Ex Parte Young et al

Board of Patent Appeals and Interferences

Feb 9, 2009

10209907 (B.P.A.I. Feb. 9, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT C. YOUNG
and JOHAN KOOLS
____________

Appeal 2008-5760
Application 10/209,907
Technology Center 1700
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Decided:1 February 10, 2009
____________

Before CHUNG K. PAK, CATHERINE Q. TIMM, and
JEFFREY T. SMITH, Administrative Patent Judges.

PAK, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2008-5760
Application 10/209,907

STATEMENT OF THE CASE
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's refusal to allow claims 1, 3, 5 through 22, and 24 through 27, all
of the claims pending in the above-identified Application.2 We have
jurisdiction pursuant to 35 U.S.C. § 6.
The subject matter on appeal is directed to “microwave active
susceptors . . . suitable for use in the packaging and preparation of
microwave food products, where the susceptor structure includes a fluid
absorbent structure, which absorbs such fluids as water, moisture, oil, fat,
grease, and the like” (Spec. 1, ll. 4-7). Details of the appealed subject matter
are recited in representative independent claims 1 and 22 reproduced from
the Claims Appendix to the Appeal Brief as follows:
1. A susceptor comprising:
an absorbent substrate layer;
a first susceptor layer comprising microwave susceptor material over
said absorbent substrate layer;
a supporting substrate between said absorbent substrate and said first
susceptor layer;
a first protective overcoating layer over said first susceptor layer; and
perforations or cut-outs formed through said first protective
overcoating layer, said first susceptor layer, and said supporting substrate, to
permit wicking and draining of liquid through said first protective
overcoating layer, said first susceptor layer, and said supporting substrate to
said absorbent substrate layer,

2 An oral hearing was held on January 22, 2009.
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Application 10/209,907

wherein said absorbent substrate layer comprises non-woven fibers,
and
wherein said perforations or cut-outs are located in said susceptor at
least in an area beneath an applied food load and between said absorbent
substrate layer and said applied food load and wherein said perforations or
cut-outs do not extend through the entire susceptor.
22. A susceptor comprising:
a first absorbent layer;
a second absorbent layer;
a first susceptor layer comprising microwave susceptor material
between said first absorbent layer and said second absorbent layer;
a supporting substrate between said first susceptor layer and at least
one of said first absorbent layer and said second absorbent layer;
a first protective overcoating layer over said first absorbent layer; and
perforations or cut-outs formed through said first protective
overcoating layer, said first absorbent layer, said first susceptor layer, and
said supporting substrate, to permit wicking and draining of liquid through
said first protective overcoating layer, said first absorbent layer, said first
susceptor layer, and said supporting substrate to said second absorbent layer,
wherein at least one of said first absorbent layer and said second
absorbent layer comprises non-woven fibers, and
wherein said perforations or cut-outs are located in said susceptor at
least in an area beneath an applied food load and between said first
absorbent layer and said applied food load and wherein said perforations or
cut-outs do not extend through the entire susceptor.
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Application 10/209,907

As evidence of unpatentability of the appealed subject matter, the
Examiner has proffered the following prior art references:
Quick US 5,180,894 Jan. 19, 1993
Stamp US 5,194,408 Mar. 16, 1993
Watanabe US 5,399,842 Mar. 21, 1995
Young US 5,585,027 Dec. 17, 1996

The Examiner has rejected the claims on appeal as follows:
1) Claims 1, 3, 5 through 11, 24, and 27 under 35 U.S.C. § 102(b)
as anticipated by the disclosure of Quick;
2) Claims 12 through 16, 22, and 26 under 35 U.S.C. § 103(a) as
unpatentable over the combined disclosures of Quick and Watanabe; and
3) Claims 17 through 21 and 25 under 35 U.S.C. § 103(a) as
unpatentable over the combined disclosures of Quick and Stamp.
Appellants appeal from the Examiner’s decision rejecting the claims
on appeal under 35 U.S.C. §§ 102(b) and 103(a).
ISSUE
Claim 1 recites, inter alia,
perforations or cut-outs formed through said first protective
overcoating layer, said first susceptor layer, and said supporting
substrate, to permit wicking and draining of liquid through said
first protective overcoating layer, said first susceptor layer, and
said supporting substrate to said absorbent substrate layer . . .
wherein said perforations or cut-outs are located in said
susceptor at least in an area beneath an applied food load and
between said absorbent substrate layer and said applied food
load and wherein said perforations or cut-outs do not extend
through the entire susceptor . . . .

Claim 22 recites, inter alia,
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Application 10/209,907

perforations or cut-outs formed through said first protective
overcoating layer, said first absorbent layer, said first susceptor
layer, and said supporting substrate, to permit wicking and
draining of liquid through said first protective overcoating
layer, said first absorbent layer, said first susceptor layer, and
said supporting substrate to said second absorbent layer . . .
wherein said perforations or cut-outs are located in said
susceptor at least in an area beneath an applied food load and
between said first [sic., second] absorbent layer and said
applied food load and wherein said perforations or cut-outs do
not extend through the entire susceptor . . . .

The Examiner’s §§ 102 and 103 rejections are based on the finding that
Quick teaches the above-mentioned limitations recited in claims 1 and 22
(Ans. 4-11). The Examiner contends that Quick teaches one or more vent
holes for facilitating the removal of any cooking gases through the sides of
the container (Ans. 4). These vent holes, according to the Examiner, meet
the above-mentioned limitations defining the location and extent of
perforations in the microwave susceptor recited in claims 1 and 22 (Ans. 4-5
and 9-11). On the other hand, Appellants contend that Quick’s vent holes do
not define the claimed location and extent of perforations in the claimed
microwave susceptor.
Thus, the dispositive question raised in this case is: Has the Examiner
demonstrated that Quick teaches the claimed functionally defined location
and extent of perforations in the claimed microwave susceptor?
CONCLUSION OF LAW
On this record, the Examiner has not demonstrated that Quick teaches
the claimed functionally defined location and extent of perforations in the
claimed microwave susceptor.

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RELEVANT FACTUAL FINDINGS (FF)
The Factual Findings set forth below are supported by a
preponderance of the evidence of record:
1. Quick teaches a microwave susceptor container used for packaging
food products (col. 2, ll. 1-15).
2. Quick teaches that its microwave susceptor container comprising a
lower layer of paper 12 (corresponding to the claimed supporting substrate),
an adhesive layer 14 on the top of the paper layer 12, a susceptor layer 16
(corresponding to the claimed first susceptor layer) fixed to the paper layer
12 via the adhesive layer 14 and a food release coating 20 (corresponding to
the claimed first protective overcoating layer) over the susceptor layer 16
(col. 3, ll. 20-42 and Fig. 2).
3. Quick teaches that an absorbent pad 60 formed of any suitable non-
woven material, can be affixed to the bottom of the paper layer 12 (the
claimed supporting substrate) via an adhesive layer such that its edges
extend beyond the ends of the susceptor container (paper layer) to absorb
water or grease or other exudates released from a food product during
cooking flowing to the sides of the container (col. 5, ll. 10-18 and col. 3, ll.
20-42 and Figs. 8 and 9).
4. Quick teaches “cuts 50, 56 and 58 to form one or more vent holes
forming flaps 52” to “facilitat[e] exit of any cooking gases from the
container” (col. 5, ll. 3-10 and Figs. 6 and7).
5. Quick does not teach the placement and extent of perforations at the
bottom or base of its microwave susceptor container to expose at least the
absorbent pad beneath the bottom or base of the microwave susceptor
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Application 10/209,907

container to absorb water or grease flowing through the perforations during
cooking (see generally Quick).
6. The Examiner relies on the disclosure of Watanabe to show that
“paper and non-woven fabric are interchangeable as substrate layer[s] . . . for
a metal layer [suceptor layer and] . . . for microwave heating of food” (Ans.
7).
7. The Examiner relies on the disclosure of Stamp to show a corrugated
susceptor useful packaging food (Ans. 9).

PRINCIPLES OF LAW

Under 35 U.S.C. § 102(b), “[a] claim is anticipated only if each and
every element as set forth in the claim is found, either expressly or
inherently described, in a single prior art reference.” Verdegall Bros. v.
Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987).
Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary considerations, if any. Graham
v. John Deere Co., 383 U.S. 1, 17-18 (1966). As stated in KSR Int’l Co., v.
Teleflex, Inc., 127 S. Ct. 1727, 1740-41 (2007):
“[A]nalysis [of whether the subject matter of a claim
would have been prima facie obvious] need not seek out precise
teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art
would employ.”

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However, "rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." KSR, 127 S.Ct. at 1742, (quoting In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006)).
In making a patentability determination, analysis must begin with the
question, “what is the invention claimed?” since “[c]laim interpretation, . . .
will normally control the remainder of the decisional process.” Panduit
Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1567-68 (Fed. Cir. 1987); see
also Gechter v. Davidson, 116 F.3d 1454, 1457 (Fed. Cir. 1997). The
determination of the scope of the claimed invention requires consideration of
all words in the claims. In re Geerdes, 491 F.2d 1260, 1262-63(CCPA
1974); In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970).
During examination, claim terms must be given “their broadest
reasonable construction consistent with the specification.” In re Icon Health
and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). “[T]he
specification ‘is always highly relevant to the claim construction analysis.
Usually, it is dispositive; it is the single best guide to the meaning of a
disputed term.’” Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir.
2005) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
(Fed. Cir. 1996)); see also In re Cohn, 438 F.2d 989, 993 (CCPA 1971)(“No
claim may be read apart from and independent of the supporting disclosure
on which it is based.”)

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ANALYSIS
Claims 1 and 22 require that perforations be extended through at least
a first protective overcoating layer, a first susceptor layer, and a supporting
substrate of the claimed microwave susceptor to expose at least one
absorbent layer beneath the supporting substrate on the bottom or base of the
claimed microwave susceptor. This interpretation is consistent with the
functionally defined location and extent of perforations recited in claims 1
and 22 and Appellants’ written description in the Specification.
However, Quick’s vent holes relied upon by the Examiner not only
extend through the entire susceptor container to facilitate exit of any cooking
gases therein, but also do not expose its absorbent pad located in the bottom
or base of the microwave susceptor via perforations as required by claims 1
and 22. Moreover, the Examiner has not explained why one of ordinary skill
in the art would have been led to locate vent holes for removing any cooking
gases in the bottom or base of Quick’s susceptor container “to permit
wicking and draining of liquid through said first protective overcoating
layer. . . and said supporting substrate to . . . absorbent substrate layer
(emphasis added)” as required by claims 1 and 22.
Accordingly, we are constrained to reverse the Examiner’s §§ 102 and
103 rejections.

ORDER
The decision of the Examiner is reversed.

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TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
REVERSED

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OLIFF & BERRIDGE, PLC
P.O. BOX 320850
ALEXANDRIA, VA 22320-4850

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