ELECTROLUX HOME PRODUCTS CORPORATION N.V.

Patent Trials and Appeals Board

Aug 7, 2020

2019005433 (P.T.A.B. Aug. 7, 2020)

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.
14/439,415 04/29/2015 Paolo FARALDI AEG-54408 3434
116 7590 08/07/2020
PEARNE & GORDON LLP
1801 EAST 9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/07/2020 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):
patdocket@pearne.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAOLO FARALDI, RICCARDO FURLANETTO,
EVI HESSENAUER, ARIANNA BOZZATO, and RICHARD TUREK
Appeal 2019-005433
Application 14/439,415
Technology Center 1700

Before ADRIENE LEPIANE HANLON, CHRISTOPHER C. KENNEDY,
and LILAN REN, Administrative Patent Judges.

REN, 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 1–4 and 16–24. See Final Act. 3, 4. 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 the real party in interest as “Electrolux Home
Products Corporation N.V.” Appeal Br. 2.
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Application 14/439,415

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CLAIMED SUBJECT MATTER
The claims are directed to a steam cooking method and steam cooking
oven “that enables reliable and repeatable sous vide cooking as well as safe
sous vide cooking conditions.” Spec. 2:12–13. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. Steam cooking method for operating a steam cooking oven
comprising a control unit for determining an estimated
temperature at a center of an oven cavity using temperature
values measured by a temperature sensor therein, the method
comprising at least the following steps:
- placing vacuum packed food stuff in the oven cavity;
- a heating step comprising the control unit operating a
steam generator to generate steam and operating a convection fan
in order to supply steam generated by the steam generator to the
oven cavity to heat up the oven cavity until the estimated
temperature of said oven cavity center has reached a defined
temperature (Td); and
- thereafter a maintaining step comprising the control unit
operating the steam generator to generate steam and operating
the convection fan in order to supply steam generated by the
steam generator to the oven cavity to maintain the estimated
temperature of said oven cavity center within about 1.5 °C of said
defined temperature (Td) over a certain period of time.
REFERENCES
The prior art references relied upon by the Examiner are:
Name Reference Date
Pawlick US 2009/0022858 A1 Jan. 22, 2009
Ando US 2009/0272729 A1 Nov. 5, 2009

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REJECTIONS2
The Examiner rejects claim 23 under 35 U.S.C. § 112, first paragraph,
for failure to meet the written description requirement. Final Act. 3; Ans. 3.
The Examiner rejects claim 3 under 35 U.S.C. § 112, second
paragraph, for failure to meet the definiteness requirement. Final Act. 3;
Ans. 4.
The Examiner rejects claims 1–4 and 16–24 under 35 U.S.C. § 103(a)
over Ando and Pawlick. Final Act. 4.
OPINION
Written Description Rejection of Claim 23
Appellant does not raise arguments with regard to the rejection of
claim 23 under 35 U.S.C. § 112, first paragraph. See, e.g., Appeal Br. 1–17.
The rejection is summarily affirmed.
New Arguments Raised In Reply Brief
We note that Appellant states in the Reply Brief, for the first time on
appeal, that in the Examiner’s Answer, “the Examiner reiterated the
rejection of claim 23 for failure to comply with the written description

2 The Examiner withdraws a rejection of claims 1–4 and 16–24 under 35
U.S.C. § 101. Ans. 3. The Examiner also withdraws a rejection of claim 1
under 35 U.S.C. § 112, second paragraph. Id. Because the Final Office
Action indicates that claims 2, 4, and 16–24 are rejected under 35 U.S.C.
§ 112, second paragraph, based on their dependency from claim 1, we
consider the rejection of claims 2, 4, and 16–24 under 35 U.S.C. § 112,
second paragraph, also withdrawn. See Final Act. 3 (rejecting claims 1, 2, 4,
and 16–24 under 35 U.S.C. § 112, second paragraph, based on an analysis of
claim 1 only); see also Ans. 3, 4 (withdrawing rejections and stating that the
“ground(s) of rejections . . . applicable to the appealed claims” include the
obviousness rejection of claims 1–4 and 16–24, the written description
rejection of claim 23, and the indefiniteness rejection of claim 3).
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requirement and claim 3 as being indefinite” and that these rejections are in
error. Reply Br. 5.
Since the examiner’s answer is deemed to incorporate all
grounds in the Final Office Action, an applicant’s reply may
not respond to grounds or arguments raised in the examiner’s
answer if they were part of the Final Office Action and the
applicant did not address them in the initial appeal brief. If an
examiner’s answer includes arguments raised for the first time,
i.e., not in the Final Office Action, an applicant may address
those arguments in the reply. 37 C.F.R. §§ 41.39, 41.41.

In re Durance, 891 F.3d 991, 1001 (Fed. Cir. 2018) (emphasis added). That
holding is consistent with longstanding Board practice. See, e.g., Ex parte
Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“The reply
brief is not an opportunity to make arguments that could have been made
during prosecution, but were not. Nor is the reply brief an opportunity to
make arguments that could have been made in the principal brief on appeal
to rebut the Examiner’s rejections, but were not.” (emphasis added)).
In this case, Appellant does not provide an explanation as to why the
arguments with regard to the written description rejection of claim 23 and
the indefiniteness rejection of claim 3 could not have been raised in the
opening brief. We therefore decline to consider these new arguments for
such new arguments advanced in such a manner have not afforded the
Examiner an opportunity to respond to the new arguments. See Ex parte
Hindersinn, 177 USPQ 78, 80 (Bd. App. 1971).
Indefiniteness Rejection of Claim 3
Appellant does not raise arguments with regard to the rejection of
claim 3 under 35 U.S.C. § 112, second paragraph. See, e.g., Appeal Br. 1–
17. The rejection is summarily affirmed.
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Obviousness Rejections
We review the appealed obviousness rejections for error based upon
the issues identified by Appellant and in light of the arguments and evidence
produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections.”)). After having
considered the evidence presented in this Appeal and each of Appellant’s
contentions, we are not persuaded that reversible error has been identified,
and we affirm the Examiner’s § 103 rejections for the reasons expressed in
the Final Office Action and the Answer. We add the following primarily for
emphasis.
Claim 13
In rejecting claim 1, the Examiner finds that Ando describes “control
device 80” which “controls the steam cooking apparatus 1 according to a
predetermined program” and is connected to “a temperature sensor 82 for
sensing the temperature inside the heating chamber 20.” Ando ¶¶ 107, 108
(cited in Final Act. 4). The Examiner finds that Ando describes
embodiments in which “the temperature inside the heating chamber 20 is
heated to a preset temperature” during various stages including “preheating”
and “cooking.” Ando ¶¶ 176, 181 (cited in Final Act. 4).
Appellant does not dispute the Examiner’s findings based on
paragraphs 107, 176, and 181 of Ando. See Appeal Br. 13 (describing the

3 Appellant argues for claims 1 and 16–24 with claim 1 as representative.
Appeal Br. 14. These claims stand or fall together. See id.; see also 37
C.F.R. § 41.37(c)(1)(iv).
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Examiner’s findings in support of the rejection). Appellant, however, argues
that the Examiner reversibly erred in rejecting claim 1 because “Ando does
not teach estimating a temperature at a center of an oven cavity from
temperature values measured by a temperature sensor in the oven cavity[.]”
Appeal Br. 13. Contrary to Appellant’s argument that claim 1 requires a step
of estimating a temperature, claim 1 affirmatively recites no more than the
placing, heating, and maintaining steps in addition to “a control unit” whose
purpose is “for determining an estimated temperature at a center of an oven
cavity using temperature values measured by a temperature sensor therein.”
We are therefore not persuaded by this argument because the argument is
not based on a step recited in method claim 1. See In re Hiniker Co., 150
F.3d 1362, 1369 (Fed. Cir. 1998) (holding that unclaimed features cannot
impart patentability to claims).
Appellant also argues that “Ando teaches ‘a temperature sensor 82 for
sensing the temperature inside the heating chamber 20’” and does not teach
“using this estimated temperature to operate a controller first to heat the
oven cavity to, and then to maintain it at, a predetermined estimated cavity-
center temperature.” Appeal Br. 13 (citing Ando ¶ 108). We are again
unpersuaded by this argument because it is not based on the claim language.
Moreover, even were we to agree with Appellant that the recitations in
claim 1 concerning estimated temperature constitute affirmatively recited
steps, the argument is unpersuasive because it does not address the
Examiner’s finding based on various portions of Ando including paragraphs
131, 176, 181 for the teaching of the heating and maintaining steps.
Compare id., with Final Act. 4.
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Claim 2
Claim 2 depends from claim 1 and additionally recites: “wherein an
exhausting step is provided for exhausting the steam from inside of the oven
cavity, wherein said exhausting step comprises that heating elements
different from the steam generator are operated to deliver a defined amount
of heat to said oven cavity such air in said oven cavity or a mixture of said
air and steam in the oven cavity expands within said oven cavity such that
exhausting of the steam from inside of the oven cavity is promoted.”
In rejecting claim 2, the Examiner finds that Ando describes that
“[e]xcessive steam is exhausted out of the apparatus through the exhaust
passage.” Ando ¶ 127 (cited in Final Act. 5). The Examiner finds that Ando
describes a scenario in operating the heating apparatus where “electric
power is not supplied to the steam generating heater 52” and instead “on the
vapor heating heater 41 side, electric power is supplied to both the main
heater 41a and the sub heater 41b” so that “cooking by only hot air without
relying on steam” is possible. Ando ¶ 165 (cited in Final Act. 6). The
Examiner also finds that Ando describes heating mode A which “uses
superheated steam” and heating mode B which “uses hot air or radiation . . .
without supply of steam.” Ando ¶ 174 (cited in Final Act. 6). Ando
paragraph 174 also describes Figure 18 which illustrates various heating
patterns such as from heating mode A to heating mode B and vice versa. Id;
Ando, FIG. 8.
Appellant’s argument with regard to the rejection of claim 2 does not
dispute the Examiner’s findings based on Ando paragraphs 127 and 165 and
does not address the Examiner’s findings based on Ando paragraph 174.
Because Appellant fails to address the specific portions of Ando relied on by
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the Examiner in support of the relevant findings, we are not persuaded that
reversible error has been identified here.
Claim 3
Claim 3 is reproduced below:
3. Steam cooking method according to claim 2, wherein:
- an exhaust outlet provides a passage for exhausting
steam that is closed or reduced to be substantially small during
said heating step;
- said exhaust outlet further being reduced to be
substantially small during said maintaining step;
- said exhaust outlet being fully opened or substantially
wide during said exhausting step;
- wherein said exhaust outlet is operated by means of said
control unit of said steam cooking oven.

Appellant argues that the Examiner reversibly erred because the prior
art exhaust duct and vessel remain open at all times. Appeal Br. 16. The
claim language, however, requires only that “an exhaust outlet . . .
substantially small” or “substantially wide.” Appellant does not explain why
claim 3 excludes the prior art exhaust duct and vessel to be open or at least
partially open. We are not persuaded that reversible error has been identified
here.
CONCLUSION
The Examiner’s rejections are affirmed.
More specifically,
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
23 112, first
paragraph
Written description 23
3 112, second
paragraph
Indefiniteness 3
1–4, 16–24 103 Ando, Pawlick 1–4, 16–24
Overall
Outcome
1–4, 16–24

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).
AFFIRMED