Ex Parte Powell

Patent Trial and Appeal BoardDec 20, 2017

12515840 (P.T.A.B. Dec. 20, 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. 219/448.110(220.02) 3039 EXAMINER PAIK, SANG YEOP ART UNIT PAPER NUMBER 3742 MAIL DATE DELIVERY MODE 12/515,840 05/21/2009 85444 7590 12/20/2017 Bay Area Technolgy Law Group PC 2171 E. Francisco Blvd., Suite L San Rafael, CA 94901 Brian Powell 12/20/2017 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 BRIAN POWELL1 Appeal 2017-000706 Application 12/515,840 Technology Center 3700 Before JOHN C. KERINS, MICHAEL L. WOODS, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Brian Powell (Appellant) seeks our review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 46-51. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The claimed invention is directed to an egg-cooking utensil and method for cooking eggs using direct heat and steam. Spec. 2:1-2. Claims 1 The Appeal Brief (hereinafter “Br.”) lists Brian Powell as the real party in interest. Br. 1. Appeal 2017-000706 Application 12/515,840 46, 50, and 51 are independent, and claim 46, reproduced below, is illustrative of the claims on appeal. 46. A method for cooking an egg comprising: providing an appliance having a first plate, said first plate having a first recess and a first heating element below said first recess, a second plate having a second recess and a heating element below said second recess, depositing a de-shelled egg onto said first recess, said de-shelled egg having a mass, the bottom of which is in contact with said first plate and the top of which faces upward thereof, depositing a quantity of water onto said second recess, whereupon said quantity of water is converted to steam by said second heating element and the bottom of said mass heated by said first heating element, directing said steam from said second plate to said first plate whereupon the top of said mass is cooked by said steam and the bottom of said mass cooked by said first heating element. Br. 7. (Claims App.). REFERENCES RELIED ON BY THE EXAMINER Shull US 3,704,663 Dec. 5, 1972 Barrow US 6,373,031 B2 Apr. 16,2002 THE REJECTION ON APPEAL Claims 46-51 are rejected under 35 U.S.C. § 103(a) as unpatentable over Shull and Barrow. 2 Appeal 2017-000706 Application 12/515,840 ANALYSIS Claims 46, 47, 48, 50, and 51 The Examiner finds that Shull discloses all of the features recited in independent claim 46, except for “a first heating element and a second heating element that are respectively provided to the first and second plates.” Final Act. 2-3. The Examiner relies on the teachings of Barrow to remedy this deficiency, finding that Barrow discloses first and second heating elements provided to respective first and second plates. Id. at 3. The Examiner reasons that it would have been obvious to modify Shull to include first and second heating elements on respective plates “so that each of the recesses can be independently heated to better facilitate the cooking process including preheating the appliance before depositing food items and adjusting the temperatures after depositing the food items, including the recited first and second temperatures, as a matter of routine experiences in cooking.” Id. Appellant asserts that “Shull teaches nothing more than a skillet having no means for independently generating heat energy to either convert water to steam or to cook an egg,” and Appellant emphasizes that all the independent claims require first and second heating elements or separate heating zones. Br. 4-5. Therefore, according to Appellant, Shull is incapable of carrying out the functions required in claims 46, 47, 48, 50, and 51. See id. In response, the Examiner reiterates that Shull is not relied upon to teach first and second heaters associated with first and second recesses. Ans. 3. 3 Appeal 2017-000706 Application 12/515,840 Appellant’s argument on this point is unavailing because it does not address the combination of references cited in the rejection. One cannot show nonobviousness by attacking references individually where the rejection is based on combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). As acknowledged by the Examiner (see Final Act. 3), Shull lacks certain claimed features, and Barrow is relied upon by the Examiner to remedy these deficiencies. Appellant’s restatement of these deficiencies in Shull does not apprise us of Examiner error. Appellant next asserts that Barrow fails to remedy the deficiencies in Shull. Br. 5-6. Specifically, Appellant contends that “Barrow teaches nothing more than an appliance having two separate zones for cooking two different food products separated by a medial wall” and “[o]f critical importance is that there is nothing being generated in either [of the two chambers in Barrow] causing migration of anything to the other chamber.” Br. 5-6. Therefore, according to Appellant, “there is no suggestion to modify Shull by reconfiguring skillet 11 by creating separate heat sources beneath compartment 16 and 21 or creating separate first and second heating zones at compartment 16 and 21 as claimed herein.” Br. 6. We find Appellant’s argument on this point to be unavailing. The Examiner finds that Shull and Barrow are in the same field of endeavor, namely, food-heating appliances. See Ans. 4. Appellant does not contest this point. See Br. 5-6. Additionally, as discussed above, the Examiner set forth a rationale for modifying Shull to incorporate the teachings of Barrow. See Final Act. 3. Appellant does not challenge the Examiner’s reasoning itself, and, instead, continues to attack the references individually, this time, 4 Appeal 2017-000706 Application 12/515,840 by pointing out the differences between the claimed subject matter and Barrow. See Br. 5-6. However, the claimed features discussed in the paragraph bridging pages 5 and 6 of Appellant’s Brief are disclosed by Shull, as is pointed out in the rejection of all the claims. See Final Act. 2-3. Consequently, Appellant’s argument regarding Barrow does not apprise us of Examiner error. We sustain the Examiner’s rejection of claims 46, 47, 48, 50, and 51. Claim 49 Appellant makes no additional argument for dependent claim 49. See Br. 4-6. Accordingly, claim 49 falls with claim 46, from which claim 49 depends. DECISION We affirm the rejection of claims 46-51 as unpatentable over Shull and Barrow. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 5