Ex Parte Nordh et al

Patent Trial and Appeal Board

Nov 3, 2017

13331959 (P.T.A.B. Nov. 3, 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.
13/331,959 12/20/2011 UlfNordh SUB-00815-US-NP 5480
173 7590 11/07/2017
WHIRLPOOL CORPORATION - MD 3601
2000 NORTH M63
BENTON HARBOR, MI 49022
EXAMINER
VAN, QUANG T
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
11/07/2017 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):
whirlpool_patents_co@whirlpool.com
mike_lafrenz @ whirlpool .com
deborah_tomaszewski@whirlpool.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ULF NORDH, HAKAN CARLS SON, OLLE NIKLASSON,
and FREDRIK HALLGREN
Appeal 2016-005531
Application 13/331,9591
Technology Center 3700
Before LINDA E. HORNER, STEVEN D.A. McCARTHY, and
GORDON D. KINDER, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ulf Nordh et al. (Appellants) seek our review under 35 U.S.C.
§ 134(a) of the Examiner’s decision rejecting claims 1-12 and 14-20. Final
Office Action (May 18, 2015) [hereinafter “Final Act.”]. Claim 13 is
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Whirlpool Corporation as the real party in interest.
Appeal Brief 2 (October 19, 2015) [hereinafter “Appeal Br.”].
Appeal 2016-005531
Application 13/331,959
CLAIMED SUBJECT MATTER
Appellants’ claimed subject matter relates to controlling the efficiency
of a microwave source in a microwave heating apparatus. Specification 14
(December 20, 2011) [hereinafter “Spec.”]. Claims 1 and 10 are
independent. Claim 1 is illustrative of the subject matter on appeal and is
reproduced below, with the relevant claim language show in italics.
1. A method of operating a microwave heating
apparatus comprising a microwave source adapted to feed
microwaves to a cavity via a transmission line, the method
comprising the steps of:
measuring the power of microwaves transmitted from the
microwave source to the cavity;
receiving operational data indicative of the power supplied
to the microwave source; and
adjusting the impedance of the transmission line and/or the
impedance matching between the microwave source and the
transmission line based on the measured power of the transmitted
microwaves and the received operational data by moving, in the
transmission line, at least one element positioned proximate the
microwave source in order to control the efficiency of the
microwave source.
Appeal Br. 10 (Claims Appendix). Independent claim 10 is directed to a
microwave heating apparatus comprising “a control unit that adjusts the
impedance ... by moving, in the transmission line, at least one element
positioned proximate the microwave source in order to control the efficiency
of the microwave source. Id. at 11.
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Application 13/331,959
EVIDENCE
The Examiner’s decision relies upon the following evidence:
Gaudreau US 4,866,346 Sept. 12, 1989
Graves US 6,067,475 May 23, 2000
Tabrez US 6,080,270 June 27, 2000
Saito US 6,184,611 B1 Feb. 6, 2001
Kasai US 2009/0041640 A1 Feb. 12, 2009
Akai JP 57-192266 A Nov. 26, 1982
REJECTIONS
The Final Office Action includes the following rejections:
1. Claims 1-6, 10-12, 15, and 17 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Tabrez and either Akai or Saito.2
2. Claims 7-9 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Tabrez, either Akai or Saito, and Graves.
3. Claims 14, 18, and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Tabrez, either Akai or Saito, and Gaudreau.
4. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Tabrez, either Akai or Saito, Gaudreau, and Kasai.
ANALYSIS
Appellants argue the claims subject to the first ground of rejection as a
group. Appeal Br. 3-8. We select claim 1 as representative of the group,
and claims 2-6, 10-12, 15, and 17 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv). Appellants rely on these same arguments in support of the
2 The Final Office Action mistakenly includes canceled claim 13 in the
statement of the first ground of rejection. Final Act. 2.
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Application 13/331,959
patentability of the remaining claims on appeal, which are subject to the
second through fourth grounds of rejection. Appeal Br. 5. Accordingly, the
outcome of the appeal turns on our determination of the patentability of
claim 1 over Tabrez and either Akai or Saito.
The Examiner finds that Tabrez does not disclose “adjusting the
impedance of the transmission line, by moving, in the transmission line, at
least one element positioned proximate the microwave source.” Final Act. 2
(emphasis added). The Examiner finds that each of Akai and Saito discloses
this step. Id. at 2-3 (citing Akai, Abstract, Figure 1 and Saito, Figure 4
(element 34)).
Appellants first contend that Tabrez, Akai, and Saito are not
analogous art to the claimed invention. Appeal Br. 3-5. We focus our
analysis on only Tabrez and Saito, because we do not sustain the rejection
based on Akai for reasons discussed infra. The Examiner finds that Tabrez
and Saito are in Appellants’ field of endeavor. Examiner’s Answer 2-3
(March 8, 2016) [hereinafter “Ans.”]. Appellants contend that neither
Tabrez nor Saito is directed to Appellants’ field of endeavor of “using
microwave sources to efficiently heat food.” Appeal Br. 4.
Although Appellants’ Background of the Invention section discusses
using a microwave source for “heating a load in the form of food,” the
Specification describes the object of the invention more generally as “to
provide a microwave heating apparatus with an improved overall efficiency
and, in particular, an improved control of the microwave source efficiency.”
Spec. 12, 4. The Specification further describes that the impedance of the
transmission line and/or the impedance matching between the microwave
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source and the transmission line is adjusted to control the efficiency of the
microwave source. Id. 5-7. Further, as noted by the Examiner (Ans. 2-
3), the claims are not limited to the narrow of field of microwave ovens for
heating food; rather, representative claim 1 is directed more broadly to “a
microwave heating apparatus comprising a microwave source adapted to
feed microwaves to a cavity via a transmission line.” Appeal Br. 10 (Claims
Appendix). In this case, the claim does not specify the type of cavity, and
thus, it is not limited to a microwave oven. Also, the claim does not specify
a particular load in the cavity, and thus, it is not limited to heating food.
Rather, the claimed invention relates more generally to the field of a
microwave heating apparatus comprising a microwave source adapted to
feed microwaves to a cavity via a transmission line.
Both Tabrez and Saito disclose microwave heating apparatuses3 * 5
comprising a microwave source adapted to feed microwaves to a cavity via a
transmission line. Tabrez discloses a plasma generating apparatus that
includes a generator configured to output microwave energy into a first end
of a guide, a guide configured to direct at least a portion of the output energy
from a first end toward a second end, and an applicator configured to
generate a plasma within the applicator using the energy provided by the
guide. Tabrez, col. 1,1. 63 - col. 2,1. 8. Saito discloses a method of making
a diamond using a microwave chemical vapor deposition technique, in
3 The Examiner finds that Tabrez and Saito disclose microwave sources that
“are all directly or indirectly us[ed] for heating.” Ans. 3. Appellants do not
contest these finding. Rather, Appellants contend that these prior art
apparatus are directed to “much more than ‘using microwave sources
directly or indirectly for heating.’” Reply Br. 3.
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which the method uses a microwave power supply to supply microwaves to
a reaction chamber via a waveguide tube. Saito, col. 7,11. 15-25, Fig. 4.
Further, both Tabrez and Saito disclose elements to adjust aspects of the
microwave energy transmitted via the waveguides. For instance, Tabrez
discloses using tuner 112 to control positioning of actuators 114 within
waveguide 106 to match the applied power of the microwave energy within
the waveguide 106 to the load. Tabrez, col. 6,11. 40-66. Saito discloses
using three-pillar matching device 34 and plunger matching device 35
disposed in the waveguide to adjust impedance to minimize reflection
electric power of the microwaves. Saito, col. 7,11. 25-31.
The structural similarities between the apparatus of Tabrez and Saito
and the elements employed in the claimed method, i.e., microwave source,
cavity, transmission line, and movable element in the transmission line,
would have led one of ordinary skill in the art working in the specific field
of microwave ovens to consider all similar apparatus for efficiently
delivering microwaves to a cavity, including the apparatus of Tabrez and
Saito. Thus, Tabrez and Saito are in the same field of endeavor because they
have essentially the same function and structure as elements employed in the
claimed method. In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986)
(determining that the cited references were within the same field of endeavor
where they “have essentially the same function and structure”).
Even if the field of invention were limited to the narrow field of
microwave ovens used for a heating a load in the form of food, Tabrez and
Saito would, nonetheless, quality as analogous art because they are
reasonably pertinent to the problem facing Appellants. Appellants describe
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Application 13/331,959
the problem addressed in the application as one of matching the microwave
power to the load in the oven. Spec. 13. Both Tabrez and Saito deal with
tuning impedance in the delivery of microwaves to a cavity via a
transmission line for the purpose of matching the power to the load. See
findings supra. As such, we find that Tabrez and Saito have the same
purpose of improving control of the microwave source by matching the
power to the load, and thus, logically would have commended themselves to
Appellants’ attention in considering the problem being addressed by the
present application. See In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992) (“A
reference is reasonably pertinent if, even though it may be in a different field
from that of the inventor’s endeavor, it is one which, because of the matter
with which it deals, logically would have commended itself to an inventor’s
attention in considering his problem”).
Appellants next contend that the Examiner erred in the approach taken
in combining the teachings of Tabrez and Saito.4 Appeal Br. 7-8.
Appellants contend that the Examiner “does not explain how common sense
or any other criterion would lead one of ordinary skill in the art of
microwave food ovens to look to a plasma generating apparatus or a
chemical vacuum deposition apparatus for a solution.” Id. at 7. The
Examiner stated that it would have been obvious to use “in Tabrez the step
of adjusting the impedance of the transmission line, by moving, in the
transmission line, at least one element positioned proximate the microwave
4 Again, we do not discuss assertions made about the proposed modification
with Akai, because we do not sustain the rejection based on Akai for the
reasons discussed infra.
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source as taught by . . . Saito in order to control the efficiency of the
microwave source.” Final Act. 3. Appellants contend that “[njothing in any
of the references says a word about efficiency of the microwave source.” Id.
at 8. We are not persuaded of error based on this argument.
The Examiner found that both Tabrez and Saito disclose adjusting the
impedance of the transmission line and/or impedance matching between the
power and the load to control the efficiency of the microwave source. Final
Act. 2 (citing Tabrez, col. 6,11. 45-66); id. at 2-3 (citing Saito, Figure 4,
three-pillar matching tuner 34). As we found supra, Tabrez discloses
adjusting the impedance of the transmission line by moving, in the
transmission line, at least one element. Tabrez, col. 6,11. 41-66 (tuner 112 is
an automatic load matching device that moves attenuators 114 within
waveguide 106 to match the applied power of the microwave energy within
the waveguide 106 to the load). Saito employs the same technique within
the context of a microwave chemical vapor deposition apparatus; however,
in Saito, the three-pillar matching device 34 is positioned proximate the
microwave power supply 33. Saito, col. 7,11. 25-31; Fig. 4 (see further
discussion of “positioned proximate” infra). Thus, we understand the
Examiner’s proposed modification of Tabrez in view of Saito is to reposition
the tuner nearer to the microwave source, as shown by Saito. As noted by
the Examiner (Ans. 3), the proposed combination is not based on hindsight
because it is based on knowledge which was within the level of ordinary
skill in the art at the time of invention, as evidence by the explicit teachings
in Tabrez and Saito.
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Application 13/331,959
Appellants finally contend that even if Tabrez were modified with the
teachings of either Akai or Saito, the combination would not result in “at
least one element positioned proximate the microwave source,” as recited in
independent claims 1 and 10. Appeal Br. 8. Appellants argue that the
plunger of Akai is at the opposite end of the waveguide from the microwave
oscillator, and the plunger of Saito is on the other side of the reaction
chamber from the waveguide tube far away from the microwave power
supply, and, thus, neither reference discloses a movable element “positioned
proximate the microwave source.” Id.
The Examiner responds that the metes and bounds of “proximate” are
not clearly set forth, and the claim language is met “as long as the prior art[]
has at least one element position[ed] ‘proximate’ enough to [the] microwave
source to control the efficiency of the microwave source.” Ans. 4-5.
Appellants reply that the Examiner “ignores the plain meaning of the
term ‘proximate’,” which as “used in the claims and shown in the drawings
means ‘very near’ or ‘close.’” Reply Brief 5 (April 27, 2016) [hereinafter
“Reply Br.”] (citing Merriam-Webster on-line dictionary).5
Appellants’ Specification teaches that “if the movable element is a
plunger, the movable element may advantageously be arranged in proximity
to the magnetron (or an antenna of the microwave source) since its effect on
the impedance then becomes even more increased and, in addition, it
strongly influences the magnetron-to-waveguide matching.” Spec. 116.
The Specification further teaches that, “where the microwave source is
5 Appellants also cite the Oxford English Dictionary, which according to
Appellants, defines “proximate” as “closest in space or time.” Reply Br. 5.
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arranged at a first extremity, or end, of [a tubular] waveguide and the cavity,
or a feeding port of the cavity, is arranged at an opposite (second) extremity
of the waveguide, the movable element may be arranged at the extremity
corresponding to the microwave source.” Id. 117; see also id. 131-32
(describing in the detailed description that microwave source 110 is arranged
at a first end of transmission line 120 and cavity 130 is arranged at a second
end opposite to the first end of transmission line 120, and plunger 180 is
arranged at the end of transmission line 120 which is closest to microwave
source 110).
We interpret “proximate,” when the claim language is read in light of
the Specification, to mean that the movable element, e.g., plunger or slug, is
arranged at the end of the waveguide corresponding to the end at which the
microwave source is located and opposite the end at which the cavity, or a
feed port of the cavity, is arranged. In other words, the movable element is
located in the portion of the waveguide nearer to the microwave source than
to the cavity/feed port.
We agree with Appellants that both Akai and Saito arrange the
plunger at the end of the waveguide furthest from the location of the
microwave source. For instance, in Akai, plunger 12 is located at the end of
the waveguide opposite to the end at which microwave oscillator 5 is
arranged. Akai, Fig. 1. Similarly, in Saito, short-circuiting plunger
matching device 35 is located at the end of waveguide tube 32 opposite to
the end at which microwave power supply 33 is located. The Examiner
appears in the response to arguments section of the Examiner’s Answer to
interpret “proximate” to encompass such arrangements of plungers relative
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to their respective microwave sources. Ans. 4-5. This interpretation is not
consistent with the ordinary meaning of “proximate” or the description of
the proximity of these features provided in Appellants’ Specification.
The language of claim 1, however, is not limited to a plunger being
used to adjust the impedance. Rather, claim 1 recites adjusting the
impedance “by moving ... at least one element.” Appeal Br. 10 (Claims
Appendix). The claimed element includes “means to change the geometry
or length of the transmission line.” Id. (dependent claim 3). Appellants’
Specification teaches a moveable element such as pin 185 that can extend in
transmission line 120, and is movable laterally and via changes in
penetration depth of the pin such that its displacement can alter the
impedance of the line. Spec. 1 33. Based on the breadth of the language of
claim 1, the Examiner relies on the three-pillar matching device 34 of Saito
as the claimed “element” used for the adjusting step in the rejection of claim
1. Final Act. 3 (citing Saito, Figure 4, element 34); id. at 3^1 (finding that
Saito does not disclose the plunger positioned proximate the microwave
source).
The Examiner may have also relied on the three-stub tuner 11 of Akai
as the claimed “element” for the adjusting step, given the reference to Akai,
Figure 1 in the Final Action (Final Act. 3, but without identifying the three-
stub tuner 11) and the finding that Akai also does not disclose the plunger
positioned proximate the microwave source. Id. at 3—4. We disagree with
the Examiner’s finding that the three-stub tuner 11 of Akai meets the
claimed “element positioned proximate the microwave source.” Akai shows
three-stub tuner 11 arranged closer to the discharge tube end of the
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waveguide 6 than to the opposite end of the waveguide 6 at which the
microwave oscillator 5 is disposed. Thus, based on our interpretation of
“proximate” discussed supra, Akai’s three-stub tuner 11 is not “positioned
proximate the microwave source.”
We nonetheless find adequate support for the Examiner’s rejection of
claim 1, because we agree with the Examiner’s finding that the three-pillar
matching device 34 of Saito meets the claimed “element positioned
proximate the microwave source.” Figure 4 of Saito shows a microwave
chemical vapor deposition apparatus 30 in which the three-pillar matching
device 34 is disposed adjacent microwave power supply 33 and closer to this
power supply than to the reaction chamber 31. Appellants have not
addressed this finding in their arguments on appeal; instead, they focus only
on the plunger 35 of Saito. As such, we do not discern error in the
Examiner’s determination of unpatentability of claim 1 based on Tabrez and
Saito in light of the arguments raised by Appellants.
For these reasons, we sustain the Examiner’s rejections under
35 U.S.C. § 103(a) of: claims 1-6, 10-12, 15, and 17 as unpatentable over
Tabrez and Saito; and claims 7-9, 14, 16, and 18-20 as unpatentable over
Tabrez, Saito, and one or more of Graves, Gaudreau, and Kasai. We do not
sustain the rejections of the claims on appeal to the extent the rejections are
based on Akai.
DECISION
The decision of the Examiner rejecting claims 1-12 and 14-20 is
affirmed.
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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)(l)(iv).
AFFIRMED
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