Ex Parte Burnes

Patent Trial and Appeal Board

Dec 20, 2018

13722990 (P.T.A.B. Dec. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/722,990 12/20/2012
18510 7590 12/25/2018
Docket Clerk-Raytheon/MWM
P.O.Drawer 800889
Dallas, TX 75380
FIRST NAMED INVENTOR
Clifford S. Burnes
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.
12-3065 (RA YNOl-23065) 6430
EXAMINER
LUCK,SEANM
ART UNIT PAPER NUMBER
2881
NOTIFICATION DATE DELIVERY MODE
12/25/2018 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):
patents@munckwilson.com
munckwilson@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL
AND APPEAL BOARD
Ex parte CLIFFORD S. BURNES
Appeal2017---005680
Application 13/722,990
Technology Center 2800
Before MICHAEL P. COLAIANNI, CHRISTOPHERL. OGDEN, and
MERRILL C. CASHION III, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-005680
Application 13/722,990
Appellant1 appeals under 35 U.S.C. § 134 the final rejection of claims
1-29. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b ).
We REVERSE.
Appellants' invention is directed to a blackbody radiation source for
calibrating space-based infrared seekers. (Spec. ,r 1; claim 1 ).
Claim 1 is illustrative:
1. A blackbody comprising:
a waveguide configured to propagate radio frequency (RF)
waves of a specified frequency, the waveguide comprising a
hollow propagation channel;
an emitting core disposed in a fixed location within the hollow
propagation channel of the waveguide, the emitting core
configured to:
receive the RF waves incident upon the emitting core,
generate heat to raise a temperature of the emitting core, and
emit infrared (IR) waves from the heated emitting core; and
a spring system configured to clasp and mount the emitting core
in the fixed location.
Appellant appeals the following rejections:
1. Claims 1, 2, 7-12, 14, 16, 21-25, 27, and 29 are rejected under 35
U.S.C. § 103 as unpatentable over Fukunaga (US 2002/0005406 Al,
Jan. 17, 2002) in view of SkyMall's Bacon Genie Makes Absolutely
No Sense (July 30, 2009) (hereinafter "Bacon Genie")
(http://www.jaunted.com/story/2009/7 /30/144249/673/travel/
SkyMall's+Bacon+Genie+Makes+Absolutely+No+Sense).
1 Raytheon Company is identified as the real party in interest. App. Br. 2.
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2. Claims 4--6, and 18-20 are rejected under 35 U.S.C. § 103 as
unpatentable over Fukunaga in view of Bacon Genie, and Saha (US
2007 /0023971 Al, Feb. 1, 2007).
3. Claims 13, 15, 26, and 28 are rejected under 35 U.S.C. § 103 as
unpatentable over Fukunaga in view of Bacon Genie, Saha and Hyde
(US 2009/0321427 Al, Dec. 31, 2009).
4. Claims 3 and 17 are rejected under 35 U.S.C. § 103 as unpatentable
over Fukunaga in view of Bacon Genie, Balbaa (US 5,902,510, May
11, 1999), and Davis (US 6,043,861, Mar. 28, 2000).
FINDINGS OF FACT & ANALYSIS
The Examiner finds that Fukunaga teaches the limitations recited in
claim 1 except for the spring system (Final Act. 4--5). The Examiner finds
that Bacon Genie teaches a cantilever spring system that clasps the bacon
strips because the bacon strips are immobile and therefore firmly held (Final
Act. 4--5; Ans. 5). The Examiner concludes that it would have been obvious
to use Bacon Genie's mounting system with Fukunaga's microwave to
permit the articles to be suspended during microwave cooking thereby
preventing them from being cooked in grease or other droppings (Final Act.
5). The Examiner finds that Bacon Genie's cantilever support will
inherently have a spring constant (Ans. 5).
Appellant argues that Bacon Genie does not teach any type of spring that is
configured to "clasp and mount" an emitting core in a fixed location as
recited in claims 1 and 11 (App. Br. 14, 15). Appellant contends that bacon
is merely draped over a hanger in Bacon Genie (App. Br. 14, 15). Appellant
argues that the Examiner's interpretation of the verb clasp as including the
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teachings in Bacon Genie is unreasonably broad (Reply Br. 5). Appellant
argues that the hanger in Bacon Genie does not operate as a spring and does
not in any way clasp the bacon strips (Reply Br. 5). Appellant contends that
the ordinary meanings of clasp and grasp require some kind of active
operation such as gripping, embracing, seizing, or fastening (Reply Br. 5).
Appellant contends that Bacon Genie's hanger passively supports bacon
strips draped over it but does not grip, embrace, seize, fasten or grasp the
bacon strips (Reply Br. 5---6).
The Specification discloses that a spring system clasps, holds, and
supports the emitting core within the waveguide (Spec. ,r 80). The spring
system includes two cooling tubes disposed in a grooved channel that wrap
around the emitting core to hold on to the emitting core (Spec. ,r 80). The
Specification describes that the spring system clasps the emitting core by
wrapping around the core to hold the core in place. In other words, the
broadest reasonable interpretation of a spring system that clasps and mounts
the emitting core includes a device that grasps by wrapping and securely
fastening onto the emitting core.
With this claim construction in mind, we find that the Examiner's
interpretation of Bacon Genie is unreasonably broad. The Examiner finds
that the food in Fukunaga corresponds to the emitting core limitation (Final
Act. 4; Ans. 3). Therefore, the bacon slices in Bacon Genie would
correspond to the emitting core. The bacon slices are merely draped over
the hanger in Bacon Genie. The hanger in Bacon Genie does not wrap
around the bacon slices so as to grasp the bacon. Accordingly, the
combination of Fukunaga and Bacon Genie fails to teach a spring system
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Application 13/722,990
that clasps and mounts an emitting core as required by claim 1. The
rejection of claim 11 is faulty for the same reason as the rejection of claim 1.
Method claim 25 does not require a spring system but the claim does
require "heating the object to a desired temperature, the desired temperature
corresponding to the specified frequency and an amplitude of the RF
waves." The Specification discloses that temperature as a function of
frequency is determined (i-f 54). The Specification also discloses that an
increase in amplitude of the RF waves increases power and generates more
heat (i-f 40). According to the Specification, The frequency of the RF waves
used and the resulting temperature are correlated for use in the process of
heating an object (Spec. ,r 98). In light of the teachings in the Specification,
we understand the argued claim 25 limitation to require that the desired
temperature is predetermined by setting the frequency and amplitude of the
RF waves refers to the correlation between the frequency of the RF waves
used and the resulting temperature.
Appellant argues that the Examiner has not shown where Fukunaga
teaches setting the frequency and amplitude of the RF waves to correspond
to a desired temperature (App. Br. 18; Reply Br. 6). Appellant contends that
Fukunaga does not teach that the temperature of food in the heating chamber
prior to the termination of the heating operation corresponds to both a
specific frequency and amplitude of the microwaves (App. Br. 18).
The Examiner finds that Fukunaga's ,r 366 teaches the disputed claim
limitation. The Examiner finds that Fukunaga's microwaves inherently have
a frequency and amplitude and, when the microwaves are applied to the food
(i.e., emitting core), the food produces heat and increases the temperature
(Ans. 7). The Examiner finds that the temperature clearly corresponds to the
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frequency and amplitude of the waves provided (Ans. 7). The Examiner
interprets the claim term "desired" as meaning predetermined and finds that
Fukunaga's paragraph 410 describes that timing is terminated when a set,
finish temperature is reached (Ans. 7-8). Based upon Fukunaga's disclosure
at paragraph 410, the Examiner determines that Fukunaga teaches heating an
object to a desired temperature corresponding to the specified frequency and
amplitude of the RF waves of the device (Ans. 8).
Fukunaga's paragraph 410 discloses measuring the temperature of the
food using an infrared sensor to determine if the predetermined finish
temperature has been reached. In other words, regardless of the frequency
and amplitude of the RF waves, the microwaves will be stopped once the
food reaches a temperature set point. In contrast, the disputed limitation of
claim 25, as properly construed, requires that the frequency and amplitude
are preset to determine the desired temperature. Stated differently, the
desired temperature in the context of Appellants' claims is predetermined by
mapping the frequency and amplitude of the RF waves to a temperature
(Spec. 98). The Examiner's analysis does not address the setting of the
frequency and amplitude to achieve a predetermined temperature.
Fukunaga's termination of the microwave energy based upon a sensed
temperature is not the same as Appellant's setting of the frequency and
amplitude of the RF waves to achieve a predetermined temperature.
On this record, we reverse the Examiner's§ 103 rejections (1) to (4)
as listed above.
DECISION
The Examiner's decision is reversed.
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ORDER
REVERSED
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