DETAILED ACTION
Application Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This action is in response to Applicant’s submission dated 07/24/2024. Claim(s) 1–10 are pending.
Double Patenting
The non-statutory 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 non-statutory 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 non-statutory 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 non-statutory 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 1–10 are rejected on the ground of non-statutory double patenting as being unpatentable over at least claims 1–5 of U.S. Patent No. 10,422,537 to Lee et al. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the present claims are present in the previously allowed claims.
Claims 1–10 are rejected on the ground of non-statutory double patenting as being unpatentable over at least claims 1–6 of U.S. Patent No. 11,073,289 to Lee et al. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the present claims are present in the previously allowed claims.
Claims 1–10 are rejected on the ground of non-statutory double patenting as being unpatentable over at least claims 1–6 of U.S. Patent No. 11,796,188 to Lee et al. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the present claims are present in the previously allowed claims.
Claims 1–10 are rejected on the ground of non-statutory double patenting as being unpatentable over at least claims 1 & 9–11 of U.S. Patent No. 12,072,106 to Lee et al. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the present claims are present in the previously allowed claims.
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.
Claims 1–2 & 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 9,488,377 to Wie et al.
With regard to claim 1, Wie discloses a cooking device (abstract) comprising: a frame that forms a cooking chamber (210, 211) (Figs. 2–4); a burner cover (270) provided within the cooking chamber (210, 211) (Fig. 4); and a burner (240) located within the burner cover (270) to generate a flame (Fig. 4), wherein the frame includes a burner hole (shown but not labeled) through which the burner (240) passes (Fig. 4), wherein the burner cover (270) includes a burner through-hole (shown but not labeled) through which the burner (240) passes (Fig. 4), wherein the burner through-hole is aligned with the burner hole (Fig. 4), and wherein the burner through-hole and the burner hole are positioned to face each other (Fig. 4).
With regard to claim 2, Wie further discloses a portion of the burner (240) passes through the burner through-hole (shown but not labeled) and the burner hole (shown but not labeled) and is located outside the cooking chamber (210, 211) (Fig. 4).
With regard to claim 5, Wie further discloses a door (220) that provides access to an inside of the cooking chamber (210, 211) (Fig. 1A; Col. 2, lines 43–46), wherein the burner through-hole (shown but not labeled) and the burner hole (shown but not labeled) are each positioned to face the door (220) (Figs. 1 & 4).
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, 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 3–4 & 6–10 are rejected under 35 U.S.C. 103 as being unpatentable over Wie.
With regard to claim 3, Wie fails to disclose the size of each of the burner through-hole and the burner hole is greater than a diameter of the burner. It would have been an obvious matter of design choice to make the size of each of the burner through-hold and the burner hold greater than a diameter of the burner, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955).
With regard to claim 4, Wie fails to disclose the area of the burner hole is larger than the area of the burner through-hole. It would have been an obvious matter of design choice to make the area of the burner hole larger than the area of the burner through-hole, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955).
With regard to claim 6, Wie fails to disclose the burner cover includes a burner through-part configured to contact the frame, and wherein the burner through-hole is formed in the burner through-part. It would have been obvious to one having ordinary skill in the art at the time the invention was made to form a burner through-part in the burner cover, in which the burner through-hole is contained (i.e., forming the burner cover from two parts instead of a single piece), since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179.
With regard to claim 7, Wie further discloses the frame includes a rear wall (216) (Fig. 4), and wherein the burner hole (shown but not labeled) is formed in the rear wall (216) of the frame (Fig. 4).
With regard to claim 8, Wie fails to disclose the burner through-part contacts the rear wall of the frame. It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the burner through-part contact the rear wall of the frame, since to shift the location of parts of a device involves only routine skill in the art. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
With regard to claim 9, Wie fails to disclose the burner through-part protrudes in a backward direction from the burner cover to the rear wall of the frame to contact the rear wall of the frame. It would have been an obvious matter of design choice to have the burner through-part protrude in a backward direction from the burner cover to the rear wall of the frame to contact the rear wall of the frame, since such a modification would have involved a mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art when the choice of shape has no significant impact on the operation of the invention. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
With regard to claim 10, Wie further discloses a fan (260) disposed between the burner cover (270) and the rear wall (216) of the frame (Figs. 3–4).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: see attached PTO-892. Applicant is encouraged to review the cited references prior to submitting a response to this office action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J LAUX whose telephone number is (571)270-7619. The examiner can normally be reached 8:30-5:30 M-F.
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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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/DAVID J LAUX/Primary Examiner, Art Unit 3762
July 4, 2026
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