Luckhardt, Christoph

Patent Trials and Appeals Board

Oct 11, 2019

14381617 - (D) (P.T.A.B. Oct. 11, 2019)

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.
14/381,617 08/28/2014 Christoph Luckhardt AEG-53152 5984
116 7590 10/11/2019
PEARNE & GORDON LLP
1801 EAST 9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
EXAMINER
SMITH, PRESTON
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
10/11/2019 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):
patdocket@pearne.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CHRISTOPH LUCKHARDT
____________________

Appeal 2019-000681
Application 14/381,617
Technology Center 1700
____________________

Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and
BRIAN D. RANGE, Administrative Patent Judges.

RANGE, Administrative Patent Judge.

DECISION ON APPEAL
SUMMARY
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–11 and 16. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Electrolux
Home Products Corporation N.V. Appeal Br. 2. (The Appeal Brief does not
include page numbering. The numbering herein reflects pages considered
consecutively from the cover page through the Claims Appendix.)
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STATEMENT OF THE CASE2
Appellant describes the invention as relating to an appliance for
processing food, such as an oven. Spec. 1:5–7. In particular, the
Specification explains that images of food captured from within an oven
may be used to determine control of an automatic cooking process. Id. at
1:9–14. Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with certain limitations bolded for emphasis:
1. A method of operating an appliance for processing food,
wherein the appliance comprises a chamber adapted to
accommodate and process at least one food item, wherein the
method comprises steps of:
a) capturing at least one image of the at least one food
item placed or to be placed into the chamber;
b) extracting a set of characteristic features of at least
one of the at least one food item from the captured image;
c) comparing the set of characteristic features with
at least one existing dataset stored in a feature database;
d) suggesting, based on the comparison, at least one
food category to at least one of the at least one food item;
e) assigning at least one final food category based on
a user input in which the user is requested to affirm or correct the
food category suggested;
f) generating and storing an additional new dataset
comprising the extracted set of features linked to the assigned
food category in the feature database, if at least one of the
following situations applies:
i. after the comparison, the extracted set of
characteristic features is found to be not contained in the
database;

2 In this Decision, we refer to the Final Office Action dated September 8,
2017 (“Final Act.”), the Appeal Brief filed April 6, 2018 (“Appeal Br.”), the
Examiner’s Answer dated September 10, 2018 (“Ans.”), and the Reply Brief
filed October 31, 2018 (“Reply Br.”).
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ii. after the comparison, the extracted set of
characteristic features is found to differ from a dataset
stored in the database by a predefined amount; and
iii. the assigned food category differs from the food
category suggested; and
g) executing a food processing program assigned to
the extracted set of characteristic features and assigned food
category, wherein the assigned food category is from a
predefined set of food categories.
Appeal Br. 12 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Russell et al.
(“Russell”)
Lee
Hiraishi
US 2005/0114377 A1

US 2005/0247695 A1
JP 02122119 (A)
May 26, 2005

Nov. 10, 2005
May 9, 1990
REJECTIONS
The following rejections are before us on appeal:
Rejection 1. Claims 1–10 and 16 under 35 U.S.C. § 103 as
unpatentable over Hiraishi in view of Russell. Final Act. 2.
Rejection 2. Claim 11 under 35 U.S.C. § 103 as unpatentable over
Hiraishi in view of Lee and Russell. Id. at 4.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
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cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t
has long been the Board’s practice to require an applicant to identify the
alleged error in the examiner’s rejections.”). After considering the evidence
presented in this Appeal and each of Appellant’s arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Appellant argues all rejections and all claims as a group. See Appeal
Br. 6–9. Therefore, consistent with the provisions of 37 C.F.R.
§ 41.37(c)(1)(iv) (2013), we limit our discussion to claim 1, and all other
claims on appeal stand or fall together with claim 1.
The Examiner finds that Hiraishi teaches a control process where an
image of a substance to be cooked is photographed, compared to patterns,
and a most similar pattern is displayed. Final Act. 3 (citing Hiraishi). The
Examiner finds that Hiraishi further teaches that the user can confirm the
contents of the display (confirming it as being the correct food to cook) and
cooking is started. Id.
The Examiner finds that Hiraishi fails to teach, for example,
“comparing a set with an existing set stored in a [database].” Id. The
Examiner finds that Russell teaches, for example, such a comparison. Id. at
3–4 (citing Russell ¶¶ 30–35). The Examiner determines that “[i]t would
have been obvious to modify the stored image as taught by Russell (as
applied to food and food categories as taught by Hiraishi) and suggest and
generate new data sets since this would help improve the cooking process in
an automated fashion.” Id. at 4.
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Appellant argues that the cited references do not teach comparing
input data to additional data sets. Appeal Br. 6–7. In particular, Appellant
argues that Russell teaches comparing output data to create an optimized set
of algorithms whereas claim 1 requires comparing characteristic features
extracted from a food item placed in a cooking appliance to characteristic
features in a database. Id. Appellant’s argument is unpersuasive because
the Examiner’s finding that Russell teaches comparing data with data stored
in a database is supported by a preponderance of the evidence. Final Act. 3–
4. Contrary to Appellant’s argument that Examiner’s finding lacks support
(Reply Br. 2), the Examiner cites paragraphs 30–35 of Russell. Those
paragraphs of Russell teach, for example, that “sample data 50 can be
provided to dataset system 32 (FIG. 1) which can obtain a plurality of
datasets that include sample data 50.” Russell ¶ 31. Obtaining a dataset that
includes the sample data requires a comparison. Appellant’s arguments do
not persuasively dispute the Examiner’s finding regarding Russell and do
not adequately explain why Russell does not teach a comparison.
To the extent Appellant argues that Russell lacks comparing data to
features of a defined food category in a database, the argument is
unpersuasive because it does not address the combined teachings of the
references as the Examiner presents. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.” In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986). Examiner does not rely on Russell for
teachings relating to food preparation. Ans. 3. Rather, Hiraishi teaches
comparing an image of food to be cooked “with a plurality of prestored
substance-to-be-cooked patterns” (Hiraishi Abstract), and the Examiner
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relies on Russell as teaching a comparison of a dataset to data in a database.
Final Act. 3–4; Ans. 3. Appellant does not persuasively dispute the
Examiner’s findings regarding Russell and does not persuasively dispute the
Examiner’s rationale for combining teachings of Russell with the Hiraishi
process.
Appellant also argues that the cited art does not teach “generating and
storing an additional new dataset . . . if at least one of the following
situations applies” (claim 1) or “generating and storing an additional new
dataset . . . if the assigned food category differs from the food category
suggested” (claim 16). Claims 1 and 16 are both method claims, and the
claims only require that the “generating and storing” step be performed if a
recited condition precedent is met. When the condition is not met, the step
does not have to be performed. See Ex parte Schulhauser, Appeal No. 2013-
007847, 2016 WL 6277792 (PTAB April 28, 2016) (precedential) (holding
that, given claim language at issue requiring condition precedent, certain
recitations need not be performed if condition precedent is not met).
Because the Hiraishi/Russell combination, at a minimum, teaches or
suggests the recited steps in a scenario where the food matches a food in the
database (i.e., when the recited condition precedent is not met), Appellant’s
argument regarding these conditional recitations does not identify harmful
error.
Because Appellant’s arguments do not identify harmful error in the
Examiner’s rejections, we sustain the rejections.
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DECISION
In summary:
Claims
Rejected
35
U.S.C. §
Basis Affirmed Reversed
1–10, 16 103 Hiraishi, Russell 1–10, 16
11 103 Hiraishi, Lee, Russell 11
Overall
Outcome
1–11, 16

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED