Ex Parte Freymiller et al

Patent Trial and Appeal Board

Dec 10, 2018

14552685 (P.T.A.B. Dec. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/552,685 11/25/2014
757 7590 12/10/2018
BGL
P.O. BOX 10395
CHICAGO, IL 60610
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Otley Dwight Freymiller
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.
16005-1395 (72154US02) 5694
EXAMINER
ALLGOOD, ALESA M
ART UNIT PAPER NUMBER
2868
MAIL DATE DELIVERY MODE
12/10/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OTLEY DWIGHT FREYMILLER,
RONALD J. GLAVAN, and JEFFREY L. SANDS
Appeal2018-003068
Application 14/552,685 1
Technology Center 2800
Before DONNA M. PRAISS, CHRISTOPHER C. KENNEDY, and
BRIAND. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-14. We have jurisdiction. 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant is the Applicant, Taylor Commercial Foodservice Inc., which,
according to notice subsequent to the appeal brief, was formerly known as
Carrier Commercial Refrigeration Inc. and is the real party in interest. See
September 14, 2018, Notification of Change of Name of Real Party in
Interest.
Appeal2018-003068
Application 14/552,685
STATEMENT OF THE CASE2
Appellant describes the invention as relating to "a grill that
automatically calibrates a gap between an upper grilling surface and a lower
grilling surface." Spec. 2. Claim 1, reproduced below with emphases added
to certain key recitations, is illustrative of the claimed subject matter:
1. A method of calibrating a grill comprising:
performing a first calibration run including:
monitoring a current of a leveling mechanism as a first
grilling surface moves into contact with a second, opposite
grilling surface to determine a first location of the first
grilling surface;
monitoring the current of a leveling mechanism as the first
grilling surface moves out of contact with a second, opposite
grilling surface to determine a second location of the first grilling
surf ace; and
storing a first calibration setting including the first
location and the second location in a control.
Appeal Br. 12 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Kundinger et al.
("Kundinger")
Sands et al.
("Sands")
US 8,075,816 B2
US 8,833,243 B2
Dec. 13, 2011
Sept. 16, 2014
2 In this Decision, we refer to the Final Office Action dated April 20, 2017
("Final Act."), the Appeal Brief filed September 20, 2017 ("Appeal Br."),
and the Examiner's Answer dated October 31, 2017 ("Ans.").
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Application 14/552,685
REJECTIONS
The following rejections are before us on appeal:
Rejection 1. Claims 1-13 under 35 U.S.C. § 102 as being anticipated
by Sands. Ans. 2; Final Act. 4.
Rejection 2. Claim 14 under 35 U.S.C. § 103 as unpatentable over
Sands in view of Kundinger. Ans. 2; Final Act. 8.
ANALYSIS
The Examiner finds that Sands teaches each limitation of claim 1.
Final Act. 4--5. Most pertinent to this decision, the Examiner cites Sands, at
column 4, lines 42-65, as teaching monitoring of a current of a leveling
mechanism "as a first grilling surface moves into contact with a second" and
"storing a first calibration setting including the first location and the second
location in a control." Final Act. 4--5; see also id. at 2-3; Ans. 5.
Appellant argues that Sands fails to teach monitoring of the current of
a leveling mechanism as the first surface moves towards the second surface
and fails to teach monitoring of the current leveling mechanism as the first
surface moves both toward and away from the second surface (i.e., the upper
grill moves downward and upward, respectively, if the grill is orientated in a
typical fashion, see Spec. Fig. 2). In particular, Appellant argues that Sands
teaches monitoring current as grilling surfaces move apart but not as they
move together. Appeal Br. 9.
On the present record, we agree with Appellant that the Examiner has
not adequately established that Sands teaches each limitation of claim 1.
Sands primarily focuses on monitoring current as grilling surfaces move
apart (i.e., in the configuration of Sands Figure 2, as the upper grill moves
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Appeal2018-003068
Application 14/552,685
upwards). See, e.g., Sands 1:65-2:3 (explaining that current is monitored as
the upper grilling surface is slightly lifted), 4:28-32 (explaining that current
changes when cables "begin to sustain the weight of the upper grilling
surface 3 2 "); 5: 14--16 ("Before each motor ... performs the calibration
steps, the upper grilling surface 32 is lowered onto the lower grilling surface
30.").
To support that Sands also teaches monitoring current as grilling
surfaces move into contact with each other ( e.g., when the upper grill is
lowered), the Examiner writes:
Sands teaches "The motor 46a rotates the shaft 48a in the
direction A to lower the upper grilling surface 32 onto the lower
grilling surface 30. The current of the windings of the motor
46a is detected by the current sensor 80" in Col. 4, Lines 49-56.
Ans. 5. The Examiner's above quotation of Sands is inaccurate. The cited
portion of Sands instead states:
The motor 46a rotates the shaft 48a in the direction A to lower
the upper grilling surface 32 onto the lower grilling surface 30.
The motor 46a is again operated to rotate the shaft 48a in
the direction B, wrapping the cable 58a around the disc 52a
to shorten and remove any slack in the cable 58a. The
current of the windings of the motor 46a is detected by the
current sensor 80.
Sands 4:49-56 ( emphasis modified). Direction B moves the plates apart, not
together. Sands Fig. 7; 3:53---62. This passage of Sands is not entirely clear,
but in view of the context provided by the other portions of Sands (for
example, the portions cited above), this passage is best understood as
teaching current detection only when the surfaces are moving apart.
We note that Sands may teach current detection when surfaces move
together when describing an alternative embodiment. Sands 5:65---67
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Appeal2018-003068
Application 14/552,685
("Alternatively, the size of the gap 36 is determined by detecting when the
upper grilling surface 32 contacts the food item 34 based on the detected
current."). The Examiner, however, does not cite or rely on this passage of
Sands. Even if the Examiner were to cite this passage, the Examiner's
analysis would still be lacking because the Examiner fails to adequately
explain where Sands teaches "storing a first calibration setting including the
first location [ determined from monitoring as the first surface moves into
contact with the second surface] and the second location [ determined from
monitoring current as the first surface moves out of contact with the second
surface] in a control" as recited by claim 1.
For the above reasons, we do not sustain the Examiner's rejection of
claim 1. We do not sustain the Examiner's rejection of claims 2-13 because
each of those claims depend from claim 1. We do not sustain the
Examiner's rejection of claim 14 under 35 U.S.C. § 103 because claim 14
depends from claim 1 and because the Examiner's use of Kundinger does
not cure the error we address above. Ans. 5 ("Kundinger was not relied
upon for teaching any limitations of Claim 1.").
DECISION
For the above reasons, we reverse the Examiner's rejections of
claims 1-14.
REVERSED
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