Ex Parte Crow

Board of Patent Appeals and Interferences

May 8, 2012

11535635 (B.P.A.I. May. 8, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________
Ex parte FREDERICK W. CROW
____________________

Appeal 2010-003192
Application 11/535,635
Technology Center 3700
____________________

Before: PHILLIP J. KAUFFMAN, CHARLES N. GREENHUT, and
WILLIAM V. SAINDON, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-003192
Application 11/535,635

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STATEMENT OF CASE
Appellant seeks review of the Examiner’s rejection of claims 1-3, 6-
10, 15, and 18. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The Invention
Appellant’s claimed invention relates to a “device that provides an
indication of the weight of the food received on the serving utensil relative
to the standard serving size of the food.” Spec. 1:13-15. Claims 1, 15, and
18 are the independent claims on appeal. Independent claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A food serving apparatus, comprising:
a utensil portion configured to receive a quantity of food;
a handle portion operably coupled to said utensil portion;
and
electronics including a data input system disposed on
said handle portion, wherein said data input system is operable
to receive nutritional data associated with the food, said
nutritional data including a standard serving size weight of the
food, wherein said electronics are operable to weigh the
quantity of food received on said utensil portion and produce an
indication representing the quantity of food received on said
utensil portion relative to the standard serving size of the food.
THE REJECTIONS
The Examiner relies upon the following evidence:
Barton US 2,492,257 Dec. 27, 1949
Hamilton US 3,693,083 Sep. 19, 1972
Maxwell US 5,299,356 Apr. 5, 1994
Shymko US 6,236,001 B1 May 22, 2001
Norcross US 6,591,739 B2 Jul. 15, 2003
Chiba1 JP403096822A Sep. 11, 1989

1 English translation PTO-02-3705 by FLS, Inc., August, 2002.
Appeal 2010-003192
Application 11/535,635

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Appellant seeks review of the following rejections:2
1. Claims 1-3, 6-10, 15, and 18 under 35 U.S.C. § 103(a) as unpatentable
over Chiba and either Maxwell, Norcross, Barton, or Hamilton.
2. Claims 1-3, 6-10, 15, and 18 under 35 U.S.C. § 103(a) as unpatentable
over Shymko and either Maxwell, Norcross, Barton, or Hamilton.

OPINION
Appellant presents a single argument for independent claims 1, 15,
and 18 without distinguishing between the claims. App. Br. 16. We select
claim 1 as representative and claims 2, 6-10, 15, and 18 to stand or fall with
claim 1 for each of the rejections. App. Br. 5-13; see 37 C.F.R.
§ 41.37(c)(1)(vii)(2011). We address claim 3 separately, as does Appellant.
See App. Br. 16-17; Reply Br. 5-6.
Claim 1 is directed to a serving apparatus that comprises electronics
that “are operable to …produce an indication representing the quantity of
food received on said utensil portion relative to the standard serving size.”
The Specification describes that the user inputs nutritional data information
into device 20, which can incorporate various electronic systems that
“perform the functions associated herein.” Spec. 8:3-4; 10:10-11; App. Br.
3. Further, the Specification describes that device 20 provides a visual,
auditory, or tactile indication representing the amount of food on the utensil
portion 22 of device 20 relative to the standard serving size. Spec. 11:12-17.

2 Though the Examiner also refers to the rejections using a different order of
the references (Ans. 7, 11), the order of the references (e.g., Chiba in view of
Maxwell or Maxwell in view of Chiba) is of no significance. See In re Bush,
296 F.2d 491, 496 (CCPA 1961).
Appeal 2010-003192
Application 11/535,635

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Therefore, claim 1 is directed to an apparatus comprising electronics
that are functionally required to receive data (i.e. nutritional data, to include
standard serving size weight of food) and produce an indication (e.g., visual,
auditory, or tactile) representing the quantity received on the apparatus
relative to the data received.
The Examiner found that Chiba and Shymko each disclose a food
serving apparatus as called for in claim 1, except producing an indication
representing the quantity of food received on the utensil relative to the
standard serving size. Ans. 3-4, 7-8. The Examiner also found that
Maxwell, Norcross, Barton, or Hamilton each disclose electronics capable of
receiving preset data and producing an indication representing the quantity
received on the apparatus relative to that preset value. Ans. 4-5, 8-10, 12-
13. The Examiner concluded that it would have been obvious to modify
either Chiba or Shymko to receive a preset value and notify the user when
the preset value has been reached, as taught by either Maxwell or Norcross,
or either Barton or Hamilton, “in order to keep the user updated on the
progress of the monitored food attribute.” Ans. 5-6, 9.
Appellant does not contest the Examiner’s finding that Chiba and
Shymko each disclose an apparatus having electronics operable to weigh the
quantity of material received on the utensil portion. See Ans. 3-4, 7-8; App.
Br. 6-16. Nor does Appellant contest the Examiner’s finding that Maxwell,
Norcross, Barton, or Hamilton each disclose producing an indication
representing when an actual quantity reaches a preset value. Ans. 4-5, 8-10,
12-13; App. Br. 6-16. Thus, Appellant has not contested that it was known
in the art to provide an indication when a quantity received by an apparatus
reaches a preset value. Rather, Appellant argues that none of the references
Appeal 2010-003192
Application 11/535,635

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contemplate relative standard serving size by weight. App. Br. 9-12; Reply
Br. 4-5. Claim 1, like the prior art, receives data and produces an indication
representing the quantity received on the apparatus relative to the data
received. The difference between the subject matter of claim 1 and the prior
art is the units involved, rather than the actual function performed by the
device.3 Such distinction does not serve to patentably distinguish the subject
matter of claim 1.
Similarly, Appellant argues that claim 1 calls for converting the
weight of the food received on the utensil portion to a relative serving size
indication (a “secondary conversion”), and that none of the references
perform such a conversion. App. Br. 12; Reply Br. 5. Claim 1 does not
recite a “conversion.” What is required is that the electronics of the
apparatus be capable of to receiving data and producing an indication
representing the quantity received on the apparatus relative to the data
received.
Further, Appellant’s arguments that none of the references
contemplates standard serving size by weight or perform a conversion are an
attack on the references individually. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (citation omitted); In re Keller, 642 F.2d 413,
426 (CCPA 1981) (citation omitted) (One cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references). By such argument, Appellant has failed to
address the rejection as articulated by the Examiner, which is based upon a
combination of the references.

3 In claim 1 the units are standard serving size by weight. In the prior art the
units are weight (Hamilton, Barton), bites (Maxwell), and temperature
(Norcross). See Ans. 4-6.
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Application 11/535,635

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Appellant argues that Maxwell is an eating utensil rather than a
serving utensil as called for in claim 1. App. Br. 12-13. This argument is
unconvincing for two independent reasons.
First, claim 1 is directed to a food serving apparatus.4 Appellant fails
to identify a structural distinction between the apparatus of claim 1 and the
utensil 10 of Maxwell, which appears to be capable of serving food. In re
Schreiber, 128 F.3d,1473, 1477-78 (Fed. Cir. 1997) (Claims directed to an
apparatus must be distinguished from the prior art in terms of structure
rather than function, provided the structure is capable of performing the
function).
Second, it is uncontested that Chiba and Shymko disclose a serving
utensil.5 See Ans 3-4, 7-8; Br. 6-16.
Appellant argues that Maxwell’s device, which relies upon bite size
rather than weight as claimed, is not as accurate as the apparatus of claim 1.
App. Br. 13-14. Claim 1 does not specify an accuracy and for that reason
the assertion is not commensurate in scope with claim 1. Further, Appellant
attacks Maxwell alone and fails to address the combination of references as
articulated by the Examiner. Therefore, this contention is not persuasive of
error in the rejection.

4 The Specification does not provide a lexicographical definition of a serving
utensil, and describes that various utensils 35 could be interchangeably
utilized with serving utensil device 20. Spec. 5:6; see also App. Br. 3, 18.
5 By not challenging these findings, Appellant’s have waived arguments
against them. See 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) (the BPAI “reviews the obviousness rejection[s] for error based
upon the issues identified by appellant, and in light of the arguments and
evidence produced thereon,” and treats arguments not made as waived).

Appeal 2010-003192
Application 11/535,635

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Regarding claim 3, Appellant presents an additional argument. Claim
3 depends indirectly from claim 1 and calls for the electronics to produce a
graphical visual indication. The Examiner interpreted a graphical visual
indication as a written indication, and found that Maxwell’s numbers
correspond to the claimed graphical visual indication. Ans. 15-16.
Appellant argues that the Examiner’s interpretation is unreasonably broad
because it would lead to “illogical results”; however, Appellant does not
explain what those results might be. App. Br. 16-17; Reply Br. 5-6.
The Specification does not define a graphical visual indication, and
thus we agree with the Examiner’s claim construction and finding. Spec.
passim; Ans. 15-16. We further note that the Examiner also relied upon
Chiba and Shymko as disclosing a graphical visual indication. Ans. 6, 10.
In view of these arguments, we do not find error in the Examiner’s
rejection of claim 1, and thus we sustain the rejection of claims 1-3, 6-10,
15, and 18.

DECISION
We affirm the Examiner’s decision to reject claims 1-3, 6-10, 15, and
18 under 35 U.S.C. § 103(a) as unpatentable over Chiba and either Maxwell,
Norcross, Barton, or Hamilton,
We affirm the Examiner’s decision to reject claims 1-3, 6-10, 15, and
18 under 35 U.S.C. § 103(a) as unpatentable over Shymko and either
Maxwell, Norcross, Barton, or Hamilton.
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).
Appeal 2010-003192
Application 11/535,635

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AFFIRMED

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