Ex Parte Pestrue

Board of Patent Appeals and Interferences

Mar 29, 2006

09971866 (B.P.A.I. Mar. 29, 2006)

1
The opinion in support of the decision being entered today was not written for
publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

_____________

Ex parte JEFFREY A. PESTRUE

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Appeal No. 2006-0376
Application No. 09/971,866

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ON BRIEF

_______________

Before CRAWFORD, GROSS and NAPPI, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134 of the final rejection of
claims 1 through 20. For the reasons stated infra we affirm-in-part the
examiner’s rejection of these claims.

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Invention

The invention relates to a gas powered grill for cooking and warming food,
which includes a side-mounted burner for placement at a lower height then the
main grill burner.
Claim 1 is representative of the invention and is reproduced below:
1. A grilling apparatus, comprising:
a cart comprising guide structure for guiding movement of an auxiliary
burner unit thereon;
a grill housing attached to the cart;
a grill disposed in the grill housing;
a main grill burner unit in the grill housing below the grill, said main grill
burner being substantially fixed in place in relation to the cart; and
an auxiliary burner unit adjustably attached to the cart and placeable at a
level below the main grill burner, said auxiliary burner unit comprising an auxiliary
burner;
wherein said auxiliary burner unit is selectively movable with respect to
said cart, and wherein normal movement of said auxiliary burner unit, relative to
said cart, is restricted by said guide structure to substantially linear movement.

References

The references relied upon by the examiner are:
Harneit 6,293,272 September 25, 2001
(filed March 25, 2000)

Reynolds 4,282,853 August 11, 1981

Rejections at Issue

Claims 1 through 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Reynolds in view of Harneit.

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Opinion
We have carefully considered the subject matter on appeal, the rejection
advanced by the examiner and the evidence of obviousness relied upon by the
examiner as support for the rejection. We have, likewise, reviewed and taken
into consideration, in reaching our decision, appellant’s arguments set forth in the
brief along with the examiner’s rationale in support of the rejection and
arguments in rebuttal set forth in the examiner’s answer.
With full consideration being given to the subject matter on appeal, the
examiner’s rejection and the arguments of appellant and the examiner, and for
the reasons stated infra we sustain the examiner’s rejections of claims 1 through
11, 13, 15 through 18 and 20 under 35 U.S.C. § 103. However, we will not
sustain the examiner’s rejection of claims 12, 14 and 19 under 35 U.S.C. § 103.

Rejection of claim 1
On pages 6 through 9 of the brief, appellant asserts that Reynolds
teaches a front-opening cabinet used for commercially broiling meats and other
foods. As such appellants argue, on page 7 of the brief, “it would not be
practical to cook in a separate pot over either of the burners of Reynolds.”
Appellant argues, “[t]he cooking apparatus of Reynolds is provided with leveling
means such as floor engaging screws (Reynolds’853, col. 2, lines 47-50). Proper

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orientation of the Reynolds stove is important to control the flow of greases and
fats therein, as discussed in column 4, lines 25-58 of Reynolds ‘870.”1 See, Brief
page 6. Thus, appellant concludes, on page 8 of the brief:
[T]he Reynolds ‘853 disclosure clearly and unequivocally teaches away
from applicant’s claimed invention of a gas grilling apparatus having an
adjustable auxiliary burner unit.
A person skilled in the art of outdoor gas grilling apparatus, would
not consider the claimed gas grilling apparatus with a height-adjustable
auxiliary burner unit to be an obvious variation of the teaching of Reynolds
‘853 reference.

Further, appellant argues on pages 11 and 12 of the brief, referring to Reynolds’
adjustable height burner “[t]his disclosed mechanism of Reynolds ‘853 is
significantly different compared to that of the claimed invention, wherein the
vertical linear movement of the auxiliary burner is achieved with a mechanism
having a vertical guide structure on which the auxiliary burner is mounted.”
In response the examiner asserts appellant’s arguments regarding
cooking in a pot are not commensurate with the scope of the claims. See answer
page 8. Further, on page 7 of the answer, regarding the use of wheels, the
examiner states:
Appellant’s claimed grilling apparatus does [not] define [a] structural
limitation or arrangement that would necessarily preclude or conflict with
the use of leveling legs used of US4282853 (REYNOLDS). Nor does the
fact that US4282853 (REYNOLDS) has leveling legs preclude or conflict

1 We note that Reynolds 4,144,870 (‘870) is relied upon by appellant to support their arguments.
However, Reynolds ‘870 is not cited in the rejection, but is related to Reynolds 4,282,853, which is
cited in the rejection.

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with the addition of wheels thereto, to make the cooking apparatus of
US4282853 (REYNOLDS) to be in the form of a readily portable or
movable “cart”.

Further, on page 9 of the answer, the examiner states:

[A]lthough Appellant’s claims characterize the invention as a “grilling
apparatus”, including a “grill” disposed in a grill housing, Appellant’s claims
lack any further limitations, or structure, which would distinguish the
claimed invention from the cooking surfaces (G1, G2) of the cooking
apparatus (i.e. - “broiler”) of US4282853 (REYNOLDS). A person having
ordinary skill in the art of apparatus used for cooking would have, at the
time of the invention, made no distinction between the broadly recited term
“grill” of the claimed invention and the heated “broiling” surfaces (G1, G2)
of US4282853 (REYNOLDS). The term “grill” meaning to “broil on a open
grill or a griddle” (Webster’s Third New International ® Dictionary,
Unabridged, Copyright © Merriam Webster)

We first consider the scope of the claim. We concur with the examiner’s
claim interpretation. In analyzing the scope of the claim, office personnel must
rely on appellant’s disclosure to properly determine the meaning of the terms
used in the claims. Markman v. Westview Instruments, Inc., 52 F.3d 967, 980,
34 USPQ2d 1321, 1330 (Fed. Cir. 1995). “[I]nterpreting what is meant by a word
in a claim ‘is not to be confused with adding an extraneous limitation appearing in
the specification, which is improper.’” (emphasis original) In re Cruciferous
Sprout Litigation, 301 F.3d 1343, 1348, 64 USPQ2d 1202, 1205, (Fed. Cir.
2002) (citing Intervet America Inc v. Kee-Vet Laboratories Inc., 887 F.2d
1050, 1053, 12 USPQ2d 1474, 1476 (Fed. Cir. 1989). Claim 1 includes the

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limitation of “a grill”, “a main grill burner” and an “auxiliary burner.” Appellant’s
specification provides no special definition for the term grill. Accordingly, we
accept the examiner’s claim interpretation. Additionally, we note that claim 1
does not recite limitations directed to using a separate pot over either of the
burners or that “movement of the auxiliary burner is achieved with a mechanism
having a vertical guide structure” as argued by appellant.
Having determined the scope of the disputed limitations in the claim we
next consider the evidence relied upon by the examiner to support the finding of
obviousness. Our reviewing court has stated “[T]he Board must not only assure
that the requisite findings are made, based on evidence of record, but must also
explain the reasoning by which the findings are deemed to support the agency’s
conclusion.” In re Lee, 277 F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir.
2002). When determining obviousness, “[t]he factual inquiry whether to combine
references must be thorough and searching.” Lee, 277 F.3d at 1343, 61
USPQ2d at 1433, citing McGinley v. Franklin Sports, Inc., 262 F.3d 1339,
1351-52, 60 USPQ2d 1001, 1008 (Fed. Cir. 2001). “It must be based on
objective evidence of record.” Id. “Broad conclusory statements regarding the
teaching of multiple references, standing alone, are not ‘evidence.’” In re
Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999). “Mere
denials and conclusory statements, however, are not sufficient to establish a

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genuine issue of material fact.” Dembiczak, 175 F.3d at 999, 50 USPQ2d at
1617, citing McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576, 1578,
27 USPQ2d 1129, 1131 (Fed. Cir. 1993). The Federal Circuit states that, “[t]he
mere fact that the prior art may be modified in the manner suggested by the
Examiner does not make the modification obvious unless the prior art suggested
the desirability of the modification.” In re Fritch, 972 F.2d 1260, 1266 n.14, 23
USPQ2d 1780, 1783-84 n.14 (Fed. Cir. 1992), citing In re Gordon, 733 F.2d
900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). In addition, our reviewing
court stated, that when making an obviousness rejection based on combination,
“there must be some motivation, suggestion or teaching of the desirability of
making the specific combination that was made by Applicant” in Lee, 277 F.3d at
1343, 61 USPQ2d at 1433 (quoting In re Dance, 160 F.3d 1339, 1343, 48
USPQ2d 1635, 1637 (Fed. Cir. 1998)).
The examiner has found that Reynolds teaches a main grill (G1), main
burner (B1) and an auxiliary burner (B2), which is movable with respect to the
housing for the grill. See page 4 of the answer. We concur with the examiner’s
findings that these burners and grill meet the claimed burners and grills. We
additionally note that Reynolds teaches that the burners are gas, see column 1,
lines 66 through column 2, line 1. As such, we do not find that the reference
teaches away from a gas grill, as appellant argues, rather we find that Reynolds

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teaches a gas grill.
The examiner finds that Harneit teaches using wheels on a gas grill and
that Harneit provides the suggestion to use the wheels on Reynolds “for the
purpose of making the apparatus readily portable.” See page 5 of the answer.
We agree with the examiner’s reasoning. Harneit teaches a portable gas grill.
See abstract. Further, Harneit teaches using wheels on the legs of the grill
cabinet “to allow the cabinet to be moved to any location desired.” See Harneit
column 4, lines 6-7. Thus, we find that Harneit provides both teaching of using
wheels on the cabinet, thereby making the cabinet a cart, and provides the
suggestion to use the wheels. We are not persuaded by appellant’s argument
that Reynolds’ use of leveling means detracts from modifying the device to use
wheels. Leveling means and wheels serve two different functions (leveling and
increased mobility), which are not contradictory. Thus, we do not find that one of
ordinary skill in the art would consider a teaching that includes leveling means to
preclude addition of wheels. Accordingly, we consider the examiner to have
presented ample evidence of obviousness and sustain the examiner’s rejection
of claim 1.

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Rejection of claim 4.
On page 12 of the brief, appellant argues:
Although Reynolds ‘853 and Harneit ‘272 disclose horizontal movement of
an auxiliary burner, the combination used in the claimed invention
substantially departs from the Reynolds ‘853 and Harneit ‘272 disclosures,
in a sense that, in the claimed invention, normal movement of the auxiliary
burner unit is restricted by the guide structure to substantially linear
movement.

We are not persuaded by appellant’s argument. Claim 4 includes the
limitation “wherin the auxiliary burner housing is movable in a horizontal
direction”, claim 1 upon which claim 4 ultimately depends recites “wherein normal
movement of said auxiliary burner unit, relative to said cart, is restricted by said
guide structure to substantially linear movement.” The examiner has found that
Reynolds, item A, meets the claimed auxiliary burner housing unit and that
Reynolds’ guide structure includes rails, items 18 and 19. See page 4 of the
answer. We find that Reynolds teaches that the rails, items 18 and 19, are linear
and limit the horizontal movement of the auxiliary burner to linear horizontal
movement. Accordingly, we find ample evidence to sustain the examiner’s
rejection of claim 4.

Rejection of claim 5.
Appellant argues on page 13 of the brief: “[a]lthough Reynolds ‘853
inferentially discloses vertical movement, of the bottom burner, based on

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horizontal movement of a carriage and attached inclined lift bar to which a bottom
burner is attached, the vertical movement of the auxiliary burner of the claimed
invention, associated with a guide structure, is not the same as disclosed by
Reynolds ‘853.”
We disagree with appellant’s characterization of Reynolds. Claim 5
includes the limitation “wherein the auxiliary burner housing is movable in a
vertical direction” claim 1 upon which claim 4 ultimately depends recites “wherein
normal movement of said auxiliary burner unit, relative to said cart, is restricted
by said guide structure to substantially linear movement.” The examiner has
found that Reynolds teaches that the auxiliary burner is mounted to be vertically
and horizontally adjustable. We concur with the examiner. Further, we do not
find that the vertical adjustment is based upon horizontal movement of the
carriage. We find that Reynolds teaches the auxiliary burner is guided in the
vertical direction by lift arms, item E, and held in place by detent means, item K.
See figures 1 and 4. Reynolds’ figure 1 depicts the movement of the auxiliary
burner as being linear. See vertical arrow bisecting G2 and B2. Further, we find
no limitation in claim 5 or the claims upon which it depends which differentiate
Reynolds’ guide from the claimed guide. Accordingly, we find ample evidence to
sustain the examiner’s rejection of claim 5.

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Rejection of claim 6.
Appellant argues on page 14 of the brief “[I]n the claimed invention, the
movement of the auxiliary burner is achieved by using a mechanism which
includes a vertical guide structure having a plurality of positioning means
disposed thereon, and a spring-latch attached to the auxiliary burner for
temporarily and disengagably fixing the position of the auxiliary burner, on the
guide structure, in relation to the cart.” Further, appellant argues that Harneit
does not disclose this feature.
The examiner identifies on page 5 of the answer, that Reynolds teaches
the spring-loaded latch as items 48 and 49 of figure 6. We concur with the
examiner. Claim 6 includes the limitation “ a spring loaded latch connected to the
auxiliary burner housing, for temporarily and disengagably fixing the position of
the auxiliary burner unit in relation to the cart.” As identified supra with respect to
claim 5, we find that Reynolds teaches that the auxiliary burner housing is
movable in the vertical direction and that item K, in conjunction with items 48
and 49, limits the vertical movement of the burner. See figure 6 and column 5,
lines 1-5. Accordingly, we find ample evidence to sustain the examiner’s
rejection of claim 6.

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Rejection of claim 7.
On page 14 of the brief, appellant asserts that claim 7 requires “ the
combination, in a single grilling apparatus, of a cart comprising guide structure
having at least one rail, for guiding substantially linear movement of an auxiliary
burner thereon relative to the cart…” Appellant argues, on page 15 of the brief,
that though Reynolds teaches a movable bottom burner it does not have the
claimed guide structure, but rather a complicated structure for positioning the
burner.
We are not persuaded by appellant’s arguments. Claim 7 includes the
limitations “an auxiliary burner unit which is adjustably attached to the cart, said
auxiliary burner unit including an auxiliary burner, and being movable to a
position below the main grill burner; wherein normal movement of said auxiliary
burner unit, relative to said cart, is restricted by said guide structure to
substantially linear movement.” As discussed supra with respect to claim 1, we
find that Reynolds teaches a movable auxiliary burner unit, item B2 and as
discussed with respect to claims 1, 4 and 5 we find that the movement of the
burner is limited by guide structure to linear movement. Appellant has identified
no feature of the claimed guide structure that differentiates it from the Reynolds’
guide structure. Accordingly, we find ample evidence to support the examiner’s
rejection of claim 7.

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Rejection of claim 9.
On page 15 of the brief, appellant argues with respect to claim 9
“[a]lthough Reynolds ‘853 and Harneit ‘272 disclose horizontal movement of an
auxiliary burner, the combination used in the claimed invention substantially
departs from Reynolds ‘853 and Harriet ‘272 disclosures.”
Claim 9 is ultimately dependent upon claim 7 and contains the limitation
“wherein the auxiliary burner housing is movable in a horizontal direction.” As
stated supra we find that Reynolds teaches the limitations of claim 7. Further, we
find that the limitations of claim 9 are similar to those of claim 4 which we also
find are taught by Reynolds. Accordingly, we sustain the examiner’s rejection of
claim 9 for the reasons stated supra with respect to claims 7 and 4.

Rejection of claim 10.
On page 16 of the brief appellant argues, with respect to claim 10, that he
combination of Reynolds and Harneit does not disclose the structure of claim 10
where the auxiliary burner is guided by at least one rail to substantially linear
movement in the vertical direction.
We are not persuaded. Claim 10 is ultimately dependent upon claim 7
and contains the limitation “wherein the auxiliary burner housing is movable in a
horizontal direction.” As stated supra, we find that Reynolds teaches the

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limitations of claim 7. Further, we find that the limitations of claim 10 are similar
to those of claim 5 which we also find are taught by Reynolds. Accordingly, we
sustain the examiner’s rejection of claim 9 for the reasons stated supra with
respect to claims 7 and 5.

Rejection of claims 12 and 14.
Appellant argues, on pages 16 and 17 of the brief, that the examiner’s
taking of Official Notice regarding the use of portable cooking appliance with a
worktop adjacent the grill housing does not establish a prima facie case of
obviousness.
The examiner replies on pages 10 and 11 of the answer, that the prior
office action establishes the level of ordinary skill in the art and clearly states that
a person would be motivated to modify Reynolds to include a worktop for
providing a convenient food preparation and staging area adjacent the cooking
area.
Claim 12 contains the limitation, “a worktop attached to the cart adjacent
to the grill housing.” Claim 14 contains a similar limitation. The examiner does
not present objective evidence and facts as to support the finding that one of
ordinary skill would have been motivated to attach a work surface to the cart
adjacent the grill housing of Reynolds. Accordingly, we will not sustain the

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examiner’s rejection of claims 12 and 14.

Rejection of claim 13
On page 17 of the brief, appellant argues that claim 13 is similar in scope
to claim 1 and includes the requirements that the auxiliary burner is height
adjustable and is movable between a raised and lower position.
We are not persuaded by appellant’s arguments concerning claim 13, as
stated supra we find that Reynolds teaches the device of claim 1 and that
Reynolds teaches that the auxiliary burner is movable linearly, in the vertical
direction. We consider movement in the vertical direction to meet the claimed
raising or lowering the auxiliary burner housing. Accordingly, we find ample
evidence to support the examiner’s rejection of claim 13.

Rejection of claim 16.
Appellant argues on page 18 of the brief that claim 16 is similar in scope
to claim 13 and includes the limitation of a spring loaded latch for temporarily and
disengagably fixing the position of the auxiliary burner.
We are not persuaded by appellant’s arguments concerning claim 16, as
stated supra we find that Reynolds teaches the device of claim 13. Further, as
discussed with respect to claim 6 we find that Reynolds teaches the claimed

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spring-loaded latch. Accordingly, we find ample evidence to support the
examiner’s rejection of claim 16.

Rejection of claim 17.
Appellant argues on page 18 of the brief that claim 17 is similar in scope
to claim 13 and also recites a wheeled cart.
As stated supra we find that the examiner has provided ample evidence to
support the rejection of claim 13 and ample evidence to support the finding of
motivation to modify Reynolds to include wheels. Accordingly, we sustain the
examiner’s rejection of claim 17.

Rejection of claim 19.
Appellant argues, on page 19 of the brief, claim 19 requires a releasing
latch mechanism to free an auxiliary burner unit attached to the cart side wall that
this is not taught or rendered obvious by Reynolds and Harneit.
We concur with appellant. Claim 19 includes the limitation “ a releasing a
latch mechanism to free an auxiliary burner unit attached to a cart side wall in a
first operative position thereof, said auxiliary burner unit comprising said auxiliary
burner.” On page 5 of the answer, the examiner finds that Reynolds teaches a
spring-loaded latch in figure 6. As stated supra we find that this teaching meets

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the limitations directed to a spring-loaded latch in several of the claims.
However, claim 19 requires a releasing mechanism on the sidewall of the cart.
We do not find that Reynolds teaches the spring loaded latch in figure 6 is on the
sidewall of the cart. As the examiner has not presented evidence of mounting a
releasing mechanism on the sidewall of the cart, we will not sustain the
examiner’s rejection of claim 19.

Rejection of claim 20.
On page 19 of the brief, appellant asserts that claim 20 is directed to a kit
and “[a]lthough some of the components listed in claim 20 are disclosed in
Reynolds ‘853 and Harneit ‘272, the total combination of kit components claimed
in this claim 20 is not taught, suggested nor rendered obvious by the combination
of Reynolds ‘853 and Harneit ‘272.”
We are not persuaded. Appellant has not identified any feature of the kit
in claim 20 that is not taught by the combination of the references. As stated
above we find Reynolds teaches a gas-operated grill with a frame, a main burner,
a main grill, guide structure for enabling linear movement of an auxiliary burner.
Further, as stated supra we find that Harneit teaches and provides motivation to
add wheels to Reynolds. Accordingly, we sustain the examiner’s rejection of
claim 20.

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Rejection of claims 2, 3, 8, 11, 15 and 18.
Appellant states on page 12 of the brief:
Claim 2 depends from claim 1, and adds a limitation that the auxiliary
burner unit comprises a burner housing wherein the auxiliary burner is
housed. The total combination of claim 2, is not taught, described or
suggested by Reynolds ‘853 and Harneit ‘272, considered either
separately or in combination.

Appellant makes similar statements regarding claims 3, 8, 11, 15 and 18.
The rules in effect at the time the brief was filed specifically address the
weight to be given to such statements and allegations presented by appellant.
See 37 CFR § 41.37 (c) (1) (vii) (2005, which became effective September 13,
2004 (69 Fed. Reg. 49960 (Aug 12, 2004))):
A statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.

Appellant has not discussed why the evidence would support a holding that
claims 2, 3, 8, 11, 15 and 18 are patentable apart from claim 1. Therefore, we
will sustain the examiner’s rejection of claims 2, 3, 8, 11, 15 and 18 under 35
U.S.C. § 103 as standing or falling with the patentability of claim 1.
Further, with respect to claims 2, 8, and 15, the examiner has identified
Reynolds' item A as the claimed auxiliary burner housing with the auxiliary burner
housed therein. With respect to claim 3 the examiner has found that the auxiliary

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burner is vertically and horizontally adjustable. With respect to claim 11 the
examiner has found the support frame (G2) as supporting a cooking utensil.
With regard to claim 18, the examiner has found that in light of Harneit, it would
have been obvious to provide covers over the grill. In the absence of appellant
presenting evidence or arguments to rebut the examiner’s findings we consider
the examiner to have established a prima facie case of obviousness.

Conclusion
Only those arguments actually made by appellant have been considered
in this decision. Arguments which appellant could have made but chose not to
make in the brief or by filing a reply brief have not been considered and are
deemed waived by appellants (see 37 CFR § 41.37(c)(vii)). Support for this rule
has been demonstrated by our reviewing court in In re Berger, 279 F.3d 975,
984, 61 USPQ2d 1523, 1528-1529 (Fed. Cir. 2002) wherein the Federal Circuit
stated that because the appellant did not contest the merits of the rejections in
his brief to the Federal Circuit, the issue is waived. See also In re Watts, 354
F.3d 1362, 1368, 69 USPQ2d 1453, 1458 (Fed. Cir. 2004).

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In summary, we sustain the examiner’s rejections of claims 1 through 11,
13, 15 through 18 and 20 under 35 U.S.C. § 103. However, we will not sustain
the examiner’s rejection of claims 12, 14 and 19 under 35 U.S.C. §103. The
decision of the examiner is affirmed-in-part.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

MURRIEL E. CRAWFORD )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
ANITA PELLMAN GROSS ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
ROBERT E. NAPPI )
Administrative Patent Judge )

REN/gjh

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