Ex Parte FitzgeraldDownload PDFPatent Trial and Appeal BoardJan 27, 201711071986 (P.T.A.B. Jan. 27, 2017) 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. 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 2 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. 3 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. 4 Appeal 2015-002878 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. 5 Appeal 2015-002878 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. 6 Appeal 2015-002878 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 7 Copy with citationCopy as parenthetical citation