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
The declaration under 37 CFR 1.132 filed 08/25/2026 is insufficient to overcome the rejection of claims 1, 16, 29, and 30 based upon 35 U.S.C 102(a)(1) as set forth in the last Office action because: the statements presented in the declaration are not germane to the rejection at issue. The applicant presents evidence that the claims, as amended in the claim set dated 08/25/2026, provide advantages over Herzer by providing a slope that directs the fuel to the combustion chamber and that a person having ordinary skill in the art would not be motivated to modify Herzer to arrive at the amended claims because “the configuration of the fire brick with the inward sloped top edge would worsen solid fuel bridging” [pp. 3 of the declaration]. However, Herzer has been reinterpreted to provide for the limitations of the amended claims and the facts presented in the declaration are not germane to a rejection under 35 U.S.C 102(a)(1). Furthermore, the applicant has not amended the claims by adding functional limitations tied to the declaration that would differentiate the claims from Herzer in the context of a 35 U.S.C 102(a)(1).
Response to Arguments
Applicant's arguments filed 08/25/2026 have been fully considered but they are not persuasive. The applicant argues that Herzer does not provide for the amended limitation because it does not teach that the top surface slopes “continuously at a downward angle along a width of the at least one of the first wall and the second wall from its respective first side to its respective second side”; however, Herzer has been re-interpreted to provide for the required limitations, see rejection below.
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.
Claim(s) 1, 4-9, 12, and 14-15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Herzer (US 2,742,892).
With respect to claim 1 Herzer discloses a refractory insert for use in a fuel-combusting area [the interior of reference character 10] comprising: a first set of opposing walls comprising: a first wall [reference character 28] comprising a first side, a second side, and a top surface, wherein the first wall comprises a first height [see annotated Fig. below]; and a second wall [reference character 30] comprising a first height, a second side, and a top surface, wherein the second wall comprises a second height [see annotated Fig. below] and positioned in the refractory insert such that an inner surface of the second wall at least partially faces an inner surface1 of the first wall [see Fig. 3], wherein the first height is different from the second height [see Fig. 3]; and wherein the top surface of at least one of the first wall or the second wall is sloped continuously at a downward angle along a width of the at least one of the first wall and the second wall from its respective first side to its respective second side [see annotated Fig. below].
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With respect to claim 4 Herzer discloses a second set of opposing walls comprising: a third wall [see annotated Fig. below] comprising a first side, and a second side, wherein the third wall comprises a third height [see annotated Fig. below]; and a fourth wall [opposite the third wall, not shown in Fig. 2] comprising a fourth height [see annotated Fig. below] and positioned in the refractory insert such that an inner surface of the fourth wall at least partially faces an inner surface of the third wall; wherein the third height is different from the fourth height; and wherein a top surface of the third wall is sloped continuously at a downward angle along a width of the third wall from the first side of the third wall to the second side of the third wall [see annotated Fig. below].
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With respect to claim 5 Herzer discloses that each of the first set of opposing walls and the second set of opposing walls is configured to be positioned within the fuel-combusting area [see Fig. 2].
With respect to claim 6 Herzer discloses that an outer surface of one or more of the first wall, second wall, third wall, and fourth wall is positioned flush with an inner surface of the fuel- combusting area [see Fig. 3].
With respect to claim 7 Herzer discloses that the fuel-combusting area is a firebox [reference character 16] of a grill and smoker [column 2 lines 63-column 3 line 15].
With respect to claim 8 Herzer discloses that the first height, the second height, the third height, and the fourth height are each measured along a vertical midline of the respective first wall, second wall, third wall, and fourth wall (note that because the tops of the walls are level and co-planar the heights can be measured along the midlines).
With respect to claim 9 Herzer discloses that the first height, the second height, the third height, and the fourth height are each measured along a vertical edge of the respective first wall, second wall, third wall, and fourth wall (note that because the tops of the walls are level and co-planar the heights can be measured along the edge).
With respect to claim 12 Herzer discloses that the first set of opposing walls are coupled with the second set of opposing walls [see Fig. 2].
With respect to claim 14 Herzer discloses that each of the first wall, second wall, third wall, and fourth wall are each at least partially composed of a refractory material [see “fire brick” in column 1 lines 69-70].
With respect to claim 15 Herzer discloses that the refractory material comprises fire brick [see column 1 lines 69-70].
Claim(s) 16, 19-23, 26, and 28 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Herzer (US 2,742,892).
With respect to claim 16 Herzer discloses a cooking apparatus comprising: a fuel-combusting area [the interior of reference character 10]; and a refractory insert positioned within the fuel-combusting area, the refractory insert comprising: a first set of opposing walls, wherein a first wall [reference character 28] of the first set of opposing walls comprises a first side and a second side, wherein the first wall comprises a first height [see annotated Fig. above, associated with claim 1] and a second wall [reference character 30] of the first set of opposing walls comprises a first side and a second side, wherein the second wall comprises a second height [see annotated Fig. above, associated with claim 1], wherein the first height is different from the second height; and wherein a top surface of at least one wall of the first set of opposing walls is sloped continuously at a downward angle along a width of the first wall of the second wall from its respective first side to its respective second side [see annotated Fig. above, associated with claim 1].
With respect to claim 19 Herzer discloses that the refractory insert further comprises a second set of opposing walls comprising: a third wall [see annotated Fig. above associated with claim 4] comprising a first side and a second side, wherein the third wall comprises a third height [see annotated Fig. above associated with claim 4]; and a fourth wall [opposite the third wall, not shown in Fig. 2] comprising a first side and a second side, wherein the fourth wall comprises a fourth height [see annotated Fig. above associated with claim 4] and positioned in the refractory insert such that an inner surface of the fourth wall at least partially faces an inner surface of the third wall; wherein the third height is different from the fourth height; and wherein a top surface of the third wall is sloped continuously at a downward angle along a width of the third wall from the first side of the third wall to the second side of the third wall [see annotated Fig. above associated with claim 4].
With respect to claim 20 Herzer discloses that an outer surface of one or more of the first wall, second wall, third wall, and fourth wall are flush with an inner surface of the fuel- combusting area [see Fig. 3].
With respect to claim 21 Herzer discloses that the cooking apparatus further comprises at least one grate [reference characters 15 and 31] and wherein a bottom edge of at least one of the first wall, second wall, third wall, and fourth wall is positioned on a surface of the grate.
With respect to claim 22 Herzer discloses that the first height, the second height, the third height, and the fourth height are each measured along a vertical midline of the respective first wall, second wall, third wall, and fourth wall (note that because the tops of the walls are level and co-planar the heights can be measured along the midlines).
With respect to claim 23 Herzer discloses that the first height, the second height, the third height, and the fourth height are each measured along a vertical edge of the respective first wall, second wall, third wall, and fourth wall (note that because the tops of the walls are level and co-planar the heights can be measured along the edge).
With respect to claim 26 Herzer discloses that the first set of opposing walls are coupled with the second set of opposing walls [see Fig. 2].
With respect to claim 28 Herzer discloses that the fuel-combusting area is a firebox [reference character 16] of a grill and smoker [column 2 lines 63-column 3 line 15] configured to gravity feed fuel into the firebox (lump fuel is poured onto the grate 15).
Claim(s) 29 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Herzer (US 2,742,892).
With respect to claim 29 Herzer discloses a refractory insert for use in a fuel-combusting area [the interior of reference character 10] comprising: a first set of opposing walls comprising: a first wall [reference character 28] comprising first side and a second side, wherein the first wall comprises a first height [see annotated Fig. associated with claim 1]; and a second wall [reference character 30] comprising a first side and a second side, wherein the second wall comprises a second height [see annotated Fig. associated with claim 1] and positioned in the refractory insert such that an inner surface of the second wall at least partially faces an inner surface of the first wall [see Fig. 3], wherein the first height is different from the second height [see Fig. 3]; and wherein a top surface of at least one wall of the first set of opposing walls is sloped continuously at a downward angle along a width of the first wall or the second wall from its respective first side to its respective second side [see annotated Fig. above].
Claim(s) 30 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Herzer (US 2,742,892).
With respect to claim 30 Herzer discloses a cooking apparatus comprising: a fuel-combusting area [the interior of reference character 10]; and a refractory insert positioned within the fuel-combusting area, the refractory insert comprising: a first set of opposing walls, wherein a first wall [reference character 28] of the first set of opposing walls comprises first side and a second side, wherein the first wall comprises a first height [see annotated Fig. above, associated with claim 1] and a second wall [reference character 30] of the first set of opposing walls comprises a first side and a second side, wherein the second wall comprises a second height [see annotated Fig. above, associated with claim 1], wherein the first height is different from the second height; wherein a top surface of at least one wall of the first set of opposing walls is sloped continuously at a downward angle along a width of the first wall or the second wall from its respective first side to its respective second side [see annotated Fig. above].
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.
Claim(s) 2-3, 10-11, 17-18, and 24-25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herzer (US 2,742,892).
With respect to claims 2-3 Herzer does not disclose that the top surface of the at least one wall of the first wall or second wall is sloped at an angle of from 5 degrees to 20 degrees (claim 2) or 8 degrees to 9 degrees (claim 3). However, the angle is interpreted to be a result effective variable that would be optimized in order to achieve a recognized result. In this case the angles taught by Herzer provide a gradual increase in area from the interior of the firebox to the exterior environment which would reduce turbulence and cool air mixing at the exit and promote the stack effect. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the system taught by Herzer by providing the slopes at an angle of 5-20 degrees (claim 2) or 8-9 degrees (claim 3) in order to provide the optimal airflow out of and into the firebox since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art In re Aller, 105 USPQ 233.
With respect to claims 10-11 Herzer does not disclose that the top surface of the at least one wall of the second set of opposing walls is sloped at an angle of from 5 degrees to 20 degrees (claim 10) or 8 degrees to 9 degrees (claim 11). However, the angle is interpreted to be a result effective variable that would be optimized in order to achieve a recognized result. In this case the angles taught by Herzer provide a gradual increase in area from the interior of the firebox to the exterior environment which would reduce turbulence and cool air mixing at the exit and promote the stack effect. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the system taught by Herzer by providing the slopes at an angle of 5-20 degrees (claim 10) or 8-9 degrees (claim 11) in order to provide the optimal airflow out of and into the firebox since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art In re Aller, 105 USPQ 233.
With respect to claims 17-18 Herzer does not disclose that the top surface of the at least one wall of the first set of opposing walls of the refractory insert is sloped at an angle of from 5 degrees to 20 degrees (claim 17) or 8 degrees to 9 degrees (claim 18). However, the angle is interpreted to be a result effective variable that would be optimized in order to achieve a recognized result. In this case the angles taught by Herzer provide a gradual increase in area from the interior of the firebox to the exterior environment which would reduce turbulence and cool air mixing at the exit and promote the stack effect. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the system taught by Herzer by providing the slopes at an angle of 5-20 degrees (claim 17) or 8-9 degrees (claim 18) in order to provide the optimal airflow out of and into the firebox since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art In re Aller, 105 USPQ 233.
With respect to claims 24-25 Herzer does not disclose that the top surface of the at least one wall of the second set of opposing walls of the refractory insert is sloped at an angle of from 5 degrees to 20 degrees (claim 24) or 8 degrees to 9 degrees (claim 25). However, the angle is interpreted to be a result effective variable that would be optimized in order to achieve a recognized result. In this case the angles taught by Herzer provide a gradual increase in area from the interior of the firebox to the exterior environment which would reduce turbulence and cool air mixing at the exit and promote the stack effect. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the system taught by Herzer by providing the slopes at an angle of 5-20 degrees (claim 24) or 8-9 degrees (claim 25) in order to provide the optimal airflow out of and into the firebox since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art In re Aller, 105 USPQ 233.
Allowable Subject Matter
Claims 13 and 27 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
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 VIVEK K SHIRSAT whose telephone number is (571)272-3722. The examiner can normally be reached M-F 9:00AM-5:20AM.
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, Helena Kosanovic can be reached at 571-272-9059. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VIVEK K SHIRSAT/Primary Examiner, Art Unit 3762
1 The examiner’s position is that the inner surface is a feature of the first side and not the same as the first side.
Prosecution Insights