Ex Parte Mills et al

Patent Trial and Appeal Board

Jan 22, 2018

13274600 (P.T.A.B. Jan. 22, 2018)

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.
13/274,600 10/17/2011 Nigel G. MILLS 38141/09000/60628 2341
148433 7590 01/24/2
McNair Law Firm, P.A.
McNair Law Firm, P.A.
Bank of America Corporate Center
101 South Tryon Street, Suite 2610
Charlotte, NC 28280
EXAMINER
DUNIVER, DIALLO IGWE
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
01/24/2018 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):
mcnairip @ mcnair.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NIGEL G. MILLS, RICHARD W. CARTWRIGHT,
and RICHARD A. KICE
Appeal 2017-0022911
Application 13/274,6002
Technology Center 3700
Before ANTON W. FETTING, NINA L. MEDLOCK, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Our Decision references the Appeal Brief (“Appeal Br.,” filed Mar. 3,
2016) and Reply Brief (“Reply Br.,” filed Dec. 5, 2016), and the Examiner’
Answer (“Ans.,” mailed Oct. 5, 2016); Advisory Action (“Adv. Act.,”
mailed Dec. 4, 2015); and Final Office Action (“Final Act.,” mailed Aug.
28, 2015).
2 According to Appellants, the real party in interest is Illinois Tool Works,
Inc. Appeal Br. 1.
Appeal 2017-002291
Application 13/274,600
BACKGROUND
According to Appellants, “[ejxample embodiments [of the invention]
generally relate to ovens and, more particularly, relate to an oven that is
enabled to cook food with multiple energy sources and adaptively account
for the energy added by each respective source.” Spec. ^ 1.
ILLUSTRATIVE CLAIM
Claim 1 is illustrative of the appealed claims and recites:
1. An oven comprising:
a cooking chamber configured to receive a food product;
a user interface configured to display information
associated with processes employed for cooking the food
product;
a first heat source providing primary heating of the food
product placed in the cooking chamber;
a second heat source providing secondary heating for the
food product; and
a cooking controller operably coupled to the first and
second heat sources to execute instructions associated with a
cooking program directing application of energy to heat the food
product via at least one of the first or second heat sources, the
cooking controller including processing circuitry configured to:
monitor energy added to heat the food product via
the first heat source in accordance with the cooking
program;
receive an indication of an operator inserted change
to a cooking parameter associated with the second heat
source; and
determine a modification to the cooking program by
employing a modification algorithm based on the cooking
parameter change, the modification algorithm including
instructions for determining a change to the energy to be
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Application 13/274,600
applied via the first heat source to achieve a selected level
of doneness associated with the cooking program,
wherein the selected level of doneness is associated
with a corresponding target energy level for the food
product, the change to the energy to be applied being
determined based on a difference between an amount of
energy provided by the first heat source up to a point in the
cooking program at which the cooking parameter change
was made, and energy remaining to achieve the
corresponding target energy level based on the cooking
parameter change associated with the second heat source.
Appeal Br. 15.
REJECTIONS3
1. The Examiner rejects claims 1-19 under 35 U.S.C. § 102(b) as
anticipated by Eck.4
2. The Examiner rejects claims 1-19 under 35 U.S.C. § 103(a) as
unpatentable over Eck in view of Buck.5
DISCUSSION
Anticipation
With respect to the rejection of independent claims 1 and 12, we are
persuaded by Appellants’ argument that the Examiner has not established
that Eck discloses a controller configured to perform the functions required
by the claim. See Appeal Br. 6-9. In particular, we find that the Examiner
3 We consider the rejection under 35 U.S.C. § 112, second paragraph, to
have been withdrawn in light of the Examiner’s statement that this rejection
was overcome by Appellants’ arguments in response thereto. See Adv.
Act. 2.
4 Eck et al., US 4,396,817, iss. Aug. 2, 1983.
5 Buck, US 4,162,381, iss. July 24, 1979.
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Application 13/274,600
has failed to show that Eck anticipates a controller that is configured to
“determine a modification to . . . [a] cooking program by employing a
modification algorithm based on the cooking parameter change,” as required
by both independent claims.
Regarding the limitation at issue, the Examiner finds:
Eck disclose that the microprocessor processing circuitry is
capable of determining a modification to the cooking program
(i.e.[,] 24, 32, 34, 29, 28, 30, 36[,] and 52) by employing a
modification algorithm (i.e. [,] series of steps) based on the
cooking parameter change and the modification algorithm
includes instructions for determining a change to the energy to
be applied via the first heat source 10 to achieve a selected level
of doneness 28 thru 30 associated with the cooking program
(i.e.[,] 24, 32, 34, 29, 28, 30, 36[,] and 52) (Col. 9, line 41 thru
Col. 10, line 31; Figures 1-2). Eck discloses that the selected
level of doneness 28 thru 30 is associated with a corresponding
target energy level for the food product, the change to the energy
to be applied being determined based on a difference between an
amount of energy provided by the first heat source 10 up to a
point in the cooking program (i.e.[,] 24, 32, 34, 29, 28, 30, 36[,]
and 52) at which the cooking program (i.e. [,] 24, 32, 34, 29, 28,
30, 36[,] and 52) at which the cooking parameter change was
made and energy remaining to achieve the corresponding target
energy level based on the cooking parameter change associated
with the second heat source 12 (Col. 9, line 41 thru Col. 10, line
41; Figures 1-2).
Final Act. 4-5.
Regarding the Examiner’s findings, we first note that the claims
require a controller “configured to . . rather than merely a controller that is
capable of determining a modification. Thus, the claims require more than a
controller capable of determining a modification, and require that the
controller is designed to accomplish the function claimed. See Aspex
Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d. 1335, 1349 (Fed. Cir.
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Application 13/274,600
2012) (noting that claim language “configured to” is construed more
narrowly than “capable of’ and holding that where claim language including
the phrase “adapted to” is to be construed consistent with “configured to”
language it requires that the structure must be “designed or configured to
accomplish the specified objective, not simply that. . . [it] can be made to
serve that purpose.”) Thus, to the extent the Examiner simply relies on
Eck’s controller as being “capable of determining a modification of the
cooking program” as claimed, the Examiner has not set forth a sufficient
showing of anticipation.
Next, we have reviewed the cited portions of Eck relied upon by the
Examiner, and we find no indication that Eck’s controller is designed or
configured to perform the specific functions required by claim 1. In
particular, we see no indication in the cited portions of Eck that Eck’s
controller is designed to determine a modification to the cooking program by
employing a modification algorithm. Eck discloses a cooking device using a
magnetron and a browning heater and including “a power sensing technique
to compute total cooking time.” See Eck col. 3,11. 15-38. Eck further
discloses that cooking programs are executed by a microprocessor and that
the microprocessor may use a food code, a selected doneness level, and
quantity of food to calculate a cooking time. See id. at col. 9,1. 41-col. 10,
1. 2. Eck also discloses that the microprocessor may adjust cooking times for
periods that the microwave generating device is off and for the various
power levels of the microwave generating device, and Eck discloses that any
inputted data may “be used to compute the actual operating times of the two
radiation devices” used in the cooking program. Id. at col. 10,11. 6-13.
However, Eck is silent regarding what occurs when and if the device
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Application 13/274,600
receives “an indication of an operator inserted change to a cooking
parameter associated with the second heat source.”
To fill this gap in Eck’s disclosure, the Examiner asserts that the
associated program for determining a modification to the cooking program is
not positively recited as a structure of the controller, and, thus, the Examiner
finds that the program could be provided by software separate from the
cooking device, such as “software on an I-pad, I-Phone, and general purpose
computer outside of the cooking area.” Ans. 4. The Examiner also indicates
that the cooking controller may include not only the processing circuitry on
the appliance, but also the operator of the appliance. Id. We disagree with
both of these findings for the reasons discussed above and the reasons
provided by Appellants. Specifically, we find that although a specific
program is not recited in the claims, the language requiring that the
controller is “configured to . . . determine a modification ...” requires that
the device itself is designed to perform the functions claimed, as discussed
above. Thus, the broadest reasonable interpretation of the claim forecloses
such functionality from being located on an external device, such as a smart
phone or computer, as suggested by the Examiner. Further, this
interpretation is consistent with the Specification, which describes only
embodiments in which the modification algorithm is executed by the
cooking controller itself. See, e.g., Spec. ^ 46. And we also agree with
Appellants that the Examiner has provided an unreasonable interpretation of
the term controller to the extent the Examiner relies on the operator of the
device as part of the controller. See Reply Br. 3. The plain language of the
claim does not support the Examiner’s interpretation as we find that one of
ordinary skill in the art would not normally consider the device’s operator to
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Application 13/274,600
be part of “a cooking controller operably coupled to the first and second heat
sources” as required by the claim. We also agree with Appellants that the
Examiner’s interpretation is not consistent with the Specification, which
does not include or contemplate the operator as part of the controller. See
Reply Br. 3; Spec. 36^13.
Based on the foregoing, we find that the Examiner has not established
that Eck discloses a device as claimed including a controller configured as
claimed, as required by both independent claims 1 and 12. Accordingly, we
do not sustain the anticipation rejection of claims 1 and 12. We also do not
sustain the anticipation rejection of dependent claims 2-11 and 13-19 for the
same reasons.
Obviousness
With respect to both independent claims 1 and 12, the Examiner
alternatively finds that the claimed devices would have been obvious over
Eck in view of Buck. However, the Examiner only appears to rely on Buck
insofar as Buck teaches a cooking device that explicitly includes an oven
cavity. See Final Act. 10-11. We see no indication that the Examiner relies
on Buck to cure the deficiencies regarding Eck discussed above, and the
Examiner has not otherwise shown, and it is not readily apparent on the
record before us, that it would have been obvious to include a controller
configured as claimed into Eck’s device in order to arrive at the claimed
device. Accordingly, we also do not sustain the obviousness rejection of
claims 1-19.
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CONCLUSION
We REVERSE the rejections of claims 1-19.
REVERSED
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