Ex Parte Musial

Patent Trial and Appeal Board

Mar 27, 2013

11524563 (P.T.A.B. Mar. 27, 2013)

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.
11/524,563 09/21/2006 Edward J. Musial 64187(40353) 8014
21874 7590 03/27/2013
EDWARDS WILDMAN PALMER LLP
P.O. BOX 55874
BOSTON, MA 02205
EXAMINER
PASCHALL, MARK H
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
03/27/2013 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 EDWARD J. MUSIAL
____________________

Appeal 2011-001715
Application 11/524,563
Technology Center 3700
____________________

Before: CHARLES N. GREENHUT, BARRY L. GROSSMAN, and
TIMOTHY J. O’HEARN, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001715
Application 11/524,563

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
4 and 10-16. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to a method and apparatus for determining
type and quantity of food prepared in a cooking appliance. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
A system for monitoring the type and quantity of
food prepared in at least one appliance comprising:
at least one appliance for processing at least
one type and quantity of food;
a controller associated with said appliance
for controlling the processing performed by the
appliance, a manual input at the controller for
inputting an actual value for the at least one type
and quantity of food being processed; and
a back office application server in
communication with said controller, said controller
prompting a user at said appliance to input, at the
controller manual input, values for the actual type
of food to be processed and the actual quantity of
food to be processed by said appliance, said
controller receiving said input and transmitting
said input to said back office application server,
the back office application server calculating an
inventory of food as a function of the values.

Appeal 2011-001715
Application 11/524,563

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Vaseloff
Fitzpatrick
US 2005/0211775 A1
US 2006/0218057 A1
Sep. 29, 2005
Sep. 28, 2006

Applicant’s Acknowledged Prior Art (“AAPA”) Spec. p. 2, paras. [0003]-
[0004]

REJECTIONS
Claims 1-4 and 10-16 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA in view of either Fitzpatrick or Vaseloff. Ans. 3.

OPINION
The sole issue raised by Appellant in this appeal relates to the
“manual input” “for inputting an “actual” value for the at least one type and
quantity of food of apparatus claims 1 and 10. Method claim 14 is directed
to providing and using a controller similar to that described by claims 1 and
10. App. Br. 14. Specifically at issue is whether the admitted prior art
discloses the input (both the thing and the action), is or is for, an “actual”
value. App. Br. 7-13; Reply Br. 3-4.
In the AAPA system there is a button on the fryer that indicates that
six chicken strips are being cooked. Spec. 2, para. [0004]. This button is
clearly a “manual input” since it is pressed by a user. Appellant urges this
button is not an input for inputting the “actual” value of food processed
because it cannot account for user error when, for example, a user
accidentally processes five chicken strips. App. Br. 10-11. Appellant’s
Appeal 2011-001715
Application 11/524,563

4
argument implies one should look to the action or intent of the user to
determine if a prior art input or prompt is for an “actual” value.
Appellant acknowledges that there are times that the prior art systems
“get it right.” App. Br. 12. This suffices to demonstrate prior use or
knowledge of a controller having an input or prompt for1, and a step of
inputting2, the “actual” value even according to the claim construction
suggested by Appellant. In the normal course of operation, the prior art
system and method routinely will have an input, or will input values,
representative of the “actual” quantity of food processed. That the prior art
structure or method is sometimes, due to user error, not accurately
characterized as involving an “actual” value is of no consequence.3 The
same mistake could be made in Appellant’s system and method. By
Appellant’s own logic such a mistake would also render the recited input
one that is not for inputting an “actual” value.
In any case, we cannot agree that one skilled in the art would exclude
an input from those that are for “actual” values simply because a user could
use that input to enter a value other than the “actual” one. Associating a
particular name, such as “actual value,” with the input or prompt does not
create a structural difference between the prior art and the claimed apparatus
or the steps of providing that apparatus. Thus, we agree with the Examiner

1 Claims 1 and 10 require “a manual input” “for inputting an actual value.”
Claim 14 recites “a controller for . . . prompting said user to input values for
the actual type of product and actual quantity of product.”
2 Claim 14 recites “a user manually inputting the actual type of food and
quantity of food.”
3 Insofar as claims 1, 10 and the “for prompting . . .” clause of claim 14 is
concerned. Such an error would not meet the step of “inputting the actual
type of food and quantity” of claim 14.
Appeal 2011-001715
Application 11/524,563

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that the prior art input, or prompting, is reasonably characterized as for an
“actual value” as recited in claims 1, 10 and 14. See Ans. 5-7. The recitation
in question does not serve to distinguish the claims over the AAPA. See Id.
The crux of Appellant’s arguments concerning Fitzpatrick and
Vaseloff is that these references cannot cure the deficiency of the
Examiner’s application of the AAPA alleged by Appellant. App. Br. 8-10.
As the Examiner points out, such arguments are not relevant since the
teachings of Fitzpatrick and Vaseloff were never cited for such a purpose.
See Ans. 3-4, 7.
The extent to which the dependent claims are argued is unclear. See
App. Br. 13-15. While Appellant mentions each of the dependent claims,
separately, or in a group, Appellant does not appear to make any effort to
address the Examiner’s position concerning these claims. Rather,
Appellant’s arguments appear to be focused on limitations present only in
the claims from which they depend. Those arguments are addressed
hereinabove.

DECISION
The Examiner’s rejection is affirmed.
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).

AFFIRMED

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