Ex Parte Sager

Patent Trial and Appeal Board

May 30, 2018

13472774 (P.T.A.B. May. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/472,774 05/16/2012
33375 7590 06/01/2018
THOMPSON HINE LLP / ITW
Intellectual Property Group
10050 Innovation Drive
Suite 400
DAYTON, OH 45342-4934
FIRST NAMED INVENTOR
David D. Sager
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
006593-02380US 1854
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
06/01/2018 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):
ipdocket@thompsonhine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID D. SAGER
Appeal 2017-008011
Application 13/472,774 1
Technology Center 1700
Before ADRIENE LEPIANE HANLON, TERRY J. OWENS, and
SHELDON M. McGEE, Administrative Patent Judges.
McGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant seeks our review of the
Examiner's rejections of claims 1, 3-15, 22, and 23.
We have jurisdiction. 35 U.S.C. § 6.
We affirm.
1 Appellant identifies Premark PEG L.L.C. as the real party in interest. App.
Br. 3.
Appeal 2017-008011
Application 13/472,774
BACKGROUND
The subject matter on appeal relates to a combination oven that
utilizes both heat and steam, and methods for cooking food products with
such combination ovens. Spec. ,r 2, claim 11.
REFERENCES
The Examiner relies on the following references as evidence of
unpatentability:
Hansen et al. ("Hansen")
Embury et al. ("Embury")
Fraccon et al. ("Fraccon")
US 2004/0261632 Al Dec. 30, 2004
US 7,060,941 Bl June 13, 2006
US 7,208,701 B2 April 24, 2007
REJECTIONS ON APPEAL
The Examiner maintains the following rejections on appeal:
I. Claims 1, 5-7, 10-13, and 15 under 35 U.S.C. § I02(b) as
anticipated by Fraccon (Ans. 2-3);
II. Claim 22 under 35 U.S.C. § I02(b) as anticipated by Hansen
(Ans. 4);
III. Claim 22 under 35 U.S.C. § I02(b) as anticipated by Embury
(Ans. 4);
IV. Claims 1, 3-15, 22,2 and 23 under 35 U.S.C. § I03(a) as
unpatentable over Hansen in view ofFraccon (Ans. 5-8); and
2 The statement of the rejection (Ans. 4) omits claim 22, but the body of the
rejection (Ans. 7) includes this claim. Appellant addresses the obviousness
rejection of claim 22 (App. Br. 29-31 ), thus we treat claim 22 as included in
Rejection IV.
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V. Claims 22 and 23 under 35 U.S.C. § 103(a) as unpatentable over
Embury in view of Fraccon (Ans. 8).
OPINION
Rejection I
Independent claim 1 is illustrative of the claims subject to this
rejection and reads:
1. A combination oven, comprising:
a cooking cavity accessible via a door;
a convection cooking system associated with the cooking cavity
for heating the cooking cavity;
a moisture delivery arrangement for delivering moisture into the
cooking cavity;
a controller configured to (i) automatically adjust and define a
humidity level setting for a cooking operation as a function of operator
use of a temperature control input to adjust and select a numerical
temperature setting for the cooking operation and (ii) initiate the
cooking operation and control both the convection cooking system to
achieve the selected numerical temperature setting and the moisture
delivery arrangement to achieve the defined humidity level setting.
App. Br. 36 (emphasis added).
In order to compare claim 1 to the prior art, we begin with claim
construction of the phrase "a controller configured to (i) ... and (ii) ... ,"
affording the "broadest reasonable interpretation consistent with the
specification." In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000).
The Specification indicates that the controller "enables a combination
convection and steam cooking mode that advantageously makes it simple for
the user to utilize the proper humidity setting." Spec. ,r 25. The controller
"is programmed or otherwise configured such that when an operator selects
an oven temperature for a manual cooking operation using [a] knob [], a
default humidity level setting is automatically defined by the controller [] as
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a function of the selected temperature." Id. ,r 26 (emphasis added). Such
automatic defining or establishment of "a humidity level setting 'as a
function of' the selected temperature setting means that variances in the
selected temperature will produce variances in the automatically defined or
established humidity level setting." Id. (emphasis added). This may be
accomplished by virtue of a "calculation, programmed rule or look-up
table." Id. See also id. ,r,r 28, 30 (discussing the controller's memory which
stores programmed temperature-humidity profiles such as those listed in
Table 1, where for a given cooking operation and temperature setting, a
default humidity level setting is generated); id. ,r,r 6, 9 ( discussing various
optional controller programming parameters).
Based on this disclosure, we determine that the claimed controller
must be programmed to generate a default humidity level setting based on
user entry of other settings, e.g., temperature. Therefore, we construe the
controller of claim 1 as having the necessary programming to carry out
functions (i) and (ii) recited in this claim.
Turning now to the rejection, the Examiner relies on Fraccon as an
anticipatory disclosure of the claimed combination oven. There is no
dispute regarding whether Fraccon discloses the "cooking cavity,"
"convection cooking system," and "moisture delivery arrangement"
limitations. App. Br. 8-13. Rather, the focus of the dispute centers on the
"controller" limitation. Id. Relevant to the appeal of this rejection, the
Examiner finds that Fraccon's controller is configured to automatically
adjust and define a humidity level setting as a function of operator use of a
temperature control input to adjust and select a numerical temperature
setting for a cooking operation. Ans. 2, 8-10. We disagree.
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As correctly argued by Appellant (App. Br. 9), Fraccon discloses
steam generation based on a user-inputted steam level - not a humidity
level setting that is automatically adjusted and defined based on a user-
selected temperature and cooking operation as recited in claim 1. Fraccon
1 :45--48, 65---66, 4:23-31. Consistent with our claim construction, supra, to
establish a prima facie case of anticipation, Fraccon's controller must be
programmed to perform the automatic adjustment and definition of a
humidity level setting in the manner claimed, and then initiate the cooking
operation and control the structural components of the combination oven,
i.e., the convection cooking system and moisture delivery arrangement, to
achieve such a defined humidity level setting. See Typhoon Touch Techs,
Inc. v. Dell, Inc., 659 F.3d 1376, 1380-1 (Fed. Cir. 2011). In Typhoon
Touch, the Federal Circuit upheld the district court's holding that a claim
reciting "a memory for storing at least one data application configured to
determine contents and formats of said inquiries displayed on said screen"
required the memory to perform the recited function, rather than the memory
simply having a capability of carrying out such function should further
modification or programming be made. Id.
Here, the Examiner relies heavily on Fraccon's disclosure of a
"desired relative humidity" achieved in the oven cavity by the controller
communicating with the steam system to activate or deactivate the boiler,
and providing "instructions regarding the desired temperature of the water in
the steam system." Fraccon 4: 1-5, Ans. 8-10. However, the Examiner
provides no evidence that the controller's communication with the boiler is
based on any programming other than that which is disclosed in the
remainder of Fraccon - a user-inputted humidity setting, not one that
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automatically adjusts based on user entry of a temperature setting for a given
cooking operation as claimed.
On this record, there is insufficient evidence identified by the
Examiner to find that Fraccon's controller performs the functions recited in
claim 1 ( or method claim 11 which recites similar functions) absent further
programming. For this reason, we do not sustain the rejection of claims 1,
5-7, 10-13, and 15 as anticipated by Fraccon.
Rejection II
Independent claim 22, similar in scope to independent claim 1, is
rejected as anticipated by Hansen and reads:
22. A combination oven, comprising:
a cooking cavity accessible via a door;
a convection cooking system associated with the cooking cavity for
heating the cooking cavity;
a moisture delivery arrangement for delivering moisture into the
cooking cavity;
a controller configured to (i) automatically adjust and define a humidity
level setting for a cooking operation as a function of an operator selected
temperature for the cooking operation without requiring any humidity level
input selection or moisture level input selection by the operator and (ii) control
both the convection cooking system to achieve the operated selected
temperature and the moisture delivery arrangement to achieve the defined
humidity level setting during the cooking operation.
App. Br. 39.
The Examiner finds that Hansen serves as an anticipatory disclosure
of the combination oven recited in claim 22. Ans. 4. As with claim 1 in
Rejection I, the dispute centers on the "controller" limitation. App. Br. 17-
19. The Examiner finds that Hansen's controller 70 is configured to operate
in the manner claimed. Ans. 4 citing Hansen ,r,r 35, 38.
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Thus, much like Rejection I, the question we must decide is whether
the Examiner has provided sufficient evidence that Hansen's controller is
programmed to carry out recited functions (i) and (ii). We answer this
question in the affirmative and, therefore, sustain the rejection.
The Examiner points to Hansen's disclosure regarding how controller
70 processes control signals from temperature sensors 80 and 81 according
to stored algorithms in memory module 7 4 "to determine whether the
moisture content within the cooking chamber 14 is within acceptable limits
for the cooking settings." Ans. 4 citing Hansen ,r 38 (emphasis added). The
Examiner finds that Hansen's "acceptable limits" are "pre-established
moisture content limits which are monitored during cooking to achieve the
defined humidity level setting." Ans. 11-12. The Examiner reasons that
"[ w ]ithout pre-established settings there would be no value for the actual
measurements to be compared to," and that the skilled artisan would have
recognized "in order to control the actual cooking conditions ... there must
be a value established of desired cooking conditions." Ans. 12.
Appellant first argues that Hansen does not disclose a "humidity level
setting" as recited in claim 22 because Hansen's "oven seeks to control the
actual humidity level during cooking operations." App. Br. 18. This
argument is unpersuasive of reversible error. The Examiner does not equate
Hansen's actual measured humidity level in the oven with the recited
"humidity level setting" as Appellant's argument suggests, but rather relies
on Hansen's disclosure of "acceptable limits for the cooking settings" to
meet this limitation. Ans. 11-12.
Appellant contends further that Hansen's acceptable limits are not
disclosed to be "automatically adjusted and defined as a function of an
operator selected temperature for the cooking operation" as claimed. App.
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Br. 18-19. This argument is also unpersuasive. Hansen discloses that user
interface 82 has input controls and "is the main control interface for all
cooking processes of the oven 10, controlling for example heating settings, [3J
cooking modes (radiant, convective and/or steam), fan speed, cooking time,
etc." Hansen ,r 35. Hansen also discloses that no water is fed to the cooking
chamber during convection or radiant cooking, but that water is permitted to
enter the cooking chamber during steam cooking. Id. ,r,r 12, 37. Hansen
discloses multiple dehumidification algorithms stored in memory based on
the type of cooking carried out ( e.g., radiant, convective, steam), and
multiple "acceptable limits" of humidity for the cooking settings. Id. ,r,r 13,
35, 38, 45, 47. Therefore, in Hansen's oven, a temperature is inherently
selected by an operator when a "cooking mode" or "heating setting" is
selected via interface 82. Based on such selection, Hansen's controller
automatically determines which of the multiple "acceptable limits" of
humidity for the particular temperature and other cooking settings ( e.g,
steam, convective) should apply.
Because Appellant's arguments fail to identify reversible error in the
anticipation rejection of claim 22, we sustain it.
Rejections III and V
In Rejection III, the Examiner rejects claim 22 as anticipated by
Embury. Ans. 4. In Rejection V, the Examiner rejects claims 22 and 23 as
obvious over Embury in view of Fraccon. Ans. 8. Again, the dispute
centers on the "controller" limitation. App. Br. 19-21, 32-33.
3 We view Hansen's disclosure of "all cooking processes" such as selecting
a "heating setting" would inherently include the selection of a temperature to
carry out the selected cooking process. Hansen ,r 35.
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The Examiner finds that Embury's controller is configured to operate
in the manner claimed. Ans. 4 citing Embury 3:23-30, 8:9-16. The relied-
upon portion of Embury identifies the controller as "a proportional-integral-
derivative (PID) controller or any other suitable controller, as is well-known
in the automatic oven art" that "stores data, such as default cooking
parameters, the manually input cooking parameters, and [] automated
cooking programs, and receives input from the control panel." Embury
3 :23-29. Embury discloses a baker entering a temperature setting into the
control panel, followed by the oven implementing "method 50, beginning at
stage 1 and ending at stage 4 or stage 5" to prepare a dessert in "a controlled
steam environment." Id. at 8: 9-16.
Of method 50' s five stages, only stages two and three apply steam, so
we need only focus on these stages to determine whether Embury's
controller is configured (i.e., programmed) to execute functions (i) and (ii)
recited in claim 22 without further programming or modification. See
Embury Figs. 4---6, 5:7---64, 6:66-7:34. Embury discloses that, in stage two,
"the steam system 44 communicates with the controller 30 and turns on the
boiler 46 for operation at a 100% duty cycle to raise the relative humidity in
the cavity 14 to the maximum relative humidity." Id. 7:8-12. The
maximum relative humidity is maintained in stage three. Id. 7: 16-33.
The Examiner finds that Embury' s "maximum relative humidity"
achieved in stages two and three is the recited humidity level setting. Ans.
13. However, such maximum relative humidity is only one setting, not one
that automatically adjusts and is defined as a function of an operator selected
temperature. Thus, the Examiner fails to demonstrate that Embury' s
controller is configured or programmed to carry out functions (i) and (ii)
recited in claim 22.
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It follows that we do not sustain the anticipation rejection of claim 22
based on Embury as set forth in Rejection III. Typhoon Touch, 659 F .3d at
1380-1; See also In re Noll, 545 F.2d 141, 148 (CCPA 1976) ("[A]
programmed machine is structurally different from a machine without that
program."), and In re Warner, 379 F.2d 1011, 1016 (CCPA 1967)
( explaining that "the precise language of [the statute] clearly places a burden
of proof on the Patent Office which requires it to produce the factual basis
for its rejection of an application" and "[ w ]here such proof is lacking we see
no necessity for resolving doubt in favor of the Patent Office's position.").
We likewise do not sustain the obviousness rejection of claims 22 and
23 as set forth in Rejection V, because the Examiner has failed to provide
any explicative rationale why the skilled artisan would have found it obvious
to modify Embury's single humidity setting to arrive at the claimed
invention. "[T]here must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness." KSR Int'! Co.
v. Teleflex Inc., 550 U.S. 398,418 (2007).
Rejection IV
The Examiner relies on substantially the same fact findings as set
forth in Rejection I regarding Fraccon and Rejection II regarding Hansen to
conclude that the combination oven of claim 1, the method of claim 11, and
various dependent claims would have been obvious to the skilled artisan
based on the combined teachings of these references. Ans. 5-8.
We address the claims separately to the extent they are so argued by
Appellant. 37 C.F.R. § 4I.37(c)(l)(iv).
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Claims 1, 3, and 4
The dispute again centers on the controller's configuration. App. Br.
21-23. Appellant argues that Hansen does not disclose, teach or suggest a
"humidity level setting." App. Br. 22. This argument fails to persuade us of
reversible error. The Examiner finds that Hansen indeed discloses such a
"humidity level setting" by virtue of comparing measured signal data in
accordance with pre-programmed algorithms to determine if the humidity
level within the oven cavity is "within acceptable limits for the cooking
settings." Hansen ,r 3 8. As the Examiner aptly reasons ( Ans. 14 ), ' [ w Ji th out
pre-established settings there would be no value for the actual measurements
to be compared to." Therefore, we agree with the Examiner (Ans. 4) that
Hansen's disclosure of "acceptable limits" in paragraph 3 8 satisfies the
recited "humidity level setting" limitation.
Appellant also asserts that the Examiner failed to provide a suitable
rationale to support the obviousness conclusion. App. Br. 23. Again, we
disagree. The Examiner finds that Hansen discloses multiple temperature-
humidity profiles stored in memory, where the controller is "programmed to
enable one of the temperature-[]humidity profiles to be selected as an active
temperature-humidity profile that will be accessed for the purpose of
defining the humidity level." Ans. 6 citing Hansen ,r 38. The Examiner
reasons that because Hansen teaches "acceptable limits for the cooking
[settings]," the skilled artisan would have found it obvious
to provide a numerical temperature input and a temperature
display thus achieving [a] pre-established defined humidity level
setting, and temperature setting in order for there to be a
controlled cooking at the real time humidity level within the
cooking cavity at "acceptable limits" as a result of controlling
temperature as taught by [Hansen] with respect to user defined
criteria.
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Ans. 5---6 ( emphasis added).
Therefore, we disagree with Appellant that the Examiner has not
provided a suitable obviousness rationale.
In addition, we note that claim 1 is substantially similar in scope to
independent claim 22 which we held anticipated over Hansen in Rejection
II. Appellant makes the same contentions in this rejection regarding
Hansen's disclosure (App. Br. 22), and we find such arguments unpersuasive
for the same reasons outlined in Rejection II. Anticipation is the epitome of
obviousness. See In re May, 574 F.2d 1082, 1089 (CCPA 1978); In re
Skoner, 517 F.2d 947,950 (CCPA 1975); In re Pearson, 494 F.2d 1399,
1402 (CCPA 1974).
For these reasons, and because Appellant has not identified reversible
error in the obviousness rejection of claim 1, we sustain it, as well as the
rejection of dependent claims 3 and 4 not separately argued.
Claims 5 and 6
Claim 5 depends from claim 1 and requires that "the controller
includes associated memory storing at least one temperature-humidity
profile that is accessed to define the humidity level setting." Appellant
contends that this rejection is erroneous by focusing on the teachings of
Fraccon (App. Br. 23-24) but does not address the collective teachings of
the references, nor what those teachings would have suggested to the skilled
artisan. Such incomplete arguments fail to identify reversible error.
Moreover, Hansen discloses memory module 7 4 containing stored
algorithms and multiple temperature-humidity profiles that are accessed by
controller 70 to determine the appropriate humidity level setting, i.e.,
"acceptable limit." Hansen ,r,r 13, 35, 38, 47.
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For these reasons, we sustain the obviousness rejection of claims 5
and 6.
Claim 7
Claim 7 depends from claim 1 and further requires an oven control
interface including certain displays and inputs, "wherein the controller and
the oven control interface are configured such that an operator can only set
or select numerical temperature, humidity level and duration for a cooking
operation and the operator can only define a single stage cooking operation."
Appellant contends that neither Fraccon nor Hansen discloses the
recited "single stage cooking operation." App. Br. 24. In the Answer, the
Examiner points to Fraccon's disclosure of steam cooking cycle parameters
being manipulated either before or during "a single running of the steam
cooking cycle." Ans. 11. Appellant offers no rebuttal of the Examiner's
finding that the contested limitation is disclosed in the prior art. Because
Appellant fails to identify reversible error in the obviousness rejection of
claim 7, we sustain it.
Claims 8 and 9
Claim 8 depends from claim 7 and further comprises a vent intake and
exhaust arrangement for exhausting air from the cooking cavity, and a
specific controller configuration "to automatically carry out a cavity vent
operation at the end of the selected duration of the cooking operation."4
Regarding claim 8, Appellant contends that the rejection is erroneous
4 According to Appellant's Specification, the phrase "at the end of the
cooking operation" encompasses a venting operation that occurs "during"
the cooking operation, e.g., 10 seconds before operation is stopped, or
"when the desired food product temperature is reached." Spec. 42.
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because the cited passage of Hansen (i.e., ,r 3 8) focuses on a venting
operation during a cooking cycle and not at the end of the selected duration
of the cooking operation as claimed. App. Br. 24--25. This argument is
unpersuasive because the recited limitation encompasses a venting operation
that occurs during a cooking operation. Spec. 42. Moreover, Hansen's
disclosure of venting "to evacuate the hot, moist air in the chamber as
needed" (i-f 11) would have led one of ordinary skill in the art, through no
more than ordinary creativity, to configure the ECU (70) to vent the chamber
at the end of the cooking operation, before the chamber door is opened, to
prevent the hot, moist air from blowing onto the operator and into the
cooking area. See KSR, 550 U.S. at 418 (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").
Claim 9, dependent from claim 8, concerns automating the duration of
the vent operation. Regarding claim 9, Appellant argues that the Examiner
has failed to point to any prior art disclosure for support. App. Br. 25. This
argument is likewise unpersuasive because it focuses only on the teachings
of the references themselves and not on what such teachings would have
suggested to the skilled artisan. Here, the skilled artisan would have known
that combination ovens are capable of achieving varying degrees of
temperature and humidity during cooking. See, e.g., Fraccon Figs. 5---6.
Based on this knowledge, the skilled artisan would have reasonably inferred
that a "high" temperature and/or humidity value within the cooking chamber
at the end of a cooking operation (e.g., 450°F, 90% humidity), would require
venting the cavity for longer durations in order to lower the temperature
and/or humidity to a given level than if the cooking chamber was at a
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"lower" temperature and/or humidity value at the end of a cooking operation
(e.g., 250°F, 50% humidity). See KSR, 550 U.S. at 418.
For these reasons, we sustain the obviousness rejection of claims 8
and 9.
Claim 10
Claim 10 depends from claim 1 and requires, inter alia, that the
controller be configured to have a customize mode which limits the number
of stored numerical temperatures that can be selected for a given cooking
operation.
Appellant argues that neither Fraccon nor Hansen disclose this
limitation. App. Br. 26. This argument is not persuasive because, as we
stated with respect to claim 1, the obviousness inquiry does not end with a
given reference's disclosure. KSR, 550 U.S. at 418. Here, the skilled artisan
would have been motivated to further simplify the combination oven of
claim 1 by identifying and storing only the relevant temperatures for a given
cooking operation. Such identification and storing would eliminate
superfluous temperatures available for the user to select during a given
cooking operation (e.g., roasting, baking, defrosting). For example, the
skilled artisan would have recognized that eliminating the user's ability to
select a high temperature (e.g., 450°F) for a "Defrosting" cooking operation
would simplify the oven's operation and would avoid potential errors in the
cooking process.
The obviousness rejection of claim 10 is sustained.
Claim 11
Claim 11 is a method of cooking a food product that requires the oven
controller to "automatically adjust[] and define[] a humidity level setting for
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the cooking operation as a function of the operator adjusting and selecting
the numerical temperature setting," and then vary the temperature and
humidity level settings which are displayed.
Appellant relies on many of the same arguments previously made for
independent claim 1. App. Br. 26-27. For the same reasons we have
provided with respect to claim 1, such arguments are unpersuasive for claim
11. The only additional argument that Appellant advances regards the
display of the temperature and humidity settings subsequent to a temperature
selection. Id. at 27. This additional argument is also unpersuasive because
Fraccon discloses a control panel for accepting user-inputted parameters
such as temperature and then displaying the oven's status "or otherwise
communicating with the user." Fraccon 2:62---64, 3:9--10. The skilled
artisan would have recognized that programming the controller to
automatically vary the displayed selected temperature and, by extension, the
default humidity level settings, would be desirable because doing so would
enhance the user experience by confirming the selected cooking parameters
for the user.
For these reasons, and because Appellant has not identified reversible
error in the obviousness rejection of claim 11, we sustain it.
Claims 12 and 13
Claims 12 and 13 depend from method claim 11 and are similar in
scope to apparatus claims 5 and 6. In addressing the rejection of claims 12
and 13, Appellant essentially repeats the deficient arguments made for
claims 5 and 6. App. Br. 23-24, 28. Therefore, we sustain the obviousness
rejection of claims 12 and 13 for the same reasons as claims 5 and 6.
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Claim 14
Claim 14 depends from method claim 11 and is similar in scope to
apparatus claim 8. We sustain this rejection for the same reasons provided
for claim 8 because Appellant relies on the same deficient argument.
App. Br. 24--25, 28-29.
Claim 15
Method claim 15 is similar in scope to apparatus claim 10 and
Appellant relies on the same unpersuasive arguments presented for that
claim. App. Br. 26, 29. We, therefore, sustain the obviousness rejection of
claim 15 for the same reasons provided for claim 10.
Claim 22
Independent claim 22 is similar in scope to claim 1 and Appellant
relies on substantially the same deficient arguments for this claim as relied
upon in the rejection of claim 1. App. Br. 21-23, 29-31. Furthermore, we
note that our decision (in Rejection II) sustains the anticipation rejection of
claim 22 over Hansen alone, and that "[i]t is well settled that 'anticipation is
the epitome of obviousness."' In re McDaniel, 293 F.3d 1379, 1385 (Fed.
Cir. 2002) ( quoting Connell v. Sears, Roebuck & Co., 722 F .2d 1542, 1548
(Fed. Cir. 1983)). Therefore, we sustain the Examiner's obviousness
rejection of claim 22.
Claim 23
Claim 23 depends from claim 22 and incorporates similar controller
limitations as recited in method claim 11. Appellant relies on essentially the
same deficient arguments presented for claim 11 's controller. App. Br. 27,
31. It follows that we sustain the obviousness rejection of claim 23 for the
same reasons provided for claim 11.
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DECISION
Rejections I, III, and V are reversed.
Rejections II and IV are affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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