Ex Parte Lloyd

Board of Patent Appeals and Interferences

Apr 18, 2011

11049390 (B.P.A.I. Apr. 18, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ERNEST L. LLOYD
____________

Appeal 2009-012749
Application 11/049,390
Technology Center 3700
____________

Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY and
FRED A. SILVERBERG, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
final decision rejecting claims 1, 3-12 and 14-18. More specifically, the
Examiner rejects under 35 U.S.C. § 103(a):
claims 1 and 8 as being unpatentable over Moore (US
2005/0172949 A1, publ. Aug. 11, 2005), Wang (US 6,545,252
B2, issued Apr. 8, 2003) and Kimbrough (US 3,722,498, issued
Mar. 27, 1973);

Appeal 2009-012749
Application 11/049,390

2
claims 3-7 and 14 as being unpatentable over Moore, 1
Wang, Kimbrough and McLemore (US 6,941,857 B2, issued 2
Sep. 13, 2005); and 3
claims 9-12 and 15-18 as being unpatentable over Moore, 4
Wang, Kimbrough and Higley (US 5,628,242, issued May 13, 5
1997). 6
Claims 2 and 13 have been cancelled. Claims 1, 14 and 15 are independent 7
claims. We have jurisdiction of this appeal under 35 U.S.C. § 6(b). 8
We REVERSE. 9
Claim 1 is illustrative of the claims on appeal: 10
1. A cooking apparatus comprising: 11
an outer pot having a bottom wall and a peripheral 12
wall being attached to and extending 13
upwardly from said bottom wall, said 14
bottom wall having an upper surface being 15
substantially planar and horizontally 16
oriented; 17
a heating assembly being attached to said outer pot 18
and being adapted for selectively heating 19
said outer pot; 20
an actuator being operationally coupled to said 21
heating assembly for selectively turning said 22
heating assembly on or off, said actuator 23
including; 24
a timer being adapted for turning off said 25
heating assembly after a selectable 26
amount of time has expired; 27
an inner pot having a lower wall and a perimeter 28
wall being attached to and extending 29
upwardly from said lower wall, said inner 30
pot having a size adapted for being 31
removably positionable in said outer pot, 32
Appeal 2009-012749
Application 11/049,390

said perimeter wall having a plurality of 1
apertures extending therethrough; and 2
a drain valve being fluidly coupled to said outer 3
pot. 4
(Italics added.) Independent claims 14 and 15 each recite a “cooking 5
apparatus comprising: an outer pot having a bottom wall . . . , said bottom 6
wall having an upper surface being substantially planar.”1 7
Moore describes a cooking apparatus for preparing food 8
including a vessel 12 for containing a fluid (cooking oil) and an article of 9
food (turkey); a burner 20 positioned underneath the vessel 12; an 10
electrically controllable valve 28 for supplying gaseous fuel to the burner 20; 11
a thermocouple 22 to sense a temperature of a flame from the burner 20; and 12
a thermally actuated switch 26 electrically coupled in series between the 13
thermocouple 22 and the electrically controllable valve 28. (Moore, para. 14
[0020], [0025] and [0027]). Moore lacks a detailed description of the 15
structure of the bottom wall upper surface of vessel 12. 16
The Appellant correctly contends that Moore lacks “an outer pot 17
having a bottom wall . . . , said bottom wall having an upper surface being 18
substantially planar and horizontally oriented.” (See Br. 9) (italics in 19
original). The Appellant points out that although the outer and lower surface 20
of Moore’s vessel 12 is visible in Figure 7A, the upper surface of the bottom 21
wall of vessel 12 is not visible. (Br. 10). Figure 4 of Moore depicts a 22
portion of the upper surface of the bottom wall of the vessel 12. 23
Nevertheless, the portion depicted is insufficient to support a finding that the 24

1 It appears that the Appellant may have intended to describe this
element, at least in part, on page 4 of the Specification. We note that the
Specification, as originally filed, omitted a page numbered 4.
Appeal 2009-012749
Application 11/049,390

upper surface of the bottom wall of the vessel 12 is substantially planar or 1
horizontally oriented. The remainder of Moore’s description is insufficient 2
to find that the upper surface of the bottom wall of vessel 12 is substantially 3
planar or horizontally oriented. 4
The Examiner finds that Moore describes “a cooking outer pot 12 5
with a flat bottom.” (Ans. 3). The Examiner supports this finding by 6
referring to Moore’s Figures 1, 2 and 7A, and paragraphs [0025] and [0027]. 7
(Id.). Additionally the Examiner reasons Moore gives “no indication that the 8
cooking pot is constructed unconventionally, that is otherwise than formed 9
of ordinary sheet metal. It is a frying pot, and as such it must be assumed to 10
have the conventional flat bottom of a frying pot.” (Ans. 6) (italics added). 11
On the other hand, the Appellant points out the Examiner’s finding that 12
Moore’s vessel 12 has a flat bottom does not imply Moore’s vessel 12 has a 13
bottom wall with an upper surface which is substantially planar or 14
horizontally oriented. (See Br. 10). The Examiner’s reasoning is 15
unpersuasive because it is speculative concerning the method by which the 16
vessel 12 is manufactured. 17
The Examiner has not found that Wang or Kimbrough describes “an 18
outer pot having a bottom wall . . . said bottom wall having an upper surface 19
being substantially planar and horizontally oriented.” As such, the 20
Appellant correctly contends that a prima facie case of obviousness has not 21
been made. (Id.). We do not sustain the rejection of claims 1 and 8 under 22
§ 103(a) as being unpatentable over Moore, Wang and Kimbrough because 23
the Examiner’s conclusion of obviousness lacks rational underpinning. 24
Regarding claims 3-7 and 9-12, the Examiner has not found that 25
McLemore or Higley describes an outer pot having an upper surface of a 26
Appeal 2009-012749
Application 11/049,390

bottom wall that is substantially planar or horizontally oriented. As such, we 1
do not sustain the rejection of claims 3-7 under § 103(a) as being 2
unpatentable over Moore, Wang, Kimbrough and McLemore; the rejection 3
of claims 9-12 under § 103(a) as being unpatentable over Moore, Wang, 4
Kimbrough and Higley; the rejection of claim 14 under § 103(a) as being 5
unpatentable over Moore, Wang, Kimbrough and McLemore; or the 6
rejection of claims 15-18 under § 103(a) as being unpatentable over Moore, 7
Wang, Kimbrough and Higley. 8
9
DECISION 10
We REVERSE the Examiner’s decision rejecting claims 1, 3-12 and 11
14-18. 12
13
REVERSED 14
15
16
17
Klh 18