Ex Parte MafiDownload PDFPatent Trial and Appeal BoardDec 22, 201713616648 (P.T.A.B. Dec. 22, 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. 13/616,648 09/14/2012 Masoud Mafi 6.0002.1 2941 103968 7590 Ryan Alley IP (General Docket) P.O. Box 87 Alexandria, VA 22313 EXAMINER SMITH, PRESTON ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 12/27/2017 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): office @ alleylegal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MASOUD MAFI Appeal 2017-006303 Application 13/616,648 Technology Center 1700 Before TERRY J. OWENS, RAE LYNN P. GUEST, and SHELDON M. McGEE, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-10 and 20-29. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellant claims a food smoker. Claims 1 and 20 are illustrative 1. A smoker comprising: a body defining an internal cavity sized to contain a smoking material, wherein, the body includes at least one air inlet, the body includes at least one exhaust point, and the air inlet and the exhaust point are sized and positioned to cause an oxygen flow from the inlet to the exhaust point of approximately 1.5E-5 to approximately 3.5E-5 grams Appeal 2017-006303 Application 13/616,648 per second per cubic inch volume of the internal cavity by convection when filled with the smoking material of no less than 0.3 porosity in an atmospheric cooking environment of at least 200 degrees Fahrenheit, wherein the oxygen flow rate prevents fire and full combustion of the smoking material when in the smoker. 20. A smoker comprising: a body defining an internal cavity of about 60 cubic inches, wherein at least one side of the body is solid except for only four 2-millimeter holes spaced along a length of the body so as to allow only a limited amount of oxygen into the body under atmospheric cooking conditions and prevent full combustion and enhance smoking of materials placed in the internal cavity, and wherein the body includes at least one exhaust point on another side; and a connector configured to join a handle to the body. The References Cofer US Brintle US Jonas US Kuopus US Polkinghom US 5,048,406 Sept. 17, 1991 5,782,164 July 21, 1998 6,019,035 Feb. 1,2000 6,041,695 Mar. 28, 2000 2008/0078374 A1 Apr. 3, 2008 The Rejections The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1- 4, 6-10, 20-26, and 28 over Cofer in view of Kuopus, claims 1, 2, 4, 6-8, 10, 26, and 28 over Jonas in view of Kuopus, claim 5 over Jonas in view of Kuopus and Polkinghom, and claims 27 and 29 over Jonas in view of Kuopus and Brintle. OPINION We affirm the rejection over Cofer in view of Kuopus and reverse the rejections involving Jonas. 2 Appeal 2017-006303 Application 13/616,648 Rejection over Cofer in view of Kuopus The Appellant argues only the independent claims (1, 20, and 28) (App. Br. 6-14). We therefore limit our discussion to those claims. The dependent claims stand or fall with the independent claim from which they depend. See 37 C.F.R. § 41.37(c)(l)(iv) (2012). Cofer discloses a wood fragment-containing food smoker cartridge (10) which “can contain draft vent perforations to allow enough air to flow in to promote charring without allowing ignition, and smoke to flow directably out” (Abstract; col. 2,11. 52-55; col. 6,11. 23-29, 36-39). The cartridge (10) can have draft ventilation perforations (14A), also referred to as “draft ventilation holes,” on its bottom side, and exhaust slotted perforations (14B) on its top side (col. 3,11. 45-53; col. 4,11. 32-33; Fig. IB).1 The Appellant asserts that “[t]he smoker 10 in Cofer has vastly different parameters that create far larger volumetric flow rates from those claims [1 and 28]. . . . much larger perforations 14A - multiple, large slits across an arc on the scale of inches - for a smaller smoker 10” (App. Br. 9). The Appellant does not point out, and it is not apparent, where Cofer discloses perforations 14A in the form of large slits. Cofer discloses slotted perforations (14B, 14E) (col. 3,11. 51-52; col. 5,1. 18), but describes 14A as 1 Consistently with Cofer, Kuopus uses an elongate wood-receiving chamber “which has just enough air holes to allow charring, but to prevent actual full combustion of the wood to thereby provide the full effect of smoke for smoking purposes” (col. 1,11. 37^10), where “[cjharring as opposed to full combustion is achieved by reason of the limited number of apertures 36 provided to thereby control the amount of oxygen provided to wood contained within the compartment 34” (col. 5,11. 31-33). 3 Appeal 2017-006303 Application 13/616,648 “perforations” and “holes,” not “slotted perforations” (col. 3,1. 47; col. 4, 11. 31-33), and does not illustrate perforations 14A as being slotted. The Appellant asserts that “the recited low — but non-zero - oxygen availability under otherwise atmospheric cooking conditions above 200 degrees F produces an optimal level of smoke” (App. Br. 8), “[t]he claimed specific oxygen through-flow rate can be achieved through a natural convection device only if inlet and outlet are carefully sized relative to the smoker volume under these cooking conditions” {id.), “there is no motivation from Kuopus or Cofer to reconfigure their smoking devices down into the much lower volumetric oxygen flow rates caused by 4 [2]-millimeter holes in a solid side opposite an outlet as recited in claim 20” (App. Br. 14), and “the Examiner’s rationale amounts to a mere assertion that the size of the holes in Cofer could be adjusted to reach the claimed air flow rates under the recited conditions. This reconfiguration capability could be true, but there is still no motivation for why a person skilled in the art would so reconfigure Cofer” (App. Br. 10). The Appellant’s claim 1 requires that “the air inlet and the exhaust point are sized and positioned to cause an oxygen flow from the inlet to the exhaust point of approximately 1.5E-5 to approximately 3.5E-5 grams per second per cubic inch volume of the internal cavity by convection when filled with the smoking material of no less than 0.3 porosity in an atmospheric cooking environment of at least 200 degrees Fahrenheit, wherein the oxygen flow rate prevents fire and full combustion of the smoking material in the smoker,” claim 20 requires that “at least one side of the body is solid except for only four 2-millimeter holes spaced along a length of the body so as to allow only a limited amount of oxygen into the 4 Appeal 2017-006303 Application 13/616,648 body under atmospheric cooking conditions and prevent full combustion and enhance smoking of materials placed in the internal cavity,” and claim 28 requires “an air flow mechanism configured to produce an oxygen flow into the body of approximately 1.5E-5 to approximately 3.5E-5 grams per second per cubic inch volume of the internal cavity when the body is filled with the smoking material having at least 0.3 porosity and exposed to at least 200-degree Fahrenheit cooking conditions.” The Appellant states that “a limited amount of air and oxygen availability throughout an enclosed smoking box improves oxygen absorption/combustion and smoke availability to food cooked alongside the box, producing improved smoky flavoring and/or appearance” (Spec. ^ 15) and that “Applicant has determined that a maximum oxygen consumption rate between approximately 1.5E-5 to 3.5E-5, such as approximately 2.5E-5, grams of oxygen per second per cubic inch of smoker volume achieves the above-described optimality, resulting in optimal smoke creation from smoking material and outflow into an enclosed cooking space for food flavoring, without catching the smoking material on fire” (id.). The Appellant, therefore, for a particular smoking material porosity (any porosity of at least 0.3), chooses the body temperature (any temperature over 200°F) and the limited oxygen inlet flow (obtained by limiting the air inlet size) which produces optimal food smoky flavoring and/or appearance without catching the smoking material on fire. Likewise, Cofer uses smoker bottom perforations/holes (14A) for draft ventilation which “allow enough air to flow in to promote charring without allowing ignition” such that the smoker pleasantly flavors food by the smoke it emits (Abstract; col. 1,11. 9-11; col. 3,11. 45-53; col. 4,11. 32-33; col. 6,11. 25-29). Cofer, therefore, would 5 Appeal 2017-006303 Application 13/616,648 have led one of ordinary skill in the art, through no more than ordinary creativity, to choose the air inlet size which provides (for a cartridge temperature within the broad suitable range including at least 200°F and a wood chip porosity within the broad suitable range of at least 0.3) the inlet oxygen flow, including values such as the Appellant’s about 1.5E-5 to 3.5E-5 grams per second per cubic inch of cylinder (20) volume, which optimizes the desired food smoky flavor without catching the wood chips on fire. See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (in making an obviousness determination one “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ”). The Appellants assert that “[t]he ‘air inlet’ and ‘exhaust point,’ introduced as parts of the recited ‘body,’ are separate elements from the later-introduced ‘air flow mechanism’ in claim 28” (Reply Br. 6) and that the air flow mechanism is a mechanism “such as a fan, blower, or air injector” (App. Br. 6). “‘[Djuring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification.’” In re Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). The Appellant’s Specification states that “[djesired airflow rates can be achieved through natural convection and proper placement of air inlets and exhausts, or through forced airflow mechanisms like blowers” (Spec. ^ 4). The Appellant’s claim 28, however, merely requires an airflow mechanism, not a forced airflow mechanism. Thus, the broadest reasonable interpretation of the Appellant’s claim term “airflow mechanism” consistent with the Specification encompasses Cofer’s air inlet perforation/hole and exhaust slot 6 Appeal 2017-006303 Application 13/616,648 sizing and placement for achieving airflow by draft ventilation (col. 3, 11. 45-53; col. 4,11. 31-33; Fig. IB). For the above reasons we are not persuaded of reversible error in the rejection over Cofer in view of Kuopus. Rejections involving Jonas We need address only the independent claims (1 and 28).2 Claim 1 requires that “the body includes at least one air inlet, the body includes at least one exhaust point, and the air inlet and the exhaust point are sized and positioned to cause an oxygen flow from the inlet to the exhaust point.” Claim 28 requires that “the body includes at least one air inlet and at least one exhaust point opposite the air inlet in the body to permit flow into and out of the body.” To meet those claim requirements the Examiner relies upon Jonas (Ans. 7-8). Jonas discloses a food smoker having apertures (22) in an upper 1/3 portion of a cylinder (20) so that hot air rising from a heat source flows into the apertures less quickly, thereby slowing the burning of wood chips in the cylinder (20) (col. 3,11. 55-59; Fig. 3). The Examiner finds that “Jonas teaches a smoker having a body with an air inlet and outlet (holes to the left of Fig 2 are the exhaust points and holes at the bottom (to the right) are the air inlet points)” (Ans. 7). The Examiner does not establish that in Jonas’ Figure 2, air enters only through the holes to the right and smoke exhausts only from the holes to the left. Jonas indicates that each of the apertures (22) in the upper 1/3 2 The Examiner does not rely upon Polkinghom or Brintle for any disclosure that remedies the deficiency in the references applied to the independent claims as to the limitations in those claims (Ans. 9-10). 7 Appeal 2017-006303 Application 13/616,648 portion of the cylinder (20) serves as both an air inlet and an exhaust outlet (col. 3,11. 55-59; Figs. 1, 5). The Examiner does not establish that when apertures serve both of those functions there can be “flow from the inlet to the exhaust point” as required by the Appellant’s claim 1 or “at least one exhaust point opposite the air inlet” as required by the Appellant’s claim 28. Accordingly, we reverse the rejections involving Jonas. DECISION/ORDER The rejection of claims 1—4, 6-10, 20-26, and 28 under 35 U.S.C. § 103 over Cofer in view of Kuopus is affirmed. The rejections under 35 U.S.C. § 103 of claims 1, 2, 4, 6-8, 10, 26, and 28 over Jonas in view of Kuopus, claim 5 over Jonas in view of Kuopus and Polkinghom, and claims 27 and 29 over Jonas in view of Kuopus and Brintle are reversed. It is ordered that the Examiner’s decision is affirmed-in-part. 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-IN-PART 8 Copy with citationCopy as parenthetical citation