Charles D. Cretors

Patent Trials and Appeals BoardDec 13, 2019

13866896 - (D) (P.T.A.B. Dec. 13, 2019)

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. 13/866,896 04/19/2013 Charles D. Cretors 064319-8029.US01 4269 25096 7590 12/13/2019 PERKINS COIE LLP - SEA General PATENT-SEA P.O. BOX 1247 SEATTLE, WA 98111-1247 EXAMINER NGUYEN, PHUONG T ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 12/13/2019 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): patentprocurement@perkinscoie.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CHARLES D. CRETORS __________ Appeal 2017-010235 Application 13/866,896 Technology Center 3700 ____________ Before BRADLEY B. BAYAT, FREDERICK C. LANEY, and PAUL J. KORNICZKY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision (mailed Apr. 29, 2016, hereinafter “Final Act.”) rejecting claims 2– 6, 8, and 20–24 under 35 U.S.C. § 103(a) as unpatentable over Cretors (US 4,206,695, iss. June 10, 1980), Manley (US 2,232,954, iss. Feb. 25, 1941), Rhome (US 7,874,244 B2, iss. Jan. 25, 2011), Matti (GB 0,717,654 A, pub. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies C. Cretors & Company as the real party in interest. Appeal Br. 2. Appeal 2017-010235 Application 13/866,896 2 Oct. 27, 1954), and Stein (US 6,098,526, iss. Aug. 8, 2000). We have jurisdiction under 35 U.S.C. § 6(b).2 We REVERSE. THE CLAIMED SUBJECT MATTER The invention at issue in this case “relates generally to popcorn machines having kettle assemblies with connected exhaust systems.” Spec. ¶ 2. Claims 8 and 20 are independent. Claim 8 is reproduced below and is representative of the claimed subject matter. 8. A popcorn machine, comprising: a case having an interior portion that includes a top wall having an opening therein; a support extending downwardly from the top wall; a kettle operationally coupled to the support, wherein the kettle is configured to receive and heat popcorn kernels; a kettle lid removably disposed proximate an upper portion of the kettle and configured to cover the kettle during popcorn kernel heating, wherein the lid includes an aperture therethrough; an exhaust duct extending from the opening in the top wail, wherein the exhaust duct includes an inlet portion extending through the aperture in the lid and at least partially into the kettle; an exhaust fan in fluid communication with the kettle and the exhaust duct, wherein the exhaust fan is configured to remove at least a portion of an effluent from the kettle via the exhaust duct; an inlet screen covering at least a portion of the opening; a drive shaft; a motor configured to rotate the drive shaft; 2 Claims 1, 7, 9–19, and 25–27 have been canceled. See Amendment after Notice of Appeal (entered Mar. 22, 2017); Advisory Act. (entered Apr. 20, 2017). Therefore, only the Examiner’s obviousness rejection of claims 2–6, 8, and 20–24 from the Final Action is before us in this appeal. Appeal 2017-010235 Application 13/866,896 3 a paddle disposed in the exhaust duct and coupled to the drive shaft, wherein the paddle is configured to scrape or otherwise remove particles from the inlet screen when rotated by the motor; and an agitator disposed in the kettle and releasably coupled to the paddle and configured to rotate therewith to mix popcorn kernels in the kettle. Appeal Br. 13–14, Claims App. (emphasis added). ANALYSIS Independent claim 8 recites “a paddle disposed in the exhaust duct,” which the Examiner finds to be shown by Matti. Id. at 14 (emphasis added); Final Act. 6 (citing Matti 2, lns. 22–34, 45–49, Fig. 1). Independent claim 20 similarly recites “a scraping member disposed in the exhaust duct.” Appeal Br. 15, Claims App. (emphasis added). Although the Examiner does not separately address this similar limitation, the Examiner appears to be relying on the same evidence as cited for claim 8. See Final Act. 3–7. The Examiner does not rely on any of the other cited references to show a paddle/scraping member “disposed in the exhaust duct.” See id. Appellant argues that the rejection of claims 2–6, 8, and 20–24 is flawed because Matti does not support the Examiner’s finding and, thus, the prior art “fail[s] to teach or suggest, inter alia, a [paddle/scraping] member disposed in the exhaust duct,” as claims 8 and 20 recite. Appeal Br. 8–11. We agree with Appellant for the following reasons. In the Final Action, the Examiner finds, Matti discloses a paddle (11) disposed in the exhaust duct and coupled to the drive shaft (3), wherein the paddle is configured to scrape or otherwise remove particles from the inlet screen when rotated by the motor (P.2, lines 45-49), an agitator disposed in the kettle (5) and coupled to the paddle and Appeal 2017-010235 Application 13/866,896 4 configured to rotate therewith to mix popcorn kernels in the kettle (P .2, lines 22-34). Final Act. 6. Paddle (11) referred to by the Examiner as being “disposed in the exhaust duct” is shown in Figure 1 and reproduced below. Matti Fig. 1. Figure 1 above depicts “an apparatus comprising a screen unit arranged at the bottom of a vertical tank.” Id. 1, ln. 91–92, ln. 1. “[T]he collecting chamber (2) [shown in above Figure 1] reads on the exhaust duct [recited in claims 8 and 20],” the Examiner asserts. Final Act. 14. The Examiner explains further, Appeal 2017-010235 Application 13/866,896 5 While the scraper is not located interior to structure of the duct, it is located within the flow channel created by the duct by being located at the end of the duct. Because it is located within the flow channel of the duct, the broadest reasonable interpretation of the “disposed in the exhaust duct” would include the structure where the paddle as at the entrance to the exhaust duct and within the channel of fluid flow defined by the exhaust duct, as taught by Matti. Id. We agree with Appellant that “the Examiner’s interpretation of [‘disposed in the exhaust duct’] is unreasonably broad and inconsistent with the use of the claim term in the specification and drawings.” Appeal Br. 8. The Examiner provides no reasoned basis for reaching the conclusion that a skilled artisan would reasonably understand “disposed in,” within the context of the Specification and claims, to broadly cover any location “within the flow channel created by the duct,” rather than within the confines of the duct structure. This was an error. Nor do we find any support for such an expansive interpretation. Within the context of the claims, there is no language suggesting that the location for placing the paddle/scraping member should be guided by “the flow channel created by the duct.” Instead, claims 8 and 20 recite, when rotating, the paddle/scraping member is “to remove particles on the screen,” which is located between the opening in the interior wall of the case/cabinet and the exhaust duct that extends away from the opening. Appeal Br. 13–15 (Claims App.). Given the purpose of the paddle/scraping member and the location of the screen, the use of “disposed in the exhaust duct” in the claims suggests the paddle/scraping member is within the interior of the exhaust duct. This understanding is likewise consistent with the Specification. We agree with Appellant that the Specification describes Appeal 2017-010235 Application 13/866,896 6 “embodiments of popcorn machines that include, for example, a ‘scraper 293 [that] rotationally sweeps around the interior of the [exhaust] duct 90.’” Id. at 8–9 (citing Spec. ¶ 26, Fig. 2A). Therefore, the Examiner’s interpretation of “disposed in the exhaust duct” improperly expands the scope of claims 8 and 20. Because we agree with Appellant that one of ordinary skill in the art reading the language of claims 8 and 20 in view of the [S]pecification and drawings would recognize that Matti’s doctor means 11 could not be reasonably interpreted as a scraping/paddle member disposed in an exhaust duct, a preponderance of the evidence fails to support the Examiner’s obviousness determination of independent claims 8 and 20, as well as those claims depending therefrom. Therefore, we do not sustain the Examiner’s rejection of claims 1–6, 8, and 20–24 as being unpatentable in view of Cretors, Manley, Rhome, Matti, and Stein. CONCLUSION The rejection of claims 2–6, 8, and 20–24 under 35 U.S.C. § 103(a) is reversed. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s) Affirmed Reversed 2–6, 8, 20–24 103 Cretors, Manley, Rhome, Matti, Stein 2–6, 8, 20–24 REVERSED