Ex Parte Fitzgerald

Patent Trial and Appeal Board

Jan 27, 2017

11071986 (P.T.A.B. Jan. 27, 2017)

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.
67609-1010 2528
EXAMINER
LU, JIPING
ART UNIT PAPER NUMBER
3743
MAIL DATE DELIVERY MODE
11/071,986 03/03/2005
94104 7590 01/27/2017
Taylor English Duma LLP
1600 Parkwood Circle, Suite 400
Atlanta, GA 30339
Christian Fitzgerald
01/27/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN FITZGERALD1
Appeal 2015-002878
Application 11/071,986
Technology Center 3700
Before DEMETRA J. MILLS, ERIC B. GRIMES, and JEFFREY N.
FREDMAN, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to cooking
device, which have been rejected as obvious. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
“The present invention relates generally to a cooking device, and
more specifically to a charcoal[]-fired cooking device wherein the food is
cooked without direct exposure to the fire.” (Spec. 12.)
1 Appellant identifies the Real Party in Interest as FC Industries, LLC.
(Appeal Br. 2.)
Appeal 2015-002878
Application 11/071,986
Claims 7, 16, and 29-35 are on appeal. Claims 16 and 30 are the only
independent claims and read as follows:
16. A cooker for cooking food comprising:
a cook base including walls defining an interior and an exterior of the
cook base, a combustible heat source containment area
substantially next to the exterior of the cook base, the
combustible heat source containment area including a fire ring
and a ledge, the walls of the cook base contacting the ledge, the
fire ring positioned around a lower portion of the cook base
such that the interior of the cook base is substantially sealed
from the fire ring;
a food piece containment area in the interior of the cook base, wherein
the food piece containment area includes a floor and a food
support for supporting food above the floor;
a removable cover including a top and at least one downwardly
extending wall, wherein the removable cover is able to be
mated to the cook base such that the at least one downwardly
extending wall of the removable cover is aligned with the walls
of the cook base, wherein the removable cover mated to the
cook base defines a substantially sealed interior cooking
chamber, wherein the removable cover includes an exterior heat
source container, wherein an outer diameter of the cook base is
larger than an inner diameter of the exterior heat source
container; and
a pair of heat-resistant handles extending at least partially upward,
wherein the handles are attached to the removable cover and are
positioned on opposite sides of the heat source container to
allow the removable cover to be removed from the cook base.
30. A food cooker comprising:
a cook base including at least one side wall having a top edge and a
bottom edge;
a fire ring assembly including a fire ring and a ledge, the ledge
contacting the bottom edge of the at least one side wall of the
cook base, the fire ring mated with the ledge such that an
interior of the cook base is substantially sealed from the fire
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Appeal 2015-002878
Application 11/071,986
ring, the at least one side wall, the ledge, and the fire ring defining a
heat source containment area;
a cover including at least one downwardly-extending side wall, the at
least one downwardly-extending side wall having a cross-
sectional profile, the cross-sectional profile matching a cross-
sectional profile of the at least one side wall of the cook base;
and
a heat source container attached to a top of the cover, the heat source
container having an inner diameter smaller than an outer
diameter of the at least one side wall of the cover,
wherein the cook base and the cover are configured so that the at least
one side wall of the cover is aligned with the at least one side
wall of the cook base and a bottom end of the cover contacts a
top end of the cook base to define a substantially sealed interior
cooking chamber, the at least one side wall between the heat
source containment area and the substantially sealed interior
cooking chamber.
The claims stand rejected as follows:
Claims 30-35 under 35 U.S.C. § 103(a) based on Vaughan2 and
Freeon3 (Final Action4 10);
Claims 30-35 under 35 U.S.C. § 103(a) based on Tuttle,5 Vaughan,
and Freeon (Final Action 6);
Claim 16 under 35 U.S.C. § 103(a) based on Vaughan, Freeon, and
Hellinger6 (Final Action 8);
2 Vaughan, US 6,706,301 B2; issued March 16, 2004.
3 Freeon, US 1,284,299; issued Nov. 12, 1918.
4 Office Action mailed Jan. 29, 2014.
5 Tuttle, US 6,182,650 Bl; issued Feb. 6, 2001.
6 Hellinger, et al., US 4,388,743; issued June 21, 1983.
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Appeal 2015-002878
Application 11/071,986
Claims 7 and 29 under 35 U.S.C. § 103(a) based on Vaughan, Freeon,
Hellinger, and Walterspiel7 (Final Action 9); and
Claims 7, 16, and 29 under 35 U.S.C. § 103(a) based on Tuttle,
Vaughan, Freeon, Hellinger, and Walterspiel (Final Action 4).
I
The Examiner has rejected claims 30-35 as obvious based on
Vaughan and Freeon. The Examiner finds that Vaughan discloses a food
cooker that “includes all that is recited in claims 30-35 except for a
removable cover including at least one downwardly-extending side wall and
a charcoal container [that] projects from the top of the cover.” (Final Action
10.) The Examiner finds that Freeon discloses a food cooker that includes a
removable cover that meets the limitations of claim 30. (Id.) The Examiner
concludes that it would have been obvious “to modify the food cooker of
Vaughan to include a removable cover with downwardly-extending side wall
and an exterior heat source container for containing charcoal or an
alternative fuel source as taught by Freeon in order to provide heat into the
interior portion of the cook base.” (Id. at 11.)
We agree with, and adopt, the Examiner’s fact-finding, reasoning, and
conclusion that the food cooker of claim 30 would have been obvious based
on Vaughan and Freeon.
Appellant argues that Vaughan teaches away from adding a cover to
its device because it “requires an open container at least at its top and, as
such, would not be combined by one of skill in the art with art teaching a
7Walterspiel, US 2,049,481; issued Aug. 4, 1936.
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Application 11/071,986
substantially sealed container.” (Appeal Br. 32.) Specifically, Appellant
argues that Vaughan requires a heat source such as coals inside its hollow
structure and adding a cover to create a substantially sealed interior would
suffocate the heat source because coals need oxygen to bum. {Id. at 32—33.)
This argument is not persuasive. While Vaughan intends for its
device to be used with burning coals inside it {see, e.g., Vaughan 3:6—9),
Vaughan states that its device can include a vent in the bottom wall and/or in
the side wall {id. at 3:32—34, 48—51). In addition, Vaughan expressly
suggests adding a lid (cover) to its device: “Additionally or alternatively a
multi-apertured lid may be provided for the open upper end of the hollow
chamber, the apertures permitting the extension therethrough of the
skewers.” {Id. at 4:12—15.) Thus, Vaughan does not teach away from
adding a cover to its device, nor does its disclosure support Appellant’s
position that adding a cover would suffocate any burning material inside the
device.
Claims 31—35 have not been argued separately and therefore fall with
claim 30. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner has rejected claims 30—35 under 35 U.S.C. § 103(a)
based on Tuttle, Vaughan, and Freeon. As discussed above, we conclude
that claim 30 would have been obvious based on Vaughan and Freeon.
Appellant argues again that Vaughan teaches away from combining its
cooker with a cover. (Appeal Br. 20-24.) That argument is unpersuasive
for the reasons discussed above. Claims 31—35 were not argued separately
{see Appeal Br. 25) and therefore fall with claim 30.
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Application 11/071,986
II
The Examiner has rejected claim 16 as obvious based on Vaughan,
Freeon, and Hellinger. The Examiner finds that Vaughan discloses a food
cooker that “includes all that is recited in claim 16 except for a removable
cover including a charcoal container [that] projects from the top of the cover
and a pair of heat-resistant, upstanding handles attached to the flat top of the
cover.” (Final Action 8.)
The Examiner finds that Freeon discloses a cover that includes a heat
source container and a pair of handles and Hellinger discloses a lid for a
cooking utensil that includes a heat-resistant, upstanding handle. {Id. at 8—
9.) The Examiner concludes that it would have been obvious
to modify the food cooker of Vaughan to include a removable
cover with a charcoal container and a pair of handles as taught
by Freeon in order to provide heat into the interior portion of the
cook base and to facilitate the removal of the cover from the cook
base and to further modify the handles to have an upstanding
shape and being heat resistant as taught by Hellinger et al. in
order to reduce the occurrence of bums during the removal and
replacement of [the] removable cover.
{Id. at 9.)
We agree with, and adopt, the Examiner’s fact-finding, reasoning, and
conclusion that the food cooker of claim 16 would have been obvious based
on Vaughan, Freeon, and Hellinger.
Appellant argues again that Vaughan teaches away from adding a
cover to its device because a cover would suffocate a heat source inside the
device. (Appeal Br. 26—30.) This argument is unpersuasive for the reasons
discussed above regarding the rejection of claim 30.
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Application 11/071,986
The Examiner has rejected claims 7, 16, and 29 under 35 U.S.C.
§ 103(a) based on Tuttle, Vaughan, Freeon, Hellinger, and Walterspiel, and
has rejected claims 7 and 29 under 35 U.S.C. § 103(a) based on Vaughan,
Freeon, Hellinger, and Walterspiel. As discussed above, we conclude that
claim 16 would have been obvious based on Vaughan, Freeon, and
Hellinger. Appellant argues again that claim 16 would not have been
obvious because Vaughan teaches away from combining its cooker with a
cover. (Appeal Br. 10—14.) That argument is unpersuasive for the reasons
discussed above. Claims 7 and 29, which depend from claim 16, were not
argued separately (see Appeal Br. 15, 30) and therefore fall with claim 16.
SUMMARY
We affirm all of the rejections on appeal.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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