Ex Parte Weiss

Board of Patent Appeals and Interferences

Jul 18, 2008

10689397 (B.P.A.I. Jul. 18, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RONALD R. WEISS
____________

Appeal 2008-3409
Application 10/689,397
Technology Center 1700
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Decided: July 18, 2008
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Before BRADLEY R. GARRIS, CHARLES F. WARREN, and
PETER F. KRATZ , Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 26-29. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.

Appellant claims a method of popping corn comprising, for a cold
start batch, applying heat to the kettle without PID (i.e., proportional integral
Appeal 2008-3409
Application 10/689,397

derivative) temperature control and, for a subsequent batch, applying heat to
the kettle with PID temperature control.
Representative claim 26, the sole independent claim on appeal, reads
as follows:
26. A method of popping corn in a plurality of batches from batches
of corn and oil loaded into a kettle, beginning with a cold start batch and
then subsequent batches, including the steps of:

for a cold start batch, applying heat to the kettle without PID
temperature control to pop the popping corn of the cold start batch within the
kettle; and

for a subsequent batch, applying heat to the kettle with PID
temperature control to pop the popping corn of the subsequent batch within
the kettle.

The references set forth below are relied upon by the Examiner as
evidence of obviousness:
Vande Walker 4,182,229 Jan. 8, 1980
Cartwright 5,352,866 Oct. 4, 1994
Claims 26-29 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vande Walker in view of Cartwright.
The dependent claims on appeal have not been separately argued (Br.
11-13). Accordingly, these claims will stand or fall with representative
independent claim 26.
We will sustain the above-noted rejections for the reasons expressed
in the Answer and below.
It is undisputed that Vande Walker discloses a method of popping
corn using sensor (i.e., non-PID) temperature control for each popping cycle
(col. 5, l. 48 – col. 6, l. 35) and that Cartwright discloses a method of
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Application 10/689,397

popping corn using PID temperature control for each popping cycle (col. 2,
ll. 13-29, col. 9, ll. 20-32). It is the Examiner's ultimate conclusion that one
with ordinary skill in this art would have found it obvious to retain Vande
Walker's sensor temperature control for a cold start batch of popping corn
but to replace this sensor temperature control with the PID temperature
control taught by Cartwright for a subsequent batch of popping corn (Ans. 4-
5).
Appellant argues "the Examiner's position fails to address why one of
ordinary skill in the art would be motivated to modify the PID temperature
control of Cartwright . . . to override the PID temperature control during a
first cooking cycle [i.e., a cold start batch of popping corn] as recited in the
instant claims" (Br. 13.).
In fact, the Examiner has provided specific reasons for such
motivation including the desire to combine the rapid heating advantage of
Vande Walker's sensor temperature control for a cold start batch with the
higher accuracy and repeatability advantage of Cartwright's PID temperature
control for subsequent batches (Ans. 4-7). Furthermore, the Examiner
properly cites KSR Int'l. Co. v. Teleflex, Co., 127 S. Ct. 1727, 1739 (2007) in
support of the proposition that the proposed combination of Vande Walker's
sensor temperature control with Cartwright's PID temperature control would
yield no more than predictable results (Ans. 5-7). Significantly, Appellant
has not provided the record of this appeal with any rebuttal to the Examiner's
exposition of these matters.
Under these circumstances, the facts, arguments, and evidence of
record weigh most heavily in support of the Examiner's obviousness
conclusion. In addition, a conclusion of obviousness is reinforced by
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Application 10/689,397

Appellant's disclosure "it was discovered that upon introducing the
temperature controller 82 and its PID aspects in the first cycle, that the first
batch of popcorn would not cook properly" (Spec. 80:18-20). This is
because such a "discovery" would have been apparent to an artisan using
Cartwright's PID temperature control for cooking the first batch of popping
corn and would have motivated the artisan to not use PID temperature
control for this first batch.
For the above stated reasons and the reasons expressed in the Answer,
we sustain the § 103 rejection of claims 26-29 as being unpatentable over
Vande Walker in view of Cartwright.
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED

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