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 .
Response to Amendment
Claims 1, 2, 4, 6, and 7 are amended. No claims are canceled. No claims are added. As a result, claims 1-8 remain under consideration.
The amendment to claim 1 obviates the previously indicated objection.
The amendment to claim 4 obviates the previously indicated objection.
The amendment to claim 6 obviates the previously indicated objection.
The amendment to claim 7 obviates the previously indicated objection.
Further grounds of rejection, necessitated by the amendment, are presented herein.
Response to Arguments
Applicant's arguments filed 3/5/2026 have been fully considered but they are not persuasive.
Applicant contends that :
“In Newman, the fan operates to push smoke through tubing to an external container. The fan therefore does not move smoke from a receptacle into a smoking chamber that is integrated with the base of the apparatus.” See Remarks, page 4.
“… Neuman discloses an ignition plate and ignition chamber for heating materials. The heating structure is not a receptacle recessed into the base as required by the claim.” See Remarks, page 5.
“In Neuman, smoke generated by the device is delivered through tubing to a separate external food package that is not part of the smoker device itself. For example, Neuman explains that smoke produced in the ignition chamber is pushed through tubing and into a food package containing food. Thus, Neuman's smoking chamber is not part of the apparatus structure but instead is an external container. Because Neuman requires a separate food container external to the smoker device, Neuman does not disclose a smoking chamber that forms part of the claimed apparatus.” See Remarks, page 5.
Regarding applicant’s attempts to define the structure of the invention using the instant disclosure (i.e. “the smoking chamber that is integrated with the base of the apparatus” and “the food package that is not part of the smoker device itself”), the Examiner respectfully disagrees. The Appellant is reminded that it is the language of the claims what defines the patentable subject matter, not the detailed description of the invention or the drawings. Reading a claim in light of the specification, to thereby interpret limitations explicitly recited in the claim, is quite different from reading limitations of the specification into a claim, to thereby narrow the scope of the claim by implicitly adding disclosed limitations which have no express basis in the language of the claim. In re Prater, 162 USPQ 541 (CCPA 1969).
In this case, claim 1 recites “a smoking chamber coupled to the base”, the claim language “coupled” simply means “joined or connected” under broadest reasonable interpretation and thus does not require the smoking chamber to be “integrated with the base.” As shown in Newman, Fig. 7 the food package 702, which corresponds with the claimed smoking chamber, is coupled with the smoker body 104 via the tubing 706. The fan 720 of Newman is configured to move smoke from ignition chamber 108 through the tubing 706 that couples the food package 702 (smoking chamber) to the smoker body 104, via the inlet vent 710 (smoke injection port). Therefore Newman meets the claim limitation as written.
Regarding “the heating structure is not a receptacle recessed into the base”, the applicant is respectfully advised that claims in a pending application should be given their broadest reasonable interpretation. In re Pearson, 181 USPQ 641 (CCPA 1974). See also In re American Academy of Science Tech Center, 70 USPQ2d. 1827 (Fed. Cir. May 13, 2004). MPEP § 2111.01.
In this case, Newman’s ignition plate 110 is a cup shaped curved surface to facilitate receiving and holding materials, which fulfills the definition of a receptacle, and the ignition chamber 102 itself resides in a hollow casing of the smoker body 104 shown in Fig. 7, which fulfills the definition of “recessed.” As previously noted by the Examiner, a “recess” is broadly defined as “a hidden, secret or secluded place or part, an indentation, cleft or alcove.” As such, Newman’s cup shaped ignition plate meant to receive and hold materials, housed inside the ignition chamber depicted as a hollow casing part of the smoker body meets the claim limitation as written.
For reasons detailed herein, the Examiner maintains, based on the preponderance of evidence, that the rejections of claims 1-8 under 35 USC 102 and 103 are proper.
Claim Objections
Claim 2 is objected to because of the following informalities: the claim “the tubular” lacks antecedent basis and the term “tubular” describes a characteristic of a structure but not a structure itself. The phrase should be amended to read “the tube.”
Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Neuman, US Patent Publication No. 20220046936 A1.
Claim 1. Neuman discloses a smoking apparatus for smoking edible substances, the smoking apparatus comprising (Neuman, Abstract):
a base; a smoking chamber coupled with the base; (Neuman, [0036] “FIG. 7 depicts… the coupling of the smoker 100 to a food package 702 containing food 704 to be cold smoked” where the “smoker 100” as disclosed by Neuman is functionally the “base” as claimed and the “food package 702” as disclosed by Neuman is functionally the “smoking chamber” as claimed.)
a receptacle recessed into the base and configured to contain combustible material for production of smoke; and (Neuman, Fig. 2 and [0018] “Ignition chamber 108 is releasably coupled to smoker body 104 in order to allow materials to be placed on ignition plate 110 which is used to heat materials 112 placed thereon” the ignition plate 110 corresponds to the claimed receptacle which lies on the ignition chamber 102, together they define a hollow region or cavity within the smoker base 100. The definition of a "recess" is defined as “a hidden, secret or secluded place or part, an indentation, cleft or alcove” by merriam-webster.com, therefore the hollow region of the ignition chamber which houses the ignition plate within the base fulfills the definition of "recess"; and Fig. 2 shows material 112 which may be “natural wood chips, herbs, spices, or a blend” (see [0038]) placed on the ignition plate 110 for the production of smoke.)
a fan adjacent the receptacle recessed into the base and configured to move the smoke from the receptacle through a smoke injection port into the smoking chamber. (Neuman, Fig. 7 depicts fan contained in base; [0040] “The fan 720 pushes the smoke through smoke vent 120, through tube 706 or manifold/series of ducting, and into food package 702.”; [0036] “Tubing tip 708 is inserted into an inlet vent 710 in the food packaging.” The inlet vent 710 as taught by Neuman is functionally the “smoke injection port” as claimed.)
Claim 2. Neuman discloses the smoking apparatus of claim 1 further comprising:
a fan compartment recessed into a bottom side of the base and configured to contain the fan and; (Neuman, [0041] “FIG. 8 depicts an exploded view of fan housing 802”; [0042] “FIG. 9 depicts a bottom view of smoker base 602… A fan opening 904 is provided in smoker base 602 to allow fan 720 to suck in air to fan housing 802.”)
a tube coupled with the fan compartment and the smoke injection port, the tubular configured to route the smoke to from the fan compartment to the smoke injection port. (Neuman, [0044] “In another embodiment, the fan 720 may be placed above the ignition plate 10 suck/pull the smoke upward and into smoke vent 120”; [0040] “The smoke vent is connected to tube 706, at the end of which the tubing tip 708; [0036] Tubing tip 708 is inserted into an inlet vent 710”. The tube 706 as disclosed by Neuman is functionally the “tubular” as claimed, and the inlet vent 710 as disclosed by Neuman is functionally the “smoke injection port” as claimed.)
Claim 5. Neuman discloses the smoking apparatus of claim 1 further comprising:
a switch to activate the fan. (Neuman, [0040] “the blower fan 720 can be powered on using a switch 204.”)
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Neuman, US Patent Publication No. 20220046936 A1 in view of Fisher, US Patent Publication No. 20160183722 A1.
Claim 3. Neuman discloses the smoking apparatus of claim 2 further comprising.
Neuman does not explicitly disclose a battery compartment recessed in the bottom side of the base and a battery in the battery compartment configured to supply power to the fan.
Fisher discloses a battery compartment recessed in the bottom side of the base; and a battery in the battery compartment and configured to supply power to the fan. (Fisher, [0018] “The fan, impeller or pump may be battery powered. In this embodiment, a battery recess may be accessible from an underside of the apparatus (e.g. accessed via a door in the base to enable battery interchange).”)
Claim 4. Neuman discloses the smoking apparatus of claim 3 further comprising:
one or more wiring passageways recessed into the bottom side of the base and configured to provide a path for wiring connected to a switch, the battery, and the fan. (Neuman, Fig. 6 and 7 shows the smoker controls 106 of which various controls and displays for the ignition plate 110 and the fan 720 are set into the base. For these components to perform their stated function, the existence of electrical wiring to connect the components together is necessary and inherently disclosed. This physical arrangement of being set into the housing such that they do not protrude from the main surface of the device fulfills the definition of a "recess" defined as “a hidden, secret or secluded place or part, an indentation, cleft or alcove” by merriam-webster.com.)
Claims 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Neuman, US Patent Publication No. 20220046936 A1 in view of Fisher, US Patent Publication No. 20160183722 A1, in further view of Nitta et al., US Patent Publication No. 20180325132 A1.
Claim 6. Neuman teaches a smoking apparatus comprising: (Neuman, Abstract)
a base including a smoke intake port configured to enable smoke to pass through the base into a smoking chamber (Neuman, [0036] “FIG. 7 depicts a cutaway view of smoker 100 showing the airflow path and the coupling of the smoker 100 to a food package 702 containing food 704 to be cold smoked” where the smoker 100 as disclosed by Neuman is functionally the “base” as claimed and the food package 702 as disclosed by Neuman is functionally the “smoking chamber” as claimed. “As depicted, a first end of tube 706 is coupled to tubing attachment 516. Tubing tip 708 is inserted into an inlet vent 710 in the food packaging.” The inlet vent 710 as disclosed by Neuman is functionally the “smoke intake port” as claimed.)
a receptacle recessed in the base and configured to contain a combustible material to produce the smoke; (Neuman, Fig. 2 and [0018] “Ignition chamber 108 is releasably coupled to smoker body 104 in order to allow materials to be placed on ignition plate 110 which is used to heat materials 112 placed thereon” where the ignition plate 110 corresponds to the claimed receptacle which lies on the ignition chamber 102 which is recessed into the smoker base 100. Fig. 2 shows material 112 which may be “natural wood chips, herbs, spices, or a blend” (see [0038]) placed on the ignition plate 110 for the production of smoke.)
a fan contained in a fan compartment recessed in a bottom side of the base, the fan configured to push the smoke through a first passage spanning from the fan compartment to a second passage through the smoke intake port into the smoking chamber; and (Neuman, [0043] “FIG. 7… the fan 720 is located directly below the ignition plate 110 as depicted to blow or push the smoke up from ignition plate 110 into smoke vent 120”; [0040] “The fan 720 pushes the smoke through smoke vent 120, through tube 706 or manifold/series of ducting, and into food package 702.”)
Neuman does not explicitly disclose the food package or smoking chamber as being on top of the base.
Nitta discloses on top of the base; (Nitta, [0038] “Smoke S generated in smoke generating chamber 16 is supplied to smoking chamber 14 through communication path 30. In the present exemplary embodiment, as illustrated in FIG. 2, communication path 30 is a tubular path extending in the height direction (Z-axis direction). Communication path 30 communicates smoke generating chamber 16 with smoking chamber 14 by connecting an opening formed in a ceiling surface of smoke generating chamber 16 and an opening formed in a bottom surface of smoking chamber 14.”)
Neuman and Nitta are analogous art because they both relate to foodstuff smoking devices.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine Neuman and Nitta to create a smoking device that is one self-contained unit by arranging the smoking chamber where food is to be smoked on top of the smoker body where smoke is generated. One of ordinary skill in the art would have been motivated to arrange the components in a vertical configuration because it is well-known in the art the basic scientific principle of natural convection that allows smoke and heat to rise. This is utilized widely in the art to ensure a more efficient and consistent delivery of smoke and heat to the food products.
Modified Neuman does not explicitly disclose a battery configured to provide power to the fan, a switch connected to the battery or the fan configured to cause the battery to provide power to the fan.
Fisher discloses a battery configured to provide power to the fan; (Fisher, [0018] The fan, impeller or pump may be battery powered. In this embodiment, a battery recess may be accessible from an underside of the apparatus (e.g. accessed via a door in the base to enable battery interchange)) and a switch connected to the battery and the fan and configured to cause the battery to provide the power to the fan. (Fisher, [0065] “The motor 53 can alternatively be a fixed speed motor and simply have an on/off button”; and [0066] “The motor 53 for the fan 52 is battery powered.”)
Neuman, Nitta and Fisher are analogous art because they relate to foodstuff smoking devices.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve the smoking apparatus as disclosed by Neuman with a battery power source as taught by Fisher in order to configure a more portable foodstuff smoking apparatus. One of ordinary skill in the art would have been motivated to apply this modification because an apparatus with a compact form and not reliant on a power supply designed to utilize a wall plug can be easily lifted and transported when in use or easily stored when not in use, allowing it to be used in locations without access to mains power such as camping.
It also would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine Neuman and Fisher in order to establish a means to control the battery powered fan. One of ordinary skill in the art would have been motivated to apply a switch control to a battery-operated fan because a switch provides a simple and convenient means for turning the fan on/off, thereby conserving battery life and providing necessary user control to the heat and smoke flavor being infused into the smoking chamber where the foodstuffs are being smoked.
Claim 7. Neuman discloses the smoking apparatus of claim 6 further including:
a heat source connected to the battery and the switch, the heat source configured to apply heat to the combustible material to produce the smoke. (Neuman, [0034] “In some embodiments, ignition plate 110 also comprises its own power control switch 204 for turning power on/off to ignition plate 110” where a power supply may be a battery.)
Although Neuman teaches a wall outlet power supply, Neuman also teaches that any size power supply can be utilized depending upon the requirements of a smoker (see Neuman [0033]). Fisher teaches using a battery to power parts of the smoker (see Fisher [0065]). It would be obvious to one of ordinary skill in the art to simply substitute a battery as an art recognized power supply as taught by Fisher to power a heat source, performing the same function of powering an electric heating element and the results of the substitution result would have been predictable.
Claim 8. Neuman discloses the smoking apparatus of claim 6.
wherein the heat source is configured to, when the switch is closed, provide heat to the combustible material and then cease provision of the heat. (Neuman, [0035] “Smoker 100 further comprises breaker 606 which can turn off power to ignition plate 110, smoker controls 106, or smoker 100. For example, breaker 100 may include an “Auto Off” feature which shuts smoker 100 it hasn't been used for a set period of time.”)
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRYSTENE NHELLE B MACEDA whose telephone number is (571)272-2380. The examiner can normally be reached M-Th 7:30a-5:00p.
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, Steven Crabb can be reached at (571) 270-5095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.B.M./Examiner, Art Unit 3761
/JUSTIN C DODSON/Primary Examiner, Art Unit 3761