Ex parte SIMON et al.

Board of Patent Appeals and Interferences

Oct 27, 1998

08395512 - (D) (B.P.A.I. Oct. 27, 1998)

Application for patent filed February 27, 1995. This application is a1
continuation of application 08/216,362, filed March 23, 1994, which is a
continuation of application 07/886,257 filed May 21, 1992, both abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 31
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte FREDERICK E. SIMON, FREDERICK F. GREEN and
KELLY A. ILIESCU
_____________
Appeal No. 96-2191
Application 08/395,5121
______________
ON BRIEF
_______________
Before CALVERT, COHEN and ABRAMS, Administrative Patent
Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the refusal of the examiner to
allow claims 2 and 5 through 24, all of the claims remaining
in the application, as amended (Paper No. 25) subsequent to
Appeal No. 96-2191
Application 08/395,512
2
the final rejection (Paper No. 22).
Appellants’ invention pertains to an apparatus and method
for heating an object by microwave radiation. An understanding
of the invention can be derived from a reading of exemplary
claims 12 through 14, copies of which appear in the APPENDIX
to the main brief (Paper No. 24).
As evidence of obviousness, the examiner has applied the
documents listed below:
Levendusky 4,560,850 Dec. 24,
1985
(Levendusky ‘850)
Levendusky 4,689,458 Aug. 25,
1987
(Levendusky ‘458)
Pomeroy et al. 4,754,111 Jun.
28, 1988
(Pomeroy)
The following rejection is before us for review.
Claims 2 and 5 through 24 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Levendusky ‘458 or Levendusky
‘850 in view of Pomeroy.
Appeal No. 96-2191
Application 08/395,512
In our evaluation of the applied patents, we have considered all of the2
disclosure thereof for what it would have fairly taught one of ordinary skill
in the art. See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the board has taken into account not only the
specific teachings, but also the inferences which one skilled in the art would
reasonably have been expected to draw from the disclosure. See In re Preda
401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
3
The full text of the examiner's rejection and response to
the argument presented by appellants appears in the answer
(Paper No. 28), while the complete statement of appellants’
argument can be found in the main and reply briefs (Paper Nos.
24 and 29).
As acknowledged by the examiner (answer, page 2),
appellants have indicated that the claims on appeal stand or
fall together (main brief, page 4). Accordingly, we select
claim 12 for review and shall decide the appeal on the basis
of this claim alone; 37 CFR 1.192(c)(7).
OPINION
In reaching our conclusion on the obviousness issue
raised in this appeal, this panel of the board has carefully
considered appellants’ specification and claim 12, the applied
patents, and the respective viewpoints of appellants and the2
Appeal No. 96-2191
Application 08/395,512
4
examiner. As a consequence of our review, we make the
determination which follows.
We reverse the rejection of claim 12. It follows that we
likewise reverse the rejection of claims 2, 5 through 11, and
13 through 24 since these claims stand or fall with claim 12
as earlier indicated.
As disclosed (specification, page 6), with the present
invention, microwave transparent, electrically insulating
material is disposed on the exterior of each side wall and on
the exterior part of the bottom which would, in the absence of
the insulation, contact the floor of the oven. Appellants
further point out (specification, page 14) that the
electrically-insulating material need not be either microwave-
diffusing or microwave-dispersing, “nor is the material
disposed on both the interior and the exterior of the
container of the invention”.
Claim 12 is drawn to an apparatus in which an object
Appeal No. 96-2191
Application 08/395,512
5
contained therein is heated with microwave radiation
comprising, inter alia, a metal container having an interior
and an exterior defined by a bottom and at least one side
wall, microwave transparent bottom and side wall electrical
insulator means for electrically insulating the “exterior” of
the container, with the “interior surfaces” of each of said at
least one side wall and bottom “lacking electrical insulator
means”.
We turn now to the evidence of obviousness.
Each of Levendusky ‘458 and Levendusky ‘850 explicitly
teach a metal container for heating and cooking food in a
microwave
oven, with the container providing for arc-free and minimal
electromagnetic reflection in the oven. The patentee, in each
case, instructs those versed in the art to coat all surfaces
of the metal body or tray of the container.
Appeal No. 96-2191
Application 08/395,512
6
On the other hand, in the matter of a turntable intended
for rotating food being cooked in a microwave oven, the patent
to Pomeroy teaches those versed in the art to house the
turntable drive means in a shielding enclosure. As explained
by the patentee (column 5, lines 9 through 16), the outside of
a metallic enclosure 45 is covered with a layer of electrical
insulation to reduce arcing to the shield. It is noted by
Pomeroy (column 5, lines 27 through 29) that the amount of
microwave energy which enters the motor housing or enclosure
is negligible.
This panel of the board fully appreciates the examiner’s
understanding of the applied prior art and point of view as to
the obviousness of the claimed invention, as expressed in the
answer. However, when we set aside what appellants’
application teaches us regarding the present invention, and
focus upon the evidence of obviousness as a whole, we do not
discern any sug-gestion that would have been fairly derived by
one of ordinary skill in the art for modifying the metal food
Appeal No. 96-2191
Application 08/395,512
7
containers of the Levendusky patents based upon the turntable
teaching of Pomeroy.
The Levendusky food containers and the Pomeroy turntable
are clearly functionally and structurally distinctly different
entities, as disclosed, notwithstanding their common
utilization in a microwave oven environment. As earlier
discussed, Levendusky would have directed those skilled in the
art to coat both the interior and exterior of a metal
container for heating an object exposed to microwave radiation
in the interior of the container. From our perspective, the
turntable teaching of Pomeroy would have advised an artisan to
coat a metal housing only externally when the metal interior
is not intended to be exposed to microwave radiation.
Accordingly, it is our conclusion that the applied prior art
would not have suggested the absence of electrical insulator
means on the interior of an apparatus for heating an object
therein by microwave radiation,
which radiation acts interiorly of the apparatus. Lacking
Appeal No. 96-2191
Application 08/395,512
8
sound evidence to support a conclusion of obviousness, we are
con-strained to reverse the rejection of appellants’ claims
under 35 U.S.C. § 103.
The decision of the examiner is reversed.
REVERSED
)
IAN A. CALVERT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
IRWIN CHARLES COHEN )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
NEAL E. ABRAMS )
Administrative Patent Judge )
Appeal No. 96-2191
Application 08/395,512
9
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