Ex Parte Patton

Patent Trial and Appeal Board

Jul 31, 2017

13405412 (P.T.A.B. Jul. 31, 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.
13/405,412 02/27/2012 Rick D. Patton 3840
94661
Riok D Patton
7590 07/31/2017 EXAMINER
1801 W. Washington St.
Boise, ID 83702
NGUYEN, PHUONG T
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
07/31/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICK D. PATTON1
Appeal 2015-007745
Application 13/405,412
Technology Center 3700
Before MICHAEL L. HOELTER, ERIC C. JESCHKE, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
1 The real party in interest identified by Appellant is Rick D. Patton.
Appeal 2015-007745
Application 13/405,412
STATEMENT OF THE CASE
Appellant Rick D. Patton appeals under 35 U.S.C. § 134(a) from the
Examiner’s decision, as set forth in the Final Office Action dated October 8,
2014 (“Final Act.”), rejecting claims 1—9.2 We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
THE CLAIMED SUBJECT MATTER
The claims are directed to a food smoker adapter. Claim 1, the only
independent claim on appeal, is reproduced below with disputed limitations
italicized for emphasis:
1. [A] food smoker adapter for use with a heat source, which
heats wood chips generating smoke to provide flavor and
preservation to food products, the food smoker adapter
comprising:
a. a smoke chamber, the top of the smoke chamber
covered by a lid and the bottom of the smoke chamber resting
on a wood chip pan;
b. the lid includes a top and sides, the sides are shaped to
fit to the top of the smoke chamber, tabs are formed to protrude
from sides of the lid and fit into corresponding holes in the
smoke chamber, vertical cuts are placed in the lid to either side
of each tab allowing the side to be flexed to move the tab, the
side of the lid is flexed to insert the tab in the corresponding
hole in smoke chamber and the side of the lid is flexed to
remove the tab from the hole, a handle is attached to the lid for
lifting the lid, removing the tabs from the hole enables lid
removal from the smoke chamber, with the tabs inserted in the
smoke chamber holes the lid is attached to the smoke chamber
and lifting the lid lifts the smoke chamber providing access to
the wood chip pan;
2 Claim 10 is withdrawn. Appeal Brief, dated March 4, 2015, at Claims
Appendix 3 (“Br.”).
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Appeal 2015-007745
Application 13/405,412
c. The wood chip pan has a flat bottom providing a stable
base for the food smoker adapter the sides of the wood chip pan
fit the base of the smoke chamber and support the smoke
chamber.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Miwa US 4,617,452 Oct. 14, 1986
Stoll US 4,919,267 Apr. 24, 1990
Parris US 5,768,977 June 23, 1998
Elwedini US 2004/0089163 A1 May 13,2004
REJECTIONS
The Examiner made the following rejections:
1. Claims 1, 2, and 7—9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Parris and Miwa.
2. Claims 3, 4, and 6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Parris, Miwa, and Elwedini.
3. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Parris, Miwa, and Stoll.
Appellant seeks our review of these rejections.
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Appeal 2015-007745
Application 13/405,412
DISCUSSION
As part of the rejection of independent claim 1, the Examiner finds
that Parris discloses a smoke chamber and Miwa discloses the lid/tab
structure recited in claim 1. The Examiner’s annotated Figure 4 of Miwa
presented below:
Final Act. 4. In the Examiner’s annotated Figure 4, a partial view of the
lock mechanism of Miwa’s rice cooker, the Examiner labels the structure
which the Examiner finds corresponds to claim 1. According to the
Examiner, Miwa discloses:
a tab (52, 62, fig.4) is formed to protrude from sides of a lid
(24, fig.4) and fit into corresponding hole (H, figure of Miwa)
in the chamber (10, fig.4), vertical cut [distance between 52 and
62 is considered as vertical cut] is placed in the lid (24) to either
side of each tab allowing the side to be flexed to move the tab
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Appeal 2015-007745
Application 13/405,412
(52, 62), the side of the lid (24) is flexed to insert the tab (52,
62) in the corresponding hole in chamber (10) and the side of
the lid (24) is flexed to remove the tab (52, 62) from the hole,
removing the tab (52, 62) from the hole enables lid (24)
removal from the chamber (10), with the tab (52, 62) inserted in
the smoke chamber hole the lid (24) is attached to the chamber
(10).
Final Act. 3.
Appellant contends that the rejection is erroneous because, among
other reasons, Miwa’s tab/lid structure does not disclose the structural
limitations recited in claim 1. Br. 8—12. We agree with Appellant for
several reasons. Contrary to the Examiner’s finding, Miwa does not disclose
that “vertical cuts are placed in the lid to either side of each tab allowing the
side to be flexed to move the tab,” as required by claim 1. Tab 52, 62
merely protrudes from the lid 24, and there is no indication that the “distance
between 52 and 64 is [a] vertical cut” as recited (as the Examiner states).
See Miwa Fig. 4; Final Act. 3.
Furthermore, contrary to the Examiner’s finding, Miwa’s tab does not
“fit into corresponding holes in the smoke chamber” so that “with the tabs
inserted into the smoke chamber holes[,] the lid is attached to the smoke
chamber and lifting the smoke chamber provides] access the to the wood
chip pan,” as required by claim 1. Tab 52, 62 passes through Miwa’s hole
H, but do not physically engage hole H (as identified by Appellant). Br. 4.
Instead, tab 52, 62 physically engages edge 54. Id. Thus, in the Examiner’s
proposed modification of Parris, when tab 52, 62 is inserted into hole H, the
lid is not attached to the smoke chamber and lifting the lid does not lift the
smoke chamber, as required by claim 1. To lift the smoke chamber as
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Appeal 2015-007745
Application 13/405,412
recited, tab 52, 62 must physically engage edge 54, not hole H. Miwa’s hole
H does meet the structural limitations in claim 1.
Contrary to the Examiner’s finding, the side of Miwa’s lid does not
“flex to insert the tab in the corresponding hole in the smoke chamber” and
flex “to remove the tab from the hole,” as required by claim 1. While the
protruding tab 52, 62 may flex to engage and disengage from edge 54, the
side of Miwa’s lid 24 is structurally rigid and does not flex. Miwa 4:27-45,
Fig. 4.
We agree with Appellant that Miwa does not disclose a tab/lid
structure as recited in claim 1. Parris, Elwedini, and Stoll do not remedy the
deficiencies of Miwa. For this reason, the rejections of independent claim 1,
and claims 2—9, which depend from claim 1, are not sustained.
DECISION
For the above reasons, the Examiner’s rejections of claims 1—9 are
REVERSED.
REVERSED
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