Ex Parte Saadoun

Patent Trial and Appeal Board

Apr 10, 2017

10578500 (P.T.A.B. Apr. 10, 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.
1013-003 1718
EXAMINER
PAIK, SANG YEOP
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
10/578,500 01/23/2007 Serge Saadoun
47654 7590 04/10/2017
BAIN WOOD HUANG & ASSOCIATES LLC
2 CONNECTOR ROAD
WESTBOROUGH, MA 01581
04/10/2017 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 SERGE SAADOUN
Appeal 2015-000069
Application 10/578,500
Technology Center 3700
Before LEE L. STEPINA, PAUL J. KORNICZKY, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Serge Saadoun (“Appellant”) appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision rejecting claims 15, 18—20, 22, 23, 25—29, and 31.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2015-000069
Application 10/578,500
THE CLAIMED SUBJECT MATTER
Appellant’s invention “relates to a heater bag for bakery products.”
Spec. 1,11. 2—3. Claim 15, reproduced below with emphasis added, is
illustrative of the claimed subject matter.
15. A heater bag for bakery products which are made using a
flour-based dough, and do not include food not fully incorporated
in the dough, the heater bag being configured and operative to
warm the bakery products until a temperature between 36 °C and
44 °C starting from a lower ambient temperature while fully
conserving the quality and the integrity of these products and
simultaneously improving their flavour, the heater bag
comprising a flexible or semi-rigid casing defining a bottom, side
walls, an opening, and means for selectively closing the opening,
wherein the heater bag includes first and second semi-flexible
heater plates each having an electrical heater element
incorporated therein and said first and second semi-flexible
heater plates being inserted in pockets of natural material
comprising cotton, flax, and wool, said pockets constituting a
portion of the bottom, of the side walls, or of the means for
closing the heater bag, wherein, for each said first and second
semi-flexible heater plates, the heating power per cm2 lies in the
range of 0.16 W to 0.20 W, and wherein each said first and
second semi-flexible heater plate comprises an electrical
resistance wire integrated in a sheet that is inserted in sheets of
silicone glass fabric.
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Appeal 2015-000069
Application 10/578,500
REJECTIONS
Claims 15, 18—20, 22, 23, 25—29, and 31 are rejected under
35 U.S.C. § 103(a) as unpatentable over Forrester (US 6,281,477 Bl, issued
Aug. 28, 2001), Von Arx (US 6,519,835 Bl, issued Feb. 18, 2003), and
Kochman (US 6,563,094 B2, issued May 13, 2003).
DISCUSSION
The Examiner finds that Forrester discloses the subject matter of
claim 15 except for the limitations “the pocket or outer lining is made of
natural material comprising cotton, flax, and woof’ and “the heating power
of each plate per cm2 lies in the range of 0.16 W to 0.20 W.” Final Act. 2-4
(citing Forrester, Figs. 1—5, col. 6,11. 20-25, 43—48, col. 7,11. 52—55). The
Examiner finds that Von Arx discloses “that the supporting material for the
heating wires can be natural material comprising cotton, and wool.” Id. at 3
(citing Von Arx, col. 6,11. 14—16). The Examiner determines it would have
been obvious to “use natural materials such as cotton, wool, etc. for
supporting the heating element of Forrester to achieve different thickness,
porosity, chemistry characteristics” and it is within the general skill level of
one of ordinary skill in the art to “select known material on the basis of its
suitability for the intended use as a matter of obvious design choice.” Id. at
3^4. The Examiner finds that Kochman discloses a heating power range that
overlaps with the recited heating range of 0.16 to 0.20 W per cm2. Id. at 4.
The Examiner concludes it would have been obvious “to use the heat tape
with adjustable power density disclosed by Kochman [] in Forrester so
different number of heating cables can be included in the heating tape so the
power density is adjustable . . . [and] the temperature can be easily
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Appeal 2015-000069
Application 10/578,500
controlled.” Id. at 4—5. The Examiner also concludes that determining the
recited heating power range is optimization of a working range involving
only routine skill in the art. Id. at 5.
Appellant contends that the claim limitation “the heater bag being
configured and operative to warm the bakery products until a temperature
between 36°C and 44°C starting from a lower ambient temperature” does
not read on Forrester’s device. Br. 6. In connection with this contention,
Appellant argues that Forrester discloses a pizza delivery bag which
maintains “a pizza at a certain level of temperature.” Id. Appellant also
argues that Forrester does not disclose heating a bakery product from
ambient to the recited temperature range of between 36°C and 44°C but,
rather discloses maintaining the temperature of a pizza in the range of 71°C
to 85°C. Id. In the Answer, the Examiner does not address Appellant’s
contention that Forrester does not disclose warming a product from ambient
to the claimed temperature range but, rather, asserts that this claim limitation
is an intended use of the claimed bag not a positive limitation. Ans. 8; Final
Act. 2—3. For the following reasons, we do not sustain the rejection of claim
15.
Claim 15 recites the “heater bag being configured and operative to
warm the bakery products” from ambient temperature to a range between
36°C and 44°C. In this case, the phrase “configured to” is equivalent to
“made to” or “designed to” as opposed to merely “capable of.” See In re
Gianelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014). The Examiner has not
directed us to any portion of Forrester that would support a finding that
Forrester’s heater bag is configured to warm a bakery product from ambient
temperature to the recited temperature range of between 36°C and 44°C nor
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Appeal 2015-000069
Application 10/578,500
has the Examiner determined whether providing such a configuration would
have been obvious. As the rejection is based on unsupported factual
findings, the conclusion of obviousness cannot stand. See In re Warner, 379
F.2d 1011, 1017 (CCPA 1967). Therefore, we do not sustain the rejection of
independent claim 15 under 35 U.S.C. § 103(a). Claims 18—20, 22, 23, and
25—28 depend from claim 15. Br. 13—15 (Claims App.). We do not sustain
the rejection of these dependent claims for the same reasons as claim 15.
Independent claim 29 recites “the heater bag being suitable for use in
complete safety for quickly warming the bakery products until a temperature
between 36°C and 44°C starting from a lower ambient temperature.”
(Emphasis added). Appellant does not address the rejection of independent
claim 29 or claim 31, which depends from claim 29. Br. 3. Consequently,
Appellant waived any argument of error, and we summarily sustain the
rejection of claims 29 and 31. See Hyatt v. Dudas, 551 F.3d 1307, 1314
(Fed. Cir. 2008) (explaining that summary affirmance without consideration
of the substantive merits is appropriate where an appellant fails to contest a
ground of rejection); see also 37 C.F.R. § 41.31(c) (“An appeal, when taken,
is presumed to be taken from the rejection of all claims under rejection
unless cancelled by an amendment filed by the applicant and entered by the
Office.”); 37 C.F.R. § 41.39(a)(1) (“An examiner’s answer is deemed to
incorporate all of the grounds of rejection set forth in the Office action from
which the appeal is taken . . . unless the examiner’s answer expressly
indicates that a ground or rejection has been withdrawn.”).
DECISION
The Examiner’s decision rejecting claims 15, 18—20, 22, 23, and
25—28 is reversed.
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Appeal 2015-000069
Application 10/578,500
The Examiner’s decision rejecting claims 29 and 31 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)(l)(iv).
AFFIRMED-IN-PART
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