Ex Parte Wiedemann et al

Patent Trial and Appeal Board

Feb 28, 2017

10585285 (P.T.A.B. Feb. 28, 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.
10/585,285 07/10/2007 Peter Wiedemann 780094.402USPC 9873
500 7590 03/01/2017
SEED INTELLECTUAL PROPERTY LAW GROUP LLP
701 FIFTH AVE
SUITE 5400
SEATTLE, WA 98104
EXAMINER
TRAN, THIEN S
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
03/01/2017 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 PETER WIEDEMANN, ANDREA JURGENS, CORNELIA
DIETMAYER, MICHAEL GREINER, ERWIN SCHULLER,
GERD FUNK, and THOMAS TREU
Appeal 2015-0013261
Application 10/585,2852
Technology Center 3700
Before BIBHU R. MOHANTY, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.
BAYAT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 51—79. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Our decision references Appellants’ Appeal Brief (“App. Br.,” filed
June 27, 2014), and Reply Brief (“Reply Br.,” filed Nov. 10, 2014), the
Examiner’s Answer (“Ans.,” mailed Sept. 10, 2014) and Final Office Action
(“Final Act.,” mailed Mar. 27, 2014).
2 Appellants identify “Rational AG, of Landsberg/Lech, Germany” as the
real party in interest. App. Br. 1.
Appeal 2015-001326
Application 10/585,285
CLAIMED SUBJECT MATTER
Appellants’ invention “concerns a cooking device in which at least
one parameter is preset for at least one predetermined program and/or for at
least one predetermined mode of operation.” Spec. 1:11—15 (filed July 5,
2006).
Claims 51, 61, and 70 are the independent claims on appeal. Claim
51, reproduced below with bracketed matter added, is illustrative of the
claimed subject matter:
51. A cooking device, comprising:
[(a)] a locating system that automatically detects a
geographic location of the cooking device;
[(b)] a control or regulating unit that controls an
environmental cooking condition inside the cooking device;
[(c)] a control element communicatively connected to
the locating system and to the control or regulating unit,
wherein the control element comprises:
[(d)] a modification function input device; and
[(e)] a confirmation or storage function input
device,
[(f)] wherein the control or regulating unit implements
a cooking program or cooking mode of operation using a
cooking parameter that is automatically preset based on
(1) the cooking program or cooking mode of operation
and (2) the geographic location of the cooking device,
wherein the value of the cooking parameter defines an
environmental cooking condition inside the cooking
device for the cooking program or cooking mode of
operation,
[(g)] wherein the control element receives information
from the locating system regarding the geographic
location of the cooking device and automatically presets
the cooking parameter by setting the value of the cooking
parameter based on the geographic location of the
cooking device and the cooking program or cooking
mode of operation,
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Application 10/585,285
[(h)] wherein the modification function input device is
operable by an operator of the cooking device to modify
the preset cooking parameter,
[(i)] wherein the confirmation or storage function input
device is operable by the operator of the cooking device
to affirmatively confirm, accept, or store the preset or
modified cooking parameter during a predetermined time
period, and
[(j)] wherein the cooking device automatically
confirms, accepts, or stores the preset or modified
cooking parameter if the predetermined time period has
elapsed and the operator has not operated the
confirmation or storage function input device with regard
to the preset or modified cooking parameter.
App. Br. 26 (Claims App.).
REJECTIONS
The following rejections are before us on appeal.
I. Claims 51, 54—60, 70, and 73—79 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kaish (US 5,997,928, iss.
Dec. 7, 1999), Juergen (DE 19832757, pub. June 17, 1999),
Wolfgang (DE 19830844 Al, pub. Jan. 13, 2000), and Meyer
(US 2003/0212684 Al, pub. Nov. 13, 2003).
II. Claims 61 and 64—69 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Juergen and Wolfgang.
III. Claims 52, 53, 71, and 72 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Kaish, Juergen, Wolfgang, Meyer,
and Belt (US 6,193,422 Bl, iss. Feb. 27, 2001).
IV. Claims 62 and 63 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Juergen, Wolfgang, and Belt.
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Application 10/585,285
ANALYSIS
Rejections I & III
In rejecting independent claim 51 as obvious over Kaish, Juergen,
Wolfgang, and Meyer, the Examiner finds that Kaish does not disclose
limitation (f), and instead relies on Juergen to remedy this deficiency. Final
Act. 3, 4—5. In particular, the Examiner finds that Juergen discloses
the control or regulating unit (control device 50) implements a
cooking program (Pg 5, Pgh 5, pre-set operating program) or
cooking mode of operation (Pg 6, Pgh 1, pre-set operating
procedure) using a cooking parameter that is automatically
preset based on (1) the cooking program (pre-set operating
program) or cooking mode of operation (pre-set operating
procedure) and (2) the geographic location of the cooking device
(Pg 4, Pgh 1, convert the terms into another language).
Id. at 4.
Appellants dispute this finding and argue:
Juergen does not disclose any presetting of cooking parameters,
much less presetting a cooking parameter as a function of the
geographic location of the cooking device. Juergen's oven
simply converts the terms shown on a display unit into another
language. Conversion of display terms into another language
does not constitute presetting a cooking parameter by setting the
value of the cooking parameter based in part on the geographic
location of the cooking device, as claimed in Claim 51.
App. Br. 14.
Responding to Appellants’ argument, the Examiner asserts:
Kaish teaches a cooking device having a locating system
(GPS) in connection with a control or regulating unit having a
modification function element. Juergen was added in
combination with Kaish to show that the recited control element
configuration performing the recited functions above is known
in the art. Specifically, Juergen states on page 4, paragraph 1 that
the relevant terms of the graphic display device can be set to the
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Application 10/585,285
respective local language. Additionally, the graphic display
device is initially set with pre-set cooking parameters (Fig 6, pre­
set operating program, Pg 5, Pgh 5) according the local language
(German), the language of cooking parameter (Fig. 6, bake or
grill) on the display is directly related to the geographic location
of the cooking device because if the cooking device of Juergen
is moved to the US, then the language of the cooking parameter
would be English. The locating system of Kaish in combination
with the control element configuration of Juergen would be able
of automatically pickup up [sic] the geographic location of the
cooking device to update the local language of the cooking
parameter on the graphic display device.
Ans. 5—6.
Appellants disagree with the Examiner’s assertions because “[t]here is
no teaching or suggestion in Kaish to automatically preset a cooking
parameter, as claimed in the present application, based on a cooking
program or cooking mode of operation and a geographic location of the
cooking device and/or a selected operating language of the cooking device.”
Reply Br. 2—3 (citing Kaish 11:1—5).
We are persuaded by Appellants’ arguments.
Kaish is directed to a “food vending apparatus with security and
accounting features.” Kaish 1:11—12. Kaish discloses that
[a]n optional element, the GPS receiver 107, allows a transceiver
108 to transmit, through an antenna 109, a location of a mobile
vending cart to a central location, for example to locate the
system for remediation of an alarm condition, restocking, pickup
at the end of a shift, or the like.
Kaish 11:1—6. There is no disclosure in Kaish of automatically presetting a
cooking parameter based on a cooking program or mode and a geographic
location of the device. Kaish’s inclusion of an optional GPS receiver is
separate and independent from any cooking program or mode. The GPS
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receiver in Kaish is capable of transmitting its geographic location to a
central location in order for vendor personnel to locate the vending cart to
address a security breach (e.g., alarm condition) or restock low inventory
vending items. The relied upon passages in Kaish fail to disclose any
capability of presetting a cooking program or mode based on the geographic
location of the vending cart.
The Examiner’s reliance on Juergen is similarly flawed because the
cited passages in Juergen fail to disclose any capability of presetting a
cooking parameter based on a geographic location of the device. The
passage relied upon by the Examiner in Juergen discloses that “[b]y means
of the graphic display, it is now possible for example to display the specified
function configuration in a simple and cost-effective manner, using the
relevant terms in the respective local language.” Juergen 5.3 Juergen adds,
“[i]n order to convert the terms into another local language, only the
program software must be changed.” Id. This conversion is illustrated by
Juergen in a legend, which shows for instance, conversion of each term from
German to English (e.g., BACKEN = BAKE; HILFE = HELP). At most,
Juergen’s cooking device is capable of displaying a cooking program or
mode in another language, by simply changing the program software to a
specified local language. Id. However, Juergen does not describe any
capability of automatically presetting a cooking parameter based on a
cooking program or mode and the geographic location of the device. The
Examiner’s assumption that the locating system of Kaish in combination
with Juergen “would automatically pickup” the geographic location of the
3 Although the reference does not recite page numbers, it appears that the
Examiner started numbering after page 1. See Final Act. 4—5.
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cooking device once moved to another country is factually unsupported. A
rejection based on § 103 must rest on a factual basis and may not resort to
speculation, unfounded assumptions or hindsight reconstruction to supply
deficiencies in its factual basis.
In view of the foregoing, we do not sustain the rejection of
independent claim 51. Independent claim 70 recites a substantially similar
limitation and is rejected based on the same flawed findings as in claim 51.
See Final Act. 7—10. Therefore, we do not sustain the rejection of claim 70.
For the same reasons, we also do not sustain the rejection of dependent
claims 52—60 and 71—79. Cf. In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir.
1992) (“dependent claims are nonobvious if the independent claims from
which they depend are nonobvious”).
Rejections II & IV
Independent claim 61 recites, inter alia,
wherein the control or regulating unit implements a
cooking program or cooking mode of operation using a cooking
parameter that is automatically preset based on (1) the cooking
program or cooking mode of operation and (2) the selected
operating language of the cooking device, wherein the value of
the cooking parameter defines an environmental cooking
condition inside the cooking device for the cooking program or
cooking mode of operation
App. Br. 28 (Claims App.).
In rejecting claim 61 as obvious over Juergen and Wolfgang, the
Examiner finds “Wolfgang teaches the value of the cooking parameter
defines an environmental cooking condition inside the cooking device for
the cooking program or cooking mode of operation provides the advantage
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of controlling the feasible cooking processes of the cooker (Pg 2, Pgh 9).”
Final Act. 18.
Appellants argue that
determining the order in which cooking programs are shown on
a display has no bearing on the environmental condition of food
being cooked in the device according to a selected cooking
program. For a cooking program shown on the display, the
parameters that define the environmental cooking conditions
inside the cooking device according to the cooking program are
the same regardless whether the cooking program is shown
higher or lower in the list of programs.
App. Br. 21.
The Examiner responds:
The cooking device of Wolfgang stores country specific cooking
programs that defines an environmental cooking condition like
oven temperature or cooking time (page 2, par 9) and is selected
based on the national language chosen. The cooking device of
Juergen having a controller that selects the user display language
in combination with the control arrangement of Wolfgang would
be capable of automatically updating the cooking parameter that
defines the environment cooking condition of Wolfgang based
on the displayed language of the cooking program or cooking
mode of operation of Juergen.
Ans. 12.
We are not persuaded of error because Appellants’ argument fails to
address the Examiner’s actual position. The Examiner did not find that the
order in which cooking programs are displayed has a bearing on the
environmental cooking conditions, but rather, the combination of Juergen
and Wolfgang’s disclosures would have led one of ordinary skill in the art to
the claimed subject matter. See In re Keller, 642 F.2d 413, 425 (CCPA
1981). Thus, Appellants have not addressed the position the Examiner is in
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Application 10/585,285
fact taking. As such, Appellants’ argument is unpersuasive as to error in the
rejection as the Examiner has articulated it. Therefore, we sustain the
rejection of independent claim 61, and claims 62—69 dependent thereon,
which are not argued separately. See App. Br. 22, 24.
DECISION
Rejections I and III are reversed.
Rejections II and IV are 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)(l)(iv).
AFFIRMED-IN-PART
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