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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 5/15/2023 and 5/29/2025 have been considered by the examiner.
Drawings
The drawings are objected to because Fig. 1 includes portions where it appears that parts of the figure are missing. Please see the annotated drawing below, with the portions at issue circled. 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.
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Applicant’s Fig. 1, annotated
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
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. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “base unit” in claim 18.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
Applicant’s filed specification describes the base unit as follows: “The base unit 26 is plate-shaped. … The heating element is arranged on a lower face 26a of the base unit 26” [0056]. Therefore, the base unit will be interpreted as a plate-shaped base on which the heating element is arranged, or equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claims 12 – 17 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Park (US 7,183,520) in view of Klement (DE 3246445).
Regarding claim 12, Park discloses a cooking appliance (“oven” with “cooking spaces” [Abstract]), comprising:
a housing having a cooking chamber with a cooking chamber divider slide-in level (Fig. 1, housing / “inner case 13” comprises “cooking chamber 11” [Col. 2, lines 61-62] with cooking chamber divider slide-in level / “mounting parts 17” [Col. 3, lines 12-13]);
a plate-shaped cooking chamber divider (Fig. 1, “partition 16” [Col. 2, line 7]) designed for positioning on the cooking chamber divider slide-in level (Fig. 1 and Col. 3, lines 5-16]) to divide the cooking chamber into an upper cooking chamber region (Fig. 1, “first cooking chamber 11a” [Col. 3, lines 5-6]) and into a lower cooking chamber region (Fig. 1, “second cooking chamber 11b” [Col. 3, line 6]), with the upper cooking region positioned at a height which is higher than a height of the lower cooking region (Fig. 1), said upper cooking chamber region having a cooking food support slide-in level (Fig. 1, “shelf supporting members 19a” [Col. 3, lines 21-22]; and
a cooking food support (Fig. 1, food shelf 18a [Col. 3, line 17]) different from the cooking chamber divider (Fig. 1, partition 16) and configured for insertion into the cooking food support slide-in level in the upper cooking chamber region (Fig. 1).
Park does not expressly disclose wherein, when viewed in a height direction of the cooking appliance, a distance between an upper face of the cooking chamber divider, when inserted into the cooking chamber divider slide-in level, and an upper face of the cooking food support when inserted into the cooking food support slide-in level is between 10 mm and 30 mm, and/or
wherein the cooking appliance further comprises a heating element fixedly arranged in the upper cooking chamber region and embodied as a top-heat and/or grill heating body, with a distance, when viewed in the height direction of the cooking appliance, between the upper face of the cooking food support, when inserted into the cooking food support slide-in level, and the heating element in the upper cooking chamber region and/or an upper rim of a boundary flange which defines a loading opening of the cooking chamber is between 160 mm and 210 mm.
Klement is directed to an oven [0003]. Klement discloses wherein a cooking appliance further comprises a heating element (Fig. 4, “heating element 4” ([0013] of attached translation) fixedly arranged (“Grill heater 4 permanently installed” [0015]) in a cooking chamber and embodied as a top-heat and/or grill heating body (Fig. 4), with a distance, when viewed in the height direction of the cooking appliance, between the upper face of a cooking food support (Fig. 4, cooking food support / “cooking tray 18” [0015]), when inserted into a cooking food support slide-in level (“supports 8” [0015]), and the heating element (Fig. 4, heating element 4) in the cooking chamber region and/or an upper rim of a boundary flange which defines a loading opening of the cooking chamber is adjustable
Klement does not expressly disclose wherein the distance is between 160 mm and 210 mm.
However, Klement describes wherein the distance between the food and the heating element can be adjust as follows: “The cooking support, designed as a rack or pan, can be hung at different heights in the oven's cooking chamber, whereby different cooking results can be obtained by changing the height” [0004]; “the distances between the heating elements and the food being cooked can be selected in such a way as to obtain optimal roasting results” [0005]; “It is possible to place the heating elements so close to the food being cooked that even a very low amount of heating energy is sufficient to achieve the best possible cooking results” [0008].
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the cooking appliance further comprises a heating element fixedly arranged in the upper cooking chamber region and embodied as a top-heat and/or grill heating body, with a distance, when viewed in the height direction of the cooking appliance, between the upper face of the cooking food support, when inserted into the cooking food support slide-in level, and the heating element in the upper cooking chamber region and/or an upper rim of a boundary flange which defines a loading opening of the cooking chamber is between 160 mm and 210 mm. The inclusion of a heating element as a top-heat and/or grill heating body allows for grilling/broiling food, resulting in a cooked food that can be toasted, with more heat being applied to the food. Additionally, Klement describes that the distance between the heating element and the food to be cooked affects the results. One of ordinary skill in the art would understand that when the heating element is relatively close to the food, the food will receive relatively more heat, and thus will be cooked differently compared to when the heating element is relatively far from the food. Regarding the claimed range of between 160 mm and 210 mm, the courts have held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. MPEP § 2144.05-II-A.
Regarding claim 13, Park / Klement do not expressly disclose wherein the distance between the upper face of the cooking chamber divider (Fig. 1, partition 16) and the upper face of the cooking food support (Fig. 1, food shelf 18a) is between 19 mm and 24 mm.
However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the distance between the upper face of the cooking chamber divider and the upper face of the cooking food support is between 19 mm and 24 mm, since the courts have held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. MPEP § 2144.05-II-A.
Additionally, it is noted that claim 13 depends from claim 12, and claim 12 recites:
“when viewed in a height direction of the cooking appliance, a distance between an upper face of the cooking chamber divider, when inserted into the cooking chamber divider slide-in level, and an upper face of the cooking food support when inserted into the cooking food support slide-in level is between 10 mm and 30 mm, and/or
wherein the cooking appliance further comprises a heating element fixedly arranged in the upper cooking chamber region and embodied as a top-heat and/or grill heating body, with a distance, when viewed in the height direction of the cooking appliance, between the upper face of the cooking food support, when inserted into the cooking food support slide-in level, and the heating element in the upper cooking chamber region and/or an upper rim of a boundary flange which defines a loading opening of the cooking chamber is between 160 mm and 210 mm.”
Accordingly, the limitation of claim 13 can be read as an optional limitation. That is, when combining claim 13 with claim 12, the above limitation of claim 12 becomes:
“when viewed in a height direction of the cooking appliance, a distance between an upper face of the cooking chamber divider, when inserted into the cooking chamber divider slide-in level, and an upper face of the cooking food support when inserted into the cooking food support slide-in level is between 19 mm and 24 mm, and/or
wherein the cooking appliance further comprises a heating element fixedly arranged in the upper cooking chamber region and embodied as a top-heat and/or grill heating body, with a distance, when viewed in the height direction of the cooking appliance, between the upper face of the cooking food support, when inserted into the cooking food support slide-in level, and the heating element in the upper cooking chamber region and/or an upper rim of a boundary flange which defines a loading opening of the cooking chamber is between 160 mm and 210 mm.”
The term “and/or” above indicates that only one of the two limitations above is required to be disclosed in the prior art / obvious over the prior art to reject the claim.
Regarding claim 14, Park / Klement do not expressly disclose wherein the distance between the upper face of the cooking food support and the heating element in the upper cooking chamber region and/or the upper rim of the boundary flange is between 166 mm and 189 mm.
However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the distance between the upper face of the cooking food support and the heating element in the upper cooking chamber region and/or the upper rim of the boundary flange is between 166 mm and 189 mm. As described in the rejection of claim 12, Klement describes that the distance between the heating element and the food to be cooked affects the results. One of ordinary skill in the art would understand that when the heating element is relatively close to the food, the food will receive relatively more heat, and thus will be cooked differently compared to when the heating element is relatively far from the food. Regarding the claimed range of between 166 mm and 189 mm, the courts have held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. MPEP § 2144.05-II-A.
Regarding claim 15, Park discloses a hot air system (Figs. 1 and 2, hot air system includes “first circulating fan 22a” [Col. 3, line 33]) configured to conduct hot air into the cooking chamber (Figs. 1 and 2, air is heated by “first heater 23a” [Col. 3, line 32] and circulated by fan 22a); and
a wall defining the cooking chamber and having ventilation openings through which the hot air of the hot air system is conducted into the cooking chamber (Figs. 1 and 2, the rear wall has “suction holes 26a” and “discharge holes 27a” for circulating hot air [Col. 3, lines 43-48]), with the ventilation openings arranged only above the cooking chamber divider slide-in level, when viewed in the height direction of the cooking appliance (while there are ventilation openings 26b and 27b that are below the cooking chamber divider slide-in level, these are separate ventilation openings; the cooking chamber divider / partition 16 insulates upper cooking chamber 11a from lower cooking chamber 11b, such that hot air flowing into the upper cooking chamber does not circulate to the lower cooking chamber; “partition 16 is made of an insulating member, and an insulating unit is mounted at the side walls of the inner case 13 between the first cooking chamber 11a and the second cooking chamber 11b (the side walls of the inner case). As a result, heat transfer along the partition 16 and the side walls 13a of the inner case 13 between the first and second cooking chambers 11a and 11b is minimized” [Col. 4, lines 12-19]).
Regarding claim 16, Park discloses wherein the hot air system (Figs. 1 and 2, hot air system includes “first circulating fan 22a” [Col. 3, line 33]) acts only in the upper cooking chamber region when it is activated and when the cooking chamber divider is inserted into the cooking chamber divider slide-in level (as described in the rejection of claim 15, partition 16 insulates upper cooking chamber 11a from lower cooking chamber 11b; Figs. 1 and 2 show wherein the hot air system including fan 22a acts only in upper cooking chamber 11a when partition 16 is inserted).
Regarding claim 17, Park discloses wherein the cooking chamber has at least two of said cooking food support slide-in level arranged at different heights (Fig. 1, “shelf supporting members 19a and 19b” [Col. 3, lines 21-22]) and supplied with hot air at a same time by the hot air system, when the cooking chamber divider is removed from the cooking chamber (Figs. 1 and 2 show wherein when partition 16 is removed from the cooking chamber, hot air circulated by fan 22a will flow to both upper chamber 11a and lower chamber 11b).
Regarding claim 23, Park discloses wherein the cooking chamber is divided by the cooking chamber divider (Fig. 1, partition 16) such that in one of the upper (Fig. 1, upper chamber 11a) and lower (Fig. 1, lower chamber 11b) cooking chamber regions a first type of heating is implementable and at a same time in the other one of the upper and lower cooking chamber regions a second type of heating is implementable and is different from the first type of heating, wherein the first and second types of heating in the upper and lower cooking chamber regions do not influence, or substantially do not influence, one another (the first type of heating can be a high-temperature type of heating, and the second type of heating can be a low-temperature type of heating; the cooking chamber divider / partition 16 insulates upper cooking chamber 11a from lower cooking chamber 11b, such that the first and second types of heating substantially do not influence one another; “ When it is necessary to cook food simultaneously in both the first and second cooking chambers 11a and 11b under different temperature conditions, power sources applied to the first and second heaters 23a and 23b are separately controlled such that the interior temperature of the first cooking chamber 11a is different from that of the second cooking chamber 11b” [Col. 3, line 65 – Col. 4, line 4]; “partition 16 is made of an insulating member, and an insulating unit is mounted at the side walls of the inner case 13 between the first cooking chamber 11a and the second cooking chamber 11b (the side walls of the inner case). As a result, heat transfer along the partition 16 and the side walls 13a of the inner case 13 between the first and second cooking chambers 11a and 11b is minimized” [Col. 4, lines 12-19]).
Claims 18 – 19 are rejected under 35 U.S.C. 103 as being unpatentable over Park (US 7,183,520) in view of Klement (DE 3246445), further in view of Rieser (DE 10 2010 030471).
Regarding claim 18, Park / KIement does not expressly disclose wherein the cooking chamber divider includes a base unit and a heating element arranged on the base unit and embodied as a top-heat heating body for the lower cooking chamber region when the cooking chamber divider is arranged in the cooking chamber divider slide-in level.
Rieser is directed to an oven [Title]. Rieser discloses wherein a cooking chamber divider includes a base unit and a heating element arranged on the base unit and embodied as a top-heat heating body for a lower cooking chamber region when the cooking chamber divider is arranged in a cooking chamber divider slide-in level (Fig. 2; “The oven has a cooking space (1) closed by an oven door, where the volume of the cooking space is reduced by horizontally covering the cooking space by individual heatable incorporation units. An insertable incorporation unit is inserted into the cooking space and is arranged in a cooking space divider element (5) that is provided with a wide heating element (7). The cooking space is divided into individual heatable neighboring cooking space regions (9, 10) by the divider element. The divider element is turnable around 180 degrees from a bearing axis in the cooking space” [Abstract]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the cooking chamber divider includes a base unit and a heating element arranged on the base unit and embodied as a top-heat heating body for the lower cooking chamber region when the cooking chamber divider is arranged in the cooking chamber divider slide-in level. This allows the lower cooking chamber to be heated with a top-heat heating body, thus allowing for grilling / broiling to be performed in the lower cooking chamber.
Regarding claim 19, Park / KIement does not expressly disclose wherein the cooking chamber divider includes a heating element embodied as a bottom-heat heating body for the upper cooking chamber region when the cooking chamber divider is arranged in the cooking chamber divider slide-in level.
Rieser discloses wherein a cooking chamber divider includes a heating element embodied as a bottom-heat heating body for an upper cooking chamber region when the cooking chamber divider is arranged in a cooking chamber divider slide-in level (Fig. 1; “The oven has a cooking space (1) closed by an oven door, where the volume of the cooking space is reduced by horizontally covering the cooking space by individual heatable incorporation units. An insertable incorporation unit is inserted into the cooking space and is arranged in a cooking space divider element (5) that is provided with a wide heating element (7). The cooking space is divided into individual heatable neighboring cooking space regions (9, 10) by the divider element. The divider element is turnable around 180 degrees from a bearing axis in the cooking space” [Abstract]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the cooking chamber divider includes a heating element embodied as a bottom-heat heating body for the upper cooking chamber region when the cooking chamber divider is arranged in the cooking chamber divider slide-in level. This allows the upper cooking chamber to have both an upper heating element and a lower heating element, to cook food in the upper cooking chamber as desired.
Claims 20 – 21 are rejected under 35 U.S.C. 103 as being unpatentable over Park (US 7,183,520) in view of Klement (DE 3246445), further in view of Cadima (US 8,803,045).
Regarding claim 20, Park does not expressly disclose wherein the height of the upper cooking chamber region is greater by at least 10% than the height of the lower cooking chamber region.
Cadima is directed to an oven comprising a divider [Abstract]. Cadima discloses wherein the height of an upper cooking chamber region is greater than the height of a lower cooking chamber region (Figs. 4 and 5 show wherein “a moveable oven divider 210” is positioned on supports 220-2 (Fig. 4) and 220-3 (Fig. 5); divider 210 can be “positioned on a support 220-1 through 220-n” [Col. 3, lines 44-46], thus allowing the height of the upper cooking chamber to be greater than the height of the lower cooking chamber, e.g., when the divider is positioned on support 220-n in Fig. 4 or 5).
While Cadima suggests that the height of the upper cooking chamber region is greater by at least 10% than the height of the lower cooking chamber region, when the divider is positioned on support 220-n in Fig. 4 or 5, Cadima does not expressly disclose wherein the height of the upper cooking chamber region is greater by at least 10% than the height of the lower cooking chamber region.
However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the height of the upper cooking chamber region is greater by at least 10% than the height of the lower cooking chamber region. Allowing the divider to be placed a different heights allows for customizing the height of each cooking chamber to accommodate different foods in each chamber. Additionally, the courts have held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. MPEP § 2144.05-II-A.
Regarding claim 21, Park does not expressly disclose wherein the height of the upper cooking chamber region is greater by between 10% and 30% than the height of the lower cooking chamber region.
Cadima discloses wherein the height of an upper cooking chamber region is greater than the height of a lower cooking chamber region (Figs. 4 and 5 show wherein “a moveable oven divider 210” is positioned on supports 220-2 (Fig. 4) and 220-3 (Fig. 5); divider 210 can be “positioned on a support 220-1 through 220-n” [Col. 3, lines 44-46], thus allowing the height of the upper cooking chamber to be greater than the height of the lower cooking chamber, e.g., when the divider is positioned on support 220-3 or 220-n in Fig. 4 or 5).
Cadima does not expressly disclose wherein the height of the upper cooking chamber region is greater by between 10% and 30% than the height of the lower cooking chamber region.
However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the height of the upper cooking chamber region is greater by between 10% and 30% than the height of the lower cooking chamber region. Allowing the divider to be placed a different heights allows for customizing the height of each cooking chamber to accommodate different foods in each chamber. Additionally, the courts have held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. MPEP § 2144.05-II-A.
Claims 22 and 24 – 25 are rejected under 35 U.S.C. 103 as being unpatentable over Park (US 7,183,520) in view of Klement (DE 3246445), further in view of Taplan et al. (US 2013/0327760).
Regarding claim 22, Park discloses a heating element fixedly arranged in the lower cooking chamber region (Fig. 2, “second heater 23b” [Col. 3, line 36]).
Park does not expressly disclose wherein the heating element fixedly arranged in the lower cooking chamber region is embodied as a bottom-heat heating body.
Taplan is directed to a heating element for an oven [Abstract]. Taplan discloses a heating element fixedly arranged in a lower cooking chamber region embodied as a bottom-heat heating body (Fig. 1b shows a lower cooking chamber 12b, wherein “bottom heating unit 17 is disposed at the bottom of baking space 12” [0039], [0040]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the heating element fixedly arranged in the lower cooking chamber region is embodied as a bottom-heat heating body. This is a known, alternative configuration for an oven heating element, applied to a known device, to yield predictable results.
Regarding claim 24, Park does not expressly disclose wherein the cooking chamber divider includes a heating element having electrical terminal contacts which automatically come into contact with electrical mating terminal contacts when the cooking chamber divider is inserted into an end position in the cooking chamber.
Taplan discloses wherein a cooking chamber divider includes a heating element (Figs. 1b and 3, “heating element 10 used as a baking-space divider” [0040]) having electrical terminal contacts (Figs. 2 and 3, “contacting means 30” and “plug contacts 32a, 32b and 32c” [0045]) which automatically come into contact with electrical mating terminal contacts (Fig. 3, contacts of plug receptacle 33, which connect to “[e]lectrical leads 31a and 31b” [0045]; “The contacting means 30 is disposed at the edge region 28 of the heating element 10 facing the inner back wall 13 of the baking space 12. The plug contacts 32a, 32b and 32c shown in FIG. 2 project in the direction onto the back wall 13 from the contacting means 30. When the heating element 10 is inserted, the plug contacts 32a, 32b and 32c are taken up in a corresponding plug receptacle 33 on the back wall 13 of the baking space 12. Electrical leads 31a and 31b lead from the plug receptacle 33 to the power supply and control device of baking oven 11” [0045]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the cooking chamber divider includes a heating element having electrical terminal contacts which automatically come into contact with electrical mating terminal contacts when the cooking chamber divider is inserted into an end position in the cooking chamber. This provides a power supply for a heating element that is part of the divider, which allows food to be cooked as desired in either/both cooking chamber(s).
Regarding claim 25, Park does not expressly disclose wherein the cooking chamber divider includes a heating element, said cooking chamber divider including support feet which in the height direction of the cooking appliance extend further downwardly than the heating element of the cooking chamber divider.
Taplan discloses wherein a cooking chamber divider includes a heating element (Figs. 1b and 3, “heating element 10 used as a baking-space divider” [0040]; Fig. 5 shows an embodiment 10a of the heating element / divider 10 [0050], wherein element 14 corresponds to the heating element of the divider: “flat electrical heating means 14” [0050]), said cooking chamber divider including support feet (Fig. 5, support feet / “lower frame part 26c” [0055]) which in the height direction of the cooking appliance (vertical direction in Fig. 5) extend further downwardly than the heating element (Fig. 5, element 14) of the cooking chamber divider.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the cooking chamber divider includes a heating element, said cooking chamber divider including support feet which in the height direction of the cooking appliance extend further downwardly than the heating element of the cooking chamber divider. The use of feet / lower frame parts allows for supporting the various portions of the divider, including the heating element and a base portion comprising thermal insulation and a metal plate (Fig. 5 of Taplan).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 12 and 14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 24 and 28, respectively, of copending Application No. 18/034,440 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 24 and 28 of copending Application No. 18/034,440 anticipate instant claims 12 and 14, respectively, as shown in the table below.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Instant application 18/035,962
Copending application 18/034,440
Claim 12. A cooking appliance, comprising:
a housing having a cooking chamber with a cooking chamber divider slide-in level;
a plate-shaped cooking chamber divider designed for positioning on the cooking chamber divider slide-in level to divide the cooking chamber into an upper cooking chamber region and into a lower cooking chamber region,
with the upper cooking region positioned at a height which is higher than a height of the lower cooking region (note: an upper region is necessarily at a height that is higher than a height of a lower region),
said upper cooking chamber region having a cooking food support slide-in level; and a cooking food support different from the cooking chamber divider and configured for insertion into the cooking food support slide-in level in the upper cooking chamber region,
wherein, when viewed in a height direction of the cooking appliance, a distance between an upper face of the cooking chamber divider, when inserted into the cooking chamber divider slide-in level, and an upper face of the cooking food support when inserted into the cooking food support slide-in level is between 10 mm and 30 mm, and/or
wherein the cooking appliance further comprises a heating element fixedly arranged in the upper cooking chamber region and embodied as a top-heat and/or grill heating body, with a distance, when viewed in the height direction of the cooking appliance, between the upper face of the cooking food support, when inserted into the cooking food support slide-in level, and the heating element in the upper cooking chamber region and/or an upper rim of a boundary flange which defines a loading opening of the cooking chamber is between 160 mm and 210 mm (note: given the “and/or” in this clause, the second limitation, reciting wherein the cooking appliance further comprises a heating element … between 160 mm and 210 mm, is not required).
Claim 16. A cooking appliance, comprising:
a housing having a cooking compartment including a cooking compartment divider slide-in level;
a plate-shaped cooking compartment divider designed for positioning in the cooking compartment on the cooking compartment divider slide-in level to divide the cooking compartment into an upper cooking compartment region and a lower cooking compartment region; ….
Claim 23. The cooking appliance of claim 16, wherein the upper cooking compartment region has at least one slide-in level for a carrier for food to be cooked, which carrier is different from the cooking compartment divider and positioned in the upper cooking compartment region at a distance from an upper side of the cooking compartment divider.
Claim 24. The cooking appliance of claim 23, wherein a distance, viewed in the height direction, between the upper side of the cooking compartment divider, when inserted into the cooking compartment divider slide-in level, and an upper side of the carrier when inserted into the slide-in level, is between 10mm and 30 mm.
Claim 14. The cooking appliance of claim 12, wherein the distance between the upper face of the cooking food support and the heating element in the upper cooking chamber region and/or the upper rim of the boundary flange is between 166 mm and 189 mm.
Claim 28. The cooking appliance of claim 24, further comprising a heating element arranged in a fixed manner in the upper cooking compartment region and embodied as a top-heat heating element and/or grill heating element. wherein a distance, viewed in the height direction, between the upper side of the carrier, when inserted into the slide-in level of the upper cooling compartment region, and the top-heat heating element and/or grill heating element in the upper cooling compartment region and/or an upper edge of a boundary flange, which delimits a loading opening of the cooking compartment, is between 166 mm and 189 mm.
Conclusion
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/ELIZABETH M KERR/Primary Examiner, Art Unit 3761