Ex Parte Staebler

Patent Trial and Appeal Board

Jul 29, 2013

11641386 (P.T.A.B. Jul. 29, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MANFRED W. STAEBLER
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Appeal 2011-006756
Application 11/641,386
Technology Center 3700
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Before MICHAEL L. HOELTER, RICHARD E. RICE and
CARL M. DeFRANCO, Administrative Patent Judges.

DeFRANCO, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-12. Br. 3. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
THE CLAIMED INVENTION
The claimed invention relates to “cook top heating elements such as
those found on a stove or range, and more particularly, to a dual coil heating
element with a dedicated low temperature coil.” Subst. Spec. 2, ll. 11-13.
Claims 1 and 4 are the independent claims, and claim 1 is illustrative of the
claims on appeal:
1. A heating element for use in a cooktop
comprising:
a first heating unit having a first wattage rating;
a second heating unit having a second wattage
rating greater than said first wattage rating;
a single main power on-off switch operable to tum
on and off main power to said first heating unit
and said second heating unit; and
a control assembly to provide selective
temperature control to said second heating unit.

Br. 11, Clms. App’x (emphasis added).
THE REJECTIONS ON APPEAL
Appellant seeks review of the following rejections by the Examiner:
1) the rejection of claims 1, 2, 4, 5 and 7-10 under U.S.C. § 102(b) as
being anticipated by Goessler (US 4,511,789, iss. Apr. 16, 1985);
2) the rejection of claims 1, 2, 4, 5 and 7-11 under 35 U.S.C. § 103(a)
as being unpatentable over Scheidler (US 4,772,779, iss. Sep. 20, 1988) and
Higgins (US 5,270,519, iss. Dec. 14, 1993) or Elmer (US 2,379,509, iss. Jul.
3, 1945);
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3) the rejection of claims 3 and 6 under 35 U.S.C. § 103(a) as being
unpatentable over Goessler and Schilling (US 5,396,047, iss. Mar. 7, 1995);
4) the rejection of claims 3 and 6 under 35 U.S.C. § 103(a) as being
unpatentable over Scheidler, Schilling, and either Higgins or Elmer; and
5) the rejection of claim 12 under 35 U.S.C. § 112, first paragraph, for
failing to comply with the enablement requirement.
ANALYSIS
Appellant argues independent claims 1 and 4 as a group, relying on
the same arguments for both claims. Br. 5-8. Appellant does not separately
argue dependent claims 2, 5, and 7-10. Id. at 5-9. We select claim 1 for
review with claims 2, 4, 5 and 7-10 standing or falling with claim 1. See 37
C.F.R. § 41.37(c)(1)(vii) (2011). Likewise, because Appellant relies on the
dependency of claims 3 and 6 from parent claim 1 as the reason for
patentability, they too will stand or fall with claim 1. Appellant argues
claims 11 and 12 separately, which we address in turn.

The anticipation rejection of claims 1, 2, 4, 5 and 7-10

The Examiner found that Goessler teaches all the limitations of claim
1, including the disputed limitation of a single main power switch that turns
main power on and off to first and second heating units. Ans. 4.
Specifically, the Examiner found that Goessler expressly discloses that
“power is supplied to the heating element 11 by means of switch 25” and,
because heating element 11 comprises an inner heating resistor 13 and an
outer heating resistor 14, then it follows that Goessler teaches a single main
switch that turns main power on-off to first and second heating units. Id. at
6.
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We discern no error in the Examiner’s interpretation of Goessler.
Figure 1 of Goessler clearly shows that switch 25 operates as the main on-
off power switch in that it is connected via branch 28 to the heating resistor
13 (inner heating element) and the heating resistor 14 (outer heating
element). See also Goessler, col. 3, ll. 17-27. As for Appellant’s contention
that Goessler “requires several switches 25, 27,” not a single switch, to turn
on-off main power, we note Appellant’s own statement describing the
operation of Goessler: “A second switch 27 is provided to provide power to
resistors 14 and 15. . . . When switches 25 and 27 are closed, all three
resistors 13, 14 and 15 are operable.” Br. 6. Goessler is arranged such that
when switch 27 is closed, switch 25 is operable to turn on and off main
power to the inner heating resistor 13 (first heating unit) and the outer
heating resistor 14 (second heating unit), as claim 1 requires. See Goessler
Fig. 1, and col. 3, ll. 17-18 (“Power is supplied to heating element 11 by
means of switch 25”). Indeed, the Examiner aptly points out that, unless
switch 25 is closed, “no power is supplied to any of the heating resistors.”
Ans. 6-7. That Goessler has an extra switch 27 does not diminish the fact
that switch 25 is operable as a single main power on-off switch, such that
when it is open, both units 13 and 14 are off, and when it is closed, either
only unit 13 is on or both units 13 and 14 are on.
For these reasons, we sustain the Examiner’s rejection of independent
claim 1 and independent claim 4, which falls with claim 1. Because
Appellant does not separately argue dependent claims 2, 3, 5 and 7-10, we
likewise do not sustain the rejection of those claims.

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The obviousness rejection of claims 1-11
Claims 1-10
The Examiner alternatively found that Scheidler discloses all the
limitations of claim 1 with the exception of the second heating unit having a
wattage greater than the first heating unit. Ans. 5. For that teaching, the
Examiner relied on Higgins or Elmer as individually teaching heating units
of varying or different wattages. Id. The Examiner thus concluded that, in
view of Higgins or Elmer, a skilled artisan would have found it obvious to
adapt Scheidler with a second unit of higher wattage than the first unit “to
provide varying degrees of heating temperatures” for selection by the user.
Id.
As with Goessler, Appellant contends that Scheidler does not disclose
a single main power on-off switch. Br. 7. The Examiner, however, found
that Scheidler’s switch 14 acts as the “single main power switch” for the two
heating units. Ans. 5. Appellant responds that Scheidler’s switch 14 “is not
a single switch, but is instead a ‘plurality of switch elements 14’, and that
only a single switch element is illustrated for simplicity,” citing column 3,
lines 24-26. Br. 8. While we agree with Appellant that Scheidler discloses
that switch 14 may comprise a plurality of switch elements, we note that
Scheidler does not preclude one of those plural switches from being a single
main power on-off switch. Indeed, in support of the Examiner’s finding,
Scheidler expressly discloses a “main switch element” in addition to other
switches. Scheidler, col. 2, ll. 5-8. Given Scheidler’s express disclosure of
a main switch element, we determine that a preponderance of the evidence
supports the Examiner’s position. See id. and Figure 1 of Scheidler. As
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such, we sustain the rejection of independent claims 1 and 4, as well as
dependent claims 2, 3, 5 and 7-10, which fall with claims 1 and 4.
Claim 11
Claim 11 recites the additional limitation of “a graduated switch to
vary only the power applied by the second heating unit.” Br. 12, Clms.
App’x. Appellant contends that Scheidler “does not teach the subject matter
of claim 11” and that the Examiner never addressed this claim in the Final
Rejection. Br. 8-9. Appellant’s contentions are not persuasive for two
reasons. First, the Examiner does, in fact, address the “graduated switch”
limitation of claim 11, determining that a skilled artisan would have found it
obvious to add a graduated switch to each of Scheidler’s heating units as
taught by Elmer. See Ans. 5. Second, the Examiner did not rely on
Scheidler for teaching that each unit is controlled by its own graduated
switch, but relied on Elmer for such teaching. See id. Because Appellant
fails to address the Examiner’s specific rejection, which was based on both
Scheidler and Elmer, we sustain the rejection of claim 11.
The nonenablement rejection of claim 12
Claim 12 recites “a graduated switch . . . to vary only the power
applied by the second heating unit.” The Examiner rejected claim 12
because the Specification does not enable the graduated switch called for by
claim 12. Ans. 3. In particular, the Examiner explained that because the
Specification describes the graduated switch as turning the first heating unit
on and off, the switch necessarily fails to vary only the power applied by the
second heating unit. Id. We agree with the Examiner. The Specification
clearly states that the graduated switch is in electrical communication with,
and thus controls the overall power to, both the low and high wattage coils
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112 and 116. Spec. 6, ll. 9-13 (“The heating element 110 includes a low
wattage coil 112 and a high wattage coil 116 in electrical communication
with a graduated switch 120”); see also Spec. 5, ll. 19-21, and 4, ll. 4-6.
Moreover, we are not persuaded by Appellant’s argument that “the switch
positions ‘are graduated to vary the power applied to the high wattage’”
because it does not address the Examiner’s concern with the “only” language
in claim 12. As such, we sustain the rejection of claim 12 as failing to
comply with the enablement requirement.
DECISION
We affirm the Examiner’s decision rejecting claims 1-12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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