Ex Parte Franca et al

Patent Trial and Appeal BoardMar 21, 2017

13614180 (P.T.A.B. Mar. 21, 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. 13/614,180 09/13/2012 LEOPOLDO H. FRANCA SUB-US20090485-US-DIV 4647 130333 7590 03/23/2017 WHTRT POOT TORPOR ATTON - MF> 1 PRIOR HF.NF.VFJ F) EXAMINER LLP WARD, THOMAS JOHN 2000 NORTH M63 BENTON HARBOR, MI 49022 ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 03/23/2017 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): mike_lafrenz @ whirlpool .com deborah_tomaszewski@whirlpool.com ptomail @priceheneveld.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LEOPOLDO H. FRANCA, FOAD M. KESHEH, and MOACYR C. POSSAN JR. Appeal 2015-004911 Application 13/614,180 Technology Center 3700 Before JAMES P. CALVE, WILLIAM A. CAPP, and SEAN P. O’HANLON, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the final rejection of claims 1—7 as unpatentable under 35 U.S.C. § 103(a) over Shukla (US 2009/0134143 Al, pub. May 28, 2009) and Sterling (US 7,038,176 B2, iss. May 2, 2006). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2015-004911 Application 13/614,180 THE INVENTION Appellants’ invention relates to control switches for cooking appliance heating elements. Spec. 1. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A method of operating a cooking appliance, comprising: providing a cooktop having a plurality of separately controlled cooking areas; positioning at least a first heating element and a second heating element below at least one of the plurality of separately controlled cooking areas; coupling an infinite control switch electrically to the first and second heating elements, wherein the infinite control switch is operable to selectively energize simultaneously the first heating element with single-phase AC power and the second heating element with two-phase AC power; selectively energizing only the first heating element with single-phase AC power to supply heat to the separately controlled cooking area; and selectively energizing, simultaneously, both the first heating element with single-phase AC power and a second heating element with two-phase AC power to supply heat to the separately controlled cooking area. OPINION Claim 1 The Examiner finds that Shukla discloses the invention substantially as claimed except for positioning first and second heating elements below a separately controlled heating area. Final Action 3^4. The Examiner relies on Sterling as disclosing a cooking zone having first and second heating elements. Id. at 4. The Examiner concludes that Shukla can be modified by Sterling to achieve the claimed invention. Id. at 4—5. 2 Appeal 2015-004911 Application 13/614,180 Appellants argue that Shukla fails to disclose the step of simultaneously energizing a first and a second heating element where the first element is energized with single-phase AC power and the second element is energized with two-phase AC power. Appeal Br. 13. In response, the Examiner reiterates the position taken in the Final Action that paragraph 31 of Shukla, in fact, discloses what Appellants contend is missing from the prior art. Ans. 2—3. The Examiner also notes an alleged internal conflict in claim 1 regarding “selectively” energizing heating elements and “simultaneously” energizing the same heating elements. Id. (“selectively energizing heating elements excludes simultaneous[] action of the heating elements”). Shukla discloses an electronic cook top control system. Shukla, Abstract. The Figure 1 embodiment of Shukla discloses a cooktop with a plurality of separately controlled cooking areas. Shukla, Fig. 1. It further discloses that power to heating element(s) 20 can be modulated from 240 VAC to 120 VAC by utilizing a single phase of two-phase utility power to provide additional control at lower power outputs. Id. ^ 31. The Figure 3 embodiment of Shukla discloses heating element 120 comprised of inner heating element 120b and outer heating element 120a controlled by dual potentiometer 124. Id. 137. In the Figure 3 embodiment, the rotation of potentiometer 124 between 30 and 170 degrees controls both heating elements, whereas rotation between 190 and 330 degrees controls power to inner heating element 120b only. Id. Thus, Shukla can selectively energize only a first heating element (120b), and can also selectively energize both a first heating element (120b) and a second heating element (120a) at the same time or “simultaneously.” Id. 3 Appeal 2015-004911 Application 13/614,180 What is missing from Shukla is any disclosure that first heating element (120b) is energized with single-phase AC power while also simultaneously energizing the second heating element (120a) with two- phase AC power. See, e.g., Shukla 31, 37. The Examiner does not find, and neither do we, that Sterling cures this deficiency. With regard to the alleged internal inconsistency noted by the Examiner in regards to claim 1, we see no such inconsistency. It is clear to us from the Specification that Appellants disclose a low power or simmer heating element. Spec. 9. Indeed, the title of Appellants’ invention is ""Rotary Switch With Improved Simmer Performance.'1'’ Id. at 1. Appellants’ rotary switch “selectively” energizes only a low power heating element (32) when low power is required and the same switch “simultaneously” energizes both low power heating element 32 and primary heating element 34 when additional power is required. Id. at 9-10. We think a person of ordinary skill in the art would understand that the final two steps of the claimed method refer to sequential operation of the rotary switch with “improved simmer performance.” Id. claim 1, Spec. 1, 9—10. In summary, while Shukla discloses modulating between 120 VAC and 240 VAC with respect to a single heating element, it fails to disclose a separately controlled cooking area with a first heating element energized with single-phase AC power and a second heating element energized with two-phase AC power as claimed in claim 1. The Examiner fails to make any explicit findings or conclusions that it would have been obvious to a person of ordinary skill in the art to supply Shukla’s first heating element (120b) with modulated 120 VAC power and its second heating element (120a) with 4 Appeal 2015-004911 Application 13/614,180 240 VAC power. In the absence of such findings and/or conclusion, the Examiner fails to make out a prima facie case of unpatentability. Accordingly, we do not sustain the Examiner’s unpatentability rejection of claim 1. Claims 2—7 Claims 2—7 depend, directly or indirectly, from claim 1. Claims App. The Examiner’s rejection of these claims suffers from the same infirmity that was identified above with respect to claim 1. Thus, for essentially the same reason expressed above in connection with claim 1, we do not sustain the rejection of claims 2—7. DECISION The decision of the Examiner to reject claims 1—7 is reversed. REVERSED 5