Ex Parte Walter et al

Patent Trial and Appeal Board

Jul 6, 2018

12197488 (P.T.A.B. Jul. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/197,488 08/25/2008 Hubert Eric Walter
39232 7590 07110/2018
Themis Law
7825 Fay Ave
Ste 200
La Jolla, CA 92037
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
10229.00003 2441
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
07/10/2018 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):
contact@themisipc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte HUBERT ERIC WALTER, KARL-HEINZ HAAS,
and ROLAND JANS
Appeal2017-008350
Application 12/197,488
Technology Center 1700
Before TERRY J. OWENS, WESLEY B. DERRICK, and
SHELDON M. MCGEE, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 48-52 and 55-72. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellants claim a method for monitoring pre-prepared meal
heating. Claim 48 is illustrative:
48. A method for monitoring assembled pre-prepared meals
which are arranged on a shelf such that the shelf supports both a
meal to be heated and a meal or beverage not to be heated on
said shelf, said method comprising the steps of:
Appeal2017-008350
Application 12/197,488
(a) automatically storing meal-specific data on a data
carrier which is coupled to the shelf;
(b) automatically reading out said data from said data
carrier at at least one reading station; and
( c) heating the meal to be heated by controlling a device
for heating the meal to be heated using said data stored on said
data carrier and read out in a contactless manner, wherein said
data carrier is configured for storage of data and for reading out
of data at the at least one reading station, as well as the writing
of data to the data carrier when the shelf is in a transport mode,
said data comprising data on heating conditions and the
respective position of the meal to be heated and of the meal or
beverage not to be heated that are supported on the shelf, said
heating device being controlled such that said heating device
carries out heating only locally in a selective manner at a
location of said shelf at which the meal to be heated is located
and does not carry out heating at a location of said shelf at
which the meal not to be heated or the beverage not to be
heated is located, said meal specific data including data
indicative of expiry of a maximum shelf life, said device further
being controlled based on said meal specific data such that no
heating of a meal can take place in said device after the expiry
of the shelf life of the meal, and
wherein said method for monitoring further includes:
(i) automatically recording data at the
reading station or at a central data processing unit
on when the meal has been heated, such to update
information by the reading station or at the central
data processing unit as to which meals have
already been heated, and
(ii) preventing any reheating of a previously
meal, with updated status, while supported on the
shelf.
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Appeal2017-008350
Application 12/197,488
Stentz1
Williams
Souder
Bellavoine
Rub bright
Meier
Kirsch
Walter (Walter '268)
Theodos
Sus
Walter (Walter '045)2
Walter (Walter '703)
The References
us 3,275,393
us 3,908,749
us 4,110,587
us 4,225,204
us 4,323,110
us 5,466,915
us 6,097,014
US 6,359,268 Bl
US 2007/0144202 Al
US 2007 /0254079 Al
US 2009/0040045 Al
WO 2004/075703 Al
The Rejections
Sept. 27, 1966
Sept. 30, 1975
Aug.29, 1978
Sept. 30, 1980
Apr. 6, 1982
Nov. 14, 1995
Aug. 1, 2000
Mar. 19, 2002
June 28, 2007
Nov. 1, 2007
Feb. 12,2009
Sept. 10, 2004
The claims stand rejected under 35 U.S.C. § 103 as follows:
claims 48-52 and 55---60 over Walter '045 in view of Bellavoine, Meier and
Theodos, claims 61---67 and 70-72 over Walter '045 in view of Bellavoine,
Meier, Theodos, Williams and Walter '268, claim 68 over Walter '045 in
view of Bellavoine, Meier, Theodos, Williams, Walter '268, Sus and Stentz,
and claim 69 over Walter '045 in view ofBellavoine, Meier, Theodos,
Williams, Walter '268, Kirsch, Souder, Walter '703 and Rubbright.
OPINION
We reverse the rejections. We need address only the independent
claims (48 and 61). Claim 48 requires:
(i) automatically recording data at the reading station or
at a central data processing unit on when the meal has been
heated, such to update information by the reading station or at
1 The Examiner refers to Stentz by the second-named inventor (Conklin)
(Ans. 16).
2 The Examiner relies upon Walter '045 as an English language equivalent
of WO 2006/105784 A2 (Oct. 12, 2006) (Ans. 3).
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Appeal2017-008350
Application 12/197,488
the central data processing unit as to which meals have already
been heated, and
(ii) preventing any reheating of a previously heated meal,
with updated status, while supported on the shelf.
Claim 61 requires:
(i) the data carrier of a respective, heated shelf is
automatically adjusted to reflect an "already heated" state
relative to a heated meal in the stack of container shelves in the
meal trolley during transport on the mobile means of
transportation; or
(ii) a step of identifying with identification information the
meal that went from a to-be-heated to a[ n] "already heated"
state in the stack is carried out during transportation on the
mobile means of transportation, and
( e) wherein the method further comprising preventing any
heating of the already heated meal, while the already heated
meal is supported on the shelf, based on an identification that
the meal has achieved the "already heated" state.
Walter '045 provides "a system with which correspondingly
assembled pre-prepared meals can be monitored starting from their assembly
up to the ultimate consumption" (i-f 9). The meals are in a tray-like container
having an RFID data carrier storing data such as the meal's date of
manufacture, assembly and/or maximum shelf life, quantity, mass or
number, heating time, rate and temperature, position of to-be-heated meals
and not-to-be-heated beverages within the tray-like container, and entry into
a storage depot, cooling depot or meal trolley (i-fi-f 12-21 ). "A possibility
should advantageously be provided with which a warning signal is generated
on a read-out of data which may occur, said data signaling the expiry of a
maximum shelf life of meals or beverages and said warning signal then
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Appeal2017-008350
Application 12/197,488
displaying this data visually and/or acoustically and warning the operator"
(if 23).
Bellavoine avoids reheating meal trays by counting the number of
meal trays removed from a heating cupboard to verify that all of the meal
trays have been removed (col. 2, 11. 4--7; col. 10, 11. 26-31).
Meier teaches that "[ t ]he reheating of once-prepared meals is for
physiological reasons unacceptable since the reheating of the meals may
lead to oxidations or the formation of toxic substances" (col. 1, 11. 31-34).
Meier maintains meals at a proper level to avoid temperature drop (col. 1,
11. 42--46; col. 3, 11. 54--57).
Theodos uses RFID in the control of food heating (if 26).
The Examiner, in reliance upon Theodos's paragraph 26, finds that
"Theodos discloses that the RFID tag has been conventionally used to
update the heating status of a meal tray" (Ans. 6, 14).
The Examiner does not explain how that portion of Theodos, which
discloses use of RFID to monitor elapsed heating time, supports the breadth
of that finding.
The Examiner finds that "since Walter '784 already teaches writing
other forms of data on the data carrier for monitoring the meals from storage
to consumption, one having ordinary skill in the art would have been
motivated to write information regarding whether the meal has already been
heated, onto the RFID tags of Walter '784 so as to also convey heating
information to the central data unit or to the reading station and to prevent
reheating for the purpose of preventing the formation of toxic substances and
oxidation" (Ans. 6, 13). The Examiner concludes that "[s]ince Bellavoine
and Meier teach reheating has not been desirable, modification of
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Application 12/197,488
Walter '784 to identify meals that have been already heated would have
been obvious to one having ordinary skill in the art for the purpose of
preventing reheating of an already heated tray and for preventing the
formation of toxic substances and oxidation" (Ans. 14).
The Examiner does not establish that the applied references, in
combination, disclose automatically recording data on when a meal has been
heated as required by the Appellants' claim 48 or identifying, automatically
or with identifying information, a meal as already heated as required by the
Appellants' claim 61, and using the data or identification to prevent
reheating. Thus, the Examiner's conclusion that it would have been prima
facie obvious to one of ordinary skill in the art, in view of Meier's disclosure
of the undesirability of meal reheating (col. 1, 11. 31-34) and Bellavoine' s
avoidance of meal reheating (col. 2, 11. 4--7), to modify Walter '045's RFID
data storage and usage to arrive at the Appellants' claimed method is based
upon impermissible hindsight in view of the Appellants' disclosure. See In
re Warner, 379 F.2d 1011, 1017 (CCPA 1967) ("A rejection based on
section 103 clearly must rest on a factual basis, and these facts must be
interpreted without hindsight reconstruction of the invention from the prior
art"). Accordingly, we reverse the rejections.
DECISION
The rejections under 35 U.S.C. § 103 of claims 48-52 and 55---60 over
Walter '045 in view of Bellavoine, Meier and Theodos, claims 61---67
and 70-72 over Walter '045 in view ofBellavoine, Meier, Theodos,
Williams and Walter '268, claim 68 over Walter '045 in view of Bellavoine,
Meier, Theodos, Williams, Walter '268, Sus and Stentz, and claim 69 over
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Application 12/197,488
Walter '045 in view of Bellavoine, Meier, Theodos, Williams, Walter '268,
Kirsch, Souder, Walter '703 and Rubbright are reversed.
The Examiner's decision is reversed.
REVERSED
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