Ex Parte Kleinman

Board of Patent Appeals and Interferences

Apr 30, 2008

10869773 (B.P.A.I. Apr. 30, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID SCOTT KLEINMAN
__________

Appeal 2008-2179
Application 10/869,773
Technology Center 1700
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Decided: April 30, 2008
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Before BRADLEY R. GARRIS, CHARLES F. WARREN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1-20. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2008-2179
Application 10/869,773

INTRODUCTION
Appellant claims an integrated cooker-strainer system comprising, in
relevant part, a cooker assembly comprising a cooker handle and a container
and a lip portion around a perimeter of the cooker assembly (claim 1; Fig. 3,
ref. no. 120, 124, and 132). The integrated cooker system further comprises,
in relevant part, a strainer assembly comprising a strainer container and a
handle attached to the strainer container, and a rim portion around a
perimeter of the strainer assembly, wherein the lip portion of the cooker
assembly engages the rim portion (claim 1; Fig. 3, ref. nos. 112, 154, 156).
Claims 1, 9, and 16 are illustrative:
1. An integrated cooker-strainer system comprising:

a cooker assembly comprising:

at least one cooker handle connected to a cooker container;

a lip portion around a perimeter of the cooker assembly;

a strainer assembly comprising;

a strainer container comprising a plurality of openings;

at least one strainer handle connected to the strainer container;

a rim portion around a perimeter of the strainer assembly, wherein the
lip portion engages the rim portion; and,

a pressing mechanism comprising a holding portion and a flat portion,
smaller in diameter than the strainer container, to allow the pressing
mechanism to be inserted inside the strainer container.

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9. An integrated system comprising:

at least one lifting mechanism connected to a pot;

at least one handle operatively connected to a container having a
plurality of openings;

wherein the container and the at least one handle have first and second
positions relative to the pot and the at least one lifting mechanism; and,

a press comprising a holding portion and a flat portion, having a
diameter that allows the press to be inserted inside the strainer container.

16. A method of using an integrated system comprising:

providing:

a first handle and a second handle;

a first container attached to the first handle and a second container
attached to the second handle;

wherein the second container comprises a plurality of openings;

a first lip portion, having a first side and a second side, around a
perimeter of the first handle and first container;

a second lip portion, having a first side and a second side, around a
perimeter of the second handle and second container;

a pressing mechanism comprising a holding portion and a flat portion,
smaller in diameter than the second container;

placing the second container into the first container;

engaging the first handle with the second handle;

mating the first side of the first lip portion with the second side of the
second lip portion; and
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inserting the pressing mechanism into the second container, to press
the food to remove additional liquid.

The Examiner relies on the following prior art references as evidence
of unpatentability:
Page 1,176,239 Mar. 21, 1916
Carlson Des. 327,609 Jul. 7, 1992
Davis Des. 347,964 Jun. 21, 1994
Shimazaki 5,957,038 Sep. 28, 1999
Stepanova 6,568,314 B1 May 27, 2003

The rejections as presented by the Examiner are as follows:
1. Claims 1-15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shimazaki in view of Page.
2. Claims 1-9, and 11-15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Stepanova in view of Page.
3. Claims 16-20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shimazaki in view of Page and further in view of
Carlson or Davis.
With regard to apparatus claims 1 and 9, the Examiner finds that
Shimazaki and Stepanova disclose all the features of these claims, except for
a pressing mechanism (claim 1) and a press (claim 9) (Ans. 3 and 4). The
Examiner finds that Page discloses a pressing mechanism for use in a
strainer-cooker (Ans. 3 and 4). The Examiner concludes that it would have
been obvious to combine the pressing mechanism of Page with Shimazaki’s
or Stepanova’s strainer because Page teaches the benefit of pressing
vegetables which are being cooked within an inner receptacle (i.e., strainer)
as a cooking aid (Ans. 3-5).
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With regard to method claims 16 and 19, the Examiner finds that
Shimazaki discloses all of the features of these claims, except for the
pressing mechanism/step and the lip portions around the perimeter of the
handles (Ans. 5). The Examiner finds that Page discloses the press and its
use to remove liquids from foodstuffs (Ans. 5). The Examiner further finds
that Carlson or Davis discloses a lip extending around the perimeter of the
strainer, including the handles (Ans. 5). The Examiner concludes that it
would have been obvious to have the lip portions of Shimazaki extend
around the perimeter of the handles as in either Carlson or Davis, since
Carlson or Davis depict joining a container and pot and respective handles
together into an integral unit with the lip portion and because Shimazaki
teaches the handles can be any configuration allowing grasping of both
handles together (Ans. 5).
Appellant separately argues independent claims 1, 9, 16, and 19.
Accordingly, with regard to the rejections over Shimazaki in view of Page
and Stepanova in view of Page, we select claims 1 and 9 on which to decide
the appeal. With regard to the rejection over Shimazaki in view of Page and
further in view of Carlson or Davis, we select claims 16 and 19 on which to
decide the appeal.

OPINION
35 U.S.C. § 103 REJECTIONS OVER SHIMAZAKI IN VIEW OF PAGE,
AND STEPANOVA IN VIEW OF PAGE: CLAIMS 1 AND 9

Appellant argues that Shimazaki and Stepanova fail to disclose a
“cooker assembly having a handle and container, with a lip portion around
the perimeter of the cooker assembly; a strainer assembly having a handle
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and container, with a rim portion around the perimeter of the strainer
assembly, wherein the lip portion engages the rim portion” as recited in
claims 1 and 9 (Br. 5 and 8). Appellant contends the cooker assembly claim
feature and the strainer assembly claim feature implies that the lip or rim
extends around the entire assembly including the handle (Reply Br. 3-5).
Appellant argues that the Specification shows that the lip or rim extends
substantially around the entire perimeter of the cooker assembly and the
strainer assembly such that the perimeter features of the lip and rim should
be construed as extending in such a manner (Br. 6 and 8). Appellant
contends that there is no motivation to combine Page’s press with
Shimazaki’s cooking pot with a multifunctional top (i.e., a cooker-strainer)
absent hindsight (Br. 7).
The Examiner construes the claim 1 features of a lip extending around
“a perimeter” of the cooker assembly and a rim extending around “a
perimeter” of the strainer assembly as not requiring the lip and rim to extend
around the entire perimeter (i.e., the handle and containers of each assembly)
(Ans. 6). The Examiner further construes claim 9 as not requiring the
argued rim and lip features (Ans. 6). We agree with the Examiner.
During examination, claim terms are given their broadest reasonable
interpretation consistent with the Specification. In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The Patent and Trademark
Office applies to the claim terms the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant's Specification. In re Morris, 127 F.3d 1048,
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1054 (Fed. Cir. 1997). It is improper during examination to read limitations
from the Specification into the claims. In re Zletz, 893 F.2d 319, 321-22
(Fed. Cir. 1989).
We are not persuaded by Appellant’s argument that claims 1 and 9
require that the lip and rim extend around the perimeter of the handle and the
container comprising the cooker assembly and the strainer assembly,
respectively. Appellant’s argument is directed to limitations that are not
required by claims 1 and 9. Specifically, there is no requirement that the lip
and rim extend around both the handle and carrier of the cooker assembly
and strainer assembly, respectively. Rather, as evinced by Appellant’s
reliance on the Specification (Br. 6), only Appellant’s Specification indicates
that the lip and rim extend around both the handle and the container of the
cooker assembly and strainer assembly, respectively. While claims are
interpreted in light of the Specification, it is improper to read, as Appellant
appears to suggest that we should in this appeal, limitations from the
Specification into the claims. Zletz, 893 F.2d at 321-22.
The Examiner correctly construes claim 1 as merely requiring that the
lip and rim extend around “a perimeter” (i.e., any perimeter or portion
thereof) of the cooker assembly and the strainer assembly respectively (Ans.
6). Properly construed, the claim features of a lip and a rim extending
around a perimeter are satisfied by Shimazaki’s rim 7 (i.e., the lip) and
support portion 8 (i.e., the rim), respectively, or Stepanova’s rim 3 (i.e., the
lip) and the hoop 8 (i.e., the rim), respectively.
Regarding claim 9, we agree with the Examiner that the argued lip
and rim claim features are not required by the claim. Claim 9 does not even
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recite a lip and a rim. Accordingly, Appellant’s arguments directed to such
features are not persuasive regarding claim 9.
Appellant’s hindsight argument is also without persuasive merit. The
Examiner has provided motivation from the references for the combination
of Page’s press with Shimazaki’s or Stepanova’s cooking device with a
reversible multifunction top: to provide the apparatuses with Page’s benefit
of pressing vegetables which are being cooked within the inner receptacle as
a cooking aid (Ans. 3-5). Appellant has not rebutted the Examiner’s
motivation.
We add that combining Page’s press with Shimazaki’s or Stepanova’s
cooking device with a reversible multifunction top would have been obvious
because such is merely the predictable use of a prior art element (i.e., the
press in a cooker-strainer device) according to its established function (i.e.,
pressing foodstuffs to remove water). KSR Int’l Co. v. Teleflex Inc.,
127 S. Ct. 1727, 1740 (2007).
For the above reasons, we sustain the Examiner’s § 103 rejections of
claims 1-15 over Shimazaki in view of Page and claims 1-9, and 11-15 over
Stepanova in view of Page.

35 U.S.C. § 103 REJECTION OVER SHIMAZAKI IN VIEW OF PAGE
AND FURTHER IN VIEW OF CARLSON OR DAVIS: CLAIMS 16 AND
19

Appellant argues that the Carlson and Davis design patents can only
be relied upon for disclosing an ornamental design and do not teach the
benefits as stated by the Examiner (Br. 9). Appellant contends the
combination is based on impermissible hindsight (Br. 9).
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We have considered all of Appellant’s arguments and are unpersuaded
for the following reasons.
Design patents may be properly cited in a rejection of a utility patent
application. In re Aslanian, 590 F.2d 911, 914 (CCPA 1979). In
determining what a design patent teaches or fairly suggests to one skilled in
the art, it must be remembered that although patentability of a design may
not be based upon functional considerations, the specific disclosure of
structure in a design patent application may inherently teach functional
features. Id.
In view of the court’s statement in Aslanian, Appellant’s argument
that design patents can only be relied on for disclosing an ornamental feature
is without persuasive merit. In fact, Carlson’s or Davis’ figures would have
disclosed to one of ordinary skill in the art that first and second lips
extending around the perimeter of the handle and the container of a strainer
and the handle and container portion of an underlying bowl permits the
nesting of the strainer with the bowl (e.g., Carlson, Fig. 8; Davis, Fig. 8).
Stated differently, Carlson’s or Davis’ figures disclose the functional benefit
of providing first and second lips extending around the perimeter of the
handle and container of the strainer and the perimeter of the handle and
container of the underlying bowl structure, respectively.
Because we find, as the Examiner did, that Carlson or Davis disclose a
functional benefit of permitting the nesting or joining of the strainer and an
underlying bowl by using a first lip and second lip arrangement as claimed,
we do not find the Examiner’s combination of references to be based on
impermissible hindsight. Rather, as the Examiner correctly indicates,
Carlson or Davis discloses the functional features of a first lip and second lip
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arrangement extending around the perimeter of the handles and the
containers of the cooker and strainer in a cooker-strainer device. The
Examiner further correctly finds that Shimazaki discloses a cooking pot
having a reversible top with a handle 3 and a raised support portion 8 (i.e., a
second lip portion in claims 16 and 19) around the bowl-like body portion
12, and pot 1 with handle 4 and a rim 7 (i.e., first lip in claims 16 and 17)
around the pot, wherein the handles (3 and 4) having any configuration
allowing grasping of both handles together (Ans. 5). Accordingly, from
these disclosures, we agree with the Examiner that it would have been
obvious to modify Shimazaki’s handles of the device used in the method to
have a first and second lip support portions in view of Carlson’s or Davis’
disclosure that the first and second lip arrangement permits the strainer and
bowl to nest and be made integral. Appellant has not rebutted the
Examiner’s motivation statement.
We further note that Appellant has not contested the combination of
Page’s press with the combination of Shimazaki’s method of using a
cooking pot with a reversible multifunctional top in view Carlson or Davis.
Nevertheless, for the reasons given previously in our discussion of the
rejection over Shimazaki in view of Page, there is suggestion for the
combination of Page’s press with Shimazaki’s method of using a cooking
pot.
We add that combining Page’s press and Carlson’s or Davis’ lips
extending around the handles and containers with Shimazaki’s method of
using a cooking pot with a reversible multifunction top would have been
obvious because such is merely the predictable use of prior art elements (i.e.,
the press and lips) according to their established functions (i.e., pressing
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foodstuffs to remove water, and nesting or joining two pieces to make them
integral). KSR, 127 S. Ct. at 1740.
For the above reasons, we sustain the Examiner’s § 103 rejection of
claims 16-20 over Shimazaki in view of Page and further in view of Carlson
or Davis.
DECISION
The Examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED

cam

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