Ex Parte REAY

Board of Patent Appeals and Interferences

Nov 27, 2002

09251833 (B.P.A.I. Nov. 27, 2002)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 24
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte MALCOLM REAY
____________
Appeal No. 2002-1443
Application No. 09/251,833
____________
ON BRIEF
____________
Before ABRAMS, McQUADE, and NASE, Administrative Patent Judges.
ABRAMS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 13-22
and 24-29, as amended after the final rejection, which are all of the claims pending in
this application.
We REVERSE.
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Application No. 09/251,833
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1The rejection of claims 19 and 20 under 35 U.S.C. § 112, second paragraph, which was set forth
in the final rejection (Paper No. 14), was not repeated in the Answer and we shall consider it as having
been withdrawn by the examiner.
BACKGROUND
The appellant's invention relates to a griddle plate with an infrared heating
element. An understanding of the invention can be derived from a reading of
exemplary claim 13, which has been reproduced below.
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Person 1,051,967 Feb. 4, 1913
McWilliams et al. (McWilliams) 3,833,793 Sep. 3, 1974
Schreder 4,788,414 Nov. 29, 1988
Payne 4,816,647 Mar. 28, 1989
Adamson et al. (Adamson) Re. 32,994 Jul. 25, 1989
Claims 13-19, 22, 24, 25 and 27-29 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Adamson in view of Person and Payne.
Claims 20 and 26 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Adamson in view of Person, Payne and Schreder.
Claim 21 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over
Adamson in view of Person, Payne and McWilliams.1
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the Answer
(Paper No. 21) and the final rejection (Paper No. 14) for the examiner's complete
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reasoning in support of the rejections, and to the Brief (Paper No. 20) and Reply Brief
(Paper No. 22) for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
At the outset, we point out that the test for obviousness is what the combined
teachings of the prior art would have suggested to one of ordinary skill in the art. See,
for example, In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981). In
establishing a prima facie case of obviousness, it is incumbent upon the examiner to
provide a reason why one of ordinary skill in the art would have been led to modify a
prior art reference or to combine reference teachings to arrive at the claimed invention.
See Ex parte Clapp, 227 USPQ 972, 973 (Bd. Pat. App. & Int. 1985). To this end, the
requisite motivation must stem from some teaching, suggestion or inference in the prior
art as a whole or from the knowledge generally available to one of ordinary skill in the
art and not from the appellant's disclosure. See, for example, Uniroyal, Inc. v. Rudkin-
Wiley Corp., 837 F.2d 1044, 1052, 5 USPQ2d 1434, 1439 (Fed. Cir.), cert. denied,
488 U.S. 825 (1988).
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The appellant describes his invention as an improved cooking appliance that is
relatively simple in construction and inexpensive to manufacture and provides uniform
distribution of heat over the entire surface of a griddle plate. Independent claim 13 sets
forth the invention in the following manner:
13. A cooking appliance comprising:
a housing:
a lower platen mounted to said housing;
a positioning mechanism mounted to said housing;
an upper platen mounted to said positioning mechanism, said positioning
mechanism being operable to move said upper platen between a cooking
and a non-cooking position with respect to said lower platen; and
a heating assembly for heating said lower platen, said heating assembly
comprising a non-contact infrared heating element disposed within said
heating assembly such that there is a space between said non-contact
infrared heating element and said lower platen and such that said lower
platen is substantially uniformly heated, wherein said infrared heating
element emits radiation that is substantially in the wavelength of about
900 to 4,000 nanometers.
The examiner has rejected claim 13 as being obvious in view of the combined
teachings of Adamson, Person and Payne. Specifically, the examiner has found that all
of the subject matter recited in claim 13 is disclosed by Adamson except for the non-
contact infrared heating element spaced from the lower platen and providing
substantially uniform heating at a radiation wavelength of about 900 to 4,000
nanometers. As we understand the examiner’s position, one of ordinary skill in the art
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would have found it obvious to modify the Adamson appliance by replacing the
disclosed heating element with a spaced non-contact infrared heating element in view
of the teachings of Person “to provide uniform heating across the lower platen without
having hot spots,” and providing the infrared heating element with the claimed
wavelength in view of Payne (Paper No. 14, pages 2 and 3). The appellant argues in
rebuttal that there is no suggestion or motivation in the applied references to modify
Adamson in the manner proposed by the examiner, and that even if such modifications
were made, the resulting appliance would not meet the claim requirement of a
“substantially uniformly heated” lower platen (Brief, pages 6 and 7).
Adamson discloses in Figure 5 a cooking appliance comprising a housing, a
lower platen mounted to the housing, and an upper platen mounted on a positioning
mechanism and movable between a cooking position and a non-cooking position with
respect to the lower platen. Adamson states that the lower platen “is heated by heaters
which may be of the electrical or gas type, if desired” (column 4, lines 3 and 4). The
heaters in the embodiment of Figure 5 are described as being cast aluminum heating
units (18a-18c) heated by electrical heating elements (19a-19c), with the heating
elements being shown as embedded in the heating units. The heating units in Figure 5
are “attached as by bolts to the underside of the lower cooking platen” (column 4, lines
6 and 7). As it turns out, no other embodiments are shown or described in the
reference.
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With respect to the subject matter of claim 13, Adamson fails to disclose or teach
the following four of the features recited in claim 13:
(1) The heating assembly having a non-contact infrared heating element.
(2) The heating element being disposed such that there is a space
between the element and the lower platen.

(3) The heating element being disposed such that said lower platen is
substantially uniformly heated
(4) The radiation wavelength of the heating element being about 900 to
4,000 nanometers.
As to (4), the appellant has not challenged the examiner’s finding that it was known in
the art at the time of the appellant’s invention to utilize infrared radiation heaters having
a radiation wavelength of 900-4,000 nanometers in cooking appliances, as taught by
Payne.
Person discloses an electric heater comprising an enclosure(1) within which are
a plurality of heating coils (7), each installed in a slot (4) in a plastic base (3) of
insulation material. For cooking, Person provides a grid plate (16) and a cover or top
plate (17) “which may be readily removed or entirely eliminated” (page 1, lines 90-92).
Person further explains
said plate being provided with a plurality of slots or channels to aline with
the slots 4 of the insulating base 3. By arranging the slots in the grid plate
so as to aline with the longitudinal channels of the composition body, the
heat units which radiate from the heating coils 7, may readily pass through
said slots to be quickly absorbed by the articles placed on the grid plate”
(page 1, lines 80-89).
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The “slots” in the grid plate to which Person refers are not numbered and are located
between adjacent flat ribs of the grid plate (16), which also are not numbered. The
slots are shown in the cutaway portion of Figure 1, and it is clear that if the cover plate
(17) is removed or eliminated, heat from the heating coils would flow directly to the food
being heated thereon.
While Person provides a non-contact infrared heating assembly that is spaced
from the grid and cover, it is our view that the examiner’s conclusion that the heat
applied to the platen is uniform “because of the heated air between the heating element
and the platen,” and because “the structure recited in the reference is substantially
identical to that of the claim” (Answer, pages 3 and 4) is merely conjecture. From our
perspective, because each heating coil is placed in a trough in the insulating material,
and owing to the presence of the ribs and slots in the grid, on its face the Person heater
would appear not to be uniformly heating the heating grid cover (17) but would, as the
appellant has urged on page 6 of the Brief, provide a plurality of stripes of hot spots
thereon, the result of which would be uneven heating. In fact, the appellant provided
evidence in support of this contention by virtue of the Second Declaration Under Rule
132 of Malcolm Reay, which was provided along with an amendment (Paper No. 15)
that was entered by the examiner when the appeal was filed (Paper No. 16). In this
declaration Mr. Reay, after establishing his expertise in the field of electric and gas
heating systems for food service appliances, states his opinion that in the Person
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heater “[m]ost of the heat radiated by the elements is directed by the channels through
the slots so as to produce a parallel row of heat lines or stripes on the surface of plate
17. That is, the stripes are hot spots and, therefore, the heating is uneven and non-
uniform” (declaration, page 3). The examiner did not comment upon these assertions,
and thus they stand uncontroverted on the record. It therefore is our view that even if
the proposed modification were made, the result would not be the subject matter recited
in claim 1, that is, a heater so disposed as to provide substantially uniform heat to the
platen. The rejection therefore would not be sustainable on this basis.
Furthermore, as we stated above, we consider the Adamson system not to
provide uniform heating to the platen, which the examiner asserted would have
provided the suggestion to make the proposed modification. Absent such suggestion,
we fail to perceive any incentive in either Adamson or Person which would have led
one of ordinary skill in the art to replace the heating elements disclosed in Adamson
with those of Person.
For the two reasons set forth above, it is our opinion that the applied references
do not establish a prima facie case of obviousness with regard to the subject matter
recited in claim 13. This being the case, we will not sustain the rejection of independent
claim 13 and, it follows, of dependent claims 14-19, 22, 24 and 25.
Independent claim 28, which stands rejected on the same grounds, also contains
the requirement for the platen to be “substantially uniformly heated” by the infrared
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radiation, and therefore the reasoning set out above also is applicable here. The
rejection of claim 28 and claim 29, which depends therefrom, is not sustained.
Dependent claim 20 recites that the insulation upon which the heating elements
are mounted extend above the side walls of the container within which it is positioned.
The examiner has cited Schreder for this teaching. Be that as it may, Schreder does
not alleviate the shortcomings pointed out above in the combination of references
applied against claim 1, from which claim 18 ultimately depends. Therefore, we will not
sustain the rejection of claim 20.
Schreder was also applied against dependent claim 26. For the same reason as
is set forth immediately above with regard to claim 20, we will not sustain the rejection
of claim 26.
Dependent claim 21 stands rejected on the basis of Adamson and Person, taken
further with McWilliams, cited for teaching securing a heating element by means of
staples. The problems with the rejection of claim 1, from which claim 21 depends, are
not cured by McWilliams and thus we will not sustain this rejection.
CONCLUSION
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None of the rejections are sustained.
The decision of the examiner is reversed.
REVERSED
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. McQUADE ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
NEA/lbg
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OHLANDT, GREELEY, RUGGIERO & PERLE, L.L.P.
ONE LANDMARK SQUARE, NINTH FLOOR
STAMFORD, CT 06901-2682