Ex Parte Widitora et al

Patent Trial and Appeal Board

Aug 21, 2018

13832533 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/832,533 03/15/2013
22922 7590 08/23/2018
REINHART BOERNER VAN DEUREN S.C.
ATTN: TRAVIS MCDONNELL, PARALEGAL
IOOONORTHWATER STREET
SUITE 2100
MILWAUKEE, WI 53202
FIRST NAMED INVENTOR
Alvin Widitora
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.
086563-0322 1512
EXAMINER
CHOU,JIMMY
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
08/23/2018 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):
IP Admin@reinhartlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AL VIN WIDITORA, DOUGLAS C. MILLER,
GEORGE SADLER, JIANWEN HU, and GERALD J. BAKER
Appeal2017-003167
Application 13/832,533
Technology Center 3700
Before LINDA E. HORNER, JEFFREY A. STEPHENS, and
NATHAN A. ENGELS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Applicant Silgan Containers LLC ("Appellant") 1 seeks our review
under 35 U.S.C. § 134(a) from the Examiner's Final Office Action ("Final
Act.") rejecting claims 1-10, 12-23, and 28. Claim 11 is withdrawn; claims
24--27 are cancelled. Appeal Br. 24, 26-27. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.
1 Appellant is also identified as the real party in interest. Appeal Br. 1.
Appeal2017-003167
Application 13/832,533
Claimed Subject Matter
Appellant's claimed invention relates to "using induction heating to
heat, sterilize and/or cook food in metal or metallic containers." Spec. para.
1. 2 Claims 1 and 13 are independent. Claim 1, reproduced below with
disputed limitations emphasized, illustrates the claimed subject matter.
1. A real-time temperature detection system for detecting
temperature within a metal food can during induction heating
compnsmg:
an induction heating coil generating an alternating
magnetic field;
a metal can including side walls, at least one end, and a
metal seam which mechanically joins and hermetically seals the
end and side walls, the can positioned within the magnetic field
generated by the induction coil, the sealed metal can including a
food product within the sealed metal can, the magnetic field
causing resistive heating of the metal walls;
a rotatable structure engaged with at least one end wall of
the metal can and configured to rotate the metal can about a
longitudinal axis of the sealed metal can within the induction
heating coil;
a temperature sensing element hermetically sealed within
the metal can to generate a signal indicative of the temperature
of the food product during heating;
a wireless transmitter;
a lead extending through and sealed to one of the end or
side walls to couple the temperature sensing element to the
wireless transmitter such that the signal indicative of the
temperature of the food product during heating is communicated
from the temperature sensing element to the wireless transmitter;
and
a wireless receiver, wherein the wireless transmitter is
configured to transmit data indicative of the temperature of the
food product during heating to the wireless receiver, and the
wireless receiver is configured to communicate the data
2 Citations to the Specification are to the Substitute Specification filed May
31, 2013.
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Application 13/832,533
indicative of the temperature of the food product during heating
to a memory device configured to store data related to the signal
received from the temperature sensing element;
wherein the temperature sensing element, the lead and the
wireless transmitter are rigidly coupled to the sealed metal can
and the rotatable structure, such that the temperature sensing
element, the lead and the wireless transmitter rotate with the
rotatable structure and the sealed metal can as the sealed metal
can is rotated within the induction coil.
Rejections
I. Claims 1, 3, 4, 6-10, and 12 stand rejected under pre-AIA
35 U.S.C. § I03(a) as unpatentable over Ijuin (WO 2012/153394 Al,
published Nov. 15, 2012), 3 Schwegman (US 2009/0175315 Al, published
July 9, 2009), and Bedetti (US 6,698,923 B2, issued Mar. 2, 2004). Final
Act. 2-9.
II. Claims 13-17, 19, 21, 22, and 28 stand rejected under pre-AIA
35 U.S.C. § I03(a) as unpatentable over Ijuin and Schwegman. Final Act.
9-13.
III. Claim 2 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Ijuin, Schwegman, Bedetti, and Emerson (US 2,752,472,
issued June 26, 1956). Final Act. 13-14.
3 Appellant argues the Examiner has not provided a full translation of Ijuin
in English. Appeal Br. 11. The Examiner responds that the full English
translation was provided on February 23, 2016. Ans. 20. The translation
provided by the Examiner on February 23, 2016 and identified as WO
2012/153394 (Al) indicates it is a description from corresponding document
EP2709079 Al, which was published in English. Appellant does not
contend in the Reply that this document does not suffice as an English
translation of Ijuin. Hereinafter, citations to the figures of Ijuin are to the
WIPO publication, whereas citations to the text are to the corresponding
European publication provided by the Examiner.
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Application 13/832,533
IV. Claim 18 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Ijuin, Schwegman, and Emerson. Final Act. 15.
V. Claim 5 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Ijuin, Schwegman, Bedetti, and Garn (US 6,127,915,
issued Oct. 3, 2000). Final Act. 16.
VI. Claim 20 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Ijuin, Schwegman, and Garn. Final Act. 16-17.
VII. Claim 23 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Ijuin, Schwegman, and Fundom (US 4,399,925, issued
Aug. 23, 1983). Final Act. 17.
DISCUSSION
In rejecting claim 1, the Examiner finds Ijuin teaches a sealed metal
can, citing paragraph 22 's description of a re-sealable can. Final Act. 2.
The Examiner finds Ijuin' s can includes side walls, at least one end, and a
metal seam that mechanically seals the end and side walls because "[F]ig.1
shows the metal beverage can with cap that seals the end and side walls."
Id. ( emphasis omitted).
Appellant argues Ijuin, Schwegman, and Bedetti do not teach "a metal
seam which mechanically joins and hermetically seals the end and side
walls" of the metal can, as recited in claim 1. Appeal Br. 8. Appellant
contends Ijuin "discloses a removable screw top cap presumably for holding
in the contents of the can." Id. at 8-9 (citing Ijuin Fig. 2).
Appellant's Specification describes a "double seam" as coupling can
ends or end panels to the can body, and is "formed from the interlocked
portions of material of the can sidewall and the can end," as shown in Figure
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Application 13/832,533
8. Spec. para. 141, Fig. 8. There is no indication that one of ordinary skill
in the art would understand the claimed "seam" to be broader than this
description. The Examiner's Answer does not address the "seam"
limitation, and focuses on Ijuin's inherent teaching that the can must be
airtight to avoid spoilage. See Ans. 19. The Examiner does not dispute that
Ijuin's cap seals the can by being threaded onto it. We agree with Appellant
that Ijuin's threaded cap does not form a metal seam that mechanically joins
end and side walls of the can as one of ordinary skill in the art would
understand the term "seam," consistent with Appellant's Specification. In
addition, although claim 1 recites "at least one end," the language of the
claim requiring a metal seam that "mechanically joins and hermetically seals
the end and side walls" applies to any end walls present, and we do not see a
finding in the record as to whether the lower end of Ijuin's can is sealed with
a metal seam. 4
Appellant also argues none of the cited references teach a temperature
sensing element hermetically sealed within a can. Appeal Br. 9. The
Examiner finds Schwegman teaches this limitation because it teaches a flask,
which the Examiner finds is a metal container. Final Act. 4. Appellant
contends Schwegman' s sensor is not hermetically sealed within a metal can
sealed with metal seams because the sensor is held within the flask by a
stopper element that is capable of being removably attached to or inserted in
an open end of the flask. Appeal Br. 9 (citing Schwegman para. 23, Fig. 1).
Appellant argues that Schwegman's stopper would become dislodged if the
4 Our interpretation of claim 1 is consistent with Appellant's arguments.
E.g., Appeal Br. 9 ("[T]he sensor is not hermetically sealed within a metal
can sealed with metal seams.").
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Application 13/832,533
can were heated due to increased pressure, but Schwegman avoids this
problem by including ventilation aperture 26 that is open to the atmosphere
and, therefore, prevents high pressure buildup. Id. at 10 ( citing Schwegman
para. 28).
The Examiner states in response that Schwegman's "can is sealed
with stopper closely attached to the can so that no air can come out of the
can." Ans. 19. The Examiner's response does not address Schwegman's
teaching of ventilation aperture 26.
Contrary to Appellant's argument, Appeal Br. 10, Appellant's
Specification indicates that an end wall of the metal can may be, for
example, a closure, lid, cap, or cover, and an "end wall may be any element
that allows the container to be sealed such that the container is capable of
maintaining a hermetic seal." Spec. para. 140. As noted above, however,
claim 1 requires that the end walls be mechanically joined and hermetically
sealed with the side walls via a metal seam, which is not true of
Schwegman's stopper for the reasons discussed above relating to Ijuin's
threaded cap. We also agree with Appellant that the Examiner has not
shown Schwegman's stopper forms a hermetic seal because Schwegman
uses a ventilation aperture 26 to ventilate water vapor from the flask. See
Schwegman para. 28, Fig. 1. Because the Examiner's rejection is based on
this unsupported finding, we do not sustain it on this record.
In view of the foregoing, we do not sustain the rejection of claim 1
under 35 U.S.C. § 103(a) as unpatentable over Ijuin, Schwegman, and
Bedetti. For the same reasons, we do not sustain the rejections under 3 5
U.S.C. § 103(a) of dependent claims 2-10 and 12, which depend from claim
1 and were rejected based on the same findings discussed herein.
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Independent claim 13 does not recite a "metal seam" as in claim 1, but
recites "a temperature sensing element rigidly coupled to and hermitically
[sic] sealed within the can." As with claim 1, the Examiner finds these
limitations are taught in Schwegman. Final Act. 10. For the same reasons
discussed above, we agree with Appellant that the Examiner has not shown
Schwegman's temperature sensing element is hermetically sealed within the
can. See Appeal Br. 16. Accordingly, we do not sustain the Examiner's
rejections under 35 U.S.C. § 103(a) of claim 13 and claims 14--23 and 28
depending therefrom. 5
DECISION
We reverse the Examiner's rejection of claims 1-10, 12-23, and 28.
REVERSED
5 We recognize that it may be possible to hermetically seal Schwegman's
temperature sensing element into the can taught in Ijuin. As noted, however,
the rejection before us is based on the finding that Schwegman teaches a
temperature sensing element hermetically sealed within the can, and also
does not provide specific findings or explanation as to why one of ordinary
skill in the art would have incorporated Schwegman' s temperature sensing
element into another type of cap or end wall without the ventilation aperture
26 taught in Schwegman. Although the Board is authorized to enter a new
ground of rejection under 37 C.F.R. § 4I.50(b), no inference should be
drawn when the Board elects not to do so. See Manual of Patent Examining
Procedure (MPEP) § 1213.02.
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