Ex Parte Lafferty

Patent Trials and Appeals Board

Mar 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. § 134(a), Appellant appeals from the
Examiner's rejection of claims 1-37. We have jurisdiction under 35 U.S.C.
§ 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. § 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. § 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. § 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