Ex Parte Kramer et al

Patent Trial and Appeal Board

Jan 24, 2018

13560013 (P.T.A.B. Jan. 24, 2018)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/560,013 07/27/2012 Gerhard Kramer Prinz R1818 1753
26812 7590 01/26/2018
HAYES SOLOWAY P.C.
175 CANAL STREET
MANCHESTER, NH 03101
EXAMINER
NGUYEN, PHUONG T
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
01/26/2018 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):
TSULLIVAN@HAYES-SOLOWAY.COM
dbrancheau@hayes-soloway.com
rchriston @ hayes-soloway. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERHARD KRAMER and HUBERT BRUNNER
Appeal 2017-001936
Application 13/560,013
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
LYNNE H. BROWNE, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gerhard Kramer and Hubert Brunner (Appellants)1 appeal under
35 U.S.C. § 134(a) from the Examiner’s Non-Final Rejection of claims 2—
18.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The real party in interest is identified as Rational Aktiengesellschaft.
Appeal Br. 4.
2 Claim 1 is canceled. Appeal Br. 7.
Appeal 2017-001936
Application 13/560,013
CLAIMED SUBJECT MATTER
Claims 4, 8, and 10 are independent. Claim 4, reproduced below,
illustrates the claimed subject matter.
4. A cooking device comprising:
a cooking chamber which includes a plurality of vertically
arranged side walls, a top, a bottom, and an opening formed in
one of the plurality of side walls;
a door movably arranged to obstruct the opening; and
at least one fat drain, whereby the fat drain allows fat and
other cooking residues to be discharged therethrough from the
cooking chamber outward, wherein the fat drain comprises:
a conduit that extends through one of the plurality
of vertically arranged side walls of the cooking chamber a
small distance above the bottom to an exterior of the
cooking chamber at a proximate end of the conduit; a
collecting container located exterior to the cooking
chamber connected to the distal end of the conduit.
Appeal Br. 28—29 (Claims App.).
REJECTIONS
I. Claims 2—7, 10-12, 14, and 16—18 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Hansen (US 2008/0264271 Al, published Oct.
30, 2008) and Manchester (US 4,945,893, issued Aug. 7, 1990).
II. Claims 8, 9, 13, and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hansen, Manchester, and Strader (US 5,713,265, issued
Feb. 3, 1998).
2
Appeal 2017-001936
Application 13/560,013
ANALYSIS
Rejection I—Claims 2—7, 10—12, 14, and 16—18
Claims 2—7 and 14
Appellants present separate arguments for patentability for
independent claim 4 (Appeal Br. 15—19) and dependent claims 7 and 14 {id.
at 20-21), but not for dependent claims 2, 3, 5, and 6. We, thus, regard
claims 2—6 to be argued as a group. We select claim 4 as representative of
this group, and claims 2, 3, 5, and 6 stand or fall with claim 4. We also
address the arguments for claims 7 and 14 separately.
The Examiner finds that Hansen discloses a cooking device
comprising a cooking chamber (heating chamber 12) including vertically
arranged side walls (side walls 19) and a bottom (base 22), and at least one
fat drain (drain 55) comprising a conduit (conduit 56) that extends through
the bottom to an exterior of the cooking chamber. Non-Final Act. 3^4
(citing Hansen, Figs. 1—2). The Examiner relies on Manchester to teach a
conduit (drain pipe 40) that extends through a vertically arranged side wall
of a cooking chamber (heating vessel 16) a small distance above the bottom
to an exterior of the cooking chamber. Id. at 4 (citing Manchester, Fig. 2).
Appellants contend that Manchester does not disclose a conduit that
extends through a vertically arranged side wall of a cooking chamber a small
distance above the bottom. Appeal Br. 18; Reply Br. 4. In support,
Appellants cite Manchester’s description that “[o]nce all of the oil has
drained from vessel 16, the valve 48 can be closed.” Appeal Br. 18
(alteration in original) (citing Manchester, col. 5,11. 26—30); see also Reply
Br. 4. Appellants appear to argue that, if all of the oil is drained, as
Manchester describes, then Manchester’s drain pipe must be located at the
3
Appeal 2017-001936
Application 13/560,013
bottom of the heating vessel, and not a short distance above the bottom.
Appeal Br. 18; see also id. at 19. Appellants also contend that Manchester
does not indicate that Figure 2 is drawn to scale. Reply Br. 4.
Appellants are correct that Manchester does not describe that the
drawings are drawn to scale. Although Appellants cite no authority, this
argument appears to be premised on the proposition that “it is well
established that patent drawings do not define the precise proportions of the
elements and may not be relied on to show particular sizes if the
specification is completely silent on the issue.” See Hockerson-Halberstadt,
Inc. v. Avia Grp. Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000). Here,
however, the Examiner does not rely on Manchester’s drawings to “show
particular sizes” of the elements of fryer 12. Notwithstanding that
Manchester’s drawings may not be drawn to scale, this does not mean
“things [Manchester’s] patent drawings show clearly are to be disregarded.”
See In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972). Manchester’s Figure 2
shows drain pipe 40 being positioned in fryer 12 such that drain pipe 40 is
not flush with the bottom of heating vessel 16. Figure 5 of Manchester
shows an additional view of the plumbing interconnections, and the drain
pipe is shown as being positioned a short distance above the bottom of
vessel 16 there as well.
Appellants’ position is otherwise premised on a single passage in
Manchester concerning movement of fluid within the device. Appeal Br. 18
(citing Manchester, col. 5,11. 26—30). In viewing Manchester’s disclosure as
a whole, including the construction and positioning illustrated in the drawing
figures referenced above, we interpret this passage as describing that all of
the oil that can be drained (i.e., most of the oil) is drained from the heating
4
Appeal 2017-001936
Application 13/560,013
vessel. To maximize the amount of oil that can be drained in the illustrated
configuration, the bottom of heating vessel 16 is inclined relative to
horizontal leading to drain pipe 40. Accordingly, Appellants’ contention
that Manchester does not disclose a conduit that extends through a vertically
arranged side wall of a cooking chamber a small distance above the bottom
is unpersuasive. Consequently, Appellants do not apprise us of Examiner
error. We sustain the rejection of claim 4. Claims 2, 3, 5, and 6 fall with
claim 4.
In regard to claim 7, the Examiner finds that Hansen discloses a
closure member (valve 62) arranged on the end of the conduit (conduit 56).
Non-Final Act. 5 (citing Hansen, Fig. 2). The Examiner explains Figure 1 of
Hansen shows that valve 62 is arranged on the “bottom end portion” of
conduit 56. Ans. 4. Appellants contend that valve 62 is not positioned on
the end of conduit 56 in Hansen. Appeal Br. 20.
Appellants’ contention is persuasive. Claim 7 recites “a closure
member is arranged on the end of the conduit,” not “a closure member is
arranged on the end portion of the conduit,” as stated by the Examiner.
Appeal Br. 29 (Claims App. (emphasis added)); Ans. 4. The interpretation
of “on the end of the conduit” as not encompassing merely being near an end
of the conduit is consistent with Appellants’ drawings. Figure 5 shows a
closure member (plug 70) arranged on the end of a conduit (pipe elbow 30),
and Figure 6 shows a closure member (flap 72) arranged on the end of pipe
elbow 30. Accordingly, the Examiner’s claim construction is in error.
Consequently, the Examiner does not establish that Hansen discloses the
limitation recited in claim 7, as properly constmed. Thus, we do not sustain
the rejection.
5
Appeal 2017-001936
Application 13/560,013
In regard to claim 14, the Examiner acknowledges that the cooking
device of Hansen, as modified in view of Manchester, does not disclose that
the distance between the conduit extending through the sidewall and the
bottom of the cooking chamber is between five millimeters and ten
centimeters, as claimed. Non-Final Act. 7. The Examiner determines,
however, that it would have been obvious to employ a distance within the
claimed range in the combination, as an obvious design choice. Id. at 8. In
support, the Examiner notes that Appellants do not disclose that the claimed
range of distances provides any particular advantage. Ans. 5.
Appellants argue that the claimed distance range is not merely a
design choice, referring back to the argument that Manchester discloses
removing all of the oil from a deep fryer, and therefore the conduit is not
positioned above the bottom at any distance. Appeal Br. 20—21; see also
Reply Br. 9. For the reasons discussed above, we do not agree with this
characterization of Manchester, and find that Manchester, as a whole,
discloses that its conduit is spaced a small distance (not specified) above the
bottom along a side wall.
Appellants further argue that the claimed distance is not a design
choice because the Specification discloses that the object of the invention is
to prevent “any larger quantities of the cleaning liquid [from] exiting]
through the fat drain in an undesirable manner during a cleaning program.”
Reply Br. 10 (citing Spec. 2, first paragraph). Although the Specification
discloses this objective, Appellants provide no persuasive evidence that the
claimed distance, which represents a significant range, results in a particular
advantage over other distances falling outside of the range.
6
Appeal 2017-001936
Application 13/560,013
Accordingly, Appellants do not apprise us of Examiner error and we
sustain the rejection of claim 14.
Claims 10—12 and 16—18
Appellants present separate arguments for the patentability of claim
10, and of dependent claims 12, 16, and 17. Appeal Br. 22—24. Appellants
do not present separate arguments for the patentability dependent claims 11
and 18. Id. at 21—22. We thus regard claims 10, 11 and 18 to be argued as a
group. We select claim 10 as representative of this group, and claims 11 and
18 stand or fall with claim 10. The arguments directed specifically to
dependent claims 12, 16, and 17 are addressed separately.
Regarding claim 10, Appellants contend that the rejection is deficient
similar to that for claim 4 with respect to the limitation “a conduit that
extends through one of the plurality of vertically arranged side walls of the
cooking chamber a small distance above the bottom.” Id. at 21. We are not
persuaded by this argument for the reasons discussed above.
Appellants further contend that the rejection is deficient with respect
to the limitation “the conduit is directly coupled to the fat collecting pan at
one end.” Id. According to Appellants, the drip pan 52 of Hansen is not
disclosed as being coupled or connected to either the drain 55 or the aperture
54. Id.', see also Reply Br. 6—7.
This contention is also unpersuasive. Appellants do not direct us to
any disclosure that indicates the claim term “coupled” has a particular
meaning that distinguishes it from the arrangement of structural elements
disclosed in Hansen and relied on by the Examiner. We note that a
7
Appeal 2017-001936
Application 13/560,013
definition of “coupled” is “[t]o link together; connect.”3 Hansen’s Figure 2
shows clearly that drip pan 52 is connected to drain 55, aperture 54, and
conduit 56 via both the solid line and the dashed line joining these elements.
See Hansen, Fig. 2. Hansen describes that “drain 55 extends through drip
pan 52 in alignment with aperture 54. Drip pan 52 may be sloped to force
the emitted grease 63 into the drain 54.” Id. 119 (emphasis omitted).
Appellants’ contention does not inform us why drip pan 52 cannot be
considered “coupled” to either the drain 55 or the aperture 54.
Appellants also argue that Manchester does not disclose a fat
collecting pan, much less one coupled to the conduit. Appeal Br. 21.
This contention does not address the Examiner’s rejection, which is
based on a combination of teachings. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. [The reference] must be
read, not in isolation, but for what it fairly teaches in combination with the
prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986) (citation omitted). Appellants’ contention fails to account for the
Examiner’s citation to Hansen’s disclosure of grease collecting drip pan 52
connected to conduit 56, as discussed above.
Consequently, Appellants do not apprise us of Examiner error with
regard to claim 10. We thus sustain the rejection of claim 10, and of
dependent claims 11 and 18.
3 See TheFreeDictionary.com, https://www.thefreedictionary.
com/coupled (last accessed Jan. 4, 2018).
8
Appeal 2017-001936
Application 13/560,013
In regard to claim 12, the Examiner finds that Hansen discloses a
closure member (valve 62) in the form of an automatic flap adapted to
cooperate with the fat collecting pan (drip pan 52). Non-Final Act. 7 (citing
Hansen, Fig. 2); see also Ans. 7 (citing Hansen 127). Appellants contend
that valve 62 is not a flap. Appeal Br. 22.
Hansen discloses that valve 62 may be an automatic valve (Hansen
127), but the Examiner does not direct us to any disclosure in Hansen that
valve 62 is necessarily in the form of a flap, as opposed to some other
possible valve form. Accordingly, we do not sustain the rejection of claim
12.
As to claim 16, Appellants contend that the rejection is erroneous for
the same reasons as for claim 14. Appeal. Br. 23. We above found those
reasons to be unpersuasive. Accordingly, we sustain the rejection of claim
16 for the same reasons as for claim 14.
In regard to claim 17, the Examiner finds that Hansen discloses that
the closure member (a part of the drain 55 and/or the valve 62) is located
within the cooking chamber (chamber 12). Non-Final Act. 8.
Appellants contend that a part of the drain, absent a valve, is not a
closure member. Appeal Br. 24. Appellants further argue that Hansen’s
valve 62 is clearly not in the cooking chamber 12. Id.
The Examiner responds that Appellants do not define what a closure
member is. Ans. 9. The Examiner finds that Hansen’s combination of drain
55 and valve 62 corresponds to the claimed closure member. Id.
The Examiner’s position that, in Hansen, a part of drain 55 and/or
valve 62, corresponds to the claimed closure member, is not supported by a
preponderance of the evidence. To start with, the Examiner relies on drain
9
Appeal 2017-001936
Application 13/560,013
55 as corresponding to the claimed fat drain. Non-Final Act. 4. The
Examiner provides no justification for additionally finding that some
unspecified portion of drain 55 itself, or in combination with valve 62,
functions as a closure member. Nor has the Examiner adequately explained
why a person of ordinary skill in the art would understand that this
unspecified portion of drain 55 would be considered by itself, or in
combination with valve 62, to be a closure member.
Accordingly, because the Examiner’s claim construction and finding
are in error, we do not sustain the rejection of claim 17.
Rejection II—Claims 8, 9, 13, and 15
Appellants present separate arguments for the patentability of
independent claim 8 and dependent claim 15. Appeal Br. 26. Appellants do
not present separate arguments for patentability directed to dependent claims
9 and 13. Id. at 24—27. We thus regard claims 8, 9, and 13 to be argued as a
group. We select claim 8 as representative of this group, and claims 9 and
13 stand or fall with claim 8. The arguments directed specifically to
dependent claim 15 are separately addressed.
In regard to claim 8, Appellants rely essentially on the same
arguments presented for claims 4 and 10. Id. at 24—25. Accordingly, we
sustain the rejection of claim 8 for the same reasons as for claims 4 and 10.
In regard to claim 15, Appellants rely essentially on the same
arguments presented for claims 14 and 16. Id. at 26. Accordingly, we
sustain the rejection of claim 15 for the same reasons as for claims 14 and
16.
10
Appeal 2017-001936
Application 13/560,013
DECISION
We affirm the rejection of claims 2—6, 10, 11, 14, 16, and 18, and
reverse the rejection of claims 7, 12, and 17, as unpatentable over Hansen
and Manchester.
We affirm the rejection of claims 8, 9, 13, and 15 as unpatentable over
Hansen, Manchester, and Strader.
No time period for taking any subsequent action in connection with
this appeal maybe extended according to 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
11