10900726 (B.P.A.I. Mar. 28, 2012)

Ex Parte Rado et al

Board of Patent Appeals and InterferencesMar 28, 2012

10900726 (B.P.A.I. Mar. 28, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte DAVID RADO and MICHAEL PARDOE ____________ Appeal 2010-011139 Application 10/900,726 Technology Center 1700 ____________ Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and LINDA M. GAUDETTE, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner's rejection of claims 1-7. We have jurisdiction under 35 U.S.C. § 6. STATEMENT OF THE CASE Claims 1 and 3 are representative of the subject matter on appeal and are set forth below: 1. A method for preventing an increase in temperature in a fryer, comprising: maintaining the temperature of a cooking medium within the Appeal 20100011139 Application 10/900,726 2 fryer within a predetermined range substantially corresponding to a cooking temperature of a food product by determining when a cooking process for the food product is substantially complete; removing said food product from said cooking medium; and causing cooling of said cooking medium after detection of substantial completion of cooking of said food product and prior to or after removal of said food product from said fryer to maintain said cooking medium within said predetermined temperature range after removal of said food product. 3. The method of claim 1, wherein said step of cooling comprises the operation of a fan situated within said fryer to circulate air cooler in temperature than said cooking medium within said fryer. The prior art relied upon by the Examiner in rejecting the claims on appeal is: Dyson GB 2 308 057 Jun. 18, 1997 Rozak 5,249,510 Oct. 5, 1993 THE REJECTIONS 1. Claim 6 is rejected under 35 U.S.C. § 112, second paragraph, as being indefinite. 2. Claims 1, 2, 5, and 6 are rejected under 35 U.S.C. § 102(b) as being anticipated by Dyson. 3. Claims 3-4 and 7 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Dyson in view of Rozak. Appeal 20100011139 Application 10/900,726 3 ANALYSIS As an initial matter, Appellants have not presented separate arguments for all of the rejected claims. Rather, Appellants’ arguments are principally directed to independent claim 1 (for Rejection 2), and we select claim 3 as representative for Rejection 3. Any claim not separately argued will stand or fall with its respective independent claim. See 37 C.F.R. § 41.37(c)(1)(vii). We essentially adopt the Examiner’s findings and position as set forth in the Answer. We add the following for emphasis. Rejection 1 Appellants do not list this rejection in section VI. on page 5 of the Brief, and do not specifically argue this rejection. See generally Brief. Hence, we treat Appellant’s action as a waiver of the opportunity to contest Rejection 1 and summarily affirm Rejection 1.1 Rejection 2 Appellants argue that claim 1 has two key features not taught by Dyson: 1.) determining when the cooking process is substantially complete and 2.) as a function of that determination, causing the cooling of the 1 The Board will generally not reach the merits of any issues not contested by the appellant. See 37 C.F.R. § 41.37(c)(1)(vii) (“Any arguments or authorities not included in the brief or a reply brief filed pursuant to § 41.41 will be refused consideration by the Board, unless good cause is shown.”); Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) (the Board may treat arguments the appellant failed to make for a given ground of rejection as waived); In re Watts, 354 F.3d 1362, 1368 (Fed. Cir. 2004). Appeal 20100011139 Application 10/900,726 4 cooking medium prior to, or after, the removal of the food, to bring or maintain the temperature within a range substantially corresponding to the cooking temperature. Br. 6. The feature regarding determining when the cooking process is substantially complete is met by Dyson in view of the fact that Dyson uses a timer to determine when the cooking process is substantially complete, after which a valve automatically is opened to introduce coolant through inlet 15. Dyson, p. 6, ll. 22-28. With regard to feature 2, Appellants argue that the temperature after cooling as set forth in Dyson is “well below the cooking temperature” Br. 7. However, as pointed out by the Examiner, this is not what is being claimed in claim 1. Rather, claim 1 recites that the temperature after cooling is within “a predetermined range substantially corresponding to a cooking temperature of a food product”. Ans. 8. It is the Examiner’s position that Dyson discloses this claimed feature and we refer to the Examiner’s findings and rebuttal as set forth in the Answer, and we agree for the reasons expressed by the Examiner therein. With regard to Appellants’ remaining arguments, we incorporate the Examiner’s response as set forth on pages 8-10 of the Answer herein. In view of the above, we affirm Rejection 2. Rejection 3 The Examiner relies upon Rozak for teaching the use of a fan as a cooling means for a cooking medium, and proposes to substitute this cooling means for the cooling means used in Dyson. Ans. 6. Appeal 20100011139 Application 10/900,726 5 Appellants argue that Dyson and Rozak are not combinable for the reason expressed on page 10-11 of the Brief. However, we are not convinced by Appellants' arguments in this regard. Obviousness is established where the Examiner demonstrates that the invention is nothing more than the predictable result of a combination of familiar elements according to known methods. KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007); Rolls-Royce, PLC v. United Technologies Corp., 603 F.3d 1325, 1338 (Fed. Cir. 2010) (“If a person of ordinary skill, before the time of invention and without knowledge of that invention, would have found the invention merely an easily predictable and achievable variation or combination of the prior art, then the invention likely would have been obvious.”). In the instant case, the Examiner has met this burden as explained on pages 6-7 of the Answer. We thus affirm Rejection 3. CONCLUSIONS OF LAW AND DECISION Each rejection is affirmed. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED tc 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. 10/900,726 07/28/2004 David Rado 64283(40353) 7605 21874 7590 03/28/2012 EDWARDS WILDMAN PALMER LLP P.O. BOX 55874 BOSTON, MA 02205 EXAMINER LEFF, STEVEN N ART UNIT PAPER NUMBER 1782 MAIL DATE DELIVERY MODE 03/28/2012 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)