DETAILED ACTION
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 12-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13, 14, respectively, of U.S. Patent No. 11/976,822 in view of Terrell (US 20180296031 A1).
Regarding claim 12, patented claim 1 discloses
a firepot (combustion chamber);
an air plenum providing pressurized combustion air to the firepot;
wherein the firepot further comprises:
an inner wall defining an inner chamber where fuel is combusted; and
an outer chamber wall defining an outer chamber containing the inner chamber;
wherein the outer chamber wall is affixed within the plenum and receives
pressurized air from the plenum;
wherein the inner and outer walls are spaced apart such that air may flow freely around the inner chamber within the outer chamber; and
wherein the inner chamber is perforated to receive the combustion air from the outer chamber.
Patented claim 1 does not disclose:
a cooking grill comprising: a cooking chamber having a cooking grate supported therein that is accessible by an openable lid,
wherein the firepit is below the cooking grate, and
a fan that pressurizes the air in the plenum.
Terrell teaches a cooking grill comprising: a cooking chamber having a cooking grate (Fig. 2, 30) supported therein that is accessible by an openable lid (Fig. 2, 22),
a firepot (Fig. 7, 58) below the cooking grate, and
a fan (Fig. 5, 72) that pressurizes the air in a plenum (Fig. 9, 48).
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify patented claim 1 to include a cooking grill comprising: a cooking chamber having a cooking grate supported therein that is accessible by an openable lid,
wherein the firepit is below the cooking grate, and a fan that pressurizes the air in the plenum. The motivation to combine is so that the combustion chamber of patented claim 1 can be integrated into a grill to perform the useful function of providing heat to cook/smoke food.
Regarding claim 13, claim 13 is obvious over patented claim 6 since they are substantially the same.
Regarding claim 14, claim 14 is obvious over patented claim 8 since they are substantially the same.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
Such claim limitation(s) is/are: a fuel feed mechanism for delivering fuel into a top of the inner chamber, in claim 15.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The specification shows the fuel feed mechanism to be an auger, belt conveyor, stick/slip conveyor, or push feeder (para. 18).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 103
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) 12-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Terrell (US 20180296031 A1) in view of Kim (US 20180146824 A1).
Regarding claim 12, Terrell discloses a cooking grill comprising:
a cooking chamber having a cooking grate (Fig. 7, 30) supported therein that is accessible by an openable lid (Fig. 6, 22);
a firepot (Fig. 6, 58) within the cooking chamber below the cooking grate;
an air plenum (Fig. 9, 48) providing pressurized combustion air to the firepot; and
a fan (72) that pressurizes the air in the plenum (para. 28);
wherein the firepot further comprises:
an inner wall (Fig. 7: wall with openings 59) defining an inner chamber where fuel is combusted; and
wherein the inner chamber is perforated (Fig. 7, 59) to receive combustion air.
Terrell fails to disclose:
an outer chamber wall defining an outer chamber containing the inner chamber;
wherein the outer chamber wall is affixed within the plenum and receives pressurized air from the plenum; and
wherein the inner and outer walls are spaced apart such that air may flow freely around the inner chamber within the outer chamber.
Kim teaches a pellet fuel heater, comprising:
an outer chamber wall (Fig. 1, 52) defining an outer chamber containing the inner chamber (Fig. 1: chamber containing the fuel and receiving combustion air through the openings);
wherein the outer chamber wall is affixed within the plenum (Fig. 1: space 34 containing the outer and inner chamber walls) and receives pressurized air from the plenum; and
wherein the inner and outer walls are spaced apart such that air may flow freely around the inner chamber within the outer chamber (Fig. 1).
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Terrell to include an outer chamber wall defining an outer chamber containing the inner chamber; wherein the outer chamber wall is affixed within the plenum and receives pressurized air from the plenum; and wherein the inner and outer walls are spaced apart such that air may flow freely around the inner chamber within the outer chamber. The motivation to combine is so that there is a protective shell surrounding the firepot 58 of Terrell. Terrell discloses a firepot with sharp edges along the top and sharp edges surrounding the air openings 59. The protective shell would permit safe handling of the firepot without fear of injury. A further motivation is that having an outer chamber would help equalize the pressure surrounding the inner chamber, thereby resulting in uniform air distribution in the inner chamber.
Regarding claim 13, Terrell discloses the cooking grill of claim 12, further comprising a perforated floor (Fig. 14A, 62) below the inner chamber.
Regarding claim 14, Terrell discloses the cooking grill of claim 13, further comprising an ash compartment (Fig. 14A, 66) below the perforated floor.
Claim(s) 15, 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Terrell (US 20180296031 A1) in view of Kim (US 20180146824 A1), as applied to claim 12, and further in view of Johnson (US 20160341423 A1).
Regarding claims 15, 16, Terrell discloses the cooking grill of claim 14, further comprising a fuel feeding mechanism (Fig. 14A, 50) traversing through the plenum and passing through the outer chamber wall (Terrell in view of Kim discloses an outer chamber wall surrounding the inner chamber wall) EXCEPT where the fuel is delivered into a top of the inner chamber (as recited in claim 15), and a funnel on the inner chamber wall directing solid fuel into the inner chamber from the fuel feeding mechanism (as recited in claim 16).
However, Johnson teaches a pellet stove, comprising a fuel feed mechanism (Fig. 1, 14) where fuel is delivered into a top of the inner chamber (Fig. 1, 22), and a funnel (Fig. 1, 20) on the inner chamber wall directing solid fuel into the inner chamber from the fuel feeding mechanism.
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Terrell where the fuel is delivered into a top of the inner chamber, and to include a funnel on the inner chamber wall directing solid fuel into the inner chamber from the fuel feeding mechanism. The motivation to feed fuel into the top of the inner chamber is so that more fuel can fill the inner chamber, and to prevent backup of the fuel exiting the auger. Furthermore, having a funnel would assist in the uniform distribution of the fuel in the inner chamber, resulting in uniform combustion.
Allowable Subject Matter
Claim 17 is 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
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/JASON LAU/Primary Examiner, Art Unit 3762