Ex Parte Kanzaki et al

Patent Trial and Appeal BoardMar 22, 2018

13147539 (P.T.A.B. Mar. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 13/147,539 83377 7590 EGL/Panasonic P.O. Box 10395 Chicago, IL 60610 FILING DATE FIRST NAMED INVENTOR 08/02/2011 Kouji Kanzaki 03/22/2018 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 113291159 3962 EXAMINER WARD, THOMAS JOHN ART UNIT PAPER NUMBER 3742 MAILDATE DELIVERY MODE 03/22/2018 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 KOUJI KANZAKI, KAZUHIRO KAW AI, and HISAHIRO NISHITANI 1 Appeal2017-006051 Application 13/147,539 Technology Center 3700 Before: LINDA E. HORNER, BENJAMIN D. M. WOOD, and ERIC C. JESCHKE, Administrative Patent Judges. WOOD, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants state that the real party in interest is Panasonic Intellectual Property Management Co., Ltd. App. Br. 4. Appeal2017-006051 Application 13/147,539 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134 from a rejection of claims 1- 5 and 7-15. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We reverse. THE INVENTION The claims are directed to a microwave oven with a temperature detection device. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A microwave oven comprising: a heating chamber for accommodating a heating object; a magnetron for heating the heating object accommodated in the heating chamber; a blower for cooling the magnetron; a temperature detection device for detecting a temperature of the magnetron; and a control device to control an output power of the magnetron on the basis of temperature information output from the temperature detection device, wherein the temperature detection device is disposed inside a cooling fin of the magnetron, and the control device controls the magnetron on the basis of the temperature information obtained before cooking is started, wherein the control device sets a threshold temperature value differently in dependence on the temperature information obtained before cooking is started, and wherein the control device determines a load operating condition and a no load operating condition of the microwave oven based on the threshold temperature value. 2 Appeal2017-006051 Application 13/147,539 Mori Edgar Watabe REFERENCES us 4,376,131 us 5,897,807 JP 2002-260841 A REJECTIONS Mar. 8, 1983 Apr. 27, 1999 Sept. 13, 2002 Claims 1-5, 7-12, 14, and 15 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Watabe and Mori. Final Act. 2. Claim 13 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Watabe, Mori, and Edgar. Id. at 8. ANALYSIS Claims 1-5, 7-12, 14, and 15-Unpatentable over Watabe and Mori The Examiner finds that the combination of Watabe and Mori teaches all of the limitations of independent claims 1, 8, and 12, including the claimed "control device," except the combination does not expressly teach the limitations in claim 1 (and similar limitations in claims 8 and 12) requiring the control device to: (1) "set[] a threshold temperature value differently in dependence on the temperature information obtained before cooking is started" and (2) "determine[] a load operating condition and a no load operating condition of the microwave oven based on the threshold temperature value." Final Act. 2-5. For these limitations, the Examiner asserts that the combination teaches "all the structural limitations required to perform the recited functional language [and] therefore was considered to [teach] the claimed microwave oven." Id. at 5. According to the Examiner, the "invention of Watabe could be modified by someone skilled in the art to obtain information using the structure disclosed to obtain information before cooking." Ans. 10 (emphasis added). Appellants dispute that the 3 Appeal2017-006051 Application 13/147,539 combination of Watabe and Mori expressly or inherently teaches these functional limitations. App. Br. 8-14; Reply 2-3. As our reviewing court has stated: [W]here the Patent Office has reason to believe that a functional limitation asserted to be critical for establishing novelty in the claimed subject matter may, in fact, be an inherent characteristic of the prior art, it possesses the authority to require the [Appellant] to prove that the subject matter shown to be in the prior art does not possess the characteristic relied on. In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (quoting In re Swinehart, 4 3 9 F .2d 210, 213 ( CCP A 1971)). The Examiner may show that a functional limitation is an inherent characteristic of a prior art structure by showing that the structure is capable of performing the recited function. Id. at 1479 (upholding the Board's anticipation ruling based on the Board's finding that "the scaled-up version [of the oil-can top] of figure 5 of Harz would be capable of performing all of the functions recited in Schreiber' s claim 1 "). But it is not enough that Watabe's control device "could be modified" to perform the functions, as the Examiner contends. Instead, the prior-art structure must be capable of performing the functions without further modification or programming. See Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1381 (Fed. Cir. 2011) (affirming district-court holding that "memory for storing" limitation "requires that the memory is actually programmed or configured to store the data collection application"). The Examiner has not found that Watabe's control device is capable of performing the claimed functions without further programming or modification. On the contrary, the Examiner acknowledges that the combination of Watabe and Mori perform "in a similar way but not the 4 Appeal2017-006051 Application 13/147,539 same" as the claimed device (Ans. 10), and, by asserting that the prior-art structure "could be modified" to perform the claimed functions, indicates that modification is required. Accordingly, we do not sustain the Examiner's rejection of claims 1, 8, and 12, as well as their dependent claims 2-5, 7, 9-11, 14, and 15, as unpatentable over Watabe and Mori. Claim 13-Unpatentable over Watabe, Mori, and Edgar The Examiner's rejection of claim 13 relies on the erroneous finding that the combination of W atabe and Mori teaches or suggests all of the limitations of claim 12, from which claim 13 depends. Final Act. 8-9. The Examiner has not relied on Edgar to cure the deficiency. Accordingly, for the reasons discussed above, we do not sustain the Examiner's rejection of claim 13 as unpatentable over Watabe, Mori, and Edgar. DECISION For the above reasons, the Examiner's rejection of claims 1-5 and 7- 15 is reversed. REVERSED 5