Ex Parte Barritt

Patent Trial and Appeal Board

Apr 29, 2013

10952716 (P.T.A.B. Apr. 29, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte WILLIAM D. BARRITT
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Appeal 2010-006634
Application 10/952,716
Technology Center 3700
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Before STEVEN D. A. McCARTHY, ANNETTE R. REIMERS, and
CARL M. DeFRANCO, Administrative Patent Judges.

DeFRANCO, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
William D. Barritt (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision rejecting claims 1, 3-9 and 11-15. App. Br. 2-3.
Claims 2 and 10 have been cancelled. App. Br., Clms. App’x. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED INVENTION
The claimed invention relates to “a control system for a cooking
appliance that requires both time and temperature input parameters before
initiating a cooking operation.” Spec. 1, ll. 5-7. Claims 1 and 7 are the
independent claims. Claim 1 is illustrative of the claims on appeal and
recites (with added emphasis):
1. A cooking appliance comprising:
an oven cavity;
at least one heating element positioned to direct heat into
the oven cavity;
a door mounted for movement relative to the oven cavity
for selectively closing the oven cavity;
a control panel including a plurality of input members for
programming at least time and temperature parameters for a
cooking operation in the oven cavity and a mode selector input
member; and
means for controlling said at least one heating element in
a first mode, wherein the controlling means initiates a cooking
operation only after both time and temperature parameters are
input through the control panel, and in a second mode as
determined through the mode selector input member, wherein
the controlling means establishes a cook time and initiates a
cooking operation based on only a temperature parameter
input through the control panel.

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EVIDENCE
The Examiner relied upon the following prior art as evidence of
unpatentability:
Candor US 2,483,526 Oct. 4, 1949
Willson US 3,827,345 Aug. 6, 1974
Ueda US 4,517,431 May 14, 1985
Leger CA 1006896 A Mar. 15, 1977
Gell US 4,602,147 Jul. 22, 1986

REJECTIONS
Appellant seeks our review of the following rejections:
1. Claims 1 and 3 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Candor and Willson. Ans. 3.
2. Claim 4 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Candor, Willson and Ueda. Id. at 6.
3. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Candor, Willson and Leger. Id. at 7.
4. Claims 7-9 and 11-15 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Candor, Willson and Gell. Id. at 8.
ANALYSIS
Appellant argues claims 1 and 3 as a group. App. Br. 9-12. We select
claim 1 for review, with claim 3 standing or falling with claim 1. See 37
C.F.R. § 41.37(c)(1)(vii) (2011). Appellant presents additional arguments
for the other grounds of rejection, which we address in turn.
The rejections of claims 1 and 3 as being
obvious over Candor and Willson
Claim 1 recites two modes for the heating element, a “first mode” that
initiates cooking based on “both time and temperature parameters” and a
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“second mode” that “establishes a cook time and initiates a cooking
operation based on only a temperature parameter.” Appellant’s arguments
focus primarily on the “second mode” limitation. App. Br. 10-11; Reply Br.
2-4. Specifically, Appellant contends that, when the heating element
operates in the claimed “second mode,” the control means “establishes a
cook time and initiates a cooking operation based on only a temperature
parameter input.” App. Br 10 (emphasis in original). In contrast, the
combined teachings of Candor and Willson, according to Appellant, would
result in an appliance that “establish[es] a cook time based on
characteristics of the type of food being cooked” and not on a temperature-
only parameter. Id. at 10-11 (emphasis in original). Apparently, Appellant
is reading the limitation “based on only a temperature parameter” as
modifying both the limitation “establishes a cook time” and the limitation
“initiates a cooking operation” in claim 1. Relying on that interpretation,
Appellant rationalizes that the combined teachings of Candor and Willson
do not render the claimed invention obvious.
We note that the claim language at issue is amenable to two plausible
interpretations, namely, the term “based on only a temperature parameter”
could be interpreted to: (1) modify solely the language “initiates a cooking
operation,” or (2) modify both the clause “establishes a cook time” and the
clause “initiates a cooking operation.” To determine the correct
interpretation, we turn to Appellant’s Specification for guidance. See In re
Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (the PTO
gives claims “their broadest reasonable interpretation consistent with the
specification”); see also In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)
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(“it would be unreasonable for the PTO to ignore any interpretive guidance
afforded by the applicant’s written description”).
Here, the Specification represents the most compelling evidence of
record in clarifying exactly what claim language is modified by the term
“based on only a temperature parameter.” The Specification describes three
variations of the cooking modes. First, the Specification describes a “first or
default mode” where the appliance initiates a cooking operation only after
“both time and temperature parameters are programmed into CPU 200 [i.e.,
control means].” Spec., pp. 9-10. This mode coincides with the “first
mode” limitation of claim 1, which the Examiner found to be met by
Candor.
The Specification then proceeds to contrast the “first or default
mode” with a “second or simplified mode” that “perform[s] a cooking
operation without requiring a time parameter.” Spec., p. 11. According to
the Specification, “the consumer can choose to bypass the time requirement”
in which case “the consumer can program a particular temperature parameter
into CPU 200 through key pad 54. Once the temperature parameter has
been programmed, activation of key 176 enables the consumer to start the
cooking operation.” Id. at 11-12 (emphasis added. Thus, in this “second or
simplified” mode, the cooking operation is started (initiated) without a time
parameter. All that is required is a temperature input. This simplified mode
coincides with the claim limitation requiring that the control means “initiates
a cooking operation based on only a temperature parameter input.”
The Specification lastly describes a “further aspect” where “after
setting the particular temperature, the consumer can, if desired, select more
options button 92 to input the type of food being placed in oven cavity 6.
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CPU 200 will determine a default cook time based upon the selected cook
temperature and the type of food item placed in upper oven cavity 6.” Spec.,
p. 12 (emphasis added). In that mode, the cooking operation “carries
through until the time parameter, established by CPU 200 has terminated.”
Id. (emphasis added). These passages are the only part of the Specification
that speaks to the control means determining (establishing) a cook time. As
described, the control means establishes a cook time based not only on the
selected temperature input but also on the type of food item. As such, the
limitation “based on only a temperature parameter" cannot modify
“establishes a cook time,” as Appellant contends, because the Specification
expressly requires input of the “type of food” before the control means “will
determine a default cook time.”1 See id.
A fair reading of the claim language and the Specification suggests
that the limitation “establishes a cook time” is based on at least a food-type
input as described on page 12 of the Specification, while the limitation
“initiates a cooking operation” is based on a temperature-only input as
described on page 11 of the Specification. Thus, we reject Appellant’s
attempt to construe the phrase “based on only a temperature parameter” as
modifying the limitation “establishes a cook time,” which if accepted, would
exclude the only embodiment in the Specification that speaks to the control
means establishing a cook time. See Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576, 1583 (Fed. Cir. 1996) (a construction that excludes the
preferred embodiment “is rarely, if ever correct”). Thus, we find that the

1 Dependent claim 3 also supports this interpretation. It depends from claim
1, and further defines that “the established cook time is based upon a type of
food item.”
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correct interpretation is that the phrase “based on only a temperature
parameter” only modifies the limitation “initiates a cooking operation.”
Based on our interpretation, we conclude that a preponderance of the
evidence supports the Examiner's rejection of claims 1 and 3. Specifically,
we find that a reasonable interpretation of the limitation “establishes a cook
time,” viewed in light of the Specification, includes an interpretation in
which Willson’s control means automatically determines cook time based on
food type, as the Examiner found. See Ans. 5-6, 11-12. Thus, we agree with
the Examiner that the combined teachings of Candor and Willson render
obvious the subject matter of claims 1 and 3.
We are also not persuaded by Appellant’s contention that “Willson
teaches away from Candor.” App. Br. 11; Reply Br. 4. Appellant attacks
Willson’s teaching of a computer-calculated setting as being “contrary to the
teachings” of Candor’s manual, interlocking setting. Id. However, simply
that there are differences between two references is insufficient to establish
that such references teach away from their combination. See In re Beattie,
974 F.2d 1309, 1312-13 (Fed. Cir. 1992). Moreover, nowhere does Candor
discourage a skilled artisan from pursuing an automatic setting as a potential
improvement over a manual setting. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). To the contrary, a skilled artisan, upon learning of
Willson’s automatic setting, would have been led toward replacing a manual
setting with an automatic setting, not away from it. See id. Accordingly, we
sustain the rejection of claims 1 and 3 as unpatentable over the combination
of Candor and Willson.

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The rejection of claim 4 as being obvious
over Candor, Willson and Ueda
Claim 4 recites a “timer” that counts down the time remaining on the
time parameter and a “door switch” that initiates operation of the timer
based on sensing opening/closing of the door. The Examiner found that
Ueda discloses a “door switch” that detects opening/closing of the door and
a “microcomputer” that controls time and heating based on opening and
closing of the door. Ans. 6-7. The Examiner concluded that it would have
been obvious for an ordinary artisan to modify the control means of Candor
to include a count-down timer and door switch sensor as taught by Ueda. Id.
at 7.
Appellant responds that Candor teaches “operating in two modes,
either a time mode or a non-time mode.” App. Br. 13; Reply Br. 5. As such,
Appellant contends that “it would not be obvious to add a timer to the time
mode of Candor as there is already a timer” and “it would not be obvious to
add a timer to the non-time mode of Candor because, in Candor, one could
just simply switch to the time mode.” Id. But Appellant misses the point of
the Examiner’s reliance on Ueda.
Specifically, the Examiner did not rely on Ueda for the purpose of
adding a timer to the timed and untimed modes of Candor, which are
directed to initiating the cooking operation. Rather, as expressly found by
the Examiner, the timer of Ueda is “used for a separate purpose” from the
timer of Candor and modifying the control means of Candor to add a
separate timer that operates in accordance with the door switch sensor, as
taught by Ueda, would result in “no change in their respective functions.”
Ans. 14. Likewise, the Examiner found that the inclusion of Ueda’s timer
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and door switch “would neither hinder [n]or detract from the operation” of
Candor “since the operation relates to actions particularly associated with
the operation of the door of the oven” and not to the two modes associated
with initiating the cooking operation. Id. at 15. As such, Appellant’s
argument focusing on the specific timed and untimed modes of Candor is
not persuasive with respect to the addition of the timer and door sensor
elements, as taught by Ueda, to the control means disclosed by the
combination of Candor and Willson. Thus, we agree that the Examiner
properly concluded that it would have been obvious for an ordinary artisan
to modify the control means as taught by the combination of Candor and
Willson to include a timer and door switch sensor as taught by Ueda.
Accordingly, we sustain the rejection of claim 4.
The rejection of claims 5 and 6 as being obvious
over Candor, Willson and Leger
Claims 5 and 6 call for the control means to operate the heating
element in a “reduced, warming power level upon completion of the time
parameter.” For this limitation, the Examiner relied on Leger as providing
an “oven control means” that operates “with instructions to keep a cooked []
dish warm at the end of normal timed cooking.” Ans. 7. The Examiner
concluded that it would have been obvious to an ordinary artisan to modify
the suggested combination “to include means to reduce the oven power level
at the end of normal timed cooking,” as taught by Leger. Id. at 8.
Appellant responds that “Candor has two modes of operation, non-
timed conditions and timed conditions.” App. Br. 15; Reply Br. 5. Focusing
solely on Candor rather than the combination of Candor and Willson,
Appellant argues that “Candor teaches that non-timed conditions have no
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end of cooking” and to “add a reduced warming power level to the end of a
non-timed mode simply makes no sense because a non-timed mode does not
automatically end.” Id. Along the same line, Appellant argues that “[t]o add
a reduced warming power level to the end of a timed mode [of Candor]
yields a combination that . . . would include a non-timed mode and a timed
mode with a reduced power level at the end of the timed mode.” Id.
Appellant misses the point of the Examiner’s reliance on Leger. The
Examiner did not rely on Leger for the purpose of adding a reduced warming
power level to the timed and untimed modes of Candor, which are directed
to initiating the cooking operation. Rather, as expressly found by the
Examiner, the function of the modes that initiate the cooking operation is
“separate” from the function of “keeping the food warm at the end of a
cooking time period.” Ans. 15 (emphasis added). Specifically, as found by
the Examiner,
reduc[ing] the oven power level at the end of normal timed
cooking for the purpose of solving the separate problem of
either keeping the food warm or keeping the food from burning,
would be understood [by an ordinary artisan] as a further
refinement, or improvement . . . which would neither hinder or
detract from the operation of [the suggested combination] since
the operation relates to actions particularly associated with the
operation of the oven during a period outside of the normal
operating period.

Id. (emphasis added). Given that the function of reducing the power level to
a warming temperature is outside the function of initiating the cooking
operation, Appellant’s argument focusing on the latter is irrelevant to the
function taught by Leger and recited in claims 5 and 6. As such, we agree
that the Examiner properly concluded that it would have been obvious for an
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ordinary artisan to modify the control means taught by the combination of
Candor and Willson “to include means to reduce the oven power level at the
end of normal timed cooking,” as taught by Leger. See Ans. 15.
Accordingly, we sustain the rejection of claims 5 and 6.
The rejection of claim 7-9 and 11-15 as being obvious
over Candor, Willson and Gell
Independent claim 7 is a method claim. The Examiner found that the
combined teachings of Candor and Willson disclose substantially all the
steps of claim 7 with the exception of “providing the control means with an
input member” to operate in a first time and temperature default mode and to
bypass the default mode in favor of a simpler second temperature only
mode. Ans. 8. For that limitation, the Examiner relied upon Gell, finding
that it discloses “a mode selection switch (17, 217)” that “permit[s] initial
operation of the oven appliance in an automatic mode based on time and
temperature inputs” and further discloses bypassing the automatic or default
mode in favor of a mode “wherein input of the time parameter is not
required” but is “automatically establish[ed].” Ans. 8, 17 (emphasis added).
Based on these disclosures in Gell, the Examiner concluded that it would
have been obvious for an ordinary artisan to modify the combination of
Candor and Willson to include “a mode selection switch” that permits
“bypassing or disabling a first time and temperature oven control mode . . .
[s]o, that the system would be incapable of initializing in an automatic
mode,” as taught by Gell, and to further modify the suggested combination
to include “control means” capable of automatically establishing a cook time
in a second temperature-only mode, as taught by Gell and Willson
(discussed supra). Id. at 16.
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Appellant contests the Examiner’s obviousness conclusion by arguing
that Candor’s “lock-out feature” is redundant with Gell’s mode selection
switch. App. Br. 16-17. In Appellant’s view, “[g]iven that the Candor
reference already has a lock out feature, it is unclear why Gell would be
relied on to modify the oven control of Candor so that it operates only one of
the selected modes.” Id. at 17. Appellant, however, misapprehends the
Examiner’s reliance on Gell. The Examiner did not rely on Gell for a “lock
out feature” but rather for its teaching of a control means that permits “initial
operation of the oven appliance in an automatic mode” (or “default mode”),
a feature not taught by Candor. Ans. 17 (emphasis added). As such,
Appellant’s redundancy argument is without merit, and accordingly, we
sustain the rejection of claim 7.
Like claim 7, dependent claims 8-9 and 11-15 were rejected based on
the combined teachings of Candor, Willson and Gell.2 Appellant makes the
same, or essentially the same, argument for claim 8 as was made for claims
5 and 6 (App. Br. 17-18), for claim 113 as was made for claim 4 (Reply Br.
6-7), for claims 12 and 14 as was made for claims 1 and 7 (Reply Br. 8-9).
We are not persuaded by any of these arguments as discussed above with
respect to claims 5 and 6, with respect to claim 4, and with respect to claims
1 and 7, and thus, we sustain the rejection of claims 8, 11, 12 and 14.

2 We note that Appellant contends the Examiner entered new grounds of
rejection against claims 12-15. Reply Br. 8-9. If Appellant had wished to
pursue this contention, the proper response would have been a timely
petition. Nevertheless, Appellant responds to the purported new grounds of
rejection, and thus has not suffered prejudice.
3 We note that the Examiner mistakenly references “claim 7” at one point
instead of claim 11. See Ans. 9. The ensuing discussion, however, makes it
clear that the Examiner is speaking to claim 11. See id.

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Regarding dependent claim 9, it provides for a “preheat cycle” if the
temperature only mode is selected. The Examiner found that, “as merely a
matter of obvious engineering choice,” an ordinary artisan would have
“assure[d] the oven control system performs a ‘preheat cycle’” if the time
parameter is bypassed. Ans. 10. The Examiner further found that the
“automatic temperature oven control” taught by the combination of Candor
and Willson would “necessarily and inherently operate to increase, or lower,
oven cavity temperature to any newly specified value” and that this
“amounts to nothing more than a preheating cycle,” as called for by claim 9.
Id. We discern no error in the Examiner’s findings. We have considered
Appellant’s contentions (App. Br. 18), but find them unpersuasive.
Accordingly, we sustain the rejection of claim 9.
As for dependent claims 13 and 15, which merely recite the
conventional “cooking options” of “convection, bake and broil,” we discern
no error in the Examiner’s rejection of these claims as rendered obvious by
the combined teachings of Candor Willson, and Gell. See Ans. 8. We have
considered Appellant’s contentions (App. Br. 19-20; Reply Br. 8), but find
them unpersuasive. Accordingly, we sustain the rejection of claims 13 and
15.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1, 3-9 and 11-
15.
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)(iv).

AFFIRMED
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