
35 U.S.C. § 103(a) as unpatentable over Wilson, Segroves, and Hameit.
Rejection VI
For this rejection, the Examiner relies on the same inadequately
supported finding as discussed above with regard to Rejection III. See Final
Act. 18—19. Thus, we do not sustain the Examiner’s rejection of
independent claim 57 and dependent claims 59, 62, 63, and 65 under 35
U.S.C. § 103(a) as unpatentable over Wilson, Segroves, and Carstensen.
DECISION
We REVERSE the Examiner’s decision rejecting: claims 60 and 62
under 35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement (Rejection I); claims 1—5, 7, 56, 58, 60, 61, and 64
under 35 U.S.C. § 103(a) as unpatentable over Fautz, Segroves, and
Carstensen (Rejection III); and, claims 59, 62, 63, and 65 under 35 U.S.C.
§ 103(a) as unpatentable over Wilson, Segroves, and Carstensen (Rejection
VI).
We AFFIRM the Examiner’s decision rejecting: claims 61 and 63
under 35 U.S.C. § 112, first paragraph, as failing to comply with the written
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description requirement (Rejection II); claims 1 and 6 under 35 U.S.C.
§ 103(a) as unpatentable over Fautz, Segroves, and Hameit (Rejection IV);
and, claims 1, 3, and 7—9 under 35 U.S.C. § 103(a) as unpatentable over
Wilson, Segroves, and Hameit (Rejection V).
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)(l)(iv).
AFFIRMED-IN-PART
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