David Sager

Patent Trials and Appeals Board

May 13, 2021

2020003740 (P.T.A.B. May. 13, 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.
13/472,774 05/16/2012 David D. Sager 006593-02380US 1854
33375 7590 05/13/2021
THOMPSON HINE LLP / ITW
Intellectual Property Group
10050 Innovation Drive
Suite 400
DAYTON, OH 45342-4934
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
05/13/2021 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):
ipdocket@thompsonhine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID D. SAGER
Appeal 2020-003740
Application 13/472,774
Technology Center 1700
Before ADRIENE LEPIANE HANLON, TERRY J. OWENS, and
SHELDON M. MCGEE, Administrative Patent Judges.
MCGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3, 4, 6, 8–15, and 22–24. We have
jurisdiction. 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. Appellant identifies the real party in interest as Premark FEG
L.L.C. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to combination ovens that use heat and steam,
and methods of cooking with such ovens.
Independent claim 1 is illustrative of the claimed subject matter and is
reproduced below with the key limitation on appeal italicized for emphasis:
1. A combination oven, comprising:
a cooking cavity accessible via a door;
a convection cooking system associated with the cooking
cavity for heating the cooking cavity;
a moisture delivery arrangement for delivering moisture
into the cooking cavity;
a controller configured to (i) automatically adjust and
define a humidity level setting for a cooking operation based only
on operator adjustment and selection of a numerical temperature
setting for the cooking operation using a temperature control
input of the oven and (ii) initiate the cooking operation and
control both the convection cooking system to achieve the
selected numerical temperature setting and the moisture delivery
arrangement to achieve the defined humidity level setting;
an oven control interface including:
the temperature control input;
a display for displaying the selected numerical
temperature setting;
a display for displaying the automatically defined
humidity level setting for the cooking operation;
an input for manually adjusting humidity level to
permit operator variance of the defined humidity level
setting;
an input for selecting duration for the cooking
operation;
wherein the controller and oven control interface are
configured such that an operator can only set or select numerical
temperature, humidity level and duration for a cooking operation
and the operator can only define a single stage cooking operation;
wherein the controller includes associated memory storing
at least one temperature-humidity profile that is accessed, based
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only on the selected numerical temperature setting, to define the
humidity level setting, wherein the controller utilizes the selected
numerical temperature setting to access the temperature-
humidity profile and retrieve a corresponding humidity level
setting.
REJECTIONS
I. Claims 1, 6, 10–13, 15, and 22–24 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Fraccon2;
II. Claims 3, 4, 8, and 9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fraccon in view of Hansen3; and
III. Claims 1, 3, 4, 6, 8–15, and 22–24 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Hansen in view of Fraccon.
Final Act. 2–15.
OPINION
We begin by noting that this is the second time this case is before us
on appeal,4 and our previous decision5 addressed similar rejections based on
the same references applied here. Each of the independent claims, however,
has been amended since our previous decision issued. Moreover, the prior
art has been newly applied against these amended claims.
Rejections I–II
The Examiner’s anticipation rejection of claims 1, 6, 10–13, 15, and
22–24 based on Fraccon is set forth at pages 2–6 of the Final Office Action

2 US 7,208,701 B2, issued April 24, 2007.
3 US 2004/0261632 A1, published December 30, 2004.
4 Appellant correctly states that “[t]his application was previously the
subject of Appeal No. 2017-008011.” Appeal Br. 4.
5 Ex parte David D. Sager, Appeal No. 2017-008011 (PTAB June 1, 2018).
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dated June 13, 2019. Our previous decision reversed a similar anticipation
rejection based on this reference. Sager, at 6, 18. In reversing that rejection,
we determined that the Examiner had not established that Fraccon’s
controller performs the functions as then recited in claims 1 and 11 absent
further programming. Id. Whether the prior art discloses the claimed
controller’s configuration is once again the central dispute.
The controller of presently appealed independent claim 1 is
configured differently than in the previous appeal6 and now requires the
controller to, inter alia, “(i) automatically adjust and define a humidity level
setting for a cooking operation based only on operator adjustment and
selection of a numerical temperature setting for the cooking operation using
a temperature control input of the oven.” Appeal Br. 31 (Claims App.)
(emphasis added) (“limitation (i)”).
Relevant to the appeal of this rejection, the Examiner finds that
Fraccon discloses limitation (i) based in part on a “newly cited
interpretation” of this reference. Final Act. 2. For support, the Examiner
points to column 4, lines 1–5, 32–34, and 50–59 of Fraccon. Id.
Appellant first argues that Fraccon does not disclose the claimed
“humidity level setting” according to the proper construction of this term.
Appeal Br. 11. Rather, according to Appellant, “the Fraccon system sets a
steam generation rate for the oven without regard to the actual humidity
level that results.” Id. at 12 (citing Declaration of Raymond Bittikofer dated

6 Claim 1 previously required the controller to be configured to, inter alia,
“automatically adjust and define a humidity level setting for a cooking
operation as a function of operator use of a temperature control input to
adjust and select a numerical temperature setting for the cooking
operation.” Sager, at 3 (emphasis added to identify difference).
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March 2, 2016, (“the first Bittikofer Declaration” or “1st Bittikofer Dec.”)).
Thus, Appellant argues that Fraccon’s “steam generation rate does not and
cannot constitute the humidity level setting required by claim 1 because the
Fraccon oven operates the same throughout the entire applicable temperature
range irrespective of” the humidity level in the oven. Appeal Br. 12.
Appellant also argues that Fraccon’s steam generation rate is not
“based only on operator adjustment and selection of a numerical temperature
setting” but is rather user-selected independently of the temperature. Appeal
Br. 13. Specifically, Appellant argues that the relied-upon Fraccon
disclosure “states that ‘the parameters for the steam cooking cycle are set by
the method 50’” and that this method requires both temperature and steam
level to be input by the user. Id. at 13–14. Thus, Appellant contends that
because Fraccon requires the user to input the temperature and steam
generation rate settings, Fraccon’s controller is not configured to
automatically adjust and define a humidity level setting for a cooking
operation based only on operator adjustment and selection of a numerical
temperature setting as recited in claim 1.
We agree with Appellant that Fraccon does not disclose the controller
of claim 1. The disclosure of Fraccon relied upon by the Examiner with
respect to claim 1 (i.e., column 4, lines 50–59) deals with the second phase
of three-phase method 50 depicted in Figure 4, whose details span columns
4–6. Fraccon discloses that
method 50 can be characterized as comprising three phases: a
first phase, wherein the controller receives parameters input by
the user, a second phase where the controller 30 sets parameters
for a steam cooking cycle based on the user inputted parameters,
and a third phase wherein the controller 30 executes a steam
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cooking cycle in accordance with the parameters set in the
second phase.
Fraccon, 4:9–16 (emphases added). This three-phase process is
illustrated in Figure 4 of Fraccon, depicted below.

Fraccon’s Figure 4 illustrates the three phases of method 50: first
phase 52 where a user inputs cooking parameters of steam level and cooking
temperature, a second phase where the controller processes the user-input
parameters according to step 54, one of steps 56 and 62, and one of steps 58,
60, 64, and 66, and third phase 68 of executing the steam cooking cycle.
Fraccon, 4:6–5:12.
Consistent with Figure 4, Fraccon states that “the user inputted
parameters comprise a steam level and a cooking temperature.” Fraccon,
4:23–25. After “receiv[ing] the user inputted parameters, the controller 30
begins the second phase of the method 50 and determines if the steam level
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is LOW or HIGH in step 54.” Id. at 4:37–40. If the user-input7 steam level
is determined by the controller to be “low” in step 54, the controller then
determines in step 56 whether the user-input temperature is “low” or “high,”
or should be characterized as either “low” or “high” if the temperature is
entered numerically. Id. at 4:40–51. Similar process steps, i.e., steps 54 and
62, are carried out in the second phase by controller 30 if the user-input
steam level is “high.” Id. at 4:60–64. Once controller 30 processes (in step
54 and either step 56 or 62) the user-input parameters of temperature and
steam level from step 52, the controller then sets further parameters at one of
steps 58, 60, 64, or 66. Such further parameters may include “the first
temperature, the first preheating rate, the second preheating rate, the steam
generation rate, and the steam generation time.” Id. at 6:8–13; see id. at Fig.
5.
Thus, the Fraccon disclosure that is relied upon by the Examiner to
evince the claimed controller’s configuration requires user-input of both
temperature and steam level parameters. This is insufficient to meet the
requirement that the controller be configured to “automatically adjust and
define a humidity level setting for a cooking operation based only on
operator adjustment and selection of a numerical temperature setting” recited
in claim 1. Appeal Br. 31 (Claims App.) (emphasis added). In other words,
Fraccon’s steam level does not automatically adjust or become defined
based only on the temperature selected by the user. Rather, it requires
separate and manual entry. Fraccon, Fig. 4 (step 52); 4:23–25.

7 The Examiner cites to no evidence to establish that the steam level here is
anything different than the steam level input by the user in step 52. Fraccon,
4:17–25, Fig. 4.
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Remaining independent claims 11, 22, and 24 recite requirements for
the controller similar to that for claim 1, and the Examiner relies on
essentially the same Fraccon disclosure for these claims. Final Act. 4–5.
For example, method claim 11 requires a step of “a controller . . .
automatically adjusting and defining a percent humidity level . . . based only
on the operator adjusting and selecting the numerical temperature.” Id. at
33. Claim 22 recites an oven with “a controller configured to (i)
automatically retrieve from memory a percent humidity level setting . . .
based only on an operator selected temperature for the cooking operation.”
Id. at 34. Claim 24 recites an oven with “a controller configured to (i)
automatically define a specific percent humidity level setting . . . in response
to and based only on the operator selected specific degree temperature
setting.” Id. at 35.
Because Rejections I and II rely on the erroneous finding that Fraccon
discloses a controller configured to meet the requirements of independent
claims 1, 11, 22, and 24, we do not sustain these rejections.
Rejection III
Relevant to the appeal of the rejection of claim 1, the Examiner finds
that Hansen discloses limitation (i) except for the “temperature setting”
being “numerical.” Final Act. 8–9 (citing Hansen ¶ 35). Specifically, the
Examiner finds that “Hansen teaches the humidity of the cavity is provided
by temperature inputs of temperature probes, thus . . . the controller defines
and adjusts the humidity level singularly in response to temperature
settings.” Final Act. 8 (citing Hansen ¶ 35).
Appellant argues that Hansen’s controller does not meet the
requirement of limitation (i) for the “humidity level setting” to be
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automatically adjusted and defined “based only on operator adjustment and
selection of a numerical temperature setting” because Hansen, as a
combination oven, requires the user to select not only a temperature setting,
but also a “cooking setting” such as radiant, convective, or steam. Appeal
Br. 25; see also id. at 26 (noting how the claimed controller “is configured
not only to define a humidity level setting, but also to adjust the humidity
level setting based only on a numerical temperature setting.”).
We agree with Appellant and reverse this rejection. First, the
Examiner points to no evidence to sufficiently establish that Hansen’s
combination oven can be operated by selecting “only” a temperature setting
without also selecting one of Hansen’s three possible cooking modes. We
emphasize that Hansen’s oven is a “combination oven” which “provide[s]
the ability to cook foods using steam, hot air convection or both steam and
convection.” Hansen ¶ 4. Hansen discloses the desirability of controlling
the humidity level during cooking, noting that “low humidity may be desired
when cooking by radiant heating or convection without steam to form a crust
on the outside of certain foods, such as pastries, breads and meats.” Id. ¶ 6.
Hansen’s oven is controlled by electronic control unit (“ECU”) 70 which
receives control signals from user interface 82, where commands for “all
cooking processes” for the oven are entered such as “heating settings,
cooking modes (radiant, convective and/or steam), fan speed, [and] cooking
time.” Id. ¶ 35. ECU 70 monitors control signals from sensors 80 and 81
“to determine whether the moisture content within the cooking chamber 14
is within acceptable limits[8] for the cooking settings.” Id. ¶ 38. There is

8 We previously found that these “acceptable limits” are “humidity level
settings.” Sager, at 11.
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insufficient evidence, however, that Hansen’s humidity level setting is
automatically defined––much less defined and adjusted––based only on an
operator’s adjustment and selection of a temperature setting as recited in
claim 1.
Moreover, we agree with Appellant that Hansen’s probes 80, 81
measure the actual temperature and humidity within the oven cavity––not a
“setting.” Appeal Br. 26–27; Hansen ¶ 35. Here, we note that the
Specification distinguishes between a “setting” and an actual measured value
within the oven cavity. Spec. ¶ 36. Thus, the Examiner’s finding (Final
Act. 8) that “Hansen teaches the humidity of the cavity is provided by
temperature inputs of temperature probes, [and] thus . . . defines and adjusts
the humidity level singularly in response to temperature settings” conflates a
measured “humidity level” with a “humidity level setting” as recited in
claim 1. Again, there is insufficient evidence on this appeal record to
establish that Hansen’s humidity level setting is defined and also adjusts
based only on operator adjustment and selection of a temperature setting.
Because the Examiner’s obviousness rejection lacks the requisite
factual support, we reverse it.9 In re Warner, 379 F.2d 1011, 1017 (CCPA
1967) (“The Patent Office has the initial duty of supplying the factual basis
for its rejection. It may not . . . resort to speculation, unfounded assumptions
or hindsight reconstruction to supply deficiencies” in the cited references.).
CONCLUSION
The Examiner’s rejections are reversed.

9 The Examiner relies on essentially the same insufficient Hansen disclosure
for remaining independent claims 11, 22, and 24 which recite similar
controller configurations. Final Act. 13, 14.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 6, 10–13,
15, 22–24
102(b) Fraccon 1, 6, 10–13,
15, 22–24
3, 4, 8, 9 103(a) Fraccon,
Hansen
3, 4, 8, 9
1, 3, 4, 6, 8–
15, 22–24
103(a) Hansen,
Fraccon
1, 3, 4, 6, 8–
15, 22–24
Overall
Outcome
1, 3, 4, 6, 8–
15, 22–24

REVERSED