Ex Parte Tienor

Patent Trial and Appeal BoardOct 14, 2015

12032868 (P.T.A.B. Oct. 14, 2015)

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. 12/032,868 02/18/2008 Lawrence J. Tienor 3030.120US01 5314 24113 7590 10/15/2015 PATTERSON THUENTE PEDERSEN, P.A. 4800 IDS CENTER 80 SOUTH 8TH STREET MINNEAPOLIS, MN 55402-2100 EXAMINER WOODALL, MARK ART UNIT PAPER NUMBER 2649 MAIL DATE DELIVERY MODE 10/15/2015 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 LAWRENCE J. TIENOR ____________ Appeal 2013-009118 Application 12/032,868 Technology Center 2600 ____________ Before JEFFREY S. SMITH, KIMBERLY McGRAW, and CHRISTA P. ZADO, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2013-009118 Application 12/032,868 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–4 and 6–17, which are all the claims remaining in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Illustrative Claim 1. A food preparation apparatus comprising: a basin having a plurality of sidewalls and a floor, the basin defining an opening and adapted to receive a cooking oil; a shell having a plurality of outer sidewalls and a base, the shell adapted to receive the basin so as to define an insulation gap between corresponding walls of the basin and the shell and between the floor of the basin and the base of the shell such that the insulation gap is segregated from the basin opening, the shell further including an inlet opening and an exhaust opening in communication with the insulation gap; and a control assembly for operating a heating assembly and a cooling assembly, the control assembly preventing simultaneous operation of the heating and cooling assemblies, the cooling assembly adapted to introduce a cooling air flow during a cooling mode that follows a heating mode, the cooling air flow being introduced into the inlet opening, through the insulation gap between the basin and the shell and out the exhaust opening wherein the shape of the insulation gap directs said cooling air flow travelling between the inlet opening and exhaust opening along each sidewall and beneath the floor of the basin, wherein the cooling air flow travelling between the inlet opening and exhaust opening is fully contained in within the insulation gap and is simultaneously directed along the sidewalls and beneath the floor of the basin by the shape of the insulation gap to accelerate cooling of the cooking oil through interaction of the cooling air flow with the basin. Appeal 2013-009118 Application 12/032,868 3 Prior Art Veth US 4,644,931 Feb. 24, 1987 Rozak US 5,249,510 Oct. 5, 1993 Kuhlman US 5,365,831 Nov. 22, 1994 Kobayashi US 5,979,303 Nov. 9, 1999 McLemore US 6,711,992 B1 Mar. 30, 2004 McLemore US 6,941,857 B2 Sep. 13, 2005 Jeuch US 2006/0196366 A1 Sep. 7, 2006 Kimura US 2009/0101023 A1 Apr. 23, 2009 Nishida US 7,624,676 B2 Dec. 1, 2009 Henmi JP 2007-075471 A Mar. 29, 2007 Examiner’s Rejections Claims 1–4 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Veth, Rozak, Kobayashi, and Kuhlman. Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Veth, Rozak, Kuhlman, Kobayashi, and Nishida. Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Veth, Rozak, Kuhlman, Kobayashi, and Jeuch. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Veth, Rozak, Kuhlman, Kobayashi, and Henmi. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Veth, Rozak, Kuhlman, Kobayashi, and McLemore ’857. Claims 10, 11, 14, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kobayashi, Veth, Kuhlman, and Rozak. Appeal 2013-009118 Application 12/032,868 4 Claims 12, 13, and 15 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kobayashi, Veth, Kuhlman, Rozak, Kimura, and McLemore ’992. ANALYSIS We adopt the findings of fact made by the Examiner in the Final Rejection and Examiner’s Answer as our own. We concur with the conclusions reached by the Examiner for the reasons given by the Examiner. We highlight the following for emphasis. Appellants contend Kobayashi alone does not teach the insulation gap of claim 1. Reply Br. 6. The Examiner finds the air space 84, or “gap,” between housing 14, or “shell,” and kettle 24, or “basin,” shown in Figure 4 of Veth teaches the claimed “insulation gap between . . . the basin and the shell.” Final Rej. 2. The Examiner also finds opening 70a in Figure 1 of Kobayashi teaches an inlet opening for introducing a cooling air flow into a gap between a basin (10) and a shell (70). Final Rej. 3–4. Appellants’ argument against Kobayashi alone does not address the combination made by the Examiner. One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellants have not persuasively explained why adding the inlet opening of Kobayashi to the insulation gap of Veth does anything more than yield the predictable result of introducing a cooling air flow into the insulation gap 84 of Veth. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). Appellants contend there is no basis why a person of ordinary skill in the art would look to the disclosure and teachings of Kobayashi when Appeal 2013-009118 Application 12/032,868 5 considering the problems and solution addressed by claim 1. Reply Br. 6–7. Appellants’ contention is inconsistent with page 15 of Appellants’ Appeal Brief, where Appellants stated “Kobayashi is admittedly directed to a prior art deep fryer.” Further, our reviewing court, in the Klein decision, addressed the issue of whether a reference is analogous art. A reference qualifies as prior art for an obviousness determination under § 103 only when it is analogous to the claimed invention. Two separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. A reference is reasonably pertinent if, even though it may be in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem. If a reference disclosure has the same purpose as the claimed invention, the reference relates to the same problem, and that fact supports use of that reference in an obviousness rejection. In re Klein, 647 F.3d 1343 (Fed. Cir. 2011) (internal citations omitted). Here, Appellants have not shown the inlet opening for introducing cooling air into the fryer of Kobayashi is (1) not from the same field of endeavor as the claimed invention, and (2) not reasonably pertinent to the particular problem of cooling a cooking device. Appellants contend Rozak does not teach directing air through the insulation gap from inlet openings to exhaust openings of the shell. Reply Br. 7. Appellants’ contention is inconsistent with Rozak, which states a fan assembly mounted in the top portion of the cabinet, or “shell,” draws air in through a bottom portion of the cabinet and exhausts the air through outlet Appeal 2013-009118 Application 12/032,868 6 openings on top of the cabinet. Abstract; col. 3, ll. 34–48; col. 5, l. 61 to col. 6, l. 4; Figs. 2 and 5. Appellants also contend one of ordinary skill in the art would not be motivated to apply the fan assembly of Rozak to the presently claimed cooling mechanism. Reply Br. 7. Rozak teaches reducing the risk of contact of hot oil (col. 1, ll. 9–12) using a fan assembly to cool the oil (col. 13, ll. 11–14) by drawing air from the bottom of the cabinet (Abstract; col. 3, ll. 34–37) to an exhaust at the top (Abstract; col. 5, ll. 61–66). Appellants have not persuasively explained why adding the fan assembly of Rozak to draw in air from one side of either of the shells taught by Veth and Kobayashi, to the opposite side of the shell, does anything more than yield the predictable result of cooling hot oil in a container, or “basin,” within the shell as taught by Rozak. Appellants contend Kuhlman, which teaches a food preparation apparatus for cooking pasta, is not relevant prior art. App. Br. 21–22; Reply Br. 7–8. Appellants’ contention is inconsistent with page 22 of the Appeal Brief, where Appellants stated if the field of endeavor is simply defined as food preparation, then Kuhlman would admittedly be prior art. Appellants have not persuasively explained why the field of endeavor is not food preparation. Further, Appellants have not persuasively explained why Kuhlman, which addresses the problem of controlling cooling fans in a cooking device, is not reasonably pertinent to Appellants’ problem of controlling cooling fans in a cooking device. Appellants similarly contend Jeuch does not teach cooling cooking oil and conclude one of ordinary skill in the art would not look to the teachings of Jeuch in conjuction with the other cited references. Reply Br. 8. Appeal 2013-009118 Application 12/032,868 7 However, Appellants have not persuasively explained why the air flow created by the cooling device taught by paragraph 48 of Jeuch as cited by the Examiner (Final Rej. 7) is (1) not from the same field of endeavor as the claimed invention and (2) not reasonably pertinent to the particular problem of cooling a cooking device. We sustain the rejection of claims 1–4 and 6–17 under 35 U.S.C. § 103. DECISION The Examiner’s rejections of claims 1–4 and 6–17 are affirmed. 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. § 41.50(f). AFFIRMED JRG