Ex parte Waldrep

Board of Patent Appeals and Interferences

Jul 18, 2001

08459301 (B.P.A.I. Jul. 18, 2001)

Application for patent filed June 5, 1995.1
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written for publication and is not binding precedent of the Board.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. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte LINNES M. WALDREP
_____________
Appeal No. 1998-0093
Application No. 08/459,3011
______________
ON BRIEF
_______________
Before THOMAS, HAIRSTON, and MARTIN, Administrative Patent
Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
This an appeal under 35 U.S.C. § 134 from the September
25, 1996, final Office action in which the examiner (a)
rejected claims 1, 3 and 5-7 under the second paragraph of 35
U.S.C. § 112, (b) rejected claims 1, 6, and 7 under 35 U.S.C.
§ 103 for obviousness over Huie et al. (Huie) in view of
Moffat et al. (Moffat), (c) rejected claims 2 and 3 under
§ 103 for obviousness over Huie, Moffat, and Alden, and (d)
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Application No. 08/459,301
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indicated that claims 4 and 5 are allowable over the prior
art.
On December 18, 1996, appellant filed an amendment after
final under 37 CFR § 1.116 proposing to cancel claims 3 and 5
and amend claim 1 to remove the terminology that the examiner
considered to be indefinite, i.e., "conventional convection."
In an advisory action dated December 31, 1996, the examiner
indicated that the amendment after final would be entered upon
the filing of an appeal, with the result that claim 4 would be
allowed and claims 1, 2, 6 and 7 would remain rejected,
presumably only on reference grounds.
In the Answer (at 3-4), the examiner repeated the
rejection of claims 1, 6, and 7 based on Huie in view of
Moffat, indicated that claim 2 would be allowable if rewritten
in independent form, and added a new ground of rejection
asserting that claims 1, 6, and 7 are unpatentable under § 103
for obviousness over either one of Forrer and Malick in view
of Huie and Buckingham et al.
On June 6, 1997, appellant filed an amendment canceling
claim 2 and rewriting it as new claim 8 and filed a Reply
Brief responding to the new ground of rejection.
Appeal No. 1998-0093
Application No. 08/459,301
The specification (at 4, ll. 1-3) likewise describes2
the door as being constructed of laminated insulating panels.
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In the September 3, 1997, Supplemental Examiner's Answer,
examiner indicated that the rejections of claims 1, 6, and 7
are being maintained and indicated that claims 4 and 8 are
allowable.
We reverse and enter a new ground of rejection pursuant
to 37 CFR § 1.196(b).
A. The invention
The invention is a low-temperature oven that is heated by
electric light bulbs powered from a 110-volt outlet.
B. The claims
Claim 1, the sole independent claim on appeal, reads as
follows:
1. A portable low temperature cooking oven comprising:
a housing constructed of laminated insulating panels
having an opening therein;
a door constructed of laminated insulating panels[ ]2
pivotally attached to said housing and disposed for selective
sealed closing of said opening;
at least one electrical fixture attached within said
housing;
Appeal No. 1998-0093
Application No. 08/459,301
In using the term "connecting" instead of "for3
connecting," the claim requires that the dimming switch be
connected to the electrical power supply, which in the
disclosed embodiment is a conventional 110 volt power supply
(Spec. at 7, ll. 22).
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an electrical heat lamp attached to each said electrical
fixture;
at least one dimming switch attached to said housing;
electrical circuit means connecting[ ] each said dimming3
switch to an electrical power supply;
said electrical circuit means further electrically
connecting each said dimming switch to at least one said
electrical fixture.
C. The references and grounds of rejection
The examiner's rejections are based on the following U.S.
patents and British patent:
Buckingham et al. (Buckingham) 2,056,156 Oct. 6, 1936
Forrer 2,864,932 Dec. 16, 1958
Malick 4,481,405 Nov. 6,
1984
Huie et al. (Huie) 5,375,511 Dec. 27,
1994
Moffat GB 2 156 509A Oct. 9,
1985 Claims 1, 6, and 7 stand rejected under 35 U.S.C.
§ 103 for obviousness over Huie in view of Moffat.
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Claims 1, 6, and 7 also stand rejected under 35 U.S.C.
§ 103 for obviousness over either one of Forrer and Malick in
view of Huie and Buckingham.

D. The rejection based on Huie in view of Moffat
Huie discloses a food warming cabinet for holding
previously cooked food near the preferred serving temperature
for prolonged periods of time (col. 1, ll. 10-13). The
chamber 14 defined by uninsulated aluminum cabinet 12 and two
transparent doors 16 is heated by two heat bulbs 38, which are
controlled by a rheostat 48 (col. 2, ll. 3-32).
Moffat discloses a food warming oven having laminated
insulating walls and a laminated insulating door provided with
a heat-sealing gasket 8a (Fig. 3) (p. 1, l. 120 to p. 2, l.
1). Rather than using heat lamps as sources of heat, as
required by claim 1, Moffat uses a plurality of electric
heating elements 12 to heat respective compartments 11 formed
by shelves 10 and uses heating elements 13 and 14 to heat the
top and bottom walls, respectively (p. 2, ll. 2-19). Moffat
indicates that "[i]n particular, but not exclusively, the
invention relates to a food heating apparatus in the form of a
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food warming oven or cabinet for heating food, typically at
least partly precooked food, from a chilled or frozen
condition to a serving temperature, e.g., approximately 70EC"
(p. 1, ll. 6-12).
The examiner contends that "[i]t would have been obvious
to one of ordinary skill in the art to adapt the insulated
panels of Moffat et al to the food warmer of Huie et al to
more efficiently warm food placed in the device" (Answer at 5)
and that such a modification "would have been an obvious
alternative where display of the contents was not necessary
and merely efficient warming was desired (Answer at 7). While
we agree that it would have been obvious to insulate Huie's
cabinet walls with laminated insulating material in order to
increase the oven's electrical efficiency, we are not
persuaded of the obviousness of also replacing Huie's
transparent doors with nontransparent, laminated, insulating
and sealing doors, as proposed by the examiner. This
modification, as appellant correctly observes, appears to be
improperly based on knowledge of appellant's own specification
and the requirements of claim 1. Accordingly, we are
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reversing that ground of rejection with respect to each of the
rejected claims, i.e., claims 1, 6, and 7.
E. The rejection based on either one of Forrer
and Malick in view of Huie and Buckingham
Forrer and Malick each disclose infrared cooking ovens.
Forrer's oven has an outer shell formed by panels 5-11 and a
door 30. As shown in Figures 1 and 2, the side walls of the
outer shell have holes 13 and 14 for allowing air to enter and
exit the oven. An inner reflecting shell, formed by bottom
pan 15, side pans 18 and 19, rear pan 20, and top pan 21
(there is no front pan), contains infrared heating lamps 17
and 40 and a glass shelf 25 for supporting the food to be
heated, which is included in a cellophane wrapper 46.
Air circulates through the oven with sufficient rapidity
that the air within it is never too hot to preclude the use of
the operator's hands in placing and removing food (col. 3, ll.
11-14). This circulating air further carries away the heat
from the inner reflecting chamber walls and protects the outer
shell from having any dangerous rise in temperature (col. 3,
ll. 14-17). With the exception of bottom panel 9, which may
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be may of fiber, all of the panels are made of aluminum (col.
1, ll. 64-67).
The door of Forrer's oven is insulated to assist in
keeping it as cool as possible (col. 2, ll. 43-46). Forrer
further explains that "[t]he only other place in the oven at
which I have found it expedient to use insulation is on the
under surface of the top wall 8 where I employ a bat of
insulation at 38 around the socket 39 for the upper heat lamp
40" (col. 2, ll. 48-51).
Malick's cooking oven likewise is of the infrared type.
See column 2, lines 22-25: "In contrast to conventional ovens
where the food is heated by hot air or long-wave infrared
radiation, the present invention heats the food by short-wave
infrared radiation." The infrared radiation is provided by
four, 200-watt incandescent bulbs in the preferred embodiment
depicted by Figures 1-6 and by a 30-watt lamp (presumably also
incandescent) in the simplified Figure 7 embodiment.
The oven shown in Malick's Figures 1 and 2, on which the
examiner relies (Answer at 6), is similar to Forrer's in that
it is provided with vents (i.e., 60-62) for allowing air to
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enter and exit the oven. The reasons for such venting are as
follows:
Further features of the invention include
venting of the cooking compartment to permit its end
panels to remain cool with a shorter overall length
than is required when the cooking compartment is not
ventilated. This permits the end panels to be
formed from wood which provides a pleasing aesthetic
appearance of the cooking appliance. Venting the
compartment also lowers the temperature of the air,
the lamp glass and the support grid and thereby
improves reliability by reducing the possibility of
damage to the plastic pouch. [Col. 2, ll. 1-10.]
Specifically, vent openings 60 "provide ventilation at the
opposite ends of the cooking compartment to reduce the air
temperature in the cooking compartment and to help prevent
overheating of the wooden end walls 16 and 18 and
the microswitch 50" (col. 3, ll. 38-42). Vent openings
function as follows:
Vent opening 61 provides ventilation of the space
between wall 34 and the wooden end panel 16 and,
therefore, cools the panel, the switch support wall
38, the microswitch and the lamp sockets. Vent
opening 62 provides ventilation of the space between
wall 36 and the wooden end panel 18 and, therefore,
cools the panel and radiation shield 39 which is
supported at its sides on wall 36. Vent 61 also
permits the use of a microswitch 50 rated for low
temperature operation as contrasted with the more
expensive high temperature types. The switch is the
most expensive single component in the oven; and a
means for keeping it at lower temperatures is,
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therefore, of prime importance. [Col. 3, l. 66 to
col. 4, l. 10.]
The examiner cites Buckingham as evidence of the
obviousness of increasing the efficiency of the ovens of
Forrer and Malick by replacing their outer walls with
laminated insulating walls (Answer at 6). Buckingham's oven,
like Malick's, employs infrared radiation provided by
incandescent bulbs (16) (p. 2, 2d col., ll. 51-59).
Buckingham's oven includes an outer heat-insulating box or
wall 11 having a removable top cover 13, an inner, heat-
attenuating box or wall 12 having a removable top cover 22,
and eight incandescent light bulbs 16 located in the space
between the inner and outer boxes (p. 2, 2d col., ll. 7-20).
Buckingham's oven does not include any vents.
Appellant argues that
[sic:the] modification of either Forrer or Malick in
view of to Huie et al. and Buckingham et al. in the
manner suggested by the examiner would require
elimination of the vents of Forrer and Malick. . . .
[T]he modifications suggested by the examiner would
clearly be detrimental to the operation of the basic
references. Stated another way, it would in each
case be teaching away from the intended operation of
the primary references. [Reply Brief at 7.]
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The examiner's Supplemental Answer does not address this
argument, which in our view has considerable merit. In both
Forrer and Malick, cooking is accomplished using infrared
radiation rather than heated air; in fact, the air is vented
to the atmosphere in order to prevent the internal components
from becoming too hot, as noted above. As a result, replacing
the vented, uninsulated walls in the ovens of Forrer and
Malick with unvented, insulated walls would fundamentally
alter the manner of operation of those ovens, which undercuts
the examiner's prima facie case for obviousness. Compare In
re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir.
1984) ("if the French apparatus were turned upside down, it
would be rendered inoperable for its intended purpose"); In re
Schulpen, 390 F.2d 1009, 1013, 157 USPQ 52, 55 (CCPA 1968)
("Rather than being made obvious by the reference, such
modification would run counter to its teaching by rendering
the apparatus inoperative to produce the disclosed tire
patches."). As a result, we are also reversing the rejection
of claims 1-3 based on either one of Forrer and Malick in view
of Huie and Buckingham.
Appeal No. 1998-0093
Application No. 08/459,301
A copy of the Nusbaum patent, which issued June 23,4
1987, is enclosed.
The requirement that the door be formed of panels reads5
on Nusbaum's door 16F as well as it does on appellant's
disclosed door 32.
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F. New grounds of rejection pursuant to 37 CFR § 1.196(b)
Pursuant to our authority under 37 CFR § 1.196(b), claims
1, 6, and 7 are hereby rejected under 35 U.S.C. § 103(a) for
obviousness over Nusbaum et al. U.S. Patent 4,675,506
(Nusbaum) in view of Huie.4
All of the elements of claim 1 with the exception of the
recited dimming switch read on Nusbaum's oven as follows:
1. A portable low temperature cooking oven comprising:
a housing [10a-10e] constructed of laminated insulating
panels [i.e., rigid, densified glass wool material 17
sandwiched between outer aluminum layer 18 and inner aluminum
layers 16a-16e -- col. 6, ll. 1-6] having an opening therein;
a door [10f] constructed of laminated insulating panels[ ]5
[i.e., rigid, densified glass wool material 17 sandwiched
between outer aluminum layer 18 and inner aluminum layers 16f]
pivotally attached [by piano hinge 19 -- col. 5, ll. 57-58] to
said housing and disposed for selective sealed closing [i.e.,
loosely sealed even when designed to permit venting -- col. 3,
ll. 30-34] of said opening;
at least one electrical fixture [socket 31] attached
within said housing;
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an electrical heat lamp [incandescent bulb 30] attached
to each said electrical fixture;
at least one dimming switch [not disclosed] attached to
said housing;
electrical circuit means connecting each said dimming
switch [not disclosed] to an electrical power supply [socket
31 is connectable to external power source -- col. 6, ll. 10-
12];
said electrical circuit means further electrically
connecting each said dimming switch [not disclosed] to at
least one said electrical fixture.
In view of Nusbaum's observation that "[p]alatable cooked
temperatures for meat, for example, range from about 140E F.
(60E C.) for rare meat to about 190E F. (88E C.) for well done
poultry" (col. 2, ll. 39-41), Nusbaum's explanation that
increasing or decreasing the wattage of the bulb respectively
increases or decreases the equilibrium oven temperature (col.
5, ll. 39-48), and Huie's disclosure of using rheostat 48 to
adjust the flow of electrical current into the lamp sockets 36
in order to change the temperature within the chamber 14 (col.
2, ll. 28-
32), it would have been obvious to add a rheostat (or dimmer)
to Nusbaum's oven to permit adjustment of the lamp wattage and
thereby the equilibrium temperature.
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Application No. 08/459,301
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Dependent claims 6 and 7 are satisfied by Nusbaum's oven
thus modified, because Nusbaum's insulating panels are formed
of rigid heat resistant insulation material sandwiched between
layers of heat reflective and heat resistance aluminum (col.
4, ll. 46-59 and col. 6, ll. 1-6).
G. Appellant's options for responding
to the 37 CFR § 1.196(b) rejection
This decision contains a new ground of rejection pursuant
to 37 CFR § 1.196(b) (amended effective Dec. 1, 1997, by final
rule notice, 62 Fed. Reg. 53,131, 53,197 (Oct. 10, 1997), 1203
Off. Gaz. Pat. & Trademark Office 63, 122 (Oct. 21, 1997)).
37 CFR
§ 1.196(b) provides, "[a] new ground of rejection shall not be
considered final for purposes of judicial review."
37 CFR § 1.196(b) also provides that the appellant,
WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new
ground of rejection to avoid termination of proceedings 37 CFR
§ 1.197(c) as to the rejected claims:
(1) Submit an appropriate amendment of the
claims so rejected or a showing of facts relating to
the claims so rejected, or both, and have the matter
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Application No. 08/459,301
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reconsidered by the examiner, in which event the
application will be remanded to the examiner . . . .
(2) Request that the application be reheard
under § 1.197(b) by the Board of Patent Appeals and
Interferences upon the same record . . . .
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Application No. 08/459,301
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
REVERSED; 37 CFR § 1.196(b)
)
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
KENNETH W. HAIRSTON )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JOHN C. MARTIN )
Administrative Patent Judge )
JCM/sld
Appeal No. 1998-0093
Application No. 08/459,301
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JOHN C. GRAVIN, JR.
P.O. BOX 18485
HUNTSVILLE, AL 35804-8485
Enclosure: Nusbaum U.S. Patent 4,675,506