Ex Parte Bowyer

Patent Trials and Appeals Board

Feb 27, 2019

14325725 - (D) (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/325,725 07/08/2014
26096 7590 03/01/2019
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Stephen Bowyer
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.
67833-001 PUSl 3820
EXAMINER
HOANG, MICHAEL G
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
03/01/2019 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN BOWYER
Appeal2018-006417
Application 14/325,725
Technology Center 3700
Before BRETT C. MARTIN, MICHAEL J. FITZPATRICK, and
JEREMY M. PLENZLER, Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-006417
Application 14/325,725
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1, 5, and 9-26, which are the only claims pending at this
time. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
THE INVENTION
Appellant's claims are directed generally "to a new barbecue grill
smoker which improves the ease of use mostly for solid fuel grill smokers,
such as charcoal or wood, but also for gas and electric grill smokers." Spec.
1. Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A barbecue grill smoker assembly comprising:
a firebox base including an interior compartment defined
by a firebox bottom surface and firebox wall surf aces
surrounding said firebox bottom surface;
a food grate assembly including a food grate and food
grate handles extending outside said firebox base and flush with
an upper rim of the firebox base, wherein said food grate
assembly is removable from said firebox base; and
a fuel grate assembly including a fuel grate basket and fuel
grate handles extending outside said firebox base, wherein side
walls of said fuel grate assembly extend up towards said food
grate assembly, wherein said fuel grate assembly is removable
from said firebox base, and wherein said food grate assembly and
said fuel grate basket directly contact and together define an
encompassing basket that contains solid fuel.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Laun us 1,948,724 Feb.27, 1934
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Appeal2018-006417
Application 14/325,725
Hughes
Velten
Hermansen
Qubeka
Bruno
us 3,611,910
us 4,569,327
US 2002/0134369 Al
US 2004/0149144 Al
US 2008/0230045 Al
REJECTIONS
The Examiner made the following rejections:
Oct. 12, 1971
Feb. 11, 1986
Sept. 26, 2002
Aug. 5,2004
Sept. 25, 2008
Claims 1, 5, 11, 13-16, and 26 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Bruno, Qubeka, and Velten. Final Act.
3.
Claims 12 and 19-21 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Bruno, Qubeka, Velten, and Hermansen. Final Act. 9.
Claims 9 and 10 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Bruno and Hughes. Final Act. 11.
Claims 17 and 18 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Bruno, Qubeka, Velten, and Hughes. Final Act. 13.
Claims 22-25 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Bruno, Hughes, and Laun. Final Act. 14.
ANALYSIS
The Examiner's rejection of independent claims 1 and 9 is based, inter
alia, on the finding that "wherein said food grate assembly and said fuel
grate basket directly contact" "is broad enough to be reasonably interpreted
by one of ordinary skill in the art to mean that said food grate assembly and
said fuel grate basket can directly contact anything." Ans. 3 ( emphasis
omitted). The Examiner's construction is unreasonably broad. If the claim
element were a sentence that stated "the food grate assembly and the fuel
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Appeal2018-006417
Application 14/325,725
grate basket directly contact" then there would be little doubt that the
sentence is meant to confer direct contact between the basket and the grate.
The fact that this phrase appears within a claim surrounded by other words
does not change the meaning of this phrase. Because none of Bruno,
Qubeka, Hughes, and Velten discloses this direct contact, we do not sustain
the Examiner's rejection of claims 1, 9, or the claims that depend therefrom
(i.e., claims 10-18 and 22-26).
Independent claim 5 recites "food grate handles exit the cooking
chamber and are flush with an upper surface of the firebox base" ( emphasis
added). The Examiner admits that Bruno does not disclose that the food
grate assembly has handles located outside and flush with the firebox, but
asserts that Qubeka and Velten provide these missing limitations. While
both Qubeka and Velten disclose handles, neither reference discloses those
handles being flush with the upper rim/surface of the firebox base as
claimed. The Examiner, however, asserts that
when modifying Bruno in view of Qubeka and Velten, the
handles would be flush with an upper rim of the firebox base[]
as claimed, [because] if the food grate assembly is removable
from the firebox base, then there would be slot-like structures
formed in the firebox base's upper rim, so that the food grate
assembly can be removably positioned on the firebox base's
upper rim in a flush manner.
Final Act. 5, 20-21; Ans. 4. The Examiner has not shown that the
combination of these three references, none of which teaches the flush
limitation, results in the grate being flush.
Obviously, Bruno lacks flush handles because it lacks handles. As to
Qubeka, while it teaches handles that extend beyond the firebox, those
handles sit in an open slot that rests well below the upper rim of the firebox.
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Appeal2018-006417
Application 14/325,725
Regarding Velten, its food grate is not actually removable without
disassembling the entire firebox. Also, as with Bruno, Velten teaches a food
grate that sits well below the upper rim of the firebox. Additionally, Velten
teaches a series of slots that allow an indexed placement of the food grate
where there is clearance above to allow movement of the grate, which then
drops into a slot below the clearance area. As such, even if Velten' s
extending handles and slots were combined with Bruno, the handles still
would not sit flush with the upper rim as required, but would have the
disclosed indexing clearance space above the grate handles.
Furthermore, Appellant is correct that the Examiner's rejection
proposes to add "handles from the trays of Qubeka and/or Velten that are not
removable" to the fuel grate. Br. 5. Appellant is also correct that "[t]he
handles of both Qubeka and Velten are employed to manipulate components
within their respective assemblies which are intentionally designed to be
non-removable." Id. The Examiner has not shown that one of skill in the art
would have added the handles of Qubeka or Velten to allow for easy
removal of the fuel box as neither fuel grate is removable in its respective
grill.
Accordingly, we do not sustain the Examiner's rejection of claim 5 or
the claims that depend therefrom (i.e., claims 19--21 ).
DECISION
For the above reasons, we REVERSE the Examiner's decision to
reject claims 1, 5, and 9-26.
REVERSED
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