DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Submission
This Office action is responsive to the amendment filed on February 28, 2025, which has been entered.
Claims Subject to Examination
Patent claims 1-17 and new claims 18-30 are subject to examination. Patent claims 1-3, 5-10, 12-13, 15 and 17 have been amended. Upon further consideration, the following new grounds of rejection are set forth.
Related Proceedings
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceed-ing in which Patent No. 10,292,531 is or was involved. These proceedings would include interferences, reissues, reexaminations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is mate-rial to patentability of the claims under consideration in this reissue appli-cation.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
Claim Interpretation
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. As such, independent claims 1, 10, 15, 18, 24 and 26 will be addressed with respect to the limitation “directly below” within each claim. As understood by one of ordinary skill in the art, the phrase “directly below” will be interpreted to mean the wood pellet heat source is positioned in a “straight and vertical line, exactly underneath” a burner of the gas heat source. Furthermore, in its broadest reasonable interpretation, “directly below” is not interpreted to mean an unobstructed (i.e. with nothing between) arrangement between the gas heat source and wood pellet heat source. The interpretation is provided to avoid confusion and provide clarity on record with respect to the drawings and specification of the original patent.
Objections to Amendments — Formalities
The claim amendments filed on February 28, 2025are objected to as failing to comply with 37 CFR 1.173(b)(2), (d) and (g). Amended claims must show all changes made relative to the patent claims, with omitted text enclosed in single brackets, and added text underlined. New claims must be underlined in their entirety.
The claim amendments are improper because:
Amended claim 1 includes text with strikethrough (i.e. that defines). Omitted text must be enclosed in single brackets.
Applicant is required to place the amendments into compliance with 37 CFR 1.173(a)-(g) in response to this Office action.
Drawings
The drawings are objected to because Figure 1b appears to have incorrectly labeled “baffle 177” and “drip tray 179”. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 251
The following is a quotation of 35 U.S.C. 251:
(a) IN GENERAL.—Whenever any patent is, through error, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
PNG
media_image1.png
18
19
media_image1.png
Greyscale
(b) MULTIPLE REISSUED PATENTS.—The Director may issue several reissued patents for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued patents.
PNG
media_image1.png
18
19
media_image1.png
Greyscale
(c) APPLICABILITY OF THIS TITLE.—The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent or the application for the original patent was filed by the assignee of the entire interest.
PNG
media_image1.png
18
19
media_image1.png
Greyscale
(d) REISSUE PATENT ENLARGING SCOPE OF CLAIMS. No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.
GROUND 1: Claims 18-30 are rejected under 35 U.S.C. 251 as being an improper recapture of broadened claimed subject matter surrendered in the application for the patent upon which the present reissue is based. See Greenliant Systems, Inc. et al v. Xicor LLC, 692 F.3d 1261, 103 USPQ2d 1951 (Fed. Cir. 2012); In re Shahram Mostafazadeh and Joseph O. Smith, 643 F.3d 1353, 98 USPQ2d 1639 (Fed. Cir. 2011); North American Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 75 USPQ2d 1545 (Fed. Cir. 2005); Pannu v. Storz Instruments Inc., 258 F.3d 1366, 59 USPQ2d 1597 (Fed. Cir. 2001); Hester Industries, Inc. v. Stein, Inc., 142 F.3d 1472, 46 USPQ2d 1641 (Fed. Cir. 1998); In re Clement, 131 F.3d 1464, 45 USPQ2d 1161 (Fed. Cir. 1997); Ball Corp. v. United States, 729 F.2d 1429, 1436, 221 USPQ 289, 295 (Fed. Cir. 1984). See also MPEP 1412.02. A broadening aspect is present in the reissue which was not present in the application for patent. The record of the application for the patent shows that the broadening aspect (in the reissue) relates to claimed subject matter that applicant previously surrendered during the prosecution of the application. Accordingly, the narrow scope of the claims in the patent was not an error within the meaning of 35 U.S.C. 251, and the broader scope of claim subject matter surrendered in the application for the patent cannot be recaptured by the filing of the present reissue application.
We apply the recapture rule as a three-step process:
(1) first, we determine whether, and in what respect, the reissue claims are broader in scope than the original patent claims;
(2) next, we determine whether the broader aspects of the reissue claims relate to subject matter surrendered in the original prosecution; and
(3) finally, we determine whether the reissue claims were materially narrowed in other respects, so that the claims may not have been enlarged, and hence avoid the recapture rule.
Step 1: As seen in the below, claims 18, 24 and 26 of the instant reissue application are broader in scope than patent claims 1, 10 and 15 for at least the following reasons:
As amended on 2/14/19 in underlying application 16/001921 and subsequently allowed (US 10292631), original patent claims 1, 10 and 15 recite:
Claim 1. A cooking device, comprising:
a housing assembly that defines a single integrated cooking volume including two or more portions;
a cooking structure having a cooking surface that is arranged for placement of a foodstuff, the cooking surface being disposed at a boundary between two of the portions;
a gas heat source positioned in the integrated cooking volume, the gas heat source including two or more burners, positioned a first distance from the cooking structure in a first direction, each of the two or more burners heating one portion of two or more overlapping portion of the cooking structures such that the first heat source is distributed across the cooking structure and arranged to directly heat all of the cooking structure and to heat the cooking volume; and
a wood pellet heat source positioned in a central portion of the integrated cooking volume directly below gas heat source such that the wood pellet heat source is disposed a second distance from the cooking structure in only the first direction, the second distance being greater than the first distance such the gas heat source and the wood pellet heat source are in a stacked configuration, the wood pellet heat source being arranged to provide thermal energy indirectly to the cooking volume.
(Substantive additions underlined)
Claim 13 (original patent claim 10) A cooking device having a stacked arrangement, the cooking device comprising:
a housing assembly that defines a single integrated volume that includes a rectangular cross section, a lower portion, and a central portion that is above the lower portion;
a rectangular cooking structure having a cooking surface configured for placement of foodstuffs, the cooking structure being disposed in the central portion of the volume;
a gas heat source that is positioned in the lower portion of the integrated volume and disposed a first distance below the rectangular cooking structure, the gas heat source including two or more burners being arranged relative to the cooking structure such that the gas heat source is below substantially all of the rectangular cooking structure and directly heats all of the cooking structure; and
a wood pellet heat source that is positioned directly below one of the two or more burners of the gas heat source and in an interior part in the lower portion of the integrated volume, the wood pellet heat source being arranged to provide thermal energy indirectly to the cooking volume.
(Substantive additions underlined)
Claim 18 (original patent claim 15). A cooking device, comprising:
a housing assembly that defines a single integrated cooking volume that includes a rectangular cross section that is arranged to receive a cooking structure, a lower arched portion below the rectangular cross section, and an upper arched portion above the rectangular cross section;
a gas heat source that is positioned in the integrated cooking volume of the housing assembly, the gas heat source including two or more burners each heating one portion of two or more overlapping portions of the cooking structure such that a first thermal energy emitted from the two or more burners is distributed across of the rectangular cross section; and
a wood pellet heat source positioned in a central portion of the integrated cooking volume and disposed directly below one of the two or more burners of the gas heat source, the wood pellet heat source being arranged to provide a second thermal energy indirectly to the housing assembly.
(Substantive additions underlined)
New claims 18, 24 and 26 in the instant reissue application each recite “the wood pellet heat source positioned/disposed directly below the burners of the gas heat source” and fail to recite the wood pellet heat source as being “directly below one of the two or more burners of the gas heat source”. Furthermore, new claim 24 recites “the burners directly heating the foodstuff placed on the cooking surface when the gas heat source is being used” and new claim 26 recites “the burners providing direct heat to all the cooking surface when all the burners are being used” and thus each claim fails to recite “the gas source as directly heating all of the cooking structure”. Claim 26 also recites “a wood pellet heat source disposed in the single integrated cooking volume” and fails to recite a wood pellet heat source positioned in a central portion of the integrated cooking volume.
Thus, in comparing new claims 18, 24 and 26 of the instant reissue application, to patented claims 1, 10 and 15, it can be seen that the limitations requiring the wood pellet heat source as being “directly below one of the two or more burners of the gas heat source” and “the gas source as directly heating all of the cooking structure” is no longer required. It is clear that newly added claims 18, 24 and 26 are broader in scope than original patent Claims 1, 10 and 15, specifically with regard to the limitations cited above.
Step 2: It must be determined if the broader aspects of the reissue claims relate to subject matter surrendered in the original prosecution. If an original patent claim limitation now being omitted or broadened in the present reissue application was originally argued by applicant in the original application to make the claims overcome the art, the omitted limitation relates to subject matter previously surrendered by applicant. The reliance by applicant to define the original patent claims over the art can be by presentation of new/amended claims to define over the art, or an argument/statement by applicant that a limitation of the claim(s) defines over the art.
With respect to whether applicant surrendered any subject matter, it is to be noted that a patent owner (reissue applicant) is bound by the argument that applicant relied upon to overcome an art rejection in the original application for the patent to be reissued, regardless of whether the Office adopted the argument in allowing the claims. Greenliant Systems, Inc. v. Xicor LLC, 692 F.3d 1261, 1271, 103 USPQ2d 1951, 1958 (Fed. Cir. 2012). As pointed out by the court, “[i]t does not matter whether the examiner or the Board adopted a certain argument for allowance; the sole question is whether the argument was made.” Id.
During the original prosecution (Application No. 16/001921) the previous Examiner rejected the limitations of claim 1-2, 4-11 and 12-13 as being anticipated by Sauerwein et al. (US 2017/0164783) and dependent claim 3 in further view of Traeger et al. (US 4823684), claims 14-16, 18-20 in view of Kuntz (US 2010/0218754) and claims 17 in view Blomberg (US 2016/0374509). Applicant responded to the rejection on 2/14/19 by (i) narrowing the scope of independent claims 1, 13 and 18, (ii) canceling claims 3, 7-8, 11-12 and (iii) arguing that the amendments to independent claims 1, 13 and 18 defined over the prior art relied upon in the previous examiner’s rejections. Because of the amendments and arguments filed on 2/14/19, the previous examiner withdrew the prior art rejections in view of the newly added limitations (i.e. “directly heating all of the cooking structure” and “a wood pellet heat source positioned in a central portion of the integrated cooking volume directly below gas heat source such that the wood pellet heat source”) and issued the Notice of Allowability on 3/13/19.
The specific arguments, reproduced below, were presented by applicant in the 2/14/19 response (pages 9-12) and relied upon by applicant to overcome the rejections made in view of Sauerwein et al., Traeger et al., Kuntz and Blomberg:
PNG
media_image2.png
192
650
media_image2.png
Greyscale
PNG
media_image3.png
486
650
media_image3.png
Greyscale
PNG
media_image4.png
218
641
media_image4.png
Greyscale
Thus, during the original prosecution, applicant secured allowance of the claims by incorporating into the patent claims the subject matter set forth in the arguments reproduced above. Therefore, these limitations constitute surrender-generating limitations. As shown above, applicant specifically argued that the prior art fails to teach wherein the energy return members are formed from carbon fibers and lacks motivation to make the teaching combination to arrive at the cited claim language.
This claimed subject matter was specifically cited in applicant’s arguments and the amended claims, and was further summarized in applicant’s arguments by the assertions that “Accordingly, in Sauerwein, the burners 322, 324, and 326 are not “arranged to directly heat all of the cooking structure” as recited in amended claim 1 or similar features of claims 13 and 18. Instead, in Sauerwein there is a portion BB of the “cooking rack 310” under which no burner 322, 324, and 326 is positioned. The “smokebox or firebox 370” is positioned below this portion BB of the cooking rack 310. Thus, Sauerwein further fails to disclose, “a wood pellet heat source positioned in a central portion of the integrated cooking volume directly below gas heat source” as recited in amended claim 1 or similar feature of claims 13 and 18.” and “Accordingly, Applicants respectfully assert that Traeger fails to teach a “wood pellet heat source positioned in a central portion of the integrated cooking volume directly below gas heat source” as recited in amended claim 1 and similar portions of claims 13 and 18.” (emphasis added).
As shown above, the broader aspects of reissue claims 18, 24 and 26 relate to subject matter surrendered in the original prosecution because these claims fail to recite each of the surrender-generating limitations that were added to the patent claims and argued by the applicant in order to secure allowance during the earlier-concluded examination. Specifically, reissue claims 18, 24 and 26 no longer require the wood pellet heat source as being “directly below one of the two or more burners of the gas heat source” (claims 18, 24 and 26), “the gas source as directly heating all of the cooking structure” (claims 24 and 26) and the wood pellet heat source “positioned in a central portion” (claim 26).
Step 3: Lastly, it must be determined whether the reissue claims omit or broaden any limitation that was added or argued during the original prosecution to overcome an art rejection. Such an omission in a reissue claim, even if it is accompanied by other limitations making the reissue claim narrower than the patent claim in other aspects, is impermissible recapture. See Pannu v. Storz Instruments Inc., 258 F.3d at 1371-72, 59 USPQ2d at 1600. However, if the patentee modifies the added or argued limitation such that it is broader than the patented claim yet still materially narrows relative to the original claim, the recapture rule does not bar reissue. See In re Youman, 679 F.3d at 1346 n.4, 102 USPQ2d at 1870 n.4.
In this case, reissue claims 18, 24 and 26 violate the recapture rule because they omit the requirements that the wood pellet heat source is directly below one of the two or more burners of the gas heat source, the gas source directly heats all of the cooking structure and wood pellet heat source positioned in a central portion, which were added to the claims and specifically argued by applicant to secure allowance.
For the above reasons, claims 18, 24 and 26 of the instant reissue application improperly recapture broadened claimed subject matter surrendered in the application for the patent upon which the present reissue is based.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
GROUND 2: Claims 1-25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 1, 15, 18, 22 and 24 recite “a wood pellet heat source/pellet burner positioned in a central portion of the single integrated cooking volume” which is not supported by the specification and drawings of the original patent for which reissue is sought. Specifically, the original patent fails to disclose or illustrate a wood pellet heat source position within the central portion 206 of the housing assembly 102. The cooking device is disclosed as having a housing assembly 102 defining a single integrated cooking volume 110. The cooking volume is explicitly disclosed as including a first portion 202/210 (i.e. upper arched portion), a second portion 204/213 (i.e. lower arched portion) and a central portion 206/219 (i.e. middle rectangular portion), wherein the central portion is disposed between the first and second portion (See Figs. 1a-b, 2a-b and Cl. 11, Lines 24-67). The wood pellet heat source is disclosed, and clearly illustrated, as being positioned within the second portion 204, below the burners of the gas heat source (See Col. 10, Lines 38-40 and Col. 12, Lines 1-3). There is no disclosure that the wood pellet heat source may be located within the central portion 206 of the housing assembly as claimed. Applicant has previously cited Col. 10, Lines 38- 58 and Col.13, Lines 36-44 as support for the limitation, however the cited support recites a wood pellet heat source positioned in a middle part of the volume and a wood pellet burner positioned in a center of the housing assembly, respectively, not a central portion of the cooking volume as claimed. Appropriate clarification correction is required.
Claims 2-9, 16-17, 19-23 and 25 are rejected as being necessarily dependent upon claims 1, 15, 20 and 24, respectively.
Claim 10 recites “a gas heat source that is positioned in the lower portion of the single integrated cooking volume” which is not supported by the specification and drawings of the original patent for which reissue is sought. Similar to the argument presented above, there is no disclosure that the gas heat source may be located within the lower portion 204 of the housing assembly as claimed. Rather the gas heat source is disclosed, and clearly illustrated, as being positioned within the central portion 206, located above the wood pellet heat source (See Col. 12, Lines 1-3). Appropriate clarification correction is required.
Claims 11-14 are rejected as being necessarily dependent upon claim 10.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
GROUND 3: Claims 1-14 and 16-30 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “a wood pellet heat source positioned in a central portion of the integrated cooking volume directly below gas heat source” which leads to confusion as the positioning of the wood pellet heat source in view of the gas heat source including “two or more burners”. The wood pellet heat source cannot be positioned “directly below” all of the burners as claimed, but rather is illustrated and disclosed as being positioned directly below (i.e. within a straight and vertical line, exactly underneath) a single, central burner of the gas heat source. As illustrated in Figure 3 of the original patent, the wood pellet heat source is not “directly below” either of the “side burners”. Claims 16, 18, 24, 26 and 29 recite similar limitations, and fail to define the wood pellet heat source being positioned with respect to a single burner of the gas heat source. Appropriate clarification correction is required.
Claims 2-9, 17, 19-23, 25 and 27-30 are rejected as being necessarily dependent upon claims 1, 16, 18, 24 and 26, respectively.
Claim 2 recites the limitation “the cooking volume including two or more portions, the two or more portions include a first portion, a second portion, and a central portion that is disposed between the first portion and the second portion; the gas heat source is disposed in the central portion of the cooking volume; and the wood pellet heat source is disposed in the second portion of the cooking volume" which leads to confusion for the following reasons. First, there is insufficient antecedent basis for the limitation, “the cooking volume including two or more portions”, in line 2 of the claim. Second, the cooking portion is defined to have two or more portions, including “a central portion”, which leads to confusion if this “central portion” is referring to the same “central portion” defined in claim 1 or an additional “central portion” of the cooking volume. Lastly, it is unclear where the gas heat source and wood pellet source are actually disposed, as the limitations contradict claim 1. For example, it is unclear how “the gas heat source is disposed in the central portion of the cooking volume” which would mean it is in the same “central portion” as the wood pellet heat source, as recited in claim 1. The limitation, “the wood pellet heat source is disposed in the second portion of the cooking volume”, results in the wood pellet heat source being disposed in both the “central portion” (see claim 1) and the “second portion” of the cooking volume. Appropriate clarification correction is required.
Claim 3 recites the limitation “a vent opening connects the vent conduit to a first portion of the cooking volume” which leads to confusion if the “first portion” within the claim is referring to the same “first portion” defined in claim 2, or an additional “first portion” of the cooking volume. Appropriate clarification correction is required.
Claim 10 recites “a gas heat source positioned in the lower portion of the single integrated cooking volume” and “a wood pellet heat source that is positioned directly below one of the two or more burners of the gas heat source and in an interior part in the lower portion of the single integrated cooking volume” which leads to confusion as to how the wood pellet heat source is positioned below the gas heat source within the lower portion of the cooking volume. Figure 3 illustrates lower potion 204, which does not appear to have adequate space for both the wood pellet heat source and the gas heat source as claimed. Appropriate clarification correction is required.
Claims 11-14 are rejected as being necessarily dependent upon claim 10.
Claim 11 recites “the lower portion of the volume is defined by an arced lower portion of the housing assembly and includes a substantially rectangular cross-section at an upper end that substantially corresponds to a footprint of the cooking structure; and the volume further comprises an upper portion that includes an arc boundary defined at least partially by an upper lid that is rotatably connected to the housing assembly” which leads to confusion if the “rectangular cross-section” and “upper portion” within the claim are referring to the same “rectangular cross-section” and “upper portion defined in claim 10, or an additional “rectangular cross-section” and “upper portion” of the cooking volume. Likewise, claim 13 recites “the gas heat source is configurable to bring the upper portion of the volume” which leads to confusion over which “upper portion” is being referred to, the “upper portion” defined within claim 10 or the “upper portion” defined within claim 11. Appropriate clarification correction is required.
Claims 12-14 are rejected as being necessarily dependent upon claim 11.
Claim 17 recites the limitation "the housing assembly" in line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim 28 recites the limitation "a wood pellet burner of the wood pellet heat source" in lines 1-2 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
GROUND 4: Claim(s) 1-7, 9-10 and 15-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2017/0164783 to Sauerwein et al. in view of U.S. Patent No. 7,793,649 to Barkhouse et al.
In regard to claims 1, 10, 15, 18, 20, 22, 24, 26 and 29, Sauerwein et al. disclose a cooking device, comprising: a housing assembly 100 defining that defines a single integrated cooking volume 305, the single integrated cooking volume defined by a single structure (see Figs. 1-3); a cooking structure 310 having a cooking surface that is arranged for placement of a foodstuff, the cooking surface being disposed in the single integrated cooking volume (see para 0038); a gas heat source positioned in the single integrated cooking volume, the gas heat source including two or more burners 322, 324, 326, positioned a first distance from the cooking structure in a first direction, each of the two or more burners heating one portion of two or more overlapping portions of the cooking structure such that heat from the gas heat source is distributed across the cooking structure and directly heats all the cooking structure when the gas heat source is being (see paras 0039-0040); and a wood pellet heat source 370 positioned in a central portion of the single integrated cooking volume below the gas heat source such that the wood pellet heat source is disposed a second distance from the cooking structure in only the first direction, the second distance being greater than the first distance (see Fig. 5 and para 0045), the wood pellet heat source providing indirect heat to the foodstuff placed on the cooking structure when the wood pellet heat source is being used (see Figs. 3 and paras 0040-0041). With further regard to claim 10, Sauerwein et al. disclose a housing assembly comprising a rectangular cross section 110, 210, a lower portion (i.e. portion below drain pan 345), disposed below the rectangular cross section, a central portion (i.e. portion between grate 310 and drain pan 345), disposed above the lower portion, and an upper portion (i.e. portion from top 345 to grate) disposed above the rectangular cross section (See Figs. 1-3). Sauerwein et al. disclose “a plurality of gas burners in a spaced apart relationship along at least half of the length of the cooking chamber” (see paras 0017-0018) but are silent with respect to explicitly disclosing the wood pellet heat source being positioned directly below the gas heat source (i.e. one of the burners thereof), such that the gas heat source and the wood pellet heat source are in a stacked configuration. It is noted, Sauerwein et al. explicitly disclose “more than these two exemplary heat sources may be provided in a single unit” with regard to the disclosed gas and wood pellet heat sources (See para 0007). Barkhouse et al. disclose an analogous grill device comprising a plurality of gas burners 86, 88, 90, 179 positioned along the entire length of the grill, thus ensuring direct heating to the entire cooking structure of the grill (See Figs. 6-7 and Col. 14, Lines 41-67). Additionally, Barkhouse et al. disclose an infrared burner 178 may be employed alone or in conjunction with any other number of burners or additional infrared burners and placed at any convenient location (see Figs. 19-20 and Col. 20, Lines 4-21). It is well known to a person of ordinary skill in the art (POSITA), that infrared burners are capable of achieving much higher temperatures, at a much quicker rate, than a standard gas burner. Thus, it would have been obvious to a POSITA at the time the invention was filed to provide an additional burner (preferably an infrared burner) above the wood pellet heat source of Sauerwein et al. to create different heating zones within the grill that are capable of heating the entire cooking structure at various operating temperatures as desired, to thereby increase the versatility of the grill, as taught by Barkhouse et al.
It is noted, with respect to the wood pellet heat source being “positioned in a central portion of the single integrated cooking volume”, the wood pellet heat source 370 of Sauerwein et al. is illustrated as being positioned at a “central portion” along the width (i.e. from front to back) of the housing assembly. While the “central portion” is defined and disclosed within the original patent (see Col. 11, Lines 24-67), the current claims fail to positively define the location of the “central portion” with respect to the housing assembly and/or cooking volume. Furthermore, as discussed above under GROUND 2, if the definition of “central portion” is interpreted as defined within the original patent, the claims fail to comply with the written description requirement.
In regard to claim 2, Sauerwein et al. disclose a cooking device, wherein:
the cooking volume including two or more portions, the two or more portions include a first portion (i.e. portion from top 345 to grate), a second portion (i.e. portion below drain pan 345), and a central portion (i.e. portion between grate and drain pan) that is disposed between the first portion and the second portion; the gas heat source is disposed in the central portion of the cooking volume; and the wood pellet heat source is disposed in the second portion of the cooking volume (see Figs. 3 and 5 and paras 0044-0045).
In regard to claims 3, 19 and 27, Sauerwein et al. disclose a cooking device, further comprising: a baffle 380 that is disposed between the gas heat source and the wood pellet heat source, the baffle being configured to direct at least a portion of the thermal energy produced by the wood pellet heat source to outer portions of the cooking volume (see para 0041); and a vent conduit, wherein: a vent opening 160 connects the vent conduit to a first portion of the cooking volume; and the vent conduit connects the first portion of the cooking volume to an ambient environment (See Fig. 3 and para 0035).
In regard to claim 4, Sauerwein et al. disclose a cooking device, wherein: the gas heat source is arranged to heat the cooking structure at least partially via convection such that the cooking structure provides thermal energy at least partially via conduction to the foodstuff placed on the cooking surface; and the wood pellet heat source is arranged to heat the cooking volume at least partially via convection (See Fig. 3 and paras 0005-0008, 0041).
In regard to claims 5, 16, 21 and 25, Sauerwein et al. disclose a cooking device, wherein the gas heat source and the wood pellet heat source are usable independently and usable concurrently such that the cooking volume is heatable by the gas heat source, the wood pellet heat source, or a combination of the gas heat source and the wood pellet heat source (see paras 0040-0041).
In regard to claim 6, Sauerwein et al. disclose a cooking device, wherein: the gas heat source includes a gas grill and the gas grill includes one or more valves 152, 154, 156 (See Fig. 1 and para 0036); and the wood pellet heat source includes a wood pellet burner 370 (see Fig. 3 and para 0041).
In regard to claims 7 and 17, Sauerwein et al. disclose a cooking device, further comprising a wood pellet reservoir 130 that is mechanically coupled to the housing assembly of the cooking device (see Fig. 1), wherein: the wood pellet burner is configured to receive wood pellets from the wood pellet reservoir; and an auger 360 is positioned at a lower portion of the wood pellet reservoir, the auger configured to feed wood pellets to the wood pellet burner (See Fig. 3 and para 0041).
In regard to claims 9, 23 and 30, Sauerwein et al. disclose a cooking device, further comprising: a baffle /375380 that is sized to be separate from inner surfaces of the housing assembly of the cooking device such that heat from the wood pellet heat source may be transferred from the wood pellet heat source around the baffle and towards an upper portion of the single integrated cooking volume (see para 0041); and a drip tray 345 configured to collect fluids dripping from foodstuffs, the drip tray being angled relative to the baffle such that the fluids proceed down the drip tray and exit the housing assembly (see para 0045); wherein the baffle and the drip tray are positioned between the gas heat source and the wood pellet heat sources (See Figs. 3-6).
In regard to claim 28, Sauerwein et al. disclose a cooking device, wherein a wood pellet burner 370 of the wood pellet heat source is disposed in a middle part of the integrated cooking volume (See Fig. 3). With respect to the wood pellet burner being “positioned in a middle part of the single integrated cooking volume”, the wood pellet heat source 370 of Sauerwein et al. is illustrated as being positioned at a “middle part” along the width (i.e. from front to back) of the housing assembly. As broadly as claimed, Sauerwein et al. meet the current limitations of the cited claim.
GROUND 5: Claim(s) 8 and 11-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2017/0164783 to Sauerwein et al. in view of U.S. Patent No. 7,793,649 to Barkhouse et al. in further view of U.S. Patent No. 11,206,948 to Meason et al.
In regard to claims 8 and 11, Sauerwein et al. and Barkhouse et al. disclose a cooking device wherein the housing assembly comprises a rectangular including a first portion, second portion and central portion, with a gas heat source and wood pellet source positioned therein (See rejections above) but are silent with respect to wherein the housing assembly includes a lower arched portion is disposed below the rectangular cross section, and an upper arched portion is disposed above the rectangular cross section. Measom et al. teach of an analogous cooking device comprising arced upper and lower portions that sandwich a central portion having a rectangular cross-section (See Figs. 1-2 and 4-6). It would have been obvious to a POSITA at the time the invention was filed to modify the cooking device of Sauerwein to include arched upper and lower portions for better heat distribution throughout the cooking volume as taught by Meason et al. and is well known to a POSITA. Furthermore, a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
In regard to claim 12, Sauerwein et al. disclose a cooking device, further comprising a wood pellet reservoir 130 that is mechanically coupled to the housing assembly, wherein: an automatic pellet feed subsystem is configured to feed fuel to the wood pellet heat source; an auger 360 is configured to feed wood pellets to a cylindrical structure of the wood pellet heat source; and the auger is positioned at a lower portion of the wood pellet reservoir (See Fig. 3 and para 0041).
In regard to claim 13, Sauerwein et al. disclose a cooking device, wherein: the gas heat source is controlled by one or more valves 152, 154, 156 (See Fig. 1 and para 0036); gas heat source and the wood pellet heat source are usable independently and usable concurrently; and the gas heat source is configurable to bring the upper portion of the volume to a particular temperature at a first rate that is greater than a second rate at which the wood pellet heat source is capable of heating the upper portion of the volume to the particular temperature (See Fig. 3 and paras 0005-0008, 0041).
In regard to claim 14, Sauerwein et al. disclose a cooking device, further comprising a lower door 170 that provides access to the lower portion of the volume, wherein: the lower door is rotatably coupled to the housing assembly at a lower housing end; the lower door is configurable in an open position in which the wood pellet heat source is accessible; and the lower door is configurable in a closed position in which the volume is substantially sealed relative to an ambient environment (see Fig. 1 and para 0035).
Response to Arguments
Applicant's remarks and amendments filed 2/28/25, have been fully considered and will be addressed as follows with respect to the previously presented claim interpretations and rejections:
35 USC § 112(a) – claim rejections:
In view of the amendments submitted 2/28/25, the rejection of claims 26-30 as failing to comply with the written description requirement (i.e. center integrated cooking volume”) is withdrawn.
It is noted, claims 1-25 are newly rejected under new GROUND 2 above, as failing to comply with the written description requirement
35 USC § 112(b) – claim rejections:
In view of the amendments submitted 2/28/25, the rejection of claims 7, 15 and 26-30 as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention is withdrawn.
It is noted, claims 1-14 and 16-30 are rejected under new GROUND 3 above, for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
35 USC § 103 claim rejections:
In view of the amendments submitted 2/28/25, the rejection of claims 1-2, 4-5, 8, 10-11, 13-16, 18, 20-22, 24-26 and 28-29 as being unpatentable over Williams in view of Gagas is withdrawn.
New Rejections:
As noted above, the rejections set forth in the previous Non-Final Office Action have been withdrawn and the claims are now rejected under new GROUNDS 1-5.
Amendments in Reissue Applications
Applicant is notified that any subsequent amendment to the specification, claims or drawings must comply with 37 CFR 1.173(b)-(g). In addition, for reissue applications filed before September 16, 2012, when any substantive amendment is filed in the reissue application, which amendment otherwise places the reissue application in condition for allowance, a supplemental oath/declaration will be required. See MPEP § 1414.01.
The provisions of 37 CFR 1.173(b)(1), (d), (f) and (g) govern amendments to the specification (other than the claims) in reissue applications. The following guidance is provided as to the procedure for amending the specification:
a) All amendments which include deletions or additions must be made by submission of the entire text of each added or rewritten paragraph containing the bracketing and/or underlining required by 37 CFR 1.173(d).
b) An entire paragraph of specification text may be deleted by a statement deleting the paragraph without presentation of the text of the paragraph.
c) Applicant must indicate the precise point where each amendment is made.
d) All bracketing and underlining is made in comparison to the original patent, not in comparison to any prior amendment in the reissue application. Thus, all paragraphs which are newly added to the specification of the original patent must be submitted as completely underlined each time they are re-submitted in the reissue application.
The provisions of 37 CFR 1.173(b)(2), (c)-(e) and (g) govern amendments to the claims in reissue applications. The following guidance is provided as to the procedure for amending the claims:
a) For each claim that is being amended, the entire text of the claim must be presented with the bracketing and/or underlining required by 37 CFR 1.173(d).
b) For each new claim added to the reissue, the entire text of the added claim must be presented completely underlined.
c) A patent claim should be canceled by a direction to cancel that claim. There is no need to present the patent claim surrounded by brackets.
d) A new claim (previously added in the reissue) should be canceled by a direction to cancel that claim.
e) Pursuant to 37 CFR 1.173(b)(2), each claim that is amended or added should include the appropriate status indicator following the claim number, e.g., “(amended)”, “(twice amended)”, “(new)”, and “(canceled)”.
f) Pursuant to 37 CFR 1.173(c), each amendment submitted must set forth the status of all patent claims and all added claims as of the date of the submission. The status to be set forth is whether the claim is pending or canceled.
g) Also pursuant to 37 CFR 1.173(c), each claim amendment must be accompanied by an explanation of the support in the patent’s disclosure for all changes made in the claim(s), whether insertions or deletions.
h) Pursuant to 37 CFR 1.173(e), original patent claims are never to be renumbered. A patent claim retains its number even if it is canceled in the reissue proceeding, and the numbering of any added claims must begin after the last original patent claim.
i) Pursuant to 37 CFR 1.173(g), all bracketing and underlining is made in comparison to the original patent, not in comparison to any prior amendment in the reissue application.
The provisions of 37 CFR 1.173(b)(3) govern amendments to the drawings in reissue applications. The following guidance is provided as to the procedure for amending drawings:
a) Amending the original or printed patent drawing sheets by physically changing or altering them is not permitted.
b) Where a change to the drawings is desired, applicant must submit a replacement sheet for each sheet of drawings containing a figure to be revised. Any replacement sheet must comply with 37 CFR 1.84 and include all of the figures appearing on the original version of the sheet, even if only one figure is being amended. Each figure that is amended must be identified by placing the word “Amended” at the bottom of that figure. Any added figure must be identified as “New”. In the event that a figure is canceled, the figure must be identified as “Canceled” and also surrounded by brackets.
c) All changes to the figure(s) must be explained, in detail, beginning on a separate sheet which accompanies the papers including the amendment to the drawings.
d) If desired, applicant may include a marked-up copy of any amended drawing figure, including annotations indicating the changes made. Such a marked-up copy must be clearly labeled as “Annotated Marked-up Drawings”, and it must be presented in the amendment or remarks section that explains the change to the drawings.
Failure to fully comply with 37 CFR 1.173(b)-(g) will generally result in a notification to applicant that an amendment before final rejection is not completely responsive. Such an amendment after final rejection will not be entered.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW J KASZTEJNA whose telephone number is (571)272-6086. The examiner can normally be reached M-F, 7AM--3PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eileen Lillis can be reached on 571-272-6928. The fax phone numb