Ex Parte McEvoy

Patent Trial and Appeal Board

Sep 20, 2017

14076782 (P.T.A.B. Sep. 20, 2017)

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.
14/076,782 11/11/2013 William B. McEvoy 065682.00005 6701
27305 7590 09/22/2017
HOWARD & HOWARD ATTORNEYS PLLC
450 West Fourth Street
Royal Oak, MI 48067
EXAMINER
STAPLETON, ERIC S
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
09/22/2017 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):
IPDocket@HowardandHoward.com
dtrost @ HowardandHoward. com
tmorris @ Howardandhoward. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM B. MCEVOY
Appeal 2016-002202
Application 14/076,782
Technology Center 3700
Before: LINDA E. HORNER, LISA M. GUIJT, and BRENT M. DOUGAL,
Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—5, 9, 10, 13—16, 22, and 23. We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.
Appeal 2016-002202
Application 14/076,782
CLAIMED SUBJECT MATTER
The claims are directed to a tabletop cooking assembly. Abstract.
Claim 1, reproduced below, is the sole independent claim and is illustrative
of the claimed subject matter:
1. A tabletop cooking assembly for preparing foods thereon, said
assembly comprising:
a table frame;
a cooking element supported by said table frame for
directly receiving items to be cooked;
a vent disposed peripherally to one side of said cooking
element and defining an aperture for receiving smoke generated
during the preparation of food on said cooking element;
a vent hood disposed adjacent said vent and extending
above said cooking element;
a first exhaust duct comprising an upper plenum and a
lower plenum, said first exhaust duct being substantially
unobstructed and in fluid communication with said vent for
directing smoke away from said cooking element;
a filter assembly in fluid communication with said lower
plenum and comprising a filter disposed therein for filtering the
smoke as the smoke passes through said filter assembly; and
a high velocity blower in fluid communication with said
first exhaust duct and said filter assembly for drawing smoke
from said cooking element through said vent at a velocity greater
than 750 feet per minute to substantially cool the smoke for
improving removal of particles from the smoke as a result of said
first exhaust duct being substantially unobstructed.
The prior art relied upon by the Examiner in rejecting the claims on
REFERENCES
appeal is:
Rogers
Buske
Gagas
US 5,154,161 Oct. 13, 1992
US 5,235,150 Aug. 10, 1993
US 2007/0062513 A1 Mar. 22, 2007
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Appeal 2016-002202
Application 14/076,782
REJECTIONS
Claims 1—5, 9, 10, 13—16, 22, and 23 are rejected under 35 U.S.C.
§112, second paragraph, as being indefinite.
Claims 1—5, 9, 10, 13, 14, 22, and 23 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Applicant Admitted Prior Art (AAPA)1
and Gagas.
Claim 15 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over AAPA, Gagas, and Rogers.
Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over AAPA, Gagas, Rogers, and Buske.
OPINION
35 U.S.C. § 112— “Substantially”
The Examiner determines that the terms “substantially unobstructed”
and “substantially cool” in claim 1 are “relative terms which render the
claim indefinite.” Final Act. 2; Ans. 2-3. The Examiner further states that
the Specification “recitefs], ‘substantially unobstructed,’ and, ‘substantially
cool,’ without providing any disclosure for ascertaining the requisite
degree.” Id. at 3.
The use of relative terms does not automatically render a patent claim
indefinite. See, e.g., Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349, 1359
(Fed. Cir. 2012). In a litigation context, the Federal Circuit has approved of
1 The Examiner identifies the AAPA as being the subject matter disclosed in
paragraphs 3 through 6 and Figures 1, 2A, and 2B of Appellant’s
Specification. Final Act. 5.
3
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Application 14/076,782
the use of terms such as “about,” “substantially,” and “approximately.” See,
e.g., id.', andEcolab, Inc. v. Envirochem, Inc., 264 F.3d 1358, 1367 (Fed.
Cir. 2001). However, the use of relative terms in a claim must be evaluated
on a case-by-case basis.
Concerning “substantially unobstructed,” the Specification states at
paragraph 32:
The first exhaust duct 122 is substantially free of obstructions
such that the flow of air into the first exhaust duct 122 is not
diverted, blocked, or restricted by other ducts or similar structure.
It is to be appreciated that typical fire suppression equipment or
sensors may be placed within the first exhaust duct 122 without
substantially obstructing the air flow.
The Examiner faults this paragraph as “defining a word by using the
same word (i.e., defining substantially objected (sic) as substantially free,”
however this ignores the second half of the first sentence that states that the
flow of air into the duct “is not diverted, blocked, or restricted by other ducts
or similar structure.” Ans. 13. The Examiner then argues that the filter2 and
fire suppression equipment obstruct the duct. Id. As noted above, the
Specification specifically addresses the fire suppression equipment. Further,
reference to Figure 14 shows the minimal size and obstruction of at least
some fire suppression equipment. Concerning the filter, it is agreed that a
filter could obstruct the duct, but this configuration is excluded by the claim
language “the first exhaust duct being substantially unobstructed.” The
Specification discloses that the filter assembly 124 is located outside of the
first exhaust duct 122, which is formed by upper plenum 130 and lower
2 Review of the figures reveals that the second reference to 122 in Figure 5,
pointing at the filter 141 is a typographical error. Consistent with Figures 6—
8, the second reference to 122 should rather refer to the filter assembly 124.
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Appeal 2016-002202
Application 14/076,782
plenum 132. See, e.g., Spec. 132, Figs. 7, 8. There is no evidence that one
of skill in the art would understand an obstruction, such as a filter to be
within the meaning of “substantially unobstructed.” Still further, the
Specification when considered as a whole does not support the Examiner’s
position that one of skill in the art would understand the Specification as
teaching as much.
Concerning “substantially cool” the Specification teaches cooling the
smoke to no more than 10 degrees, or alternatively, 7 degrees above room
temperature. Spec. 138. The Specification also teaching cooling the smoke
“to begin the condensation of particles on the filter assembly 124.” Id.
The Examiner states that this disclosure is not sufficiently clear
because the room temperature is not known. Ans. 15. However, an exact
room temperature is not required. The Specification provides the necessary
teachings for one of skill in the art to understand the relative scope of
“substantially cool.”
Appellant also offers the Declaration of Tennison Barry, as one of
skill in the art, with no interest in the outcome of the application, as
additional evidence that the use of the terms “substantially unobstructed”
and “substantially cool” in the claim are not indefinite to one of skill in the
art. Appeal Br. 5—9; see Declaration of Tennison Barry || 18—21.
The Examiner does not substantively address the Declaration of
Tennison Barry. See generally Ans. The Examiner does state that “it is not
definite how the disclosure and explanations provided in the affidavit are
consistent with the claimed, disclosed and shown subject matter.” Ans. 21.
As the declaration directly addresses the definiteness of the terms
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Application 14/076,782
“substantially unobstructed” and “substantially cool” to one of skill in the
art, it is Examiner error to not substantively address this evidence.
Based on the facts and arguments before us, Appellant has
convincingly argued that the terms “substantially unobstructed” and
“substantially cool” as used in claim 1 are sufficiently clear to satisfy the
requirements of 35 U.S.C. § 112, second paragraph. Accordingly, we do not
sustain the 35 U.S.C. § 112, second paragraph, rejection on this basis.
35 U.S.C. § 112 - “ESP Switch ”
The Examiner determines that the term “ESP switch” in claim 16 “is
not definite.” Final Act. 3. The Examiner explains that the term is not
defined. Id. At the same time, the Examiner determines that “ESP” means
“electrostatic precipitator . . . rather than a particular type of switch” and that
“the term, ‘ESP switch,’ is interpreted as referring to a switch capable of
being used for sensing the presence of a component such as the pre-filter or
the media filter as claimed.” Id.
The Examiner’s understanding is consistent with the meaning argued
by Appellant. Appeal Br. 10.
Claim 16 depends from claim 15, which ultimately depends from
claim 1. Claim 15 includes “wherein said electrostatic precipitator further
comprises at least one of a pre-filter, a static collection cell, and a media
filter,” and claim 16 adds “further comprising at least one ESP switch for
sensing the presence of either of said pre-filter and said media filter.”
Based on the facts and arguments before us, Appellant has
convincingly argued that the term “ESP switch” as used in claim 16 is
sufficiently clear to satisfy the requirements of 35 U.S.C. § 112, second
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Application 14/076,782
paragraph. It is clear from the claims that the term refers to a switch which
“sens[es] the presence of either of said pre-filter and said media filter.”
Accordingly, we do not sustain the 35 U.S.C. § 112, second paragraph,
rejection on this basis.
35 U.S.C. § 103(a)
The Examiner finds that the Applicant Admitted Prior Art (AAPA)
disclosed in paragraphs 3—6 and Figures 1, 2A, and 2B of Appellant’s
Specification teaches all of the features of claim 1 (Final Act 5—6), except:
a high velocity blower in fluid communication with the first
exhaust duct and the filter assembly for drawing smoke from the
cooking element through the vent at a velocity greater than 750
feet per minute to substantially cool the smoke for improving
removal of particles from the smoke as a result of the first
exhaust duct being substantially unobstructed
(id. at 8). The Examiner relies on Gagas for this disclosure, but finds that
Gagas also teaches additional features of claim 1 that overlap with the
teachings of AAPA. Id. at 8—9. The Examiner determines that it would
have been obvious “to modify AAPA as suggested and taught by Gagas in
order to provide higher efficiency of air flow, save energy and reduce costs
(e.g., Gagas: para [0033]).” Id. at 11 (emphasis omitted).
Gagas paragraph 33 discusses use of, and benefits of, Gagas’s blower,
including such teachings as “placing the blower assembly as close to the
items on a cook top location as possible increases the effectiveness of
drawing contaminated air in and out of the vent system” and “reducing the
number of bends the air has to flow through and around helps reduce air
flow losses.” These teachings are consistent with the Examiner’s reason to
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Application 14/076,782
combine and demonstrate that the Examiner is primarily relying on Gagas’s
blower to modify the AAPA.
Appellant argues that neither AAPA nor Gagas teach or suggest a
“first exhaust duct being substantially unobstructed and in fluid
communication with said vent for directing smoke away from said cooking
element” as required by claim 1. See generally Appeal Br. 11—12, 14. As
noted by Appellant {id. at 11—12), AAPA teaches that a control panel
obstructs air flow in the duct of the prior art (Spec. 1 5). This obstruction is
one of the problems specifically identified by Appellant that the claimed
invention is designed to address. See generally Spec, 3—8, 10.
The combination of Gagas’s blower with AAPA does not remove this
obstruction. The Examiner’s response to Appellant’s arguments does not
address this issue. See Ans. 16—18. The Examiner merely asserts that the
AAPA “has essentially the same structure” as the claimed invention, except
for the high velocity blower. Id. at 16.
Gagas teaches placing the filter 74 in the cavity 34/plenum (i.e. duct)
36 and placing the blower downstream, either within the cavity 34/duct 36 or
directly outside of it. Gagas 80—81, Figs. 2—3. In Gagas, the filter 74
obstructs the duct 36. Thus, Gagas also does not teach a “first exhaust duct
being substantially unobstructed,” as claimed.
For these reasons we do not sustain the Examiner’s rejection of claim
1 under 35 U.S.C. § 103(a). The Examiner’s rejections of the dependent
claims are not sustained as they rely on these same unsupported findings.
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Application 14/076,782
DECISION
The Examiner’s rejections of claims 1—5, 9, 10, 13—16, 22, and 23 are
reversed.
REVERSED
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