Ex Parte Gattei

Patent Trial and Appeal Board

Jul 25, 2018

14375666 (P.T.A.B. Jul. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/375,666 07/30/2014
116 7590 07/27/2018
PEARNE & GORDON LLP
1801 EAST 9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Lorenzo Gattei
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.
AEG-53026 1665
EXAMINER
MCGRATH,ERINE
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
07/27/2018 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):
patdocket@peame.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LORENZO GATTEI
Appeal2017-008339
Application 14/375,666 1
Technology Center 3700
Before LYNNE H. BROWNE, FREDERICK C. LANEY, and
PAUL J. KORNICZKY, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 1-17. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 According to Appellant, the real party in interest is Electrolux Home
Products Corporation N.V. App. Br. 2.
Appeal2017-008339
Application 14/375,666
CLAIMED SUBJECT MATTER
Sole independent claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. An oven for baking food products comprising a baking
chamber (3), and a feeding unit ( 6) for feeding steam into the
baking chamber (3), the feeding unit (6) comprising a tank (7)
for containing water, a steam generator (8) in fluid
communication with the tank (7), a feeding circuit (9) for feeding
steam produced by the steam generator (8) into the chamber (3),
and a separation chamber (32) for separating the mixture of water
and steam fed by the steam generator (8) to the feeding circuit
(9); and characterised in that the tank (7) comprises two shells
(lO)a, 10b ), which are permanently connected to each other along
a junction line (15).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Frazar
Bourjala
Distelhoff
Reay
Sells
us 4,031,911
us 5,370,758
US 6,395,215 Bl
US 2006/0249136 Al
US 2007 /0062927 Al
REJECTIONS
June 28, 1977
Dec. 6, 1994
May 28, 2002
Nov. 9, 2006
Mar. 22, 2007
I. Claims 4 and 12 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite.
II. Claims 1--4, 6-9, 11, and 13-15 stand rejected under 35 U.S.C.
§ I03(a) as unpatentable over Sells and Frazar.
III. Claim 5 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Sells, Frazar, and Bourjala.
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Appeal2017-008339
Application 14/375,666
IV. Claims 10 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sells, Frazar, and Reay.
V. Claim 17 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Sells, Frazar, and Distelhoff.
DISCUSSION
Rejection I: Indefiniteness of Claims 4 and 12
Regarding claim 4, the Examiner determines that "the language
'substantially parallel' renders the claim indefinite, since it is unclear what
range of deviation is acceptable in this case." Final Act. 3. Similarly, the
Examiner determines that "the language 'substantially perpendicular'
renders the claim indefinite, since it is unclear what range of deviation is
acceptable in this case." Id.
Appellant argues that "a person of ordinary skill in the art understands
what is meant by the terms 'substantially parallel' and 'substantially
perpendicular."' Appeal Br. 15. Appellant explains that "the term
'substantially' simply allows for minor variations so that recited features
need not be precisely 'parallel' or 'perpendicular;' i.e. mathematical
precision is not required." Id. In support of this argument, Appellant notes
that:
[t]he Federal Circuit has held that terms of degree are not
inherently indefinite. Interval Licensing LLC v. AOL, Inc., 7 66
F.3d 1364, 1370 (Fed. Cir. 2014). In fact, "claim language
employing terms of degree has long been found definite where it
provided enough certainty to one of skill in the art when read in
the context of the invention." Id.
Id. at 14.
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Appeal2017-008339
Application 14/375,666
Responding to this argument, the Examiner states that "[ n Jo guidance
is provided [in the Specification] regarding what range is acceptable." Ans.
16. The Examiner explains that "the recited features do not have clear
structural relationships, and the parallel/perpendicular relationships are
defined based on 'containing planes' which contain lines and thus the planes
are not well-defined since a line may be contained in an infinite number of
different planes." Id.
Appellant has the better position. As the Appellant explains, the term
is used to account for minor variations and to indicate that mathematical
precision is not required. See Appeal Br. 15. Moreover, we are not aware of
any requirement that the Specification identify a specific range in order for a
term of degree to be definite. In this case, one skilled in the art would
understand what was meant by "substantially parallel" and "substantially
perpendicular." Cf Andrew Corp. v. Gabriel Electronics, 847 F.2d 819
(Fed. Cir. 1988) (the limitation "which produces substantially equal E and H
plane illumination patterns" was definite because one of ordinary skill in the
art would know what was meant by "substantially equal.")
For these reasons, we do not sustain the Examiner's decision rejecting
claims 4 and 12 for indefiniteness.
Rejection II: Obviousness of Claims 1-4, 6--9, 11, and 13-15
Based on Sells and Frazar
The Examiner finds that Sells and Frazar disclose or suggest all of the
limitations of claim 1. Final Act. 4--5. In particular, the Examiner finds that
"Sells discloses, in Figure 4, the feeding unit further comprising a separation
chamber ( 46) which separates the mixture of water and steam fed by the
steam generator (44) to the feeding circuit (A,B)." Id. at 4.
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Appeal2017-008339
Application 14/375,666
Appellant contends that "the steam system ( 44) of Sells does not
include a separation chamber as required by the present claim, independent
of the steam generator, which in claim 1 is located downstream of the steam
generator but upstream of the baking chamber." Appeal Br. 7. In support of
this contention, Appellant explains that:
The claimed steam generator and separation chamber are
separate structures, the latter receiving a mixture of water and
steam from the former ( as claimed) such that only steam
proceeds to the feeding circuit. There is no structure between
Sells' steam generator (46) and the outlet (54) that separates
water from steam.
Id. at 8.
Sells discloses a steam system 44 including a steam generator 46. See
Sells ,r 32. This system is shown in Sells' Figure 4 reproduced below:
23-
/,,
70
42
46
/ ~:.:.+-:--.,----------+''-------::...
.so ' /
13
22
Fig. 4
5
48
24
Appeal2017-008339
Application 14/375,666
Figure 4 is a schematic view of the oven with an instantaneous steam
generator. Id. ,r 25. In Figure 4, it appears that reference numeral 44 points
to Sells second conduit 70. However, it is clear from the description in the
Specification that reference numeral 44 refers to the entire steam system.
See, e.g., id. ,r,r 30-32. As noted supra, this system includes a steam
generator 46.
The rejection identifies Sell's steam system 44 as corresponding to the
claimed steam generator and Sell' s steam generator 46 as corresponding to
the claimed separator. As discussed supra, however, reference numeral 44
refers to Sells' entire steam system, which includes Sells' steam generator
46, but does not by itself constitute a steam generator. Thus, the rejection
reads Sells' steam generator 46 on both the claimed steam generator and the
claimed separator.
The Examiner takes the position that the claim language "does not
require that the separation chamber is a separate structural element in
between a single structural steam generator and a feeding circuit." Ans. 13.
Claim 1 requires, inter alia, "a separation chamber (32) for separating
the mixture of water and steam fed by the steam generator (8) to the feeding
circuit (9)." In other words, the mixture of water and steam that is separated
by the separation chamber has been fed into the feeding circuit by the steam
generator prior to separation. Thus, by implication, this limitation requires a
steam generator that is separate from the separation chamber. Sells does not
disclose a separation chamber that is a different element than the steam
generator as required by claim 1. Frazar does not cure this deficiency in
Sells.
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Appeal2017-008339
Application 14/375,666
For these reasons, we do not sustain the Examiner's decision rejecting
claim 1, and claims 2--4, 6-9, 11, and 13-15, which depend therefrom, as
unpatentable over Sells and Frazar.
Rejections 111-V: Obviousness of
Claim 5 Based on Sells, Frazar, and Bourjala
Claims 10 and 12 Based on Sells, Frazar, and Reay
Claim 17 Based on Sells, Frazar, and Distelhoff
Claims 5, 10, 12, and 17 depend from claim 1. None of Bourjala,
Reay, or Distelhoff cure the deficiency in the rejection of claim 1 discussed
supra. Accordingly, we do not sustain the Examiner's decisions rejecting
claims 5, 10, 12, and 17 for the same reason we do not sustain the
Examiner's decision rejecting claim 1.
DECISION
The Examiner's rejections of claims 1-17 are REVERSED.
REVERSED
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