SEB S.A.

Patent Trials and Appeals Board

Sep 18, 2020

2019006128 (P.T.A.B. Sep. 18, 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.
14/785,478 10/19/2015 Olivier Delrue 7751-159992 3241
530 7590 09/18/2020
LERNER, DAVID, LITTENBERG,
KRUMHOLZ & MENTLIK
20 COMMERCE DRIVE
CRANFORD, NJ 07016
EXAMINER
SMITH, PRESTON
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
09/18/2020 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):
eOfficeAction@lernerdavid.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte OLIVIER DELRUE
and FRANÇOIS LETAIN
__________

Appeal 2019-006128
Application 14/785,478
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
DEBRA L. DENNETT, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134 the final rejection of claims
1–8 and 10–12. Claim 9 is withdrawn. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
We REVERSE.

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 SEB S.A.
(Appeal Br. 3).
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Application 14/785,478

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STATEMENT OF THE CASE
Appellant’s invention pertains to cooking methods for electric
cooking appliances, which include a stirring means arranged inside a food
reception means (Spec. ¶ 1). The Specification describes a cooking method
for electric appliances designed for mixing and cooking food in pieces, such
as fries or pieces of chicken (id. ¶ 2). The described electric appliances
comprise a stirring means positioned inside a chamber, which is arranged
inside a casing that encloses a hot air heating mechanism (id.). According to
the Specification, the stirring means and the chamber are designed to be set
into motion with respect to one another, so as to mix and stir the food and fat
inside the chamber (id.; Figs. 1–4).
Claim 1 is illustrative (emphasis added):
1. Cooking method for a food cooking appliance
comprising a reception means designed to receive the food, a
stirring means positioned inside the reception means, a side
obstacle positioned inside the reception means and which
extends over at least one portion of a side wall of the reception
means and which stems from a support attached to the reception
means and is connected to a handle means, and at least one
main heating means, the reception means and the stirring means
designed to move in relative rotation, the reception means
having a top opening, the appliance comprising a means of
controlling at least the relative rotation and at least one main
heating means, wherein the cooking method comprises:
[a] first cooking step during which the relative rotation
of the reception means and the stirring means is neutralized
and the at least one main heating means is controlled to
regulate the temperature to a first set-point value; and
[a] second cooking step during which the relative
rotation of the reception means and the stirring means is active
and the at least one main heating means is controlled to
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regulate the temperature to a second set-point value that is
greater than the first set-point value.
Appellant appeals the following rejections:
1. Claims 1, 5–8, and 10–12 are rejected under 35 U.S.C. § 103 as
unpatentable over Wolfe (US 2008/0257168 A1; published Oct. 23,
2008), in view of Breunig (US 2010/0183780 A1; published July 22,
2010), and further in view of Payen et al. (US 2008/0213447 A1;
published Sept. 4, 2008, “Payen”) (Final Act. 3–4).
2. Claims 2–4 are rejected under 35 U.S.C. § 103 as unpatentable
over Wolfe, in view of Breunig, Kearns et al. (US 4,963,708; issued
Oct. 16, 1990, “Kearns”), Xu et al. (US 2005/0011370 A1; published
Jan. 20, 2005, “Xu”), and further in view of Payen (Final Act. 4).
Appellant’s arguments focus on independent claims 1 and 10 (see
generally Appeal Br. 11–20; Reply Br. 2–11). We select claim 1 as
representative. 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, claims 2–8, 11,
and 12 will stand or fall with each of their respective independent claims.
FINDINGS OF FACT & ANALYSIS
A. Rejection of claims 1, 5–8, and 10–12 as unpatentable over Wolfe,
Breunig, and Payen
The Examiner’s findings and conclusions regarding Wolfe, Breunig,
and Payen are located on pages 3–4 of the Final Office Action. To resolve
the present appeal, we need only discuss these findings and conclusions with
respect to Wolfe and Breunig.
The Examiner finds that Wolfe teaches the features of the cooking
method of claim 1, but fails to teach, inter alia, “a first step wherein the
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stirring means is neutralized” (Final Act. 3). The Examiner finds Wolfe also
does not teach “a second step wherein” the stirring means “is activated [and]
. . . the second temperature is higher than the first” step’s temperature (id.).
The Examiner finds that Breunig teaches the limitations missing from
Wolfe (id.). In particular, the Examiner finds that Breunig “teaches a
computer implemented system for reducing the duration of a first process
step comprising a preheating step and cooking steps wherein the preheating
step is at a lower temperature than the cooking steps” (id.). The Examiner
concludes that it would have been obvious at the time of the invention to
have: (i) preheated Wolfe’s apparatus prior to food addition to improve the
efficiency of the cooking process, and (ii) programmed Wolfe’s apparatus to
keep the stirring mechanism inactive prior to food addition as this is
unnecessary during a preheating step (id.).
Appellant argues, inter alia, that the Examiner has failed to establish a
prima facie case of obviousness because Breunig does not teach or suggest
each limitation recited in the presently appealed claims (Appeal Br. 14).
Specifically, Appellant asserts that because Breunig’s preheating step “is
conducted prior to adding food and before initiating any cooking process[,]”
such a preheating step “is not a first cooking stage for heating food without
mixing or stirring,” as required by claim 1 (id.).
In response, the Examiner determines that the claim language does not
require the presence of food in the claimed “first cooking step” (Ans. 3).
According to the Examiner, Appellant’s arguments are not persuasive
because they are based on limitations that are not recited in claim 1 (id.).
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Appellant argues that the plain meaning of the disputed limitation,
when read in view of the Specification, requires that food is present in each
of the claimed cooking steps (Reply Br. 2–4).
The present appeal thus requires our interpretation of the language of
claim 1, particularly our construction of the term “cooking step.”
During prosecution, the PTO gives the language of the proposed
claims “the broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in the art, taking
into account whatever enlightenment by way of definitions or otherwise that
may be afforded by the written description contained in the applicant’s
specification.” In re Morris, 127 F.3d 1048, 1054–55 (Fed. Cir. 1997).
Appellant asserts that the claims should be read in a manner consistent
with the Specification, which describes “the first and second cooking steps
as steps for treating food.” Reply Br. 4 (emphasis added).
On this record, Appellant persuasively argues that paragraphs 4, 5, 28,
30, and 36–40 from the Specification describe that the first and second
cooking steps are food treatment steps (Reply Br. 3–4). As Appellant
argues, the Specification describes that, “‘[i]n the first step, the non-spinning
of the stirring means[] preserves the breading covering the food’” (id. at 3
(citing Spec. ¶ 28)). The Specification further describes a process of
cooking in which the first cooking step only occurs “after placing food into
the reception means” (Reply Br. 4 (citing Spec. ¶ 37)). We note that the
definition of the term “cook” is “to prepare food for eating[,] especially by
means of heat” (see Merriam-Webster’s Dictionary (Sept. 11, 2020),
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https://www.merriam-webster.com/dictionary/cook). Therefore, we find that
use of the term “cooking” in the context of claim 1’s limitations
[a] first cooking step during which . . . the stirring means is
neutralized and the at least one main heating means is
controlled to regulate the temperature to a first set-point value;
and [a] second cooking step during which . . . the at least one
main heating means is controlled to regulate the temperature to
a second set-point value that is greater than the first set-point
value
means that the recited steps require the presence of food.
In view of the instant written description, the Examiner’s conclusion
that claim 1 does not require food in the first cooking step impermissibly
reads the disputed limitation out of the claim.2 See Trading Techs. Int’l, v.
eSpeed, Inc., 595 F.3d 1340, 1352 (Fed. Cir. 2010) (holding that “the claims
‘must be read in view of the [S]pecification, of which they are a part.’”)
(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (en
banc), aff’d, 517 U.S. 370 (1996)).
The Examiner does not rely on Payen to cure the deficiency of
Breunig’s teachings. Therefore, we find that Appellant’s arguments have
identified reversible error in the Examiner’s combination of Wolfe and
Breunig to render claim 1 obvious. We express no opinion regarding

2 Under the Examiner’s incorrect construction, the claimed “second cooking
step” does not require the presence of food either. This construction renders
claim 1 meaningless. The Specification explicitly discloses that “[t]he
second step is the main cooking and browning phase for the breaded
food.” See Spec. ¶ 30 (emphasis added). A claim construction that excludes
the preferred embodiment is rarely, if ever, correct. InterDigital Commc’ns,
LLC v. U.S. Int’l Trade Comm’n, 690 F.3d 1318, 1326 (Fed. Cir. 2012)
(citing Pfizer, Inc. v. Teva Pharm., USA, Inc., 429 F.3d 1364, 1374 (Fed.
Cir. 2005); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed.
Cir. 1996)).
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Appellant’s other arguments for reversal of the Examiner’s rejection.
Accordingly, we reverse the rejection of claims 1, 5–8, and 10–12 for the
reasons set forth above.
B. Rejection of claims 2–4 as unpatentable over Wolfe, Breunig, Kearns,
Xu, and Payen
The Examiner’s findings and conclusions regarding Wolfe, Breunig,
Kearns, and Payen are located on page 4 of the Final Office Action.3
The Examiner does not rely on Kearns or Xu to cure the deficiency of
Breunig’s teachings. Accordingly, we reverse the rejection of claims 2–4 for
the reasons set forth above.
CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5–8, 10–
12 103
Wolfe, Breunig,
Payen
1, 5–8,
10–12
2–4 103 Wolfe, Breunig, Kearns, Xu, Payen 2–4
Overall
Outcome
1–8, 10–
12
REVERSED

3 Although the statement of the rejection includes Xu, the grounds for
rejecting claims 2–4 do not substantively apply any of Xu’s teachings to
render these claims obvious (Final Act. 4).