James J. HuttnerDownload PDFPatent Trials and Appeals BoardAug 26, 201915358641 - (D) (P.T.A.B. Aug. 26, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/358,641 11/22/2016 James J. Huttner 1-25298 2213 1678 7590 08/26/2019 MARSHALL & MELHORN, LLC FOUR SEAGATE - EIGHTH FLOOR TOLEDO, OH 43604 EXAMINER SMITH, PRESTON ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 08/26/2019 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): PatentDocket@marshall-melhorn.com may@marshall-melhorn.com schurr@marshall-melhorn.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JAMES J. HUTTNER ____________ Appeal 2018-007665 Application 15/358,641 Technology Center 1700 ____________ Before JAMES C. HOUSEL, LILAN REN, and MICHAEL G. McMANUS, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claims 1, 2, and 4–13. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM.2 1 Appellant is the Applicant, Jaz Innovations, LLC, which is identified in the Appeal Brief as the real party in interest (Appeal Br. 3). 2 Our Decision refers to the Specification (“Spec.”) filed November 22, 2016, the Examiner’s Final Office Action (“Final Act.”) dated December 13, 2017, Appellant’s Appeal Brief (“Appeal Br.”) filed April 19, 2018, the Examiner’s Answer (“Ans.”) dated June 19, 2018, and Appellant’s Reply Brief (“Reply Br.”) filed July 16, 2018. Appeal 2018-007665 Application 15/358,641 2 STATEMENT OF THE CASE The invention relates to a method of frying or cooking food using a grease splatter shield with a half-domed or truncated cone configuration and a substantially sized, central opening in its top that is wide enough to allow easy access to the food in order to turn, stir, or otherwise manipulate the food and substantially all the steam to escape. Spec. 4:17–5:2. Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the subject matter on appeal. 1. A method of frying or cooking foods that release splattering grease droplets, comprising: providing a splatter shield comprising an upper rim, lower rim, and an inwardly sloping sidewall extending contiguously between the upper and lower rim, the sidewall being generally annular and surrounding the interior circumference of a cooking vessel without interruption, said upper and lower rim defining an upper surface, a lower surface, and a side surface of said shield, the upper surface defining an upper central opening that is sufficiently large to permit entry of cooking utensils therethrough, admit the use of cooking utensils to manipulate the food within the cooking vessel positioned beneath the splatter shield while the food is cooking, allow substantially all the steam to escape from the cooking vessel, and allow the removal of the food from the cooking vessel through the upper opening, all without removing the shield from the cooking vessel; placing said splatter shield atop the cooking vessel such that the lower rim of the splatter shield is contiguous with and covers an open upper surface of said cooking vessel, heating said cooking vessel; placing one or more food items to be cooked into the cooking vessel by inserting them, without removing the shield from the cooking vessel, through the upper opening of said splatter shield; allowing the one or more food items to cook within the cooking vessel; and Appeal 2018-007665 Application 15/358,641 3 without removing the shield from the cooking vessel, turning, stirring, or otherwise manipulating the one or more food items as they cook by inserting a utensil through the open upper surface of the splatter shield. Independent claim 13 similarly recites a method of frying foods including placing one or more food items into the cooking vessel through the opening in the splatter shield and turning the one or more food items by inserting a utensil through the opening in the splatter shield. REJECTIONS The Examiner maintains, and Appellant requests our review of, the following grounds of rejection under 35 U.S.C. § 103: 1. Claims 1, 2, 4, 8, and 10–13 as unpatentable over Hutzler3 in view of Maczko;4 2. Claim 5 as unpatentable over Hutzler in view of Maczko, and further in view of Kaufman;5 3. Claims 6 and 7 as unpatentable over Hutzler in view of Maczko, and further in view of Baker;6 and 4. Claim 9 as unpatentable over Hutzler in view of Maczko, and further in view of Thompson.7 3 http://hutzlerco.com/products/i/325/, 2011 (“Hutzler”). 4 Maczko et al., US 2009/0321459 A1, published December 31, 2009 (“Maczko”). 5 Kaufman, US 4,189,993, issued February 26, 1980 (“Kaufman”). 6 Baker et al., US 2008/0178747 A1, published July 31, 2008 (“Baker”). 7 Thompson, US 4,108,332, issued August 22, 1978 (“Thompson”). Appeal 2018-007665 Application 15/358,641 4 ANALYSIS After review of the Examiner’s and Appellant’s opposing positions, the applied prior art, and Appellant’s claims and Specification disclosures, we determine that Appellant’s arguments are insufficient to identify reversible error in the Examiner’s obviousness rejections. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Accordingly, we affirm the stated obviousness rejections for substantially the fact findings and the reasons set forth by the Examiner in the Examiner’s Answer and the Final Office Action. We offer the following for emphasis only. Appellant argues dependent claim 2 separately, but otherwise argues the remaining rejected claims together as a group and presents substantially the same argument with respect to independent claims 1 and 13. Accordingly, we select claim 1 as the representative claim on which we focus in deciding this appeal as to this rejection. Claim 1 The Examiner finds that Hutzler discloses a splatter shield in the shape of a truncated cone similar to the splatter shield recited in the claims, wherein the upper opening is large enough for the addition of liquids and spices and to permit stirring without removing the shield. Final Act. 3. Thus, the Examiner determines that the opening is sufficiently large to permit easy entry of cooking utensils. Id. The Examiner acknowledges that Hutzler fails to teach affixing the shield onto a cooking vessel, heating the vessel, inserting one or more food items to be cooked through the opening, and allowing the food items to be cooked. Id. at 4. However, the Examiner finds that Maczko teaches a splatter shield with a large opening for sitting on a frying pan. Id. The Examiner Appeal 2018-007665 Application 15/358,641 5 concludes that it would have been obvious to make Hutzler’s opening larger in order to allow for easier stirring without hitting the shield as taught by Maczko. Id. In addition, the Examiner concludes that it would have been obvious to affix Hutzler’s shield to a cooking vessel as Maczko teaches because this is the purpose of Hutzler’s shield. Id. Further, both Hutzler and Maczko teach cooking food, thereby necessitating heating the vessel and allowing the food to cook. Id. With regard to inserting one or more food items into the cooking vessel through the opening in the shield, the Examiner finds that there are only two possible ways to place food into the vessel—through the opening or directly into the pan by removing the shield. Final Act. 4. Therefore, the Examiner concludes that it would have been obvious to try placing food through the opening in the shield. Id., citing MPEP § 2143. Appellant argues that Hutzler fails to teach a method using the splatter shield having an upper central opening that is sufficiently large to permit entry of cooking utensils therethrough, permit the use of these utensils to manipulate food within the cooking vessel, and allow removal of the food from the vessel through the opening. Appeal Br. 7–8. In this regard, Appellant contends that Hutzler fails to provide any suggestion to place one or more food items into the vessel through the opening or to turn, stir, or otherwise manipulate the food items by inserting a utensil through the opening. Id. at 8. With regard to Maczko, Appellant argues that this reference fails to teach placing food through the opening in the splatter shield. Id. at 8–9. In addition, Appellant contends that the Examiner fails “to identify the conventional option for placing food into a cooking vessel when using a splatter shield”—removing the splatter shield, placing the food Appeal 2018-007665 Application 15/358,641 6 directly into the cooking vessel, and then returning the splatter shield to the vessel. Reply Br. 2. Appellant also urges that the Examiner fails to support that the alleged finite ways to place food into the cooking vessel when using a splatter shield have been identified anywhere other than in the Specification. Appeal Br. 9–10, citing Rolls-Royce, PLC v. United Tech. Corp., 603 F.3d 1325 (Fed. Cir. 2010); Reply Br. 2–3. These arguments are not persuasive of reversible error. Initially, we note that although the Examiner finds that Hutzler fails to teach inserting one or more food items to be cooked through the opening, the Examiner finds that Hutzler teaches that the splatter shield allows the addition of liquids and spices without removing shield. Appellant does not assert a limiting definition of food or food items, as used in the claims, which excludes Hutzler’s liquids and spices. Nor does Appellant dispute the Examiner’s finding that Hutzler adds these liquids and spices through the central opening. Accordingly, there is sufficient support in Hutzler for the finding that Hutzler teaches placing one or more food items to be cooked into the cooking vessel by inserting them through the opening without removing the shield from the cooking vessel. With regard to Appellant’s argument that Hutzler’s opening is not sufficiently large to permit entry of cooking utensils therethrough, permit the use of these utensils to manipulate food within the cooking vessel, and allow removal of the food from the vessel through the opening, we note that Appellant fails to identify a limiting definition for the cooking utensils. Indeed, “cooking utensils” is broad in scope including a wide variety of implements used to manipulate food such as long chopsticks and knives, as well as both wide and slender tongs. As such, due to the scope of “cooking Appeal 2018-007665 Application 15/358,641 7 utensils,” Appellant’s argument regarding the capability of Hutzler’s opening to admit cooking utensils therethrough lacks persuasive merit. In re Hiniker Co., 150 F.3d 1362 (Fed. Cir. 1998) (“the name of the game is the claim.”). Turning next to the limitation that the one or more food items is turned, stirred, or otherwise manipulated by inserting a utensil through the opening in the shield without removing the shield from the cooking vessel, we note that Appellant fails to dispute the Examiner’s finding that Hutzler teaches that the splatter shield permits stirring without removal of the shield from the cooking vessel. While Appellant is correct that Hutzler fails to disclose how the stirring is performed, e.g., by insertion of a utensil through the opening, we note that the definition of the term “stir,” as a verb, includes “[t]o pass an implement through (a liquid, for example), usually in circular motions, so as to mix or cool the contents.”8 Thus, the Examiner reasonably interpreted Hutzler’s teaching that the splatter shield permits stirring to include insertion of an implement or utensil through the opening in the shield for stirring the food in a cooking vessel without removing the shield from the vessel. Turning next to Maczko, Appellant is correct that the Examiner inadvertently refers to one of the two possible ways that food can be placed into the cooking vessel as “through the opening of the pan without removing the shield.” See Final Act. 4; Ans. 3. However, because it is apparent that access to the opening of the pan would require removal of the shield from the pan and this way is the conventional option to which Appellant refers, this inadvertent error is harmless. Further, although Appellant contends that 8 https://www.thefreedictionary.com/stir, last visited August 19, 2019. Appeal 2018-007665 Application 15/358,641 8 the Examiner’s finding that there are only two possible ways to place food into the cooking vessel—either through the splatter shield opening or directly into the pan upon removal of the shield—lacks support anywhere other than Appellant’s Specification, we note that these two options would have been apparent to the ordinary artisan upon review of the teachings of Hutzler and Maczko. As we noted above, Hutzler teaches adding liquids and spices to the cooking vessel through the opening in the shield, thereby suggesting the Examiner’s first identified solution. Appellant acknowledges that the Examiner’s second identified solution is the conventional option. Thus, both of the Examiner’s solutions are sufficiently supported in the record. We, therefore, find the facts of the Rolls-Royce decision to be inapposite to those before us in this appeal. Accordingly, we sustain the Examiner’s obviousness rejection of claim 1, as well as claims 4–13. Claim 2 Claim 2 depends from claim 1 and further requires a step of removing the one or more food items from the cooking vessel through the upper opening of the splatter shield without removing the shield from the cooking vessel. Similar to the Examiner’s identification of two possible ways to place food into the cooking vessel—either through the opening in the splatter shield or directly into the cooking vessel after removal of the shield therefrom, the Examiner likewise finds two possible ways to remove food from the cooking vessel—through the opening in the shield or directly from the cooking vessel. Final Act. 5. Appellant argues that the Examiner fails to establish that the first option was a potential solution known to persons of Appeal 2018-007665 Application 15/358,641 9 ordinary skill in the art. Appeal Br. 11. However, the Examiner finds that Maczko teaches a large opening to allow a user to stir the food while it is cooking. Final Act. 4. It would have been readily apparent to the ordinary artisan that Maczko’s opening would have permitted access to the food for removal in addition to stirring while cooking. The ordinary artisan would also have readily understood that removing the food through the opening would permit the shield to remain in place until all the food is removed and the potential for grease splatter thereby ends. Therefore, for the same reasons discussed above, Appellant’s argument fails to persuade us of reversible error in the Examiner’s conclusion that it would have been obvious to try removing food from Hutzler’s splatter shield opening, enlarged in view of Maczko. Accordingly, we sustain the Examiner’s obviousness rejection of claim 2. DECISION Upon consideration of the record, and for the reasons given above and in the Final Office Action and the Answer, the decision of the Examiner rejecting claims 1, 2, and 4–13 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). AFFIRMED Copy with citationCopy as parenthetical citation