Middleby Marshall Holding LLC d/b/a NUVU Food Service Systems

Patent Trials and Appeals Board

Nov 30, 2020

2020000698 (P.T.A.B. Nov. 30, 2020)

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.
14/944,364 11/18/2015 Matthew E. Deming 12361-630 8244
757 7590 11/30/2020
BGL
P.O. BOX 10395
CHICAGO, IL 60610
EXAMINER
BECKER, DREW E
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
11/30/2020 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 MATTHEW E. DEMING,
MARK E. HALPIN, and
SARAH J. TRESSER
____________

Appeal 2020-000698
Application 14/944,364
Technology Center 1700
____________

Before JAMES C. HOUSEL, MICHELLE N. ANKENBRAND, and
JULIA HEANEY, Administrative Patent Judges.

ANKENBRAND, Administrative Patent Judge.

DECISION ON APPEAL1
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 13–40.2 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 Middleby Marshall Holding LLC
d/b/a NUVU Food Service Systems as the real party in interest. Appeal
Brief, filed June 20, 2019 (“Appeal Br.”) 1.
2 Non-Final Office Action, mailed May 22, 2018 (“Non-Final Act.”).
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Application 14/944,364

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STATEMENT OF THE CASE
Background
The subject matter on appeal relates to baking ovens. Specification,
filed November 18, 2015 (“Spec.”), ¶ 2. The Specification discloses a
baking device that includes a housing enclosing a baking compartment and
an air handling compartment, a blower wheel to urge air movement from the
baking compartment into the air handling compartment, and a secondary
blower to urge ambient air into the air handling compartment. Id. ¶ 3.
Of the appealed claims, claims 13 and 27 are independent. Claim 13
is representative of the subject matter on appeal, and reproduced below:
13. A method of baking a food product, comprising:
adjusting a humidity of air within a baking compartment
of a baking device to a first humidity greater than a humidity of
ambient air;
receiving an unrisen food product within the baking
compartment;
allowing the unrisen food product to rest within the
baking compartment for a time to allow the unrisen food
product to rise in a presence of the first humidity;
operating a secondary blower to inject ambient air into
the baking compartment to increase a pressure within the
baking compartment to urge air having the first humidity to exit
the baking compartment to the atmosphere after the time to
allow the unrisen food product to rise is complete; and
heating the baking compartment to bake the food
product.
Appeal Br. 37 (Claims App’x).

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The References
Reese US 2017/0156347 A1 June 8, 2017
Miele3 EP 2 472 187 A1 July 4, 2012
Greenwood US 8,378,265 B2 Feb. 19, 2013
Helm US 6,070,517 June 6, 2000
The Rejections
The Examiner maintains the following rejections on appeal:4
1. Claims 13–20, 22–34, and 36–40 under 35 U.S.C. § 103 as
unpatentable over Reese, Miele,5 and Greenwood; and
2. Claims 21 and 35 under 35 U.S.C. § 103 as unpatentable over
Reese, Miele, Greenwood, and Helm.
Non-Final Act. 2–6; Examiner’s Answer, dated May 17, 2019 (“Ans.”) 3–
11.

3 Appellant refers to EP 2 472 187 A1 by the first name of the applicant,
Miele & Cie. KG. Appeal Br. 14. For consistency, we also refer to
EP 2 472 187 A1 as “Miele.”
4 The Examiner withdraws a § 103 rejection of claims 13–40 over Swayne
(US 6,465,762 B1, issued October 15, 2002), Miele, Lubrina (US
2002/0179588 A1, published Dec. 5, 2002), and DeYoung (US 6,658,995
B1, issued Dec. 9, 2003). Non-Final Act. 6–8; Ans. 3.
5 The Examiner and Appellant each cite paragraphs of Miele. See, e.g.,
Ans. 7; Appeal Br. 20. Miele is a German language reference that does not
include readily discernable paragraphs. The Examiner included an English
language translation of Miele with a Final Office Action dated November
30, 2017. A Declaration from one of the inventors, Matthew E. Deming,
references the translation. Deming Declaration filed April 30, 2018
(“Deming Declaration”) ¶ 25. Therefore, it appears that the Examiner and
Appellant are referencing paragraphs of the translation. Our further
references to paragraphs of Miele in this decision are to the translation.
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OPINION
Rejection over Reese, Miele, and Greenwood
The Examiner rejects claims 13–20, 22–34, and 36–40 under
35 U.S.C. § 103 as unpatentable over Reese, Miele, and Greenwood. Non-
Final Act. 2; Ans. 6. The Examiner provides a new ground of rejection for
claims 22, 25, 26, 36, and 40 under 35 U.S.C. § 103 over Reese, Miele, and
Greenwood in the Answer. Ans. 3–5.
Appellant does not present separate arguments for claims 14–20, 23,
24, 28–34, and 36–40, each of which depends from claim 13 or claim 27.
Appeal Br. 14–21. Thus, those claims stand or fall with their respective
independent claim. 37 C.F.R. § 41.37(c)(1)(iv). We address the arguments
for claims 13 and 27 below. Appellant provides separate arguments for
claims 22, 25, 26, 36, and 40 in response to the new ground of rejection in
the Answer, and the Reply Brief, which we address separately. See Reply
Br. 13–17.
Claims 13–20, 23, 24, 27–34, and 37–39
The Examiner finds that Reese teaches a method for a baking device
that includes adjusting the air within a baking chamber of the device to a
high humidity, resting and proofing food in the high humidity environment,
venting the baking chamber to remove the humid air via a vent system that
includes a valve and fan, and heating the baking compartment for baking.
Ans. 6. The Examiner further finds that Reese discloses a blower wheel that
sprays water to increase humidity, as set forth in Greenwood, the disclosure
of which Reese incorporates in its entirety. Id.
The Examiner finds Reese does not teach a secondary blower to inject
ambient air into the baking compartment to increase the pressure in the
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baking compartment, as claims 13 and 27 require. Id. at 7. The Examiner
finds Miele teaches a method for baking food in an oven that has a blower to
inject ambient air into the oven cavity and achieve a higher pressure within,
which also dehumidifies the oven cavity. Id. The Examiner further finds
that both Reese and Miele are directed to methods of baking food, that
cooking ovens commonly included a blower for injecting ambient air into an
oven cavity for cooling and/or dehumidifying, and Reese teaches that
additional components and variations in the arrangement and type of
components are permitted. Id. at 8. The Examiner concludes it would have
been obvious to substitute Miele’s blower for Reese’s outlet fan to yield a
predictable result. Id.
Appellant contends that common sense or intuition alone are
insufficient to provide a motivation to combine and the Examiner’s
“baseless allegation that blowers are common” is insufficient to explain why
one would have modified Reese in view of Miele. Appeal Br. 15–16; Reply
Br. 3–4. Appellant also argues that Reese’s boilerplate language regarding
additional components and variations in arrangement and type of
components is also insufficient to support a reason to combine. Appeal Br.
16–17; Reply Br. 5–6.
Appellant’s arguments are unpersuasive. Reese discloses controlling
temperature and humidity in a baking compartment to proof dough. Reese
¶ 4. Reese’s process includes operating a first blower to move gas into a
baking compartment and, after at least partially proofing, operating a second
blower to exhaust gas from the baking compartment. Id. Reese discloses
blower 61, which may be arranged according to Greenwood’s disclosure, to
function as the first blower. Id. ¶ 35. In that regard, Greenwood discloses a
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water injection system to deliver water to a blower so the water may be
dispersed within an air conduit system and cooking chamber. Greenwood
7:14–18. Reese further discloses venting system 103 that includes fan 113
to exhaust gas from Reese’s cooking chamber. Reese ¶ 41. Reese teaches
that it may be desirable to vent the cooking chamber via fan 113 to prepare
for a baking cycle when a high-humidity operation (e.g., proofing) is
finished because having air with lower relative humidity in the cooking
chamber would require less energy to heat. Id.
Miele discloses using a fan or blower to blow fresh air into the
cooking chamber of a cooking appliance to rapidly and efficiently cool the
cooking chamber. Miele ¶ 12. Miele states this can result in a significantly
higher pressure. Id. ¶ 14. Miele further discloses that the blower can be
used to dehumidify the cooking chamber. Id. ¶ 20. Miele teaches an
opening through which hot air from the cooking chamber can be discharged,
which can be the cooking chamber opening or another opening, such as an
opening lateral to the cooking chamber or behind it. Id. ¶ 22.
The substitution of one known element for another would have been
obvious when the combination yields no more than a predictable result. KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). The Examiner’s
rationale does not rest merely on the Examiner’s findings that Reese and
Miele are both directed to methods of baking food, that cooking ovens were
known to include a blower for injecting ambient air into an oven cavity for
cooling and/or dehumidifying (which Miele teaches), and that Reese
permitted the use of additional components or variations in components.
Rather, the Examiner further expounds that Reese teaches venting its
cooking chamber when a high humidity operation is finished, Miele
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discloses a blower for dehumidifying an oven cavity, and it would have been
a predictable result to substitute Miele’s blower for Reese’s outlet vent fan
113 to perform dehumidification, as both references teach. Ans. 7–8. In
other words, the Examiner’s obviousness rationale relies on the well-
established principle that, for an improvement to be patentable, it must be
more than the predictable use of prior art elements according to their
established functions. KSR, 550 U.S. at 417.
Appellant further argues that the proposed combination would have
changed Reese’s principle of operation because Reese’s fan pulls gas out of
Reese’s cooking chamber and lowers pressure within Reese’s baking
compartment, whereas the recited secondary blower injects air into a baking
compartment and increases pressure within that compartment. Appeal Br.
17–20 (citing Deming Declaration ¶¶ 15–18); Reply Br. 6–9. Appellant also
contends that Miele teaches away from the proposed combination because
Miele describes increasing humidity as an undesirable step. Appeal Br. 20–
21; Reply Br. 9–10. These arguments are also unpersuasive because Reese
teaches venting humid air from its cooking chamber prior to baking and an
advantage for doing so. Reese ¶¶ 4, 41 (describing actively venting humid
air from the chamber before baking and the desirability for doing this
because less relative humidity requires less energy to heat the gas in the
chamber to the baking temperature). Although Reese accomplishes this via
suction and decreased pressure, modifying Reese to use Miele’s blower to
inject air and create positive pressure to dehumidify Reese’s cooking
chamber does not change Reese’s overall operation and objective of
removing humid air from its cooking chamber. Even though Miele teaches
humidity is undesirable because it can cause deterioration of cooking results,
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Miele ¶ 7, Reese teaches venting humid air prior to baking, as discussed
above. Therefore, Miele does not teach away from the Examiner’s proposed
combination.
In addition, Appellant asserts “the blower as taught in Miele,
operating at the disclosed flow rates, would not be able to overcome the
convection fan in Reese (i.e., the primary blower) to effectively urge
relatively humid air to exit the baking compartment to the atmosphere.”
Appeal Br. 20 (citing Deming Declaration ¶¶ 36–43). To the extent this
argument refers to Reese’s vent fan 113, this argument is unpersuasive
because the Examiner’s rejection substitutes Miele’s blower for Reese’s fan
113. Non-Final Act. 8. To the extent Appellant is contending that Miele’s
blower could not overcome Reese’s blower 61, adjusting the flow rates of
blower 61 to achieve the venting Reese describes would have been well
within the ordinary skill in the art. KSR, 550 U.S. at 421 (“A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”).6
In view of the foregoing, Appellant does not identify a reversible error
in the Examiner’s rejection of claims 13–20, 23, 24, 27–34, and 37–39.

6 Further, we note that the Deming Declaration does not sufficiently support
an argument that Miele’s blower could not overcome Reese’s blower 61
because the Deming Declaration fails to explain what flow rate Reese’s
blower 61 has and why the flow rate of blower 61 would overcome Miele’s
blower. Instead, the statement set forth in the Deming Declaration appears
to be “based on an assumption that a fan having the low flow rate disclosed
in Miele would not generate sufficient static pressure to overcome the static
pressure generated by the convection fan of Reese.” Deming Declaration
¶ 42.
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Claims 22 and 36
Claim 22 depends from claim 13 and recites “wherein operating a
secondary blower further comprises cycling the secondary blower to replace
a number of volumes of air within the baking compartment to ensure that the
humidity of the baking compartment is decreased from the first humidity to
a baking humidity.” Appeal Br. 39 (Claims App’x). Claim 36 depends from
claim 27 and recites similar limitations. Id. at 42.
Appellant contends that “[t]he rejection fails to show that expelled air
volumes would or even could ‘ensure that the humidity of the baking
compartment is decreased from the first humidity to a baking humidity’”
because the rejection does not consider this limitation. Reply Br. 12–15.
This argument is unpersuasive because the Examiner finds that Reese
teaches the removal of humid air prior to baking via its vent fan. Ans. 3.
Further, claims 22 and 36 do not limit “a number of volumes of air” that are
replaced. Accordingly, the limitation encompasses any “number of volumes
of air,” including fractions of a volume of air. As a result, Appellant does
not identify a reversible error in the rejection of claims 22 and 36.
Claim 25
Claim 25 depends from claim 13 and recites “further comprising a
step of discontinuing the operation of the secondary blower before the step
of heating the baking compartment to bake the food product is performed.”
Appeal Br. 39 (Claims App’x).
Appellant asserts the Examiner does not show that Reese and Miele
teach “discontinuing the operation of the secondary blower before the step of
heating the baking compartment to bake the food product is performed.”
Reply Br. 15. Appellant further argues that Reese discloses running its
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blower 61 during baking and that this is beneficial to maintain a recipe set
point temperature. Id. at 15–16.
Appellant’s arguments are unpersuasive. The Examiner’s rejection
relies on Reese’s blower 61 as corresponding to the first blower of claims 13
and 25, not as corresponding to the secondary blower. Ans. 6. Further, the
Examiner provides a rationale for modifying Reese to stop operation of the
secondary blower (i.e., Miele’s blower substituted for Reese’s fan 113),
which appears to be based upon the nature of the problem itself or the
knowledge of one of ordinary skill in the art (i.e., that continuing to run the
secondary blower during heating would waste energy). See Ans. 4. A
reason to combine “need not be found in the references sought to be
combined, but may be found in any number of sources, including common
knowledge, the prior art as a whole, or the nature of the problem itself.”
DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1360 (Fed. Cir. 2006). Therefore, Appellant’s arguments do not
identify a reversible error in the rejection of claims 13 and 25.
Claims 26 and 40
For claims 26 and 40, Appellant cites the arguments set forth for the
rejection of claims 13 and 27. Reply Br. 16–17. As discussed above, those
arguments do not identify a reversible error in the rejection of claims 13 and
27. As a result, Appellant’s arguments for claims 26 and 40 are not
persuasive.
Accordingly, we affirm the Examiner’s rejection of claims 13–20, 22–
34, and 36–40 under 35 U.S.C. § 103 over Reese, Miele, and Greenwood.
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Rejection over Reese, Miele, Greenwood, and Helm
The Examiner rejects claims 21 and 35 under 35 U.S.C. § 103 as
unpatentable over Reese, Miele, Greenwood, and Helm. Non-Final Act. 5–
6; Ans. 10–11.
Claim 21 depends from claim 20, which depends from claim 13, and
recites “wherein the baking device further comprises a flapper configured to
prevent a flow of air from within an air handling compartment of the baking
device into the secondary blower, the method further comprising providing,
by the controller, a signal to open the flapper prior to operating the
secondary blower.” Appeal Br. 38–39 (Claims App’x). Claim 35 ultimately
depends from claim 27 and recites similar limitations. Id. at 42.
Appellant argues “the examiner fails to point to any mention in Helm
that the valve prevents a flow of air out of the device” or that the valve
controls the flow of air into a supply channel. Appeal Br. 21–22. Appellant
further asserts that “[a]s claimed, a valve prevents a flow of air out of the
device (‘a flapper configured to prevent a flow of air from within an air
handling compartment of the baking device’).” Reply Br. 11.
Appellant’s arguments are unpersuasive. Claim 21 recites “comprises
a flapper configured to prevent a flow of air from within an air handling
compartment of the baking device into the secondary blower.” Claim 35
includes a similar limitation. Clearly, the flapper, secondary blower, and air
handling compartment are part of the baking device and the flapper is
configured to prevent a flow of air from the air handling compartment into
the secondary blower. Claims 21 and 35 do not require that the flapper
valve prevents a flow of air out of the baking device, as Appellant appears to
argue. In any event, as the Examiner finds, Helm discloses a flapper valve
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that controls a flow of air to Helm’s fan 9. Ans. 10, 18; Helm ¶ 41.
Moreover, Miele discloses butterfly-valve contraption 16 that prevents a
flow of air from Miele’s cooking chamber 2 to Miele’s blower 20. Miele
¶ 42. Miele’s description of a butterfly-valve device appears to correspond
to how a flapper valve functions. Compare id. ¶ 18, with Spec. ¶ 21. Thus,
Miele also discloses a valve configured to prevent a flow of air from within
an air handling compartment of a baking device into a blower.
Accordingly, we affirm the Examiner’s rejection of claims 21 and 35
under § 103 over Reese, Miele, Greenwood, and Helm.
CONCLUSION
We affirm the Examiner’s rejections of claims 13–40 under 35 U.S.C.
§ 103.
In summary:
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
13–20, 22–
34, 36–40
103 Reese, Miele,
Greenwood
13–20, 22–
34, 36–40

21, 35 103 Reese, Miele,
Greenwood, Helm
21, 35
Overall
Outcome
13–40

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED