Ex Parte Widitora et alDownload PDFPatent Trial and Appeal BoardAug 21, 201813832533 (P.T.A.B. Aug. 21, 2018) Copy Citation 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 Claim 11 is withdrawn; claims 24--27 are cancelled.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. 2 Appeal2017-003167 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. 3 Appeal2017-003167 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 4 Appeal2017-003167 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."). 5 Appeal2017-003167 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. 6 Appeal2017-003167 Application 13/832,533 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. 7 Copy with citationCopy as parenthetical citation