ILLINOIS TOOL WORKS INC.

Patent Trials and Appeals Board

Feb 24, 2022

2021001513 (P.T.A.B. Feb. 24, 2022)

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. 15/803,878 11/06/2017 Marco Carcano 738141/00028/66752 2817 148433 7590 02/24/2022 Burr & Forman LLP Bank of America Plaza 101 South Tryon Street, Suite 2610 Charlotte, NC 28280 EXAMINER GIBSON, WILLIAM C ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 02/24/2022 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): mcnairip@burr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARCO CARCANO, MICHELE SCLOCCHI, and MICHELE GENTILE Appeal 2021-001513 Application 15/803,878 Technology Center 3700 Before JILL D. HILL, CARL M. DeFRANCO, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-5, 7, 8, 10-15, 17, 18, and 20.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Illinois Tool Works Inc. Appeal Br. 1. 2 These are the only pending claims. Appeal 2021-001513 Application 15/803,878 2 CLAIMED SUBJECT MATTER Appellant’s invention relates to a convection system for employment with an rf oven. Spec. ¶ 2. Claims 1 and 11 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An oven comprising: a cooking chamber configured to receive a food product; and an air circulation system configured to provide heated air into the cooking chamber, wherein the air circulation system comprises: a plenum separated from the cooking chamber by a back wall of the cooking chamber, an airflow generator configured to draw air from the cooking chamber through a chamber outlet port and discharge the air into the plenum, and an air heater configured to heat at least some of the air in the plenum prior to a portion of the air entering the cooking chamber from the plenum via air delivery orifices, wherein the chamber outlet port comprises outlet perforations combining to form a first geometric shape centered on an axis of the airflow generator, wherein the air delivery orifices comprise a first set of inlet perforations disposed near a top wall of the cooking chamber and a second set of inlet perforations disposed near a bottom wall of the cooking chamber, each of the first set of inlet perforations and the second set of inlet perforations comprising individual rows of perforations that extend linearly along a direction substantially parallel to a plane in which the bottom wall or the top wall of the cooking chamber lies, the first set of inlet perforations and the second set of inlet perforations combining to form respective second and third geometric shapes that are disposed on opposite sides of the outlet perforations, wherein the second and third geometric shapes are different than the first geometric shape, wherein a number of the individual rows forming the second set of inlet perforations is larger than the number of the individual rows forming the first set of inlet perforations, and Appeal 2021-001513 Application 15/803,878 3 wherein a center of the outlet perforations is closer to the second set of inlet perforations than the first set of inlet perforations. Appeal Br. 12 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Harada3 EP 2 527 745 A1 Nov. 28, 2012 Suzaku JPS6314016 A Jan. 21, 1988 Asada JPH0217323 A Jan. 22, 1990 REJECTIONS I. Claims 1-5, 7, 8, 10-15, 17, 18, and 20 are rejected under 35 U.S.C. § 112(b) as indefinite. II. Claims 1, 2, 4, 5, 7, 8, 10-12, 14, 15, 17, 18, and 204 are rejected under 35 U.S.C. § 103 as unpatentable over Harada and Suzaku. III. Claims 3 and 13 are rejected under 35 U.S.C. § 103 as unpatentable over Harada, Suzaku,5 and Asada. 3 Although the first named inventor is Ryuta KONDO, we refer to EP 2 527 745 A1 as Harada for consistency with the Examiner and Appellant. 4 Although the Examiner includes claims 5, 8, 15, and 18 under a different heading, because these claims are rejected based on Harada and Suzaku (see Final Act. 16), we include them in Rejection II. 5 We understand the Examiner’s omission of Suzaku from the heading of Rejection III to be a typographical error because Suzaku is discussed in the body of the rejection. See Final Act. 14. Appeal 2021-001513 Application 15/803,878 4 OPINION Rejection I; Indefiniteness The Examiner finds that the term “substantially” in claims 1, 3, 5, 11, 13, and 15 and the term “about” in claim 18 are indefinite because “one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.” Final Act. 5. The Examiner states, “the manufacture of individual rows of perforations can be placed with a high degree of precision.” Id. Appellant counters that one of ordinary skill would understand that the terms “substantially” and “about” are used as modifiers so that “substantially parallel” does not require absolute parallelism. Appeal Br. 6- 7. The term “substantially” is often used in conjunction with another term to describe a particular characteristic of the claimed invention. Here, Appellant’s Specification indicates, for example, that Figure 4B depicts first and second sets of inlet perforations 350 and 355 that may be split into two separate strips of perforations and that may be “formed from individual rows of perforations that extends linearly along a direction substantially parallel to the plane in which the bottom (or top) of the cooking chamber 102 lies.” Spec. ¶ 43. Additionally, the Examiner’s evidence as to the level of skill in the art relies on forming holes “about 2 to 5 mm.” Ans. 4 (citing Harada ¶ 59) (emphasis added). Based on Figure 4B and its description in the Specification, a person of ordinary skill in the art would know what is meant by the term “substantially parallel” in claims 1 and 11 because the individual rows of perforations extend sufficiently parallel to the bottom or top wall of the Appeal 2021-001513 Application 15/803,878 5 cooking chamber that person of ordinary skill in the art would not be able to immediately discern that they are not exactly parallel. Likewise, for the limitation “substantially equal,” as recited in claim 3, 5, 13, and 15, a person of ordinary skill in the art would not be able to immediately discern that the distances (claims 3 and 13) and the areas (claims 5 and 15) are not exactly equal. Similarly, for claim 18 and the limitation “about one fourth,” a person of ordinary skill in the art would not be able to immediately discern that the diameter is not exactly one fourth of the length. We do not sustain the rejection of claim 1-5, 7, 8, 10-15, 17, 18, and 20 as indefinite. Rejection II; Obviousness based on Harada and Suzaku The Examiner finds that Harada discloses most of the limitations of claim 1, including rows of inlet perforations, but does not explicitly disclose a number of the individual rows forming the second set of inlet perforations is larger than the number of the individual rows forming the first set of inlet perforations. Final Act. 9. The Examiner does not rely on Suzaku in any manner with respect to the number of inlet perforations. See Final Act. 10- 12. The Examiner notes, however, that Harada discloses different shapes for certain sets of inlet perforations, and considers that it would have been obvious to substitute a set of inlet perforations having a wider width, i.e., as depicted by blow-off port 23B for blow-off port 17B. Id. at 9-10; see also Harada, Fig. 3. According to the Examiner, the substitution would have been prima facie obvious because the present case is analogous to what was done in In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980). Id. at 10. Appellant argues, and we agree, that the logic underlying Kerkhoven is being misapplied. Even if Harada’s long and thin blow-off port 17B were Appeal 2021-001513 Application 15/803,878 6 combined with Harada’s shorter but wider blow-off port 23B to form a long and wide blow-off port, the Examiner does not explain why the same would not have been done to blow-off ports 17A and 23A. In particular, Harada depicts a plurality of blow-off ports 17A, 17B, 23A, and 23B as seen in Figure 3, reproduced below. Figure 3 is a perspective view illustrating a partition wall which forms a rear-surface wall of a heating room of a heating cooker. Harada ¶ 41. Harada discloses that “partition wall 15 is provided with the plurality of blow-off ports 17A, 17B, 23A and 23B in areas around the suction port 16, Appeal 2021-001513 Application 15/803,878 7 such that the suction port 16 is at the center of them.” Harada ¶ 56; see also Appeal Br. 10. Kerkhoven does not suggest anything other than a combination of individual components, which would result simply in combining 17A and 23A, as well as combining 17B and 23B, to form components having a length as long as 17A (or 17B) and a width as wide as 23A (or 23B). Even if the combination were to result in a hybrid component that is shorter and wider than 17B, and thinner and longer than 23B, the Examiner does not explain sufficiently why the proposed modification would be selectively applied to certain ports and not others. Accordingly, we do not sustain the rejection of independent claims 1 and 11, and claims 2, 4, 5, 7, 8, 10, 12, 14, 15, 17, 18, and 20 depending therefrom. Rejection III; Harada, Suzaku, and Asada Claims 3 and 13 depend from claims 1 and 11, respectively. The Examiner does not rely on the disclosure of Asada in any manner that would remedy the deficiency of claims 1 and 11 set forth above. See Final Act. 14- 16. For the same reasons, we do not sustain the rejection of claims 3 and 13. CONCLUSION The Examiner’s rejections are reversed. Appeal 2021-001513 Application 15/803,878 8 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5, 7, 8, 10-15, 17, 18, 20 112(b) Indefiniteness 1-5, 7, 8, 10-15, 17, 18, 20 1, 2, 4, 5, 7, 8, 10-12, 14, 15, 17, 18, 20 103 Harada, Suzaku 1, 2, 4, 5, 7, 8, 10-12, 14, 15, 17, 18, 20 3, 13 103 Harada, Suzaku, Asada 3, 13 Overall Outcome 1-5, 7, 8, 10-15, 17, 18, 20 REVERSED