KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Jun 29, 2021

2020003285 (P.T.A.B. Jun. 29, 2021)

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.
15/035,273 05/09/2016 MARC ANDRE DE SAMBER 2013P01149WOUS 8937
24737 7590 06/29/2021
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
BECKER, DREW E
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
06/29/2021 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARC ANDRE DE SAMBER
____________

Appeal 2020-003285
Application 15/035,273
Technology Center 1700
____________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, 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, 3–6, 8–14, and 16–23. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Koninklijke Philips N.V. as the real
party in interest. Appeal Br. 3.
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The invention relates to a method for preparing a food product and a
cooking apparatus for use in a method for preparing a food product. Spec. 1.
Claim 1, reproduced from the Claims Appendix to the Appeal Brief,
illustrates the invention (formatting added):
1. A method for preparing a food product from a food
component in a cooking process, wherein the method
comprises:

- acquiring food component input information concerning
the food component; and

- controlling a cooking process parameter of the cooking
process as function of (i) the food component input information
and (ii) a cooking process model, comprising a mathematical
model, wherein the food component input information is
historical information, and not real-time empirical information,
concerning the food component, and wherein the cooking
process model comprises a relation between the food
component input information and the cooking process
parameter of the cooking process for preparing the food product
from the food component, wherein the historical information
comprises one or more selected from the group consisting of:
(i) growing information of the food component, (ii) harvesting
information of the food component, (iii) processing information
of the food component, (iv) transporting information of the
food component, and (v) storage information of the food
component.

Independent claim 12 recites a cooking apparatus to practice the
method of claim 1.
Appellant requests review of the following rejections from the
Examiner’s Final Office Action dated August 16, 2019:
I. Claims 1, 3–6, 8–14, and 16–23 rejected under 35 U.S.C.
§ 112(a) or 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply
with the written description requirement.
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II. Claims 1, 3–6, 8–14, and 16–23 rejected under 35 U.S.C.
§ 112(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as indefinite for
failing to particularly point out and distinctly claim the subject matter which
the inventor or a joint inventor, or for pre-AIA the applicant regards as the
invention.

III. Claims 1, 3–6, 8, 11–13, 16, 17, and 23 rejected under 35
U.S.C. § 103 as unpatentable over Minvielle (US 2013/0273217 A1,
published October 17, 2013) and Witt (US 3,732,468, issued May 8, 1973).

IV. Claims 9, 10, and 14 rejected under 35 U.S.C. § 103 as
unpatentable over Minvielle, Witt, and Bandholz (US 2010/0213187 A1,
published August 26, 2010).

V. Claims 18 and 20–22 rejected under 35 U.S.C. § 103 as
unpatentable over Minvielle, Witt, and Heit (US 2014/0263640 A1,
published September 18, 2014).

VI. Claim 19 rejected under 35 U.S.C. § 103 as unpatentable over
Minvielle, Witt, and Hoffman (US 2010/0310733 A1, published December
9, 2010).

Appellant argues independent claims 1 and 12 together in addressing
the respective rejections of these claims under 35 U.S.C. §§ 112 (Rejections
I and II) and 103 (Rejection III). See generally Appeal Br. Appellant does
not address substantively the various rejections of any of the dependent
claims 3–6, 8–11, 13, 14, and 16–23. Id. Accordingly, we select claim 1 as
representative of the subject matter claimed and decide the appeal as to all
grounds of rejections based on the arguments presented for claim 1.

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OPINION

Rejection I: 35 U.S.C. § 112(a) or
35 U.S.C. § 112 (pre-AIA), first paragraph – Written Description

After review of the respective positions the Appellant and the
Examiner present, we affirm the Examiner’s rejection of claims 1, 3–6,
8–14, and 16–23 under 35 U.S.C. § 112 (a) or 35 U.S.C. § 112 (pre-AIA),
first paragraph, for the reasons the Examiner provides in the Final Office
Action and the Answer. We add the following for emphasis.
The purpose of the written description requirement in 35 U.S.C.
§ 112(a) is to “clearly allow persons of ordinary skill in the art to recognize
that [the inventor] invented what is claimed.” Ariad Pharms., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (quoting Vas-
Cath Inc. v. Mahurkar, 935 F.2d 1555, 1562–63 (Fed. Cir. 1991) (citation
omitted)). The Examiner has the initial burden of presenting evidence or
reasoning to explain why persons skilled in the art would not recognize in
the original disclosure a description of the invention defined by the claims.
See In re Wertheim, 541 F.2d 257, 263 (CCPA 1976). “[T]he test for
sufficiency is whether the disclosure of the application relied upon
reasonably conveys to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing date.” Ariad, 598
F.3d at 1351 (citations omitted). This test “requires an objective inquiry into
the four corners of the specification from the perspective of a person of
ordinary skill in the art.” Id. “Based on that inquiry, the specification must
describe an invention understandable to that skilled artisan and show that the
inventor actually invented the invention claimed.” Id.
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Further, the claimed subject matter need not be described in haec
verba in the Specification in order for that Specification to satisfy the
description requirement. In re Smith, 481 F.2d 910, 914 (CCPA 1973).
That is, it is enough that one of ordinary skill in the art would recognize that
the inventor invented what is claimed without a claim using the same words
as the Specification. Union Oil Co. of Cal. v. Atlantic Richfield Co., 208
F.3d 989, 997 (Fed. Cir. 2000). However, in order for a disclosure to be
inherent, the missing descriptive matter must necessarily be present in the
parent application’s Specification such that one skilled in the art would
recognize such a disclosure. Tronzo v. Biomet, Inc., 156 F.3d 1154, 1159
(Fed. Cir. 1998).

Claim 1
Claim 1 recites a method for preparing a food product from a food
component in a cooking process comprising controlling a cooking process
parameter of the cooking process as a function of a food component input
information, wherein the food component input information is historical
information, and not real-time empirical information, concerning the food
component.
The principal premise of the Examiner’s rejection under this ground is
that the claim language “not real-time empirical information” lacks written
descriptive support in the Specification, as originally filed. Final Act. 2;
Ans. 12.
In the Answer, the Examiner explains there is no evidence that
historical information would exclude “not real-time empirical information,”
such as “measured or observed data.” Ans. 13. Specifically, the Examiner
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contends that the claimed historical information, as it relates to the steps of
growing, harvesting, processing, transporting, and storage of the food, are
measurements/observations that could have been “real-time”
measurements/observations. Id.
Appellant argues the disputed language “clarifies that the food
component input information is not gathered during the sequence of the
method of claim 1.” Appeal Br. 8. Appellant further argues that the
Specification defines historical information as information “gathered before
the method of cooking takes place, and thus excludes the real-time empirical
information that would be garnered during the cooking process.” Appeal Br.
9 (citing Spec. 7 (describing historical information as “may relate to an
entire period from generation up to substantially the cooking process, but
may also refer to a much shorter period, such as the information whether or
not the food component has been stored (at reduced temperature), etc.”)).
Thus, Appellant asserts that one skilled in the art would reasonably infer
from the Specification that real-time empirical information is not historical
information. Appeal Br. 10.
Appellant’s arguments do not identify reversible error in the
Examiner’s determination that the disputed language lacks adequate written
descriptive support.
As Appellant acknowledges, the Specification includes a number of
references describing the claim term “historical information.” Appeal Br.
8–10. In one instance, the Specification describes historical information as
“precooking parameters.” Spec. 2. In addition, immediately following this
description, the Specification describes historical information as
“additionally [including] some input parameters [that] might be measured by
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the smart cooker itself.” Id. Thus, the Specification appears to describe
historical information as including real-time empirical information.
Appellants does not explain why this information is not considered as
“gathered during the sequence of the method of claim 1” or why it is not
considered “real-time empirical information.” Appeal Br. 8.
Although Appellant contends page 7 of the Specification provides a
definition of “historical information” (Appeal Br. 9; Reply Br. 7), the noted
definition is conditioned by the use of the term “may,” which does not limit
what constitutes historical information but, instead, merely exemplifies what
can be historical information. The noted definition becomes less helpful
when taking into account the Specification’s description that appears to
include real-time empirical measurements by a smart cooker as historical
information. Spec. 2.
Appellant’s argument that “real-time empirical information” is
exemplified in the Specification is also unavailing. Appeal Br. 10; see Spec.
10. According to the Specification, “historical information also influences
the characteristics of the food component, and thus also the final food
product.” Spec. 6. The Specification also describes “the user preference
input information may include one or more of a food product characteristic,
a cooking process start, a cooking process time, a food component
characteristic, and (optionally) a further cooking process characteristic.” Id.
at 10. Thus, the distinction between historical information and “real-time
empirical information” is blurred because both aim to “influence[] the
characteristics of the food component, and thus also the final food product.”
Id. at 6. Therefore, Appellant has not established adequately that the
“missing descriptive matter must necessarily be present in the parent
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application’s Specification such that one skilled in the art would recognize
such a disclosure.” Tronzo, 156 F.3d at 1159; see also In re Robertson, 169
F.3d 743, 745 (Fed. Cir. 1999).
Thus, on this record, the Specification, as originally filed, does not
show that Appellant was in possession of the scope of the subject matter
described in claims 1, 3–6, 8–14, and 16–23.

Rejection II: 35 U.S.C. § 112(b) or
35 U.S.C. § 112 (pre-AIA), second paragraph – Indefiniteness

After review of the respective positions the Appellant and the
Examiner present, we affirm the Examiner’s rejection of claims 1, 3–6, 8–
14, and 16–23 under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA),
second paragraph, for the reasons the Examiner provides.
The text of 35 U.S.C. § 112(b) requires “[t]he specification shall
conclude with one or more claims particularly pointing out and distinctly
claiming the subject matter which the inventor or joint inventor regards as
the invention.” “As the statutory language of ‘particular[ity]’ and
‘distinct[ness]’ indicates, claims are required to be cast in clear—as opposed
to ambiguous, vague, indefinite—terms.” In re Packard, 751 F.3d 1307,
1313 (Fed. Cir. 2014). Claims are in compliance with 35 U.S.C. § 112(b) if
“the claims, read in light of the specification, reasonably apprise those
skilled in the art both of the utilization and scope of the invention, and if the
language is as precise as the subject matter permits.” Hybritech Inc. v.
Monoclonal Antibodies, Inc., 802 F.2d 1367, 1385 (Fed. Cir. 1986) (citing
Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 624
(Fed. Cir. 1985)). Thus, the test for determining the question of
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indefiniteness may be formulated as whether the claims “set out and
circumscribe a particular area with a reasonable degree of precision and
particularity.” In re Moore, 439 F.2d 1232, 1235 (CCPA 1971). With
regard to the reasonableness standard, one must consider the language in the
context of the circumstances. Packard, 751 F.3d at 1313. Language is an
imprecise method of drawing boundaries delineating patent rights, thus
unreasonable precision cannot be demanded. Id. On the other hand, the
claims must notify the public of what they are excluded from making and
using. Id. For this reason, while exact precision is not required, an applicant
is required to use language as precise as the subject matter reasonably
permits. Id.

Claim 1
The Examiner finds the claim language “real-time empirical
information” is indefinite because the scope of the term is unclear. Final
Act. 3. The Examiner explains that historical information would have been
considered “real-time empirical information” at the time of measurement.
Id.
In the Answer, the Examiner maintains the position expressed in the
Final Office Action by relying on the reasoning presented for the earlier
rejection. Ans. 14–15.
Appellant relies on a line of arguments similar to the arguments
presented for the rejection under 35 U.S.C. § 112 (a) or 35 U.S.C. § 112
(pre-AIA), first paragraph. Appeal Br. 11–13. We have again considered
these arguments in full as they apply to this ground of rejection and find that
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Appellant does not identify reversible error in the Examiner’s determination
that the claims are indefinite essentially for the reasons we give above.
As we discuss above, the Specification appears to describe historical
information as including additional input parameters measured by the smart
cooker itself. Spec. 2. Thus, the noted portion of the Specification appears
to describe historical information as including real-time empirical
information. Given this disclosure, the claim 1 language “not real-time
empirical information” is indefinite because it is unclear what information is
being excluded as historical information.
Moreover, Appellant does not explain with any reasonable specificity
why the portions of the Specification Appellant relies upon are considered to
reasonably circumscribe the scope of protection sought by the disputed
claim language, particularly in light of the disclosure on page 2 of the
Specification. See Packard, 751 F.3d at 1313 (“Given the role of the
applicant in the process, it is a reasonable implementation of the
examination responsibility, as applied to § 112[, second paragraph], for the
USPTO, upon providing the applicant a well-grounded identification of
clarity problems, to demand persuasive responses on pain of rejection.”).
Therefore, on this record, one skilled in the art would not be able to
determine the metes and bounds of the subject matter of independent claims
1, 3–6, 8–14, and 16–23.
Accordingly, claims 1, 3–6, 8–14, and 16–23 are indefinite for the
reasons the Examiner provides and we give above.

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Prior Art Rejection of
Claims 1, 3–6, 8, 11–13, 16, 17, and 23 (Rejection III)

After review of the respective positions the Appellant and the
Examiner present, we affirm the Examiner’s prior art rejections of claims 1,
3–6, 8, 11–13, 16, 17, and 23 under 35 U.S.C. § 103 for the reasons the
Examiner provides.

Claim 1
The Examiner finds Minvielle discloses a method for preparing a food
product from a food component in a cooking process that comprises
acquiring food component input information concerning the food component
and using the acquired information to control a cooking process parameter,
such as cooking temperature and duration, as a function of the food
component information and a cooking process model/protocol including a
relation between the food information. Final Act. 4; Minvielle ¶¶ 63, 74, 75,
90, 101, 106, 131. The Examiner finds Minvielle teaches the food
component input information can be historical information, as claimed.
Final Act. 4–5; Minvielle ¶¶ 75, 90. The Examiner finds that Minvielle
differs from the claimed invention in that Minvielle does not recite a
cooking process model comprising a mathematical model. Final Act. 5. The
Examiner finds Witt teaches it was well known in the art to use a cooking
process model comprising a mathematical model to prepare a food
component. Final Act. 5; Witt Abstr., Figure 2, col. 4, ll. 46–47. The
Examiner finds that, for example, Witt’s cooking process for meat relies on
information, such as meat doneness and thickness, for the mathematical
model to calculate the cooking time. Final Act. 5; Witt Abstr, Figures 2–4.
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The Examiner finds that the thickness of the food would qualify as historical
information (processing information of the food component) and the meat
doneness would be considered user preference information. Final Act. 5.
The Examiner determines it would have been obvious to one of
ordinary skill in the art to modify Minvielle’s method for preparing a food
product from a food component by incorporating a mathematical model into
Minvielle’s cooking process, as taught by Witt, because both are directed to
automated cooking systems and the use of a mathematical model would
define the relationship between the various food component input
information of Minvielle to arrive at the desired food product. Id. at 6.
Appellant argues Minvielle does not specifically excludes use of real-
time empirical information as claimed. Appeal Br. 15.
Appellant’s argument fails to identify error in the Examiner’s
determination of obviousness.
The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), quoted with
approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). In
addition, “the [obviousness] analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR, 550 U.S. at 418.
Minvielle discloses the use of historical information provided via a
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label. Minvielle ¶¶ 75–77. Minvielle also discloses an additional
embodiment where consumer (user) preferences can be inputted to modify
the historical information. Id. ¶ 109. Given that the noted disclosure
describes different embodiments, one skilled in the art would reasonably
infer from these disclosures that Minvielle contemplates an embodiment that
relies exclusively on historical information. See In re Fritch, 972 F.2d 1260,
1264–65 (Fed. Cir. 1992) (holding that a reference stands for all of the
specific teachings thereof as well as the inferences one of ordinary skill in
the art would have reasonably been expected to draw therefrom). In other
words, Minvielle encompasses an embodiment where “real-time empirical
information” is not inputted to modify the cooking process.
Appellant argues Witt relies explicitly on empirical data. Appeal Br.
15; Witt Abstr. Thus, Appellant contends that, given Witt does not exclude
the use of empirical data, Witt fails to disclose any mathematical modeling
where the food component input information comprises historical
information, and not real-time information, concerning the food component,
as claimed. Appeal Br. 15.
These arguments do not persuade us of reversible error in the
Examiner’s determination of obviousness.
As the Examiner notes, Witt appears to use the term “empirical” to
also include historical information. Ans. 15. For example, Witt discloses
the use of data (information) on variations of cooking time with thickness
and doneness. Witt col. 4, ll. 43–46. While this information was empirical
when generated (id. at col. 3, ll. 1–40), the information was subsequently
used to provide a historical graphical information from which to select the
necessary parameters for a desired level of cooking, as shown in Witt’s
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Figures 3 and 4.
Nevertheless, even assuming arguendo that Witt does not teach the
use of historical information, Witt still teaches the concept of using
information in a mathematical model to control a cooking process.
Appellant fails to explain why the type of information (historical v.
empirical) would necessarily impact how a mathematical model performs its
tasks. Appellant fails to explain why one skilled in the art, using no more
than ordinary creativity, would not have been capable of modifying Witt’s
mathematical model so as to receive historical information as input. See
KSR, 550 U.S. at 421 (“A person of ordinary skill is also a person of
ordinary creativity, not an automaton.”); see also In re Sovish, 769 F.2d 738,
743 (Fed. Cir. 1985) (presuming skill on the part of one of ordinary skill in
the art). Thus, Appellant has not distinguished sufficiently the claimed
invention from the teachings of the prior art.
Arguments not specifically addressed are deemed not persuasive for
the reasons the Examiner presents.
Accordingly, we affirm the prior art rejection of claims 1, 3–6, 8,
11–13, 16, 17, and 23 under 35 U.S.C. § 103 for the reasons the Examiner
presents and those we give above.

Prior Art Rejections IV–VI
The Examiner relied on additional secondary references in the
separate prior art rejections of claims 9, 10, 14, and 18–22. See generally
Final Act.
Appellant does not present substantive arguments for these rejections.
See generally Appeal Br. Instead, Appellant relies on the previous
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arguments presented when discussing claim 1 to address these rejections and
did not address the Examiner’s reliance on the respective additional
references to address the limitations of the respective limitations of the
dependent claims. Id.
Because we find Appellant’s previous arguments do not identify
reversible error in the Examiner’s determination of obviousness for reasons
we give above, we also affirm the prior art rejections of claims 9, 10, 14, and
18–22 under 35 U.S.C. § 103 for those reasons and the reasons the Examiner
provides.

DECISION SUMMARY
In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–6,
8–14, 16–23
112 Written
Description

1, 3–6,
8–14, 16–23

1, 3–6,
8–14, 16–23
112 Indefiniteness 1, 3–6,
8–14, 16–23

1, 3–6, 8,
11–13, 16,
17, 23
103 Minvielle, Witt 1, 3–6, 8,
11–13, 16,
17, 23

9, 10, 14 103 Minvielle, Witt,
Bandholz
9, 10, 14
18, 20–22 103 Minvielle, Witt,
Heit
18, 20–22
19 103 Minvielle, Witt,
Hoffman
19
Overall
Outcome
1, 3–6,
8–14, 16–23

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TIME PERIOD FOR RESPONSE
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)(1)(iv) (2018).

AFFIRMED