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 .
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1 and 3-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 and 7-20 of copending Application 18293318. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-4 and 7-20, specifically in addition to the Independent claims, claims 4, 7, 11 and 15-17, but for different language, fully encompass the limitations of claims 1-8 of the instant application. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1 and 3-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-14 and 16-20 of copending Application 18291924. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-3, 5-14 and 16-20, fully encompass the limitations of claims 1-8 of the instant application. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 112
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.
Claims 6 and 7 is 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 6 is rejected due to the phrase “third microwave heating power” and “third air frying heating power” since the phrases lack antecedent basis. It is unclear if the “third” powers require a previous second, if the phrases are with respect to the “third cooking time” or with respect to something different altogether.
Claim 7 is rejected due to the phrase “fourth microwave heating power” and “fourth air frying heating power” since the phrases lack antecedent basis. It is unclear if the “fourth” powers require a previous third, if the phrases are with respect to the “fourth cooking time” or with respect to something different altogether.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1 and 3-8 are rejected under 35 U.S.C. 103 as being unpatentable over Lim et al. (20160360578).
With respect to Independent claim 1, Lim teaches a control method for a cooking device, the cooking device comprising an air frying module (par. 0078) and a microwave module (par. 0075), the method comprising:
obtaining a characteristic parameter of a food material (par. 0112; kind of food; par. 0114 weight) and a cooking stage (par. 0112; fry-cooking “yes”; alternatively relative different weight of same food and/or different food cooking parameters, i.e. order of operation) of the cooking device (par. 0112; fry-cooking; par. 0116)
determining a cooking parameter (par. 0116 operation data; par. 0120 microwave power; par. 0122 preset temp; par., 0142 cooking time) of the cooking device according to the characteristic parameter of the food material (par. 0116, 0142); and
controlling at least one of the microwave module (par. 0195, 0197) and air frying module (par. 0197 convection) according to the cooking parameter and the cooking stage (par. 0195, 0197), to improve cooking speed of the food material (par. 0197 cooking speed relative cooking of surface of food material vs without; alternatively par. 0197 both convection and microwave i.e. surface and core heating in combination).
wherein the cooking parameter comprises a predetermined cooking temperature (par. 0197, 0198; 200C), total cooking time (fig. 25 Drumsticks t1+t2+t3), and total cooking power (par. 0195 relative power of singular stage; alternatively par. 0195 last 3 lines power of first + par. 0197 power of second stage + power of third stage)
wherein the cooking stage comprises a preheating stage (par. 0122 activated to reach preset target temperature, i.e. prior to preset target temperature of cavity attained par. 0195), a first temperature increasing stage during a first cooking time (par. 0195 microwave activation time; core), a second temperature increasing stage (par. 0195 surface temperature grill heating), a temperature maintaining stage during a third cooking time (par. 0197 last 2 lines convection operation time 200C; alternatively combination convection and microwave time), and a crusting and coloring stage during a forth cooking time (par. 0198 combination grill and convection cooking time)
Though silent to the cooking process comprising 4 cooking times, Lim teaches during a first cooking time concurrent heating, i.e. temperature increasing of both the core and the surface of the food during a cooking time. Lim teaches in order that the food is evenly cooked the user may be warned to turn the food over at intervals between cooking stages. It would have been obvious to one of ordinary skill in the art before the effective filing of the claimed invention to teach the first cooking stage comprising a second cooking time, such as in the instant case by providing an interval for the user to turn the food over during the first cooking stage thus achieving its art recognized purpose of providing a second temperature increasing stage such as after the food is turned over and achieving the art recognized advantage of further ensuring even cooking of the food as desired by Lim (par. 0158)
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to separate the concurrent heating during the first cooking stage into multiple cooking stages such as in the instant cooking time is not required to be shortened due to concurrent cooking as taught by Lim (par. 0136) thus achieving a same core cooking due to microwave cooking during a first cooking time and subsequent grill heating to achieve surface cooking as a second cooking time and achieving a same result prior to the second cooking stage.
Lim teaches cooking time is food and weight dependent (par. 0148) and since cooking time is dictated by a desired degree of cooking or surface cooking (par. 0126). It would have been obvious to one of ordinary skill in the before the effective filing date of the claimed invention to control the same microwave, grill heating and/or air frying modules of Lim such that the first cooking time is in a range of 10%t to 20%t, the second cooking time is in a range of 15%t to 25%t, the third cooking time is in a range of 25%t to 40%t, and the fourth cooking time is in a range of 30%t to 50%t. For its art recognized advantage of achieving a food dependent cooking and user desired texture by automatic cooking processes which heat the core of the food and cook the food to a texture and color as preset as taught by Lim (par. 0126; 0134).
In addition, it is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to control the same microwave, grill heating and/or air frying modules of Lim such that the first cooking time is in a range of 10%t to 20%t, the second cooking time is in a range of 15%t to 25%t, the third cooking time is in a range of 25%t to 40%t, and the fourth cooking time is in a range of 30%t to 50%t since given the teachings of Lim, one of skill in the art would have a reasonable expectation of success that through routine experimentation and the selection of cooking times based on its known suitability for its intended purpose of multi-stage cooking including a crusting and coloring stage.
Claim 3, wherein said controlling at least one of the microwave module and the air frying module according to the cooking parameter and the cooking stage comprises
Determining (par. 0136 activated to reach preset target temperature, i.e. prior to preset target temperature of cavity attained par. 0195) that a cooking temperature at the preheating stage is the predetermined cooking temperature in response to the cooking stage being the preheating stage (par. 0136 activated to reach preset target temperature, i.e. prior to preset target temperature of cavity attained par. 0195) and
controlling the air frying module to preheat the cooking device, such that a cavity temperature of the cooking device reaches the predetermined cooking temperature (par. 0136, fig. 18 first cooking stage with convection; fig. 25).
Claim 4, wherein said controlling at least one of the microwave module and the air frying module according to the cooking parameter and the cooking stage comprises,
determining that a cooking temperature at the first temperature increasing stage is a first cooking temperature in response to the cooking stage being the first temperature increasing stage (par. 0136), the first cooking temperature being smaller than or equal to the predetermined cooking temperature (par. 0125 maintain preset target temp)
allocating first microwave heating power and first air frying heating power to the microwave module and the air frying module according to the total cooking power (par. 0197) and
controlling the microwave module and the air frying module to continuously operate for first cooking time according to the first microwave power and the first air frying power (par. 0197; fig. 18, 25; par. 0125), respectively, to maintain a cavity temperature of the cooking device at the first cooking temperature (par. 0125).
Claim 5, wherein said controlling at least one of the microwave module and the air frying module according to the cooking parameter and the cooking stage comprises:
determining that a cooking temperature (par. 0197 200C) at the second temperature increasing stage is a second cooking temperature (par. 0125 preset target temp) in response to the cooking stage being the second temperature increasing stage (par. 0197), the second cooking temperature (par. 0125 relative temperature above/below 200C) being greater than or equal to the predetermined cooking temperature (par. 0125; equal, above) and smaller than a sum (par. 0125 200C) of the predetermined cooking temperature (par. 0197 200C) and a first temperature threshold (par. 0125 200C+0.01 (any temp above 200C)
allocating second microwave heating power and second air frying heating power to the microwave module and the air frying module according to the total cooking power (par. 0197) and
controlling the microwave module and the air frying module to continuously operate for second cooking time (par. 0197) according to the second microwave power (par. 0197 second micro heating) and the second air frying power (par. 0197; relative maintain temp), respectively, to maintain a cavity temperature of the cooking device at the second cooking temperature (par. 0197 200C).
With respect to claim 6, Lim teaches wherein said controlling at least one of the microwave module and the air frying module according to the cooking parameter and the cooking stage comprises:
determining that a cooking temperature at the temperature maintaining stage (par. 0197 last 2 lines convection operation time 200C; alternatively combination convection and microwave time) is a third cooking temperature in response to the cooking stage being the temperature maintaining stage (par. 0197 200C), the third cooking temperature being equal to the predetermined cooking temperature (par. 0197 200C) and smaller than or equal to a sum (par. 0125 200C) of the predetermined cooking temperature (par. 0197 200C) and a first temperature threshold (par. 0125 200C+0.01 (any temp above 200C)
allocating microwave heating power and air frying heating power to the microwave module and the air frying module according to the total cooking power (par. 0197)
controlling the microwave module and the air frying module to continuously operate for a cooking time according to a microwave power and the air frying power (par. 0197), respectively, to maintain a cavity temperature of the cooking device at the cooking temperature (par. 0197 200C).
Claim 7, wherein said controlling at least one of the microwave module and the air frying module according to the cooking parameter and the cooking stage comprises:
determining that a cooking temperature at the crusting and coloring stage is a cooking temperature in response to the cooking stage being the crusting and coloring stage (par. 0198 200C, 0126), the cooking temperature being equal to the predetermined cooking temperature (par. 0198 200C; par. 0126 predetermined) and smaller than or equal to a sum of the predetermined cooking temperature and a third temperature threshold (par. 0198 200C; 200C+.01)
allocating fourth microwave heating power (par. 0198; power 0) and fourth air frying heating power (par. 0198) to the microwave module and the air frying module according to the total cooking power (par. 0198; total as defined by air frying) and
controlling the microwave module and the air frying module to continuously operate for the cooking time according to the microwave power and the air frying power (par. 0198), respectively, to maintain a cavity temperature of the cooking device at the cooking temperature (par. 0198),
Though silent to a fourth cooking stage comprising microwave. Since Lim teaches a same combination cooking, since the type of cooking is food dependent and the operation being controlled by corresponding operation data (par. 0109), including core heating and since the determined food cooking stages include user input selection of food (par. 0116).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to control the same microwave and air frying modules of Lim during a fourth cooking stage for its art recognized advantage of achieving a food dependent cooking and user desired texture by automatic cooking processes which heat the core of the food and cook the food to a texture and color (par. 0126) as preset as taught by Lim (par. 0134)
It would have been obvious to one of ordinary skill in the art the time the invention was filed to further provide a fourth predetermined cooking stage such as in the instant case relative a flipping time of the food as taught by Lim (par. 0158) thus achieving a same desired cooking to a target degree and more specifically achieve even cooking due to turning the food over a plurality of times as taught by Lim (par. 0158).
In addition with respect to claims 6 and 7, since Lim teaches controlled and programmed sequence cooking, though silent to a third and fourth stage comprising both microwave and air frying. It is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case providing a number of cooking stages which achieves the desired core cooking and color, texture and taste in accordance with user desires and kind and weight of cooking materials as further taught (par. 0157-0158).
With respect to claim 8, the predetermined cooking temperature and the total cooking power are each determined based on the type of the food material (par. 0112), the predetermined cooking temperature is in a range of 140°C to 250°C (par. 0195) and
the total cooking time is determined based on the weight of the food material (par. 0114), and the total cooking time is in a range of 15min- 40min (par. 0195-0198).
Lim teaches a microwave heating unit for its art recognized and applicants intended purpose of core heating. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a total cooking power is in a range of 1200W - 1800W since the cooking power is device dependent, thus achieving a same desired microwave output for core cooking at a desired power using an inverter as a driving circuit as further taught by Lim (par. 0075) depending on weight and food type.
Response to Arguments
With respect to applicants urging directed to Lim. Though silent to all the claimed elements, Lim teaches a cooking device comprising multiple types of different heating units for achieving both a core and surface cooking. Lim teaches the order of operation, cooking times and heating unit types for cooking foods in multiple stages is both food type and weight dependent.
Lim teaches the cooking stage comprises a preheating stage (par. 0122 activated to reach preset target temperature, i.e. prior to preset target temperature of cavity attained par. 0195), a first temperature increasing stage during a first cooking time (par. 0195 microwave activation time; core), a second temperature increasing stage (par. 0195 surface temperature grill heating), a temperature maintaining stage during a third cooking time (par. 0197 last 2 lines convection operation time 200C; alternatively combination convection and microwave time), and a crusting and coloring stage during a forth cooking time (par. 0198 combination grill and convection cooking time)
Though silent to the cooking process comprising 4 cooking times, Lim teaches during a first cooking time concurrent heating, i.e. temperature increasing of both the core and the surface of the food during a cooking time. Lim teaches in order that the food is evenly cooked the user may be warned to turn the food over at intervals between cooking stages. It would have been obvious to one of ordinary skill in the art before the effective filing of the claimed invention to teach the first cooking stage comprising a second cooking time, such as in the instant case by providing an interval for the user to turn the food over during the first cooking stage thus achieving its art recognized purpose of providing a second temperature increasing stage such as after the food is turned over and achieving the art recognized advantage of further ensuring even cooking of the food as desired by Lim (par. 0158)
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to separate the concurrent heating during the first cooking stage into multiple cooking stages such as in the instant cooking time is not required to be shortened due to concurrent cooking as taught by Lim (par. 0136) thus achieving a same core cooking due to microwave cooking during a first cooking time and subsequent grill heating to achieve surface cooking as a second cooking time and achieving a same result prior to the second cooking stage.
Lim teaches cooking time is food and weight dependent (par. 0148) and since cooking time is dictated by a desired degree of cooking or surface cooking (par. 0126). It would have been obvious to one of ordinary skill in the before the effective filing date of the claimed invention to control the same microwave, grill heating and/or air frying modules of Lim such that the first cooking time is in a range of 10%t to 20%t, the second cooking time is in a range of 15%t to 25%t, the third cooking time is in a range of 25%t to 40%t, and the fourth cooking time is in a range of 30%t to 50%t. For its art recognized advantage of achieving a food dependent cooking and user desired texture by automatic cooking processes which heat the core of the food and cook the food to a texture and color as preset as taught by Lim (par. 0126; 0134).
In addition, it is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to control the same microwave, grill heating and/or air frying modules of Lim such that the first cooking time is in a range of 10%t to 20%t, the second cooking time is in a range of 15%t to 25%t, the third cooking time is in a range of 25%t to 40%t, and the fourth cooking time is in a range of 30%t to 50%t since given the teachings of Lim, one of skill in the art would have a reasonable expectation of success that through routine experimentation and the selection of cooking times based on its known suitability for its intended purpose of multi-stage cooking including a crusting and coloring stage.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN N LEFF whose telephone number is (571)272-6527. The examiner can normally be reached on M-F 8:30-5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571)270-34753475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN N LEFF/ Primary Examiner, Art Unit 1792
