Ex Parte Mafi

Patent Trial and Appeal Board

Dec 22, 2017

13616648 (P.T.A.B. Dec. 22, 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.
13/616,648 09/14/2012 Masoud Mafi 6.0002.1 2941
103968 7590
Ryan Alley IP
(General Docket)
P.O. Box 87
Alexandria, VA 22313
EXAMINER
SMITH, PRESTON
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
12/27/2017 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):
office @ alleylegal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MASOUD MAFI
Appeal 2017-006303
Application 13/616,648
Technology Center 1700
Before TERRY J. OWENS, RAE LYNN P. GUEST, and
SHELDON M. McGEE, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-10 and 20-29. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellant claims a food smoker. Claims 1 and 20 are illustrative
1. A smoker comprising:
a body defining an internal cavity sized to contain a
smoking material, wherein,
the body includes at least one air inlet,
the body includes at least one exhaust point, and
the air inlet and the exhaust point are sized and
positioned to cause an oxygen flow from the inlet to the exhaust
point of approximately 1.5E-5 to approximately 3.5E-5 grams
Appeal 2017-006303
Application 13/616,648
per second per cubic inch volume of the internal cavity by
convection when filled with the smoking material of no less
than 0.3 porosity in an atmospheric cooking environment of at
least 200 degrees Fahrenheit, wherein the oxygen flow rate
prevents fire and full combustion of the smoking material when
in the smoker.
20. A smoker comprising:
a body defining an internal cavity of about 60 cubic
inches, wherein at least one side of the body is solid except for
only four 2-millimeter holes spaced along a length of the body
so as to allow only a limited amount of oxygen into the body
under atmospheric cooking conditions and prevent full
combustion and enhance smoking of materials placed in the
internal cavity, and wherein the body includes at least one
exhaust point on another side; and a connector configured to
join a handle to the body.
The References
Cofer US
Brintle US
Jonas US
Kuopus US
Polkinghom US
5,048,406 Sept. 17, 1991
5,782,164 July 21, 1998
6,019,035 Feb. 1,2000
6,041,695 Mar. 28, 2000
2008/0078374 A1 Apr. 3, 2008
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1-
4, 6-10, 20-26, and 28 over Cofer in view of Kuopus, claims 1, 2, 4, 6-8,
10, 26, and 28 over Jonas in view of Kuopus, claim 5 over Jonas in view of
Kuopus and Polkinghom, and claims 27 and 29 over Jonas in view of
Kuopus and Brintle.
OPINION
We affirm the rejection over Cofer in view of Kuopus and reverse the
rejections involving Jonas.
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Application 13/616,648
Rejection over Cofer in view of Kuopus
The Appellant argues only the independent claims (1, 20, and 28)
(App. Br. 6-14). We therefore limit our discussion to those claims. The
dependent claims stand or fall with the independent claim from which they
depend. See 37 C.F.R. § 41.37(c)(l)(iv) (2012).
Cofer discloses a wood fragment-containing food smoker
cartridge (10) which “can contain draft vent perforations to allow enough air
to flow in to promote charring without allowing ignition, and smoke to flow
directably out” (Abstract; col. 2,11. 52-55; col. 6,11. 23-29, 36-39). The
cartridge (10) can have draft ventilation perforations (14A), also referred to
as “draft ventilation holes,” on its bottom side, and exhaust slotted
perforations (14B) on its top side (col. 3,11. 45-53; col. 4,11. 32-33;
Fig. IB).1
The Appellant asserts that “[t]he smoker 10 in Cofer has vastly
different parameters that create far larger volumetric flow rates from those
claims [1 and 28]. . . . much larger perforations 14A - multiple, large slits
across an arc on the scale of inches - for a smaller smoker 10” (App. Br. 9).
The Appellant does not point out, and it is not apparent, where Cofer
discloses perforations 14A in the form of large slits. Cofer discloses slotted
perforations (14B, 14E) (col. 3,11. 51-52; col. 5,1. 18), but describes 14A as
1 Consistently with Cofer, Kuopus uses an elongate wood-receiving chamber
“which has just enough air holes to allow charring, but to prevent actual full
combustion of the wood to thereby provide the full effect of smoke for
smoking purposes” (col. 1,11. 37^10), where “[cjharring as opposed to full
combustion is achieved by reason of the limited number of apertures 36
provided to thereby control the amount of oxygen provided to wood
contained within the compartment 34” (col. 5,11. 31-33).
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Application 13/616,648
“perforations” and “holes,” not “slotted perforations” (col. 3,1. 47; col. 4,
11. 31-33), and does not illustrate perforations 14A as being slotted.
The Appellant asserts that “the recited low — but non-zero - oxygen
availability under otherwise atmospheric cooking conditions above
200 degrees F produces an optimal level of smoke” (App. Br. 8), “[t]he
claimed specific oxygen through-flow rate can be achieved through a natural
convection device only if inlet and outlet are carefully sized relative to the
smoker volume under these cooking conditions” {id.), “there is no
motivation from Kuopus or Cofer to reconfigure their smoking devices
down into the much lower volumetric oxygen flow rates caused by 4
[2]-millimeter holes in a solid side opposite an outlet as recited in claim 20”
(App. Br. 14), and “the Examiner’s rationale amounts to a mere assertion
that the size of the holes in Cofer could be adjusted to reach the claimed air
flow rates under the recited conditions. This reconfiguration capability
could be true, but there is still no motivation for why a person skilled in the
art would so reconfigure Cofer” (App. Br. 10).
The Appellant’s claim 1 requires that “the air inlet and the exhaust
point are sized and positioned to cause an oxygen flow from the inlet to the
exhaust point of approximately 1.5E-5 to approximately 3.5E-5 grams per
second per cubic inch volume of the internal cavity by convection when
filled with the smoking material of no less than 0.3 porosity in an
atmospheric cooking environment of at least 200 degrees Fahrenheit,
wherein the oxygen flow rate prevents fire and full combustion of the
smoking material in the smoker,” claim 20 requires that “at least one side of
the body is solid except for only four 2-millimeter holes spaced along a
length of the body so as to allow only a limited amount of oxygen into the
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Application 13/616,648
body under atmospheric cooking conditions and prevent full combustion and
enhance smoking of materials placed in the internal cavity,” and claim 28
requires “an air flow mechanism configured to produce an oxygen flow into
the body of approximately 1.5E-5 to approximately 3.5E-5 grams per second
per cubic inch volume of the internal cavity when the body is filled with the
smoking material having at least 0.3 porosity and exposed to at least
200-degree Fahrenheit cooking conditions.” The Appellant states that “a
limited amount of air and oxygen availability throughout an enclosed
smoking box improves oxygen absorption/combustion and smoke
availability to food cooked alongside the box, producing improved smoky
flavoring and/or appearance” (Spec. ^ 15) and that “Applicant has
determined that a maximum oxygen consumption rate between
approximately 1.5E-5 to 3.5E-5, such as approximately 2.5E-5, grams of
oxygen per second per cubic inch of smoker volume achieves the
above-described optimality, resulting in optimal smoke creation from
smoking material and outflow into an enclosed cooking space for food
flavoring, without catching the smoking material on fire” (id.). The
Appellant, therefore, for a particular smoking material porosity (any porosity
of at least 0.3), chooses the body temperature (any temperature over 200°F)
and the limited oxygen inlet flow (obtained by limiting the air inlet size)
which produces optimal food smoky flavoring and/or appearance without
catching the smoking material on fire. Likewise, Cofer uses smoker bottom
perforations/holes (14A) for draft ventilation which “allow enough air to
flow in to promote charring without allowing ignition” such that the smoker
pleasantly flavors food by the smoke it emits (Abstract; col. 1,11. 9-11;
col. 3,11. 45-53; col. 4,11. 32-33; col. 6,11. 25-29). Cofer, therefore, would
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Application 13/616,648
have led one of ordinary skill in the art, through no more than ordinary
creativity, to choose the air inlet size which provides (for a cartridge
temperature within the broad suitable range including at least 200°F and a
wood chip porosity within the broad suitable range of at least 0.3) the inlet
oxygen flow, including values such as the Appellant’s about 1.5E-5 to
3.5E-5 grams per second per cubic inch of cylinder (20) volume, which
optimizes the desired food smoky flavor without catching the wood chips on
fire. See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (in making
an obviousness determination one “can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ”).
The Appellants assert that “[t]he ‘air inlet’ and ‘exhaust point,’
introduced as parts of the recited ‘body,’ are separate elements from the
later-introduced ‘air flow mechanism’ in claim 28” (Reply Br. 6) and that
the air flow mechanism is a mechanism “such as a fan, blower, or air
injector” (App. Br. 6).
“‘[Djuring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.’” In re
Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re
Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). The Appellant’s Specification
states that “[djesired airflow rates can be achieved through natural
convection and proper placement of air inlets and exhausts, or through
forced airflow mechanisms like blowers” (Spec. ^ 4). The Appellant’s
claim 28, however, merely requires an airflow mechanism, not a forced
airflow mechanism. Thus, the broadest reasonable interpretation of the
Appellant’s claim term “airflow mechanism” consistent with the
Specification encompasses Cofer’s air inlet perforation/hole and exhaust slot
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sizing and placement for achieving airflow by draft ventilation (col. 3,
11. 45-53; col. 4,11. 31-33; Fig. IB).
For the above reasons we are not persuaded of reversible error in the
rejection over Cofer in view of Kuopus.
Rejections involving Jonas
We need address only the independent claims (1 and 28).2
Claim 1 requires that “the body includes at least one air inlet, the body
includes at least one exhaust point, and the air inlet and the exhaust point are
sized and positioned to cause an oxygen flow from the inlet to the exhaust
point.” Claim 28 requires that “the body includes at least one air inlet and at
least one exhaust point opposite the air inlet in the body to permit flow into
and out of the body.” To meet those claim requirements the Examiner relies
upon Jonas (Ans. 7-8).
Jonas discloses a food smoker having apertures (22) in an upper 1/3
portion of a cylinder (20) so that hot air rising from a heat source flows into
the apertures less quickly, thereby slowing the burning of wood chips in the
cylinder (20) (col. 3,11. 55-59; Fig. 3).
The Examiner finds that “Jonas teaches a smoker having a body with
an air inlet and outlet (holes to the left of Fig 2 are the exhaust points and
holes at the bottom (to the right) are the air inlet points)” (Ans. 7).
The Examiner does not establish that in Jonas’ Figure 2, air enters
only through the holes to the right and smoke exhausts only from the holes
to the left. Jonas indicates that each of the apertures (22) in the upper 1/3
2 The Examiner does not rely upon Polkinghom or Brintle for any disclosure
that remedies the deficiency in the references applied to the independent
claims as to the limitations in those claims (Ans. 9-10).
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Application 13/616,648
portion of the cylinder (20) serves as both an air inlet and an exhaust outlet
(col. 3,11. 55-59; Figs. 1, 5). The Examiner does not establish that when
apertures serve both of those functions there can be “flow from the inlet to
the exhaust point” as required by the Appellant’s claim 1 or “at least one
exhaust point opposite the air inlet” as required by the Appellant’s claim 28.
Accordingly, we reverse the rejections involving Jonas.
DECISION/ORDER
The rejection of claims 1—4, 6-10, 20-26, and 28 under
35 U.S.C. § 103 over Cofer in view of Kuopus is affirmed. The rejections
under 35 U.S.C. § 103 of claims 1, 2, 4, 6-8, 10, 26, and 28 over Jonas in
view of Kuopus, claim 5 over Jonas in view of Kuopus and Polkinghom, and
claims 27 and 29 over Jonas in view of Kuopus and Brintle are reversed.
It is ordered that the Examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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