Ex Parte Lafferty

Patent Trials and Appeals BoardMar 26, 2019

14450731 - (D) (P.T.A.B. Mar. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/450,731 08/04/2014 26158 7590 03/28/2019 WOMBLE BOND DICKINSON (US) LLP ATTN: IP DOCKETING P.O. BOX 7037 ATLANTA, GA 30357-0037 FIRST NAMED INVENTOR Terrence P. Lafferty 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. R029 15480US.D1 2069 EXAMINER WARD, THOMAS JOHN ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 03/28/2019 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): IPDocketing@wbd-us.com BostonPatents@wbd-us.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TERRENCE P. LAFFER TY Appeal2018-005759 Application 14/450,731 1 Technology Center 3700 Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and PHILIP J. HOFFMANN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. Â§ 134(a), Appellant appeals from the Examiner's rejection of claims 1-37. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We REVERSE. According to Appellant, the invention "relates to various constructs and systems for heating or cooking a food item in a microwave oven, where 1 According to Appellant, the "real party in interest is Graphic Packaging International, LLC." Appeal Br. 1. Appeal2018-005759 Application 14/450,731 the food item may have more than one surface to be browned and/or crisped." Spec. 1, 11. 11-13. Claims 1, 15, and 20 are the independent claims on appeal. Below, we reproduce claim 1 as illustrative of the appealed claims. 1. An apparatus for preparing a food item in a microwave oven, compnsmg: a tray including opposite interior and exterior sides, and the exterior side of the tray forming a portion of an exterior of the apparatus while the apparatus is in a closed configuration, wherein the interior side of the tray includes a plurality of elevated heating areas, the elevated heating areas each including microwave energy interactive material, the interior side of the tray further includes a plurality of channels disposed between the elevated heating areas and receding in a direction away from the respective plurality of elevated heating areas, each channel extends between respective elevated heating areas and is devoid of microwave energy interactive material, and the exterior side of the tray includes a plurality of protrusions that are respectively vertically aligned with the channels; a cover including opposite interior and exterior sides, and the exterior side of the cover forming a portion of the exterior of the apparatus while the apparatus is in the closed configuration; a line of disruption, the tray and the cover being foldably joined to one another along the line of disruption so that the cover is pivotably connected to the tray for pivoting the cover relative to the tray between an open position and a closed position; and a locking feature operative for releasably maintaining the cover in the closed position. 2 Appeal2018-005759 Application 14/450,731 REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows: I. Claims 1--4, 6-10, 12-23, 25-27, 29, 31, and 33-35 under 35 U.S.C. Â§ I03(a) as unpatentable over Keefer et al. (US 5,519,195, iss. May 21, 1996) (hereinafter "Keefer"), Fernandez (US 2007/0029316 Al, pub. Feb. 8, 2007), and Wnek et al. (US 2008/0164178 Al, pub. July 10, 2008) (hereinafter "Wnek"); II. Claims 5, 24, 28, 30, 32, 36, and 37 under 35 U.S.C. Â§ I03(a) as unpatentable over Keefer, Fernandez, Wnek, and Barnes (US 6,608,292 Bl, iss. Aug. 19, 2003); and III. Claim 11 under 35 U.S.C. Â§ I03(a) as unpatentable over Keefer, Fernandez, Wnek, and Baughey (US 4,862,791, iss. Sept. 5, 1989). ANALYSIS Reiection I As set forth above, independent claim 1 recites, in relevant part, the interior side of the tray includes a plurality of elevated heating areas, the elevated heating areas each including microwave energy interactive material, the interior side of the tray further includes a plurality of channels disposed between the elevated heating areas and receding in a direction away from the respective plurality of elevated heating areas, each channel extends between respective elevated heating areas and is devoid of microwave energy interactive material. Appeal Br., Claims App. ( emphasis added). In support of claim 1 's rejection, the Examiner relies on Wnek to disclose the claimed channels- specifically, the Examiner finds that "[i]t would have been obvious ... to 3 Appeal2018-005759 Application 14/450,731 modify the tray of Keefer ... (Fig[ures] 29 and 30) with ... physical apertures 520 which interrupt ... microwave energy interactive element 516 as taught by Wnek ... [,] to provide ... finishing grill marks on a food article when processed." Answer 7. Appellant argues that the Examiner errs, as Wnek' s physical apertures 520 ... cannot be considered channels "receding in a direction away from the respective plurality of elevated heating areas ... and ... devoid of microwave energy interactive material." . . . Rather, the proposed modification to the container bottom ofFig[ure] 30 of Keefer ... would result in voids, [i.e.,] ... physical apertures 520 of Wnek ... , between ... protrusions 333[, and apertures] are a complete absence of material. In this regard, ... physical apertures 520 of Wnek ... lack any structure such that they cannot not be characterized as having properties such as "recessed." Appeal Br. 17-18 (italics and underlining omitted); see also Reply Br. 3-5. We agree with Appellant. Conversely, the Examiner's response to Appellant's argument-that "[t]he limitation 'channels receding in a direction away,' the definition has been interpreted to become more distant" (Answer 13; see also id. at 14, 16}-does not support adequately the Examiner's finding that Wnek's apertures disclose the claimed receding channels. Thus, based on the foregoing, we do not sustain the Examiner's obviousness rejection of independent claim 1. The Examiner rejects independent claims 15 and 20, each of which includes a similar recitation, based on a similar rationale. Therefore, we do not sustain the rejection of claims 15 and 20. Further, we do not sustain the rejection of claims 2--4, 6- 10, 12-14, 16-19, 21-23, 25-27, 29, 31, and 33-35 that depend from, and which the Examiner rejects with, the independent claims. 4 Appeal2018-005759 Application 14/450,731 Reiections II and III The Examiner does not establish that either Barnes or Baughey remedies the above-discussed deficiency in the independent claims' rejection. Therefore, we do not sustain the rejections of claims 5, 11, 24, 28, 30, 32, 36, and 37 that depend from the independent claims. DECISION We REVERSE the Examiner's obviousness rejections of claims 1-37. REVERSED 5