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 .
Election/Restrictions
Claims 13-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected method of toaster conveyor speed control, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 08/19/26. The Applicant amended claims 13-20 were amended to include various structural limitations of claims 1-12. It is submitted that these amendments do not modify the Examiner’s submission of the initial restriction requirement.
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 1-12 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 transition state model and a toasting recipe that comprises a standard operating time”; it is unclear whether one or both of the aforementioned transition state model and toasting recipe relates to the standard operating time. Appropriate correction is required.
Claim 1 recites “a transition state model”; however, it is unclear what the aforementioned limitation relates to and/or is described as with no limitations provided related to what is “a transition state model”. Appropriate correction is required.
Claim 1 recites “a controller configured to receive a transition state model”; however, it is unclear what structure is providing the received transition state model. Appropriate correction is required.
The remaining claims are rejected for at least their direct and/or indirect dependency from independent claim 1.
Claim 4 recites “the transition state model is a first transition state model and further comprising a second transition state model”, it is unclear what structure is providing the first and second transition state models. Appropriate correction is required.
Claim 4 recites “the transition state model is a first transition state model and further comprising a second transition state model”, it is unclear what the aforementioned limitation relates to and/or is described as with no limitations provided related to what is “a first transition state model” and “a second transition state model”. Appropriate correction is required.
Claim 5 recites “the first transition state model is an increased output transition state model and the second transition state model is a decreased output transition state model”; however, it is unclear what structure is providing the increased output transition state model and the second transition state model.
Claim 5 recites “the first transition state model is an increased output transition state model and the second transition state model is a decreased output transition state model”; however, it is unclear what the aforementioned limitation relates to and/or is describes as with no limitations provided related to what is “an increased output transition state model” and “a decreased output transition state model”. Appropriate correction is required.
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 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Huegerich (US 2014/0199446) in view of Sheridan et al. (US 5,179,265).
With regard to claim1, Huegerich teaches a radiant toaster (100) for toasting a bread product in a toasting process (“some food items, such as bread, may require a predetermined temperature and conveyor speed”, para. [0005]), the toaster comprising: a conveyor (114); a heat source (122) arranged relative to the conveyor (114); a controller (130) to adapt a temperature and speed of the conveyor; however, Huegerich does not explicitly teach that the controller is configured to receive a transition state model and a toasting recipe that comprises a standard operation toasting time, wherein upon receipt of an instruction to change a heat output of the heat source to a new output, the controller operates the heat source to the new output and measures an elapsed time since the change to the new output, the controller further calculates a current transition state toast time by applying the standard operation toasting time and the elapsed time to the transition state model, and the controller is configured to operate the conveyor to a conveyor speed associated to the current transition state toast time. Notwithstanding the foregoing, it is submitted that as the instant claim is directed toward an apparatus, and as all of the structural limitations are taught by the prior art, with regard to the aforementioned functional limitations, it is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As that a device according to the combined teachings of the cited prior art would be capable of performing the required intended use and no structural differentiation has been identified, it is the examiner’s determination that this feature does not define the present invention over the cited prior art. See MPEP § 2114. Accordingly, it is submitted that the aforementioned functional limitations of the claimed controller of the instant claim are provided limited and/or no patentable weight. (see MPEP 2114: II. MANNER OF OPERATING THE DEVICE DOES NOT DIFFERENTIATE APPARATUS CLAIM FROM THE PRIOR ART “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)….”).
Notwithstanding the foregoing, alternatively Sheridan from the same field of endeavor directed toward a cooking time control system for conveyor ovens teaches the aforementioned limitation(s): receive a transition state model and a toasting recipe that comprises a standard operation toasting time, wherein upon receipt of an instruction to change a heat output of the heat source to a new output, the controller operates the heat source to the new output and measures an elapsed time since the change to the new output, the controller further calculates a current transition state toast time by applying the standard operation toasting time and the elapsed time to the transition state model, and the controller is configured to operate the conveyor to a conveyor speed associated to the current transition state toast time: “a method and an oven and control system therefore that calculates the total time a product has been in the oven as a function of the oven temperature and the sensitivity of the product to changes in oven temperature. The present invention samples the oven temperature at intervals and adjusts the processing or cooking time between samples as a function of the difference between the actual oven temperature and a predetermined product temperature. The system integrates the adjusted processing or cooking times until the total integrated processed or cook time that the product has been in the oven equals the desired preset processing or cooking time at which time the product has reached the proper processed or "cooked" state. The present invention additionally ensures that all products of the same type are uniformly processed or cooked to the same desired processed or "cooked" state.”, col. 4, ln. 50-68; “at intervals, which may be fixed or variable, the system samples the oven temperature and calculates an adjusted incremental cook time which increases or decreases the effective cooking time during the sampling interval depending upon whether the sampled oven temperature is above or below the product set temperature … The system additionally adjusts the conveyor speed as a function of the incremental adjusted cook time determined during each sampling interval so that the leading queue element in the queue of food products will exit the oven when the total integrated effective cooking time equals the desired cooking time.“, col. 16, ln. 42-66; “The control system of the present invention is able to achieve higher throughput than prior art systems while still maintaining consistency of the finished product. The control system of the present invention is able to cook products at temperatures above and below their ideal cooking temperature because it is able to adjust the time a product spends in the oven as a function of changes in oven temperature.”.
Therefore, it would have been obvious before the effective date of the claimed invention to one of ordinary skill in the art to modify the device in the Huegerich reference, such that receive a transition state model and a toasting recipe that comprises a standard operation toasting time, wherein upon receipt of an instruction to change a heat output of the heat source to a new output, the controller operates the heat source to the new output and measures an elapsed time since the change to the new output, the controller further calculates a current transition state toast time by applying the standard operation toasting time and the elapsed time to the transition state model, and the controller is configured to operate the conveyor to a conveyor speed associated to the current transition state toast time. , as suggested and taught by Sheridan, for the purpose of providing a desired cook and/or toasting profile of a predetermined food product.
With regard to claim 2, Huegerich teaches the heat source is a first heat source (122) arranged above the conveyor (114) and further comprising a second heat source (124) arranged below a top surface of the conveyor (114) (FIG. 6).
With regard to claim 3, Huegerich teaches the heat source (122) is an electric IR emitter heat source (“reflectors are mounted above the upper infrared heating elements 122 to reflect infrared energy from the upper elements 122 towards the conveyor 114.“, para. [0023]).
With regard to claim 4, with regard to the limitation of the transition state model is a first transition state model and further comprising a second transition state model, although Huegerich does not explicitly teach the aforementioned limitation(s), it is submitted that as the instant claim is directed toward an apparatus, and as all of the structural limitations are taught by the prior art, with regard to the aforementioned functional limitations, it is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As that a device according to the combined teachings of the cited prior art would be capable of performing the required intended use and no structural differentiation has been identified, it is the examiner’s determination that this feature does not define the present invention over the cited prior art. See MPEP § 2114. Accordingly, it is submitted that the aforementioned functional limitations of the claimed controller of the instant claim are provided limited and/or no patentable weight. (see MPEP 2114: II. MANNER OF OPERATING THE DEVICE DOES NOT DIFFERENTIATE APPARATUS CLAIM FROM THE PRIOR ART “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)….”). Notwithstanding the foregoing, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, and such an adaptation would have been obvious before the effective date of the claimed invention to one of ordinary skill in the art as a matter of routine experimentation and/or as an optimum value to maximize a toasting operation since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
.With regard to claim 5, with regard to the limitation of the first transition state model is an increased output transition state model and the second transition state model is a decreased output transition state model, and the controller further selects between the first transition state model and the second transition state model based upon a value of the new output of the heat source, although Huegerich does not explicitly teach the aforementioned limitation(s), it is submitted that as the instant claim is directed toward an apparatus, and as all of the structural limitations are taught by the prior art, with regard to the aforementioned functional limitations, it is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As that a device according to the combined teachings of the cited prior art would be capable of performing the required intended use and no structural differentiation has been identified, it is the examiner’s determination that this feature does not define the present invention over the cited prior art. See MPEP § 2114. Accordingly, it is submitted that the aforementioned functional limitations of the claimed controller of the instant claim are provided limited and/or no patentable weight. (see MPEP 2114: II. MANNER OF OPERATING THE DEVICE DOES NOT DIFFERENTIATE APPARATUS CLAIM FROM THE PRIOR ART “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)….”). Notwithstanding the foregoing, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, and such an adaptation would have been obvious before the effective date of the claimed invention to one of ordinary skill in the art as a matter of routine experimentation and/or as an optimum value to maximize a toasting operation since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
With regard to claim 6, with regard to the limitation of the coefficients of the transition state model are empirically derived, although Huegerich does not explicitly teach the aforementioned limitation(s), it is submitted that as the instant claim is directed toward an apparatus, and as all of the structural limitations are taught by the prior art, with regard to the aforementioned functional limitations, it is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As that a device according to the combined teachings of the cited prior art would be capable of performing the required intended use and no structural differentiation has been identified, it is the examiner’s determination that this feature does not define the present invention over the cited prior art. See MPEP § 2114. Accordingly, it is submitted that the aforementioned functional limitations of the claimed controller of the instant claim are provided limited and/or no patentable weight. (see MPEP 2114: II. MANNER OF OPERATING THE DEVICE DOES NOT DIFFERENTIATE APPARATUS CLAIM FROM THE PRIOR ART “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)….”). Notwithstanding the foregoing, it is submitted that Sheridan teaches the aforementioned limitation: “Prior to operating the oven of the present invention, several initial parameters concerning the type of product to be cooked, the time in which the cooking is to take place, the desired "cooked" state of the product must be established, and the products cooking time variations due to changes in cooking temperature. These parameters are determined empirically as will now be explained in detail..”; “In step 300, the program starts and immediately moves to step 302 which is the initializing step. In one embodiment of the invention, the computer program prompts the operator for the required initializing parameters. In step 302, various initializing parameters are entered into the computer system by the operator. These parameters include the desired oven cavity temperature, the desired cook time COOK.TIME for the food products, the various compensation factors for the food products derived from the compensation factor curve as described in connection with FIGS. 5, 6, and 7 for the various types of food products to be cooked in the oven, and the empirically determined temperature probe weighting factors such as Wa, Wb.”, col. 17, ln. 50-63.
With regard to claim 7, with regard to the limitation of the transition state model is a polynomial having the form of: wherein Tₜ = Current toast time for a new bread product; = an elapsed time in the transition state; and Ts = a standard toast time for the bread and toast level, although Huegerich does not explicitly teach the aforementioned limitation(s), it is submitted that as the instant claim is directed toward an apparatus, and as all of the structural limitations are taught by the prior art, with regard to the aforementioned functional limitations, it is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As that a device according to the combined teachings of the cited prior art would be capable of performing the required intended use and no structural differentiation has been identified, it is the examiner’s determination that this feature does not define the present invention over the cited prior art. See MPEP § 2114. Accordingly, it is submitted that the aforementioned functional limitations of the claimed controller of the instant claim are provided limited and/or no patentable weight. (see MPEP 2114: II. MANNER OF OPERATING THE DEVICE DOES NOT DIFFERENTIATE APPARATUS CLAIM FROM THE PRIOR ART “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)….”). Notwithstanding the foregoing, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, and such an adaptation would have been obvious before the effective date of the claimed invention to one of ordinary skill in the art as a matter of routine experimentation and/or as an optimum value to maximize a toasting operation since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
With regard to claim 8, with regard to the limitation of the transition state model is a second-order polynomial, although Huegerich does not explicitly teach the aforementioned limitation(s), it is submitted that as the instant claim is directed toward an apparatus, and as all of the structural limitations are taught by the prior art, with regard to the aforementioned functional limitations, it is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As that a device according to the combined teachings of the cited prior art would be capable of performing the required intended use and no structural differentiation has been identified, it is the examiner’s determination that this feature does not define the present invention over the cited prior art. See MPEP § 2114. Accordingly, it is submitted that the aforementioned functional limitations of the claimed controller of the instant claim are provided limited and/or no patentable weight. (see MPEP 2114: II. MANNER OF OPERATING THE DEVICE DOES NOT DIFFERENTIATE APPARATUS CLAIM FROM THE PRIOR ART “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)….”). Notwithstanding the foregoing, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, and such an adaptation would have been obvious before the effective date of the claimed invention to one of ordinary skill in the art as a matter of routine experimentation and/or as an optimum value to maximize a toasting operation since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
With regard to claim 9, Huegerich teaches the heat source is a first heat source (122) arranged above the conveyor (114) and further comprising a second heat source (124) arranged below a top surface of the conveyor (114)(FIG. 6), and with regard to the limitation of the values of the coefficients of the polynomial are dependent upon an energy output distribution between the first heat source and the second heat source, although Huegerich does not explicitly teach the aforementioned limitation(s), it is submitted that as the instant claim is directed toward an apparatus, and as all of the structural limitations are taught by the prior art, with regard to the aforementioned functional limitations, it is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As that a device according to the combined teachings of the cited prior art would be capable of performing the required intended use and no structural differentiation has been identified, it is the examiner’s determination that this feature does not define the present invention over the cited prior art. See MPEP § 2114. Accordingly, it is submitted that the aforementioned functional limitations of the claimed controller of the instant claim are provided limited and/or no patentable weight. (see MPEP 2114: II. MANNER OF OPERATING THE DEVICE DOES NOT DIFFERENTIATE APPARATUS CLAIM FROM THE PRIOR ART “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)….”). Notwithstanding the foregoing, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, it is submitted that Sheridan teaches multiple iterations of the process being utilized with differences in temperature being detected as detailed above, and such an adaptation would have been obvious before the effective date of the claimed invention to one of ordinary skill in the art as a matter of routine experimentation and/or as an optimum value to maximize a toasting operation since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
With regard to claim 10, Huegerich teaches a touch-sensitive graphical display (130) communicatively connected to the controller, the touch-sensitive graphical display configured to be operated by the controller to present a graphical user interface (GUI) and configured to receive user inputs; wherein the controller is configured to monitor an elapsed time since a user input is received at the touch-sensitive graphical display, and configured to reduce an output of the heat source if the elapsed time exceeds a predetermined threshold (“an operator engages the control panel 130 to select the desired operating settings of the oven 100.”, para. [0019]).
With regard to claim 11, Huegerich teaches a touch-sensitive graphical display (130) communicatively connected to the controller, the touch-sensitive graphical display configured to be operated by the controller to present a graphical user interface (GUI) and configured to receive user inputs; wherein the controller is further configured to return the heat source to a previous output upon subsequent receipt of a user input at the touch-sensitive graphical display (“an operator engages the control panel 130 to select the desired operating settings of the oven 100.”, para. [0019]).
With regard to claim 12, Huegerich teaches the conveyor is a first conveyor (114) and further comprising: a second conveyor (“a dual or split conveyors 114 extending from the cooking chamber 112 through an opening 116”, para. [0019]) adjacent to and co-planar with the first conveyor (FIG. 1). Furthermore, with regard to the limitations of a third heat source arranged above the second conveyor; and a fourth heat source arranged below a top surface of the second conveyor, it is submitted that such an adaptation would have been obvious before the effective date of the claimed invention to one of ordinary skill in the art in view of the teachings of Huegerich as an obvious duplication of parts for the purpose of enhancing the heating/toasting operation of the subject device as the written description of the instant patent application does not identify any unexpected and/or unpredictable results are achieved by adding additional heating units as claimed (see MPEP 2144 VI.B – Duplication of Parts). Additionally, with regard to the limitation of the controller is configured to operate the first conveyor first heat source and the second heat source according to a first toasting recipe and is configured to operate the second conveyor, third heat source, and the fourth heat source according to a second toasting recipe, it is submitted that although Huegerich does not explicitly teach the aforementioned limitation(s), it is submitted that as the instant claim is directed toward an apparatus, and as all of the structural limitations are taught by the prior art, with regard to the aforementioned functional limitations, it is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As that a device according to the combined teachings of the cited prior art would be capable of performing the required intended use and no structural differentiation has been identified, it is the examiner’s determination that this feature does not define the present invention over the cited prior art. See MPEP § 2114. Accordingly, it is submitted that the aforementioned functional limitations of the claimed controller of the instant claim are provided limited and/or no patentable weight. (see MPEP 2114: II. MANNER OF OPERATING THE DEVICE DOES NOT DIFFERENTIATE APPARATUS CLAIM FROM THE PRIOR ART “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)….”). Notwithstanding the foregoing, it is submitted that Sheridan teaches multiple iterations of the process being utilized with modifications to the heating power and velocity/speed of the conveyor in view of a desired cooking operation as detailed above, it is submitted that such an adaptation would have been obvious before the effective date of the claimed invention to one of ordinary skill in the art as a matter of routine experimentation and/or as an optimum value to maximize a toasting operation since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH W ISKRA whose telephone number is (313) 446-4866. The examiner can normally be reached on M-F: 09:00-17:00 EST.
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/JOSEPH W ISKRA/Examiner, Art Unit 3761
/IBRAHIME A ABRAHAM/Supervisory Patent Examiner, Art Unit 3761
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