CDB Goldair Australia Pty Ltd v SharkNinja Operating LLC - [2024] APO 22

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

CDB Goldair Australia Pty Ltd v SharkNinja Operating LLC [2024] APO 22

Patent Application: 2020314733

Title:Cooking device and components thereof

Patent Applicant: SharkNinja Operating LLC

Opponent:CDB Goldair Australia Pty Ltd

Delegate:Pradnya Satarkar

Decision Date: 3 June 2024

Hearing Date: 5 March 2024, via videoconference

Catchwords: PATENTS – section 59 opposition to grant of a patent – inventive step – lack of inventive step not established – clear enough, complete enough disclosure – lack of clear enough, complete enough disclosure not established – support – lack of support not established

Representation: Patent attorney for the applicant: Mr. Adrian Crooks of Phillips Ormonde Fitzpatrick

Counsel for the opponent: Mr. Tom Cordiner KC

Solicitor for the opponent: Mr. Gus Lightowlers
Patent Attorney for the opponent: Ms. Katherine Mroz of MinterEllison

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE

Patent Application: 2020314733

Title:Cooking device and components thereof

Patent Applicant: SharkNinja Operating LLC
Date of Decision: 3 June 2024

DECISION

The opposition is unsuccessful. None of the grounds were made out.
Subject to appeal, I direct that the application proceeds to grant.
I award costs according to Schedule 8 against CDB Goldair Australia Pty Ltd.

REASONS FOR DECISION

Background

Patent application 2020314733 (the application) was filed in the name of SharkNinja Operating LLC (the Applicant) on 15 July 2020 as PCT application no. PCT/US2020/042120 and entered the Australian National Phase on 02 February 2022. The Application claims priority from US 62/874193 and has an earliest priority date of 15 July 2019.

Following examination, the application was advertised accepted on 14 July 2022. CDB Goldair Australia Pty Ltd (the Opponent) filed a Notice of Opposition under section 59 of the Patents Act1990 (the Act) on 14 October 2022.

The statement of grounds and particulars (SG&P) was filed on 16 January 2023. An amendment request to the SG&P (amended SG&P) was allowed on 17 July 2023.

Grounds of Opposition

The amended SG&P identified the following grounds of opposition:

·Lack of novelty
·Lack of inventive step
·Lack of clarity
·Lack of support
·Lack of sufficiency, i.e., lack of clear enough and complete enough disclosure

At the hearing, only three grounds were pressed: lack of inventive step, lack of support and lack of sufficiency.

The Evidence

The parties filed their evidence that I have summarised in the table below-

Evidence	Declarant	Date filed	Reference	Exhibits
In Support	Kevin Michael Keener	17 April 2023	Keener 1	KMK-1 to KMK-9
Johannes Lodewijk Joseph Bröcker	17 April 2023	Bröcker	JLJB-1 to JLJB-2
In Answer	William (Bill) Hunter	17 July 2023	Hunter	BH-1 to BH-2
In Reply	Kevin Michael Keener	15 September 2023	Keener 2

Applicable law and Onus

The opposed application was filed after 15 April 2013. Consequently, the amendments of the Act brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (the Raising the Bar Act) apply to the present application. This includes section 60(3A) of the Act, which provides that the Commissioner may refuse an application if satisfied on the balance of probabilities that a ground of opposition exists. It is the opponent who carries the onus of proof.

The Specification

The specification as accepted is titled ‘Cooking device and components thereof’, has fifteen drawings and ends with twenty claims.

Before construing the specification, I note the comments of Middleton J in Eli Lilly and Company Limited v Apotex Pty Ltd:

“It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense. The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent. From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date.”

The invention as described

The description generally relates to a cooking system and more specifically to a countertop cooking system operable in a plurality of distinct cooking modes.

There is no contention that the cooking system described is what was commonly known as air-fryer at the priority date.

In the Summary section, the description discusses various features of the cooking system, also discussing alternative features in further embodiments. It also includes consistory clauses which are roughly a repeat of the claims. The description does not identify any specific problem that the alleged invention sets to overcome. It discusses the arrangement of the cooking system in detail with the help of drawings.

The claimed embodiments can be best understood with the help of the following drawings- Fig 8 is a front view of the portion of the cooking system as claimed.

Fig 13 is a perspective view of the cooking system as claimed.

Fig 14 is a front perspective view of the cooking system as claimed.

The description states:

“With reference now to FIGS. 8-15, in an embodiment of the cooking system
20, the housing 22 includes a plurality of internal compartments arranged within the interior of the housing 22. For example, as best shown in FIGS. 8, 14, and 15, the housing 22 is illustrated as having a first internal compartment 28a and a second internal compartment 28b, separated from one another at least in part by a divider or wall 130. The divider 130 extends vertically from a base of the housing or liner 30 and forms a sidewall of a bottom portion of two adjacent internal compartments 28a, 28b. In an embodiment, the divider 130 extends to a lower edge of an upper portion of each internal compartment 28a, 28b, the upper portion of each internal compartment containing the respective heating element 70a, 70b, and air movement mechanism 76a, 76b associated therewith. As shown, the plurality of internal compartments 28a, 28b (both the upper and lower portions) are fluidly separate from one another. Although two internal compartments 28a, 28b are illustrated and described herein, it should be understood that embodiments including any number of internal compartments, such as more than two compartments are also within the scope of the disclosure. The plurality of internal compartments 28a, 28b may be substantially similar in size and shape, or alternatively, may be different.”

Elucidating the single motor 78 used to drive both air movement mechanisms 76a and 76b, the description states:

“Because a single motor 78 is used to drive the both the (sic) first and second air
movement mechanisms 76a, 76b, in an embodiment, both the first and second air movement mechanisms 76a, 76b are driven about their axes, even when only one of the first and second internal compartment 28a, 28b is being used to perform a cooking operation. Accordingly, an air movement mechanism 76 may rotate about its axis even when the adjacent heating mechanism 70 associated therewith is non-operational. In other embodiments, the first and second air movement mechanisms 76a, 76b may be independently operable via a shared motor 78. Further, in an embodiment, the motor 78 is operable to rotate the first and second air movement mechanisms 76a, 76b, at the same speed. However, embodiments where the first and second air movement mechanisms 76a, 76b, are rotated at different speeds, such as via a coupling for example, are also within the scope of the disclosure.”

The invention as claimed

The correct approach to the construction of claims was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd:

“the words in a claim should be read through the eyes of the skilled addressee in the context in which they appear. … While the claims define the monopoly claimed in the words of the patentee’s choosing, the specification should be read as a whole … It is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification … terms in the claim which are unclear may be defined or clarified by reference to the body of the specification.”

The entire claim set is reproduced at Annex A. Claims 1, 11 and 16 are independent claims:

1.A cooking system comprising:

a housing having a first internal compartment and a second internal compartment;
a first cooking container defining a first cooking volume, said first cooking container

being removably receivable within said first internal compartment to close off an opening to
said first internal compartment when inserted therein,

and a second cooking container defining a second cooking volume, said second cooking container being removably receivable within said second internal compartment to close off an opening to said second internal compartment when inserted therein;
a first heating element and a second heating element disposed in said housing, said first heating element being in thermal communication with said first cooking volume and said

second heating element being in thermal communication with said second cooking volume, the first and second heating elements being independently operable to independently cook food contained within the first and second cooking containers; and

a first fan and a second fan disposed in said housing, said first fan being in fluid

communication with said first cooking volume and said second fan being in fluid
communication with said second cooking volume.

11.A cooking system, comprising:

a housing having a first internal cooking compartment with a first cooking container

removably disposed therein and a second internal compartment with a second cooking
container removably disposed therein, the first internal compartment including a first heating
assembly comprising a first fan and a first heating element configured to cook food disposed
in the first cooking container, and the second internal cooking compartment including a
second heating assembly comprising a second fan and a second heating element configured to
cook food disposed in the second cooking container, the first and second heating assemblies
being independently operable to independently cook food contained within the first and
second cooking containers, and the first and second heating assemblies being programmable to simultaneously cook food in separate cooking modes,

wherein the first and second cooking containers are substantially horizontally coplanar when disposed in the first and second internal cooking compartments respectively, and wherein the first and second cooking containers have respective first and second perforated bases.

16.A cooking system, comprising:

a housing having first and second internal independently removable cooking

containers disposed therein, each of the first and second cooking containers defining a cooking volume therein, the first and second cooking containers being configured to engage with first and second respective channels inside the housing to define first and second respective air ducts therein;

first and second heating elements disposed in the housing adjacent the cooking volume of the first and second cooking containers, respectively, the first and second heating elements being independently operable; and
first and second fans disposed in the housing adjacent the first and second heating

elements, respectively, the first and second fans being independently operable, and the first
and second fans being configured to circulate air through the first and second cooking
volumes, respectively.

The construction of the claims is straight forward. The claims are directed to an air-fryer cooking system. The cooking system of the independent claims has a housing with first and second insertable cooking containers, first and second heating assemblies each comprising a fan and a heating element configured to cook food disposed in each cooking container, where each heating assembly is independently operable to independently cook food within each cooking container. Independent claims 1 and 11 also describe that the housing has first and second internal compartments within which the first and second containers are disposed. Independent claim 11 additionally describes the features of first and second cooking containers being horizontally coplanar; and the first and second cooking container having perforated bases. Independent claim 16 further describes that the cooking containers are configured to engage with respective channels inside the housing to define first and air ducts.

Claims 2-10, 12-15 and 17-20 define further details of the features mentioned in the independent claims. Most do not need discussion, but I will discuss the construction of some specific claims that are discussed in the later part of this decision. Dependent claim 8 defines an additional feature of the cooking system having one motor which is operably coupled to each of the first and second fan. I see this feature to mean that a single motor drives both the fans. Dependent claim 15 further defines a feature of a motor operably coupled to each of the first and second fan, the motor configured to operate the first and second fans at the same speed or at different speeds. I understand this claim to mean that the motor is arranged such that it can operate both fans either at the same speed at a time or at different speeds. I note that there is no other claim in the suit that has a feature limited to a single motor operating both fans at different speeds.

The person skilled in the art (PSA) and the experts

It is well established that many of the issues in an opposition are answered by reference to the person skilled in the art:

“He is the person to whom the patent is addressed and who must construe it. He is the person whose knowledge will determine whether a patent is novel. He is the person who will judge whether a patent is obvious.”

The hypothetical skilled person works in the field with which the invention is connected and is a non-inventive person or team likely to have a practical interest in the subject matter of the invention. The present application relates to cooking systems, more specifically to counter top cooking systems mainly using air-fryer technology, and therefore the person skilled in the art will have experience or practical interest in this field. The declarants in this matter are Mr. Hunter for the Applicant, and Professor Keener and Mr. Bröcker for the Opponent.

Mr. Hunter is a mechanical engineer with over 35 years of experience in the engineering profession. He is principal of Bill Hunter Design Services, whose primary activities are in providing engineering design consulting and assisting clients with product development. He has had a broad range of mechanical design experience across a wide variety of market sectors and applications, including transport, heavy engineering, fast-moving consumer goods, automated process machinery, medical devices, scientific instruments, and other areas.

Professor Keener completed his PhD in Food Process Engineering at Purdue University. Professor Keener is an internationally recognised expert in food safety, food technology, food processing, and sustainable food systems. He is currently leading a team of faculty focussed on developing technology and knowledge solutions to address problems in food security, global warming, sustainable food manufacturing and food safety. He is named inventor on a patent granted on 12 November 2007 that is entitled ‘Dynamic Radiant Frying Process to produce Fried Foods’, which is related to the use of various ‘emitters’ (an emitter is a heat source that emits a specific wavelength of energy) to release infrared energy to create ‘heat flux’ and cook food.

Mr. Bröcker studied Economics between 1971 to 1975 and completed a marketing course in 1977 to 1978. He is the founder of Brocker Business Development Group (BBDG), based in The Netherlands. BBDG provides business consulting services to inventors and entrepreneurs and partners with them to bring inventions to market. Some of the examples of consumer products that BBDG has developed include the first consumer air fryer appliance in partnership with a company (KCS) that Mr. Bröcker co-founded with the inventor Mr. Fredde van der Weij. Together they partnered with a Chinese engineering group to develop a prototype of the air fryer, obtained patent protection and sold the invention to Phillips in 2008 on a royalty basis, who then marketed the product worldwide.

The Opponent submitted that Mr. Hunter does not appear to have any specific experience in the design or construction of cooking appliances, and has no apparent training or relevant experience in the field of food engineering or the development of thermal cooking technologies, and is therefore, not a representative of a person skilled in the art. I consider this submission is correct. Mr. Hunter has no experience in the field. However, his extensive engineering experience makes him suitably qualified to understand the specification of the present application and his observations on the invention from engineering design perspective have some merit.

I note that Mr. Bröcker’s academic qualification is related to marketing and his experience is in relation to providing business consultancy to inventors. Although his company was involved in developing a prototype of air fryer, his role in any technical development of such a device is not clearly established.

The Applicant submitted that Professor Keener is highly qualified in his field of expertise and his evidence also demonstrates him to be inventive and hence, his personal knowledge and expertise is not representative of a non-inventive skilled worker in the relevant field. I note that Professor Keener’s inventive endeavours are not directly in the field of the present application. Moreover, his academic research and experience in food technology makes him suitably qualified to give evidence in this opposition.

The Applicant also submitted that Professor Keener’s evidence regarding the inventive step is infected by hindsight and should not be given any weight.. I will weigh and evaluate the evidence from all the declarants in my capacity as a delegate. Where necessary to give higher weight to the evidence of one expert over another, I will give due consideration and provide reasoning where required. If I find any evidence is tainted by hindsight, its weight will be affected.

Inventive step

It is a requirement of Subsection 18(1) of the Act that the invention, so far as claimed in any claim, involves an inventive step. Subsection 7(2) states that an invention is taken to involve an inventive step unless it would have been obvious to a person skilled in the art in the light of the common general knowledge, considered alone or together with the information identified in Subsection 7(3).

Subsection 7(3) defines the relevant information as:

The information for the purposes of subsection 7(2) is:
a.Any single piece of prior art information; or
b.A combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined.

The test for whether an invention is obvious is whether it would have been a matter of routine to proceed to the claimed invention.

“The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not.”

More recently, the High Court in Aktiebolaget Hassle v Alphapharm Pty Ltd(Alphapharm) referred with approval to this approach and further held:

“That way of approaching the matter has an affinity with the reformulation of the ‘Cripps question’ by Graham J in Olin Mathieson Chemical Corporation vBiorex Laboratories Ltd [1970] RPC 157. This court had been referred to Olin in the argument in Wellcome Foundation. Graham J had posed the question:

‘Would the notional research group at the relevant date in all the circumstances directly be led as a matter of course to try [the claimed invention] in the expectation that it might well produce [the desired result]?’

That approach should be accepted.”

The High Court in Alphapharm distinguished the matters of routine from other courses of action:

“The tracing of a course of action which was complex and detailed, as well as laborious, with a good deal of trial and error, with dead ends and the retracing of steps is not the taking of routine steps to which the hypothetical formulator was taken as a matter of course.”

Common general knowledge

Common general knowledge is the background knowledge and experience available to all those working in the relevant art:

“The notion of common general knowledge itself involves the use of that which is known
or used by those in the relevant trade. It forms the background knowledge and experience
which is available to all in the trade in considering the making of new products, or the
making of improvements in old, and it must be treated as being used by an individual as a
general body of knowledge.”

However, it is not enough that information is recorded in a document, even if that document is widely circulated – it is only part of the common general knowledge when it is generally known and accepted:

“… information does not constitute common general knowledge merely because it might be found, for example, in a journal, even if widely read by persons in the art
… Reference in this regard is made to the words of Luxmoore J in British Acoustic Films (1936) 53 RPC 221 at 250, cited by Lehane J in Aktiebolaget Hässle v Alphapharm Pty Ltd (1999) 44 IPR 593; [1999] FCA 628 at 605 [39]:
In my judgment it is not sufficient to prove common general knowledge that a particular disclosure is made in an article, or series of articles, in a scientific journal, no matter how wide the circulation of that journal may be, in the absence of any evidence that the disclosure is accepted generally by those who are engaged in the art to which the disclosure relates. A piece of particular knowledge as disclosed in a scientific paper does not become common general knowledge merely because it is widely read, and still less because it is widely circulated. Such a piece of knowledge only becomes general knowledge when it is generally known and accepted without question by the bulk of those who are engaged in the particular art; in other words, when it becomes part of their common stock of knowledge relating to the art.” (italics in original)

The evidence establishes that the common general knowledge about typical air-fryers at the priority date included the following:

(a) a heating element directly exposed to the cooking cavity (described in subparagraph
(g) below);
(b) one or more motorised 'recirculating' fans adjacent to (typically above) the heating
element. The fans used in air fryers are typically either:
(i) 'propeller' fans, in which propeller blades move in a clockwise rotation
around a central axis, and air moves perpendicular to the rotation of the
fan; or
(ii) 'squirrel cage' fans or 'blowers', in which fixed 'impeller' blades are
positioned in a wheel around an axis of rotation in a housing, drawing in air
in a 'radial' manner and ejecting the air in a 'planer' manner perpendicular
to the radial flow.

(c) in general, after being heated by the heating element, the air is 'pulled into' the fan
and is 'pushed out' and down via physical pathways or channels into ducts
located between the housing and the sides of the basket. The air is then funnelled
underneath and up into the basket (described in subparagraph (h) below) to be
heated by the heating element and circulated by the fan once more;

(d) a motor (typically located near the fan, either within or outside of the cooking
compartment but within the upper part of the housing) that drives the fan.
Generally, a single motor is used to drive a single fan at a single speed, however,
in more expensive devices a variable frequency motor is used to drive two or more fans;
(e) one or more vents to allow air/moisture (i.e. steam) to exit and air to enter the
system;

(f) a control panel or user interface (to operate the system described in subparagraph
(g) below);

(g) a controller that is configured to control the temperature of the system based on
desired cooking parameters (typically cooking temperature and time). These
parameters may be pre-programmed into the controller by the manufacturer for
common foods (e.g. French fries) or can be manually selected by the user.
When a chosen program is initiated, the heating element is switched 'on' and heat
is emitted at a controlled rate until the desired temperature is achieved, at which
time the heating element is switched 'off' (and is turned on again once the temperature drops below a certain point, and so on – 'on'/'off' controller).
Concurrently, the fan is switched 'on' and circulates hot air through the system. In
more advanced systems, these 'on'/'off' controls are supplemented with advanced
heating controls;

(h) a removable container or 'basket' within which food is placed. Most air fryer
baskets:
(i) have a handle or recess on the outside of the basket for ease of handling
by the user (insertion/removal);
(ii) form a 'seal' once inserted into the housing;
(iii) include perforations in the bottom of the basket through which air moves
into the basket to enhance hot air circulation and heat transfer within the
basket; and
(iv) are specifically sized and/or shaped and elevated/supported within the
compartment to enable airflow around the bottom and sides of the basket;

(i) optionally, one or more removable basket inserts, for instance:
(i) a perforated removable tray on which food is placed which allows oil and
food particulates to drain away from the food during cooking. Such inserts
can be partitioned to create different spaces or 'environments' within the
basket separating different food products (e.g. potatoes from meat) and
can also be shaped or angled in various ways (e.g. raised or indented) to
increase air circulation around the surface of food; or
(ii) racks which allow food to be vertically stacked within the air fryer, enabling
hot air to flow between layers of food. In this manner, more food can be
placed within the air fryer and more surfaces of food (i.e. the underside)
contacted by the air; and

(j) an enclosure (specifically sized and/or shaped to facilitate airflow around the
bottom and sides of the basket) within which all of the above components are
placed.

The problem

Professor Keener in his declaration formulated the problem with air-fryers as:

“91. Based on my knowledge and experience, as at 15 July 2019, I consider that a key
problem was the inability of air fryers to cook large quantities of food (let alone different types of foods) at the same time, and ensuring that those foods are cooked evenly and ready for consumption at about the same time.
92. It was (and still is) well understood that food products differ in terms of their physical
properties, such as their oil content, density, moisture, breading, degree of par frying,
shape and thickness. Due to these differing properties, most foods have custom cooking times (for example, most meat products typically require more time in an air fryer to cook than French fries).
93. This meant that in order for consumers to use an air fryer to prepare a meal (or multiple meals for more than one person) consisting of different products, and ensure all are cooked evenly and are ready for consumption at about the same time, consumers would often:

a.purchase and then use multiple air fryers to prepare a single meal;
(b) cook food in multiple batches, which typically resulted in one or more of the
cooked products to cool prior to consumption (unless kept warm in other
appliances); or
(c) place several food items into the air fryer at once, which typically led to uneven
cooking, because:
(i) air fryers typically included a single heating element directly exposed to the
food within the basket (one 'radiant line of sight'), just like a broiler/grill
within an oven; and
(ii) stacking food in an air fryer leads to hot air 'short circuiting' (i.e. air
travelling around the outside of the stacked food and not accessing the
voids within the stack), which means that products will have their exposed
surfaces cooked while the unexposed surfaces will be undercooked.”

Mr. Hunter, while agreeing with the problems highlighted by Professor Keener, added some further problems associated with air-fryers:

“9. In paragraphs [91] to [93] of Keener there is reference to what is said to be a key problem with air fryers being the inability to cook large quantities of food (let alone different types of foods) at the same time, and ensuring that those foods are cooked evenly and ready for consumption at about the same time. I agree that the matters discussed might be considered a problem associated with air fryers, however I would add that there are other problems associated with such devices including:
a.As consumer devices they are relatively bulky and take up bench space both as a result of their own footprint and due to the need to have open space around them to allow ventilation of air;
a.They have fans to circulate air within the appliance, which can create undesirable noise, particularly in open spaces;
a.They require significant energy consumption;
a.They require cleaning after each use. This means that the cooking of multiple components of a meal may require a user to clean elements of the air fryer after completing the cooking of one component of a meal and before commencing cooking of another component of the meal;
a.They can be relatively expensive as consumer appliances.”

Mr. Hunter however has expressed dissent against a solution of purchasing/using multiple air-fryers suggested by Professor Keener in paragraph 93 to overcome the problem identified in paragraph 91. The reasons Mr. Hunter provided are those of the air-fryers being bulky, requiring extra bench space and high cost against consumers purchasing multiple air-fryers.

Professor Keener although mainly agreeing with the additional problems identified by
Mr. Hunter, disagreed with his observations at paragraph 9(d) and 9(e). About Mr. Hunter’s observation of the need for cleaning of air-fryer after each use, Professor Keener seemingly offers a solution to the problem of the need of cleaning by using disposable material like baking paper in the basket. On Mr. Hunter’s comments on cost, bulkiness and requirement of bench space being the causes of consumers not regularly purchasing multiple air-fryers, Professor Keener responds:

“I maintain that this is common practice for consumers to use two air fryers to prepare a single meal, and that Facebook is a well-known media source. While Mr. Hunter questions the utility of these Facebook posts in demonstrating consumer behaviour, he then goes onto cite that 'a number of Facebook posts note this potential problem [of bench space]'. Therefore, it is not clear to me whether Mr. Hunter believes that Facebook posts do or do not provide insight into consumer behaviour and problems. In my opinion, the screenshots in Annexure KMK-9 to my First Declaration are simply an example of people talking about a known problem and solution for using air fryers to cook a complete meal. I am surprised that Mr. Hunter outright asserts that using two air fryers is not common practice, without providing any evidence of what consumers do in the alternative, or why this is not common practice.”

I note that the use of multiple air-fryers cannot be considered a common practice or common general knowledge just because such a behaviour is disclosed in Facebook posts. This approach finds support in Ranbaxy v AstraZeneca. It was also indicated in Alphapharm that information should not be treated as part of the common general knowledge “in absence of evidence of its general acceptance and assimilation”. I do not consider a mention of ‘using multiple air-fryers’ in a Facebook post can be deemed as generally accepted and assimilated practice.

Based on the above evidence and on understanding the specification (including the absence of any mentioning of a problem, and the scope of the claimed invention), I consider the problem addressed by the present invention is the inability of air fryers to cook multiple foods such that those foods are cooked at about the same time.

This is similar to the problem identified by Professor Keener that Mr. Hunter principally agreed with. I am satisfied that this is the full extent of the problem for inventive step analysis, starting from the information available as common general knowledge. .

The specification (and in particular, the claimed invention) is not directed towards solving the additional problems of undesirable noise, bench space or power consumption identified by Mr. Hunter. Hence, I will not consider these for inventive step analysis.

Inventive step in light of common general knowledge alone

MinterEllison gave Professor Keener a hypothetical task which was to explain what (if any) system he would propose if, at 15 July 2019, he was asked to develop an air fryer capable of cooking more than one food type, such that these different foods were cooked evenly and were cooked and generally ready for consumption at about the same time.

The Applicant submitted that the hypothetical task given or the brief provided to Professor Keener suffers two key vices:

“Firstly, for the reasons discussed above, the ‘problem’ to which the brief was addressed has not be shown to form part of the common general knowledge. The problem posed by the brief was not one known to the hypothetical skilled addressee and as such provides a wholly inappropriate starting point from which to answer the inventive step question. By expressing, in the form of a purported problem, the very advantages achieved by the invention of the Opposed Application, the brief conveyed to Professor Keener (sic) crucial information as to the nature of the invention.

Secondly, the brief artificially directed Professor Keener to address a specific problem. As explained in Hunter [9], a skilled addressee would appreciate that there would be a range of issues which might be considered as part of a brief for the redesign of an existing product such as an air fryer. As described above, a product design process involves making various trade-offs and balancing competing considerations including functionality, cost, complexity and potential for failure. Such a process is not focused on a single specific problem but involves identification of multiple issues and seeks to find the best outcome by balancing all of those issues (Hunter [13]). At Keener #2 [33] it is claimed that all of these additional issues where “embedded” in the hypothetical task given to him. However nowhere in Keener #1 is there any explanation of these “embedded” considerations or how his design takes them into account or addresses them. It is apparent that the Design produced by Professor Keener was directed at and only at the specific issue identified in the design brief. By focussing narrowly on a specific problem, the design brief excluded from Professor Keener’s consideration the range of other factors which a hypothetical skilled addressee would have been faced with and other options available to them in the making of a new product.”

I don’t concur with the Applicant completely that the drawback of the brief provided to Professor Keener is in it addressing a specific problem. However, I agree with the Applicant that the hypothetical task or the specific problem posed to Professor Keener is infested with hindsight and includes within it the advantages of the claimed invention. The problem as I have formulated does not include the mention of a single device used to overcome any shortcomings or that different foods being cooked evenly. The brief therefore is leading and cannot be considered an appropriate starting point for an inventive-step analysis. Hence, I am inclined towards not giving any weight to the design suggested by Professor Keener to overcome the problem defined in the brief.

The Opponent also submitted that Mr. Bröcker’s evidence supported the finding of lack of inventive step as in his experience, “manufacturers will often increase or decrease the size of products or duplicate pre-existing desirable features. For instance, including multiple toast slots in toasters or double baskets in air fryers. There is an old adage in product manufacturing to the effect of ‘if you cannot invent something, just make it a double’”. The example provided by Mr. Bröcker to support his argument, is that of a toaster having multiple slots. There is no mention of the feature of having different temperature/time settings for those multiple slots to enable independent toasting of bread in those slots, whereas the claimed invention has ‘two’ different compartments in an air fryer such that food can be cooked independently in those two compartments by virtue of having different heating assemblies (including fan and heating element). I see Mr. Bröcker’s evidence to be coming from his marketing experience rather than any engineering design perspective. I cannot give it much weight given the apparent gap with regard to his understanding of technical features.

Hence, I do not consider that the evidence, as it currently stands, establishes that the claims are obvious in light of common general knowledge alone.

Inventive step in light of s 7(3) documents

While there is, post-Raising the Bar, no requirement in section 7 for inventive step documents to be ascertained, understood and regarded as relevant, the problem remains relevant to the consideration of the prior art base. The Explanatory Memorandum makes clear that the question remains whether a skilled person faced with the same problem would have taken routine steps to arrive at the claimed invention:

“While a skilled person is essentially deemed to be aware of and to have carefully read the
publically available information, the inventive step tests are otherwise applied in the
context of what the skilled person would have known and done before the priority date of
the claims in question. The tests will therefore continue to take account of factors such as
whether the skilled person would have understood and appreciated the relevance of the
prior art to the problem the invention was seeking to solve and whether it would be
considered a worthy starting point for further investigation or development.”

The Opponent particularised five documents in the amended SGP and submitted that the claimed invention lacks inventive step in light of each of those documents combined with common general knowledge. I will discuss those documents in detail below:

US 2012/0272832 A1 (Kwon et al.) 01 November 2012

US 2012/0272832 A1 (Kwon) was published on 1 November 2012. Consequently, it is part of the prior art base.

Kwon is directed to a cooking apparatus having a divider storage portion capable of storing a divider to partition a cooking chamber.

I have reproduced Fig 2 representing the interior of the cooking chamber of Kwon below:

The divider 70 may be arranged in the cooking chamber 40 to partition the cooking chamber 40 into first cooking chamber 41 and a second cooking chamber 42. The divider 70 has a size and shape of a horizontal cross section of the cooking chamber 40 to prevent heat transfer between the first cooking chamber 41 arranged at a upper position and a second cooking chamber 42 arranged at a lower position. The divider 70 may be made of an insulating material such as tempered glass, for example. Meanwhile, the main body 10 is provided with a broil heater 50 to emit heat into the first cooking chamber 41 and a bake heater 51 to emit heat into the second chamber 42. Also, an upper convection fan 53 and a lower convection fan 54 are respectively arranged at the rears of the first and second cooking chambers 41 and 42 so that food is cooked by circulating air in the cooking chamber through convection. Further, the main body 10 is provided with an upper motor and lower motor to drive the upper and lower convection fans 53 and 54, respectively. Here, a convection heater 52 having a substantially circular shape is additionally provided around the lower convection fan 54 of the second cooking chamber 42. Consequently, various temperatures are easily applied in the first and second cooking chambers 41 and 42 since the second cooking chamber 42 further includes an additional heat source, compared to the first cooking chamber 41.

The Opponent submitted that Kwon is an example of a cooking device that is capable of cooking food in separate cooking compartments and is an example of a manufacturer expanding the output of an existing cooking system by duplicating the components of that system. The Opponent further reasoned that the differences between Kwon and the claims of the application are non-inventive and they arise due to the devices in Kwon and in the present application being different (Kwon being a dual zone convection oven and the present application directed to a counter top dual air fryer). The Opponent then referred to the evidence by Professor Keener:

“the ‘close off an opening’ and ‘configured to engage’ features of
claims 1 and 16 and other container/basket features such as handles and
perforated bases, such as claimed in claims 7, 11 and 12 are inherent to air fryer
systems and a standard feature of air fryers since before 15 July 2019. Also
blowers (such as described in claim 5) and a single motor operating two or more
fans (as described in at least claims 8 to 10) were clear design options for an air
fryer system that includes one or more fan(s) and do not involve any ingenuity
when used for that type of appliance.”

Professor Keener also stated in his evidence:

“Therefore, if I had Kwon when conducting the Hypothetical Task, it would have confirmed to me that a simple way to address the problems with air fryers at 15 July 2019 would have been to expand the capacity of the air fryer by simply duplicating the components of the air fryer.”

The Applicant expostulated with the Opponent’s submissions on this point and countered that Kwon is an example of dividing the existing capacity of an appliance into two separate compartments which in fact reduces the original capacity of the appliance. The Applicant further submitted that a skilled person seeking to increase capacity of a cooking device would find no useful teaching in Kwon.

I do not agree with the Applicant on the point that the problem (as I formulated) includes within it the aspect of increasing capacity. The Opponent also faces difficulty on this very point. I note that Professor Keener was provided with the copy of the Application before he considered Kwon. Hence, his opinion of Kwon or any of the citations is not free of hindsight bias. As already discussed, that the Hypothetical task is not an appropriate starting point for the Inventive-step analysis. I consider that the Opponent has not provided sufficient evidence to establish how the teaching in Kwon of using an insulating divider to separate cooking space would have directly led a skilled person seeking to overcome the inability of air fryers to cook multiple foods such that those foods are cooked at about the same time, to try the claimed invention with a requisite expectation of a successful outcome.

I find the claims inventive in view of Kwon.

US 2017/0231430 A1 (Moon et al.) 17 August 2017

US 2017/0231430 A1 (Moon) was published on 17 August 2017. Consequently, it is part of the prior art base.

Moon is an air fryer system which comprises a base having a heating source and an air source located therein, both sources being supplied power for operation by an AC power cord. A cooking chamber is defined within the base and a cooking drawer fits securely within the cooking chamber to substantially seal the chamber against heat loss during use. A handled food basket which detachably secures to the cooking drawer is configured to facilitate even distribution of heated air within the cooking chamber. A digital, touch screen user interface attached to a surface of the base is electronically coupled to a controller for powering on the fryer system and setting cooking conditions.

Moon discusses the problems with air fryers generally that it claims to solve with its design:

“However, air fryers aren't without disadvantages. For example, unlike some deep fryers, air frying must occur in a closed space for temperature control. This can make the monitoring of cooking foods in an air fryer difficult. Further, unlike deep fryers, which immerse foods into hot oil, air fryers rely on the movement of heated air. Having adequate channels to move this air through the cooking space so that it achieves an optimum heat distribution has been a challenge for air fryer manufacturers. Improper heat distribution results in foods with overcooked and undercooked portions. Of course, operating at such high temperatures can create safety issues, as well. Especially in the case of overheating of the fryer.”

I note that Moon is not directed to any of the problems in the present application.

The Opponent submitted to the extent that Moon does not contain the additional features of the claimed invention, these differences arise because Moon describes a single, rather than a double air fryer as well as practical design choices which are uninventive in light of the common general knowledge available at the priority date. The Opponent also referred to Professor Keener’s evidence:

“Professor Keener concludes that if he had ‘Moon when conducting the Hypothetical Task, it would have just confirmed [his] pre-existing knowledge of the typical components of an air fryer,’ and that he would have addressed the hypothetical task in the same manner to that described in Keener #1 at [94] to [108]. He concludes that ‘having regard to the information that I knew and considered to be well-known and generally accepted in the field of thermal cooking technologies as at 15 July 2019 and the information in Moon, the system described in claims 1 to 20 of the 733 Application does not involve any
ingenuity.’”

As I have already established that the ‘hypothetical task’ given to Professor Keener is infected by hindsight, I don’t consider his evidence in this regard carries much weight.

The Applicant submitted that there is no evidence as to what steps a skilled person, unapprised of the invention of the application, would have taken based on Moon. The Applicant further submitted that there is no evidence that a skilled person, unapprised of the invention of the application, would have been directly led to produce air fryer having two independently operable compartments based on Moon. I agree.

The opponent has failed to demonstrate any obvious steps that a skilled person facing the problem of the inability of air fryers to cook multiple foods such that those foods are cooked at about the same time, would have taken leading them from the teachings of Moon to the present invention.

I find the claims inventive in light of Moon.

US 2009/0126580 A1 (Hartfelder et al.) 21 May 2009

US 2009/0126580 A1 (Hartfelder) was published on 21 May 2009. Consequently, it is part of the prior art base.

Hartfelder is directed to a food warming apparatus including a cabinet with one or more heating compartments for holding one or more trays. Each tray has a rim extending outwardly from a tray opening and may contain previously cooked food portions. One or more dividers are removably mounted inside a heating compartment, dividing the heating compartment into a first sub-compartment and second sub-compartment. The one or more dividers include a first support flange that extends into the first sub-compartment and a second support flange that extends into the second sub-compartment. The first support flange supports a rim of a first tray in the first sub-compartment such that the first tray is suspended above a lower compartment surface of the heating compartment. The second support flange supports a rim of a second tray in the second sub compartment such that the second tray is suspended above the lower compartment surface of the heating compartment.

I have reproduced above Fig 1 from Hartfelder which is an isometric view of the food warming apparatus with one single-level divider installed in each heating compartment and a tray supported within each sub-compartment.

The problems identified in the background section of Hartfelder are:

“Various food warming apparatus have been developed to maintain previously cooked food portions at a desired serving temperature. Such food warming apparatus are sometimes referred to as staging cabinets, holding cabinets, or warming cabinets. Some of the challenges involved in designing a food warming apparatus involve increasing the safety of the apparatus and reducing spillage while maintaining a speedy workflow within the restaurant. The challenge can be particularly great when trays of different sizes (e.g. heights and/or widths) are used to hold previously cooked food portions.

One commonly used way to protect previously cooked food items for which drying out is a concern, is to place the food items in a container, such as a tray, and to provide a cover for the container. The cover restricts evaporation of moisture from the previously cooked food items. With a reduced amount of moisture vapor being able to escape from the covered container, the previously cooked food items contained therein do not dry out as rapidly.

Conventional covers are inconvenient to use in fast-food restaurants and similar establishments. This is because when previously cooked food portions are taken from the
food warming apparatus, the cover typically must be removed from the tray to gain access to the food items contained therein, and must be replaced to protect the remaining food portions contained in the tray. The steps of removing and replacing a cover can take an amount of time that is unacceptably large in fast food restaurants. The removed cover can also become misplaced or contaminated and can get in the way of other activities in the kitchen area.”

I have reproduced Fig 8 above which is an isometric view of one tray and one cover within the food warming apparatus of Hartfelder according to one of the embodiments.

The Opponent’s arguments regarding the claimed invention lacking inventive step are similar to those made in respect to Kwon. The Opponent refers to Professor Keener’s declaration noting that had he had Hartfelder when conducting the Hypothetical Task, it would have confirmed to him that a simple way to address the Hypothetical Task would have been to “expand the capacity of the air fryer by effectively duplicating the components of air fryer”.

As I have already mentioned that the Hypothetical Task is not an appropriate starting point for inventive step analysis, I do not consider Professor Keener’s evidence in this regard to help the Opponent establish lack of inventive step with respect to Hartfelder.

The problem solved in Hartfelder is very different to the problem in the application. I do not consider Hartfelder to be of any assistance to the skilled person to solve the problem at hand. The Opponent has not provided any evidence as to why a skilled person when faced with the problem at hand would consider Hartfelder a good starting point and reach the claimed invention. Hence, the Opponent has not established that the claimed invention lacks inventive step in light of Hartfelder.

‘NE58K9850WS Electric Range with Flex Duo’ oven

The user manual (Flex Duo) was said to have been published on 17 April 2019. While there is nothing beyond an assertion by Professor Keener to support this, the parties appear to have proceeded on the basis that the manual was publicly available before the priority date. Consequently, without conclusively deciding the issue, I will proceed as if it is part of the prior art base.

Flex Duo is a user manual for an oven appliance that is very similar to the ‘cooking apparatus’ described in Kwon. Both parties have raised very similar arguments to Kwon with respect to Flex Duo. Hence, for similar reasons discussed under Kwon, I conclude that the claims are inventive in light of Flex Duo.

Summary of the Facebook Forum

The summary (Facebook Forum) comprises 35 comments in response to the following post by ‘Dianne Acklin Cross’ on 21 September 2017:

“Does anyone use 2 Afs? Some things I can only cook alone for example when I cook hamburgers and fries I can only cook one thing at a time then have to wait on one to get done then cook the other. This is the only thing I dislike about using AF. Considering buying a second one.”

The Opponent submitted referring to Professor Keener’s evidence that the Facebook Forum confirms that before the priority date, users of air fryers had either purchased two or more air fryers, or were considering doing so, given:

(a) the limited cooking capacity of a single air fryer; and
(b) to ensure multiple different foods could be prepared at the same time.

The Opponent further submitted that the step from the Facebook Forum to the claimed invention is merely combining the two referenced air-fryers into a single housing. In light of the Facebook Forum, the skilled addressee would have solved the identified problem in a routine

manner by combining two air fryers into one housing.

The Applicant contradicted the Opponent’s submission stating that Facebook Forum does not provide the skilled addressee with the problem underpinning Professor Keener’s Design. The Applicant further submitted that the problem posed in the initial post of the Facebook Forum is one of capacity only, “I can only cook one thing at a time”. The Applicant summarised the comments:

a.some users have multiple air fryers and sometimes use both at the same time;

b.some users employ cooking racks to increase capacity;

c.larger volume air fryers are available to further increase capacity;

d.some users employ an existing convection oven or microwave to keep foods warm;

e.some air fryers have a removable divider which can be used to separate foods.

The Applicant further submitted that there is no evidence as to what steps a skilled person, unapprised of the invention of the Application, would have taken based on the Facebook Forum. The Applicant also countered that the only “problem” identified in the Facebook Forum is one of capacity. Further, there is no evidence that a skilled person, unapprised of the invention of the Application, would have been directly led to produce an air fryer having two independently operable compartments based on the Facebook Forum.

I consider the problem mentioned in the Facebook Forum is somewhat similar to the current problem of inability of air-fryers to cook multiple foods such that those foods are cooked at about the same time. However, the solutions proposed in the Facebook Forum are those of buying multiple air-fryers or using ovens/microwave to keep food warm. These solutions appear to be teaching away from the solution of having an air-fryer with two independently operable compartments of the present application. I cannot find any instruction in the Facebook Forum that would lead the skilled person facing the same problem towards the claimed invention.

On balance, I consider that the Opponent has failed to establish that a skilled person would have been directly led to produce an air fryer having two independently operable compartments based on Facebook Forum. Hence, the claims are inventive in light of Facebook Forum.

Inventive step- Conclusion

I am not satisfied that the claims lack inventive step either in light of common general knowledge alone or in light of any of 7(3) documents. The Opponent has been unsuccessful in making out this ground of opposition.

Sufficiency and Support

Subsection 40(2)(a) as amended by the Raising the Bar Act requires that the claimed invention be described in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the relevant art. This requires that the specification provide sufficient information to enable the skilled person to perform the invention across the scope of the claims without undue burden or the need for further invention. Subsection 40(3) as amended by the Raising the Bar Act requires that the claims must be supported by matter disclosed in the specification. The requirement of support can be summarised as requiring that the scope of the claims “should correspond to the technical contribution to the art”. The requirement in Subsection 40(2)(a) of the Act is referred to as the sufficiency obligation or enablement requirement whilst the requirement in Subsection 40(3) of the Act is referred to as the support requirement. As Burley J has observed in Merck Sharp & Dohme Corporation v Wyeth LLC (No 3), ‘they may often be viewed as two sides of the same coin.’

The principles of sufficiency as applied by the delegate in CSR, and later endorsed by Burley J in Cytec Industries Inc. v Nalco Company, wherein a three-step approach was taken to determine whether the specification provided a disclosure as required by subsection 40(2), are:

a.Construe the claims to determine the scope of the invention as claimed
b.Construe the description to determine what it discloses to the person skilled in the art, and
c.Decide whether the specification provides an enabling disclosure of all things that fall within the scope of the claims.

Burley J explored the requirement of support in Merck Sharp at [546]-[547]:

“In CSR Building Products Ltd v United States Gypsum Company[2015] APO 72, Dr S D Barker adopted the summary provided by Aldous J in Schering Biotech at 252 – 253, which has been often followed in the United Kingdom (emphasis added):

...to decide whether the claims are supported by the description it is necessary to ascertain what is the invention which is specified in the claims and then compare that with the invention which has been described in the specification. Thereafter the court’s task is to decide whether the invention in the claims is supported by the description. I do not believe that the mere mention in the specification of features appearing in the claim will necessarily be a sufficient support. The word “support” means more than that and requires the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed.

That approach encapsulates broadly the claim support obligation under s 40(3). To it may be added the requirement that the technical contribution to the art must be ascertained. Where it is a product, it is that which must be supported in the sense that the technical contribution to the art disclosed by the specification must justify the breadth of the monopoly claimed”.

The Opponent effectively raised analogous arguments for why the application lacks sufficiency/enablement and support. In their written submissions, the Opponent asserted that the claims of the Application are so broadly drafted as to not limit them to an air-fryer and also that a convection oven, a pizza oven and a dual-air fryer would all fall within the scope of the claims. However, at the hearing, the Opponent stated that despite the claims not using the term air-fryer or counter-top, all the experts agree that the claims are directed to a countertop, air-fryer. Consequently, the Opponent attacked the application under the grounds of sufficiency and support on the following two points:

a.The claims are not limited to the specific arrangement of sloped bottom surface described in the specification to facilitate air flow within the air-fryer of the application and as a result the specification does not provide sufficient detail to enable the skilled person to perform the invention across the full claimed scope.

a.The application does not explain in sufficient detail how a single motor is operably coupled to drive two fans at variable speed.

Specific arrangement (sloped bottom surface) to facilitate air flow within the air-fryer

The Opponent submitted that air-flow management is an important aspect of the working of the air-fryer and that the only arrangement disclosed in the specification is that shown in Fig 4 and Fig 5 (both figures reproduced below), however the specific features of these figures are not claimed.

Mr. Hunter however dissents from this assertion and provides further examples of air movement mechanism in the specification:

“In paragraph [114(f)] of Keener, it is said that the 733 Application describes a very specific arrangement to facilitate air flow within the air fryer (being that shown in figures 4 and 5) and that no other options for air flow are depicted. I disagree. As described in paragraph [0099] of the specification of the 733 application, in the embodiment of the invention illustrated in Figure 5 ‘the air movement mechanism 76 includes a fan wheel 82 positioned within a fan housing 84. As shown, the fan wheel 82 is configured to rotate about an axis X oriented generally horizontally’. Further description of the air movement mechanism of this embodiment of the invention is then provided. In paragraph [0112] of the specification of the 733 application, it is then said that ‘in the non-limiting embodiment of FIGS. 14 and 15, each air movement mechanism 76a, 76b is illustrated as a fan wheel or impeller 82 that is configured to rotate about a generally vertically oriented axis’. Again, further description of the air movement mechanism of this alternate embodiment of the invention is then provided. Paragraph [114(f)] of Keener goes on to set out a list of features which are said to form part of ‘each embodiment of the air fryer’”.

I am satisfied that there are other non-limiting embodiments of air-flow arrangements discussed in the specification. However, the claims are not limited to any specific embodiment.

It is worth noting that Professor Keener when first commenting on the disclosure of air-flow arrangement in the specification stated:

“One example is the specific arrangement that facilitates air flow within the air fryer that I
explained above at paragraph 114(f). Figures 4 and 5 show the specific arrangement that
is utilised in the air fryer to allow air to move from the fans to the cooking chambers. The
arrangement described in the 733 Application is a simple means of ensuring that air can
flow from the fan, down the back of the basket, and along the underside of the basket
(the ‘J’ shape that I described in paragraph 79(c)). As I explained above at paragraphs
79(h)(iv) and 79(j), directing air flow by varying the shape of features (such as the
housing and/or basket) was a standard feature of air fryers as at 15 July 2019, and I do
not consider the specific arrangement (including the air duct 74, tab 64, and angled
housing floor 58) to involve any ingenuity.”

In answer, Mr. Hunter remarked:

“In paragraph [193] of Keener it is said that the specific arrangement that facilitates air flow within the air fryer of the 733 application as shown in figures 4 and 5 ‘is a simple means of ensuring that air can flow from the fan, down the back of the basket, and along the underside of the basket’ and that this was a standard feature of air fryers as at 15 July 2019", and does not involve any ingenuity. I disagree. As described in paragraph [0109] of the specification of the 733 application, because the bottom surface 58 of the cooking container 32 is sloped, the interaction between the heated air and the sloped bottom surface 58 directs the heated air both forwards and upwardly, causing the air to evenly distribute from the back to the front of the cooking container. This arrangement makes the airflow within the cooking container more uniform which desirably promotes more unform cooking of the food within the cooking container. There is no evidence in Keener which suggests to me that the specific arrangement that facilitates air flow within the air fryer of the 733 application is a standard feature of air fryers.”

I consider Mr. Hunter’s comments about the effect a sloped surface has on the movement of heated air to be logical. However, I have doubts about his statement on whether this feature of sloped surface was considered common general knowledge in the field of the invention at the priority date, as he does not have the relevant experience in the field before the priority date.

I thus turn to Professor Keener on whether that was considered common general knowledge at the relevant date and I note the passages about air flow from the agreed common general knowledge below:

“(c) in general, after being heated by the heating element, the air is 'pulled into' the fan
and is 'pushed out' and down via physical pathways or channels into ducts
located between the housing and the sides of the basket. The air is then funnelled
underneath and up into the basket (described in sub-paragraph (h) below) to be
heated by the heating element and circulated by the fan once more;

(h) a removable container or 'basket' within which food is placed. Most air fryer
baskets:
(iv) are specifically sized and/or shaped and elevated/supported within the
compartment to enable airflow around the bottom and sides of the basket;

(j) an enclosure (specifically sized and/or shaped to facilitate airflow around the
bottom and sides of the basket) within which all of the above components are
placed.”

The evidence establishes that the direction of movement of hot air in an air-fryer between the housing and the basket (around the bottom and sides) was well known. It also demonstrates that it was known that shape, size and elevation or angle of the container play a role in effective air movement. I am satisfied that the specification provides sufficient guidance to facilitate effective air movement in the air-fryer without the need for a skilled person to undertake prolonged research and experimentation that would be considered undue effort in the field. Hence, the specification is clear enough and complete enough with respect to facilitating air flow by a person skilled in the art.

On understanding the complete specification and considering the evidence provided, I am of the view that the technical contribution of the claimed invention is not within any specific arrangement (sloped bottom surface or otherwise) to facilitate air flow within air-fryer. The technical contribution is within having two separate cooking compartments with separate heating control. Hence, the breadth of the claims is justified by the technical contribution. It follows that the claims are supported.

A single motor operably coupled to drive two fans at variable speed

Firstly, I note that this feature is present only in claim 15 which is dependent on any of claims 11 to 14. The Opponent while alleging the specification insufficient with respect to this feature, referred to Professor Keener’s evidence:

“174. Claim 15 defines that the motor can operate both fans ‘at the same speed or at different speeds’. As such, claim 15 includes within its scope a motor that is directly coupled to two fans and operates those fans at:
(a) the same speed; and
(b) at different speeds.

175. The option in sub-paragraph 174(b) above appears to correspond with paragraph [0051] of the 733 Application, which sets out that ‘said motor operates said first air movement mechanisms at a first speed and said motor operates said second air movement
mechanism at a second speed, said first speed being different than said second speed.’

176. My understanding is that a single motor (whether a standard motor or a variable speed motor) can only operate one or more fans at a single speed, such that two motors would be required to drive two fans at different speeds simultaneously (each motor coupled to its own fan separately) without further electrical componentry.

177. To achieve the functional outcome included in claim 15 (two fans operating a (sic) different speeds from a single power source), I expect that further electrical componentry would be required to decouple the motor from one or both fans (e.g. a variable speed drive).

178. The 733 Application does not describe how a single motor could be 'configured' to
operate two fans at different speeds.” (italics in original)

The Applicant disagreeing with the Opponent, referred to the evidence of Mr. Hunter, where he stated:

“…While a single motor could be used to drive two fans at different speeds using electronic componentry, for example an electromagnetic clutch as discussed above, different speeds could also be achieved for example by mechanical gearing or a simple pulley arrangement.”

The Opponent rejecting Mr. Hunter’s proposed solution, referred to the evidence of Professor Keener where he explained:

“…For example, the 733 Application states that a single motor can drive two fans with a coupling allowing both fans to be driven at different speeds, but the 733 Application does not describe how this should be done.

47. Similarly, Mr. Hunter's reference to an electromagnetic clutch at paragraphs 27 and 34 of the Hunter Declaration is entirely unrealistic for an air fryer. Electromagnetic clutches are typically not found in consumer cooking appliances such as toasters or ovens, because they are expensive, complicated and have to be designed for the conditions of use. For an air fryer, an electromagnetic clutch would need to withstand temperatures of over 300 degrees Celsius.
Further, I conducted a search of the 733 Application, and there was no mention of a clutch or variable speed control system.

48. The suggestion in paragraph 34 of the Hunter Declaration that different fan speeds could be achieved by mechanical gearing or a simple pulley arrangement is similarly unrealistic. Within the housing for an air fryer, there is limited space for gears or a pulley system. Utilising either of these options would increase cost, and increase the overall footprint of the device.”

I agree that the specification does not go into much detail on how this feature is implemented. In fact, the only explanation about the feature of using a single motor to drive both fans at different speeds is at paragraph [0114] of the specification:

“However, embodiments where the first and second air movement mechanisms 76a, 76b, are rotated at different speeds, such as via a coupling for example, are also within the scope of the disclosure.”

The point I need to decide on is whether this explanation is enough for a skilled person to carry out the invention defined in claim 15.

The Opponent’s objection to this feature’s sufficiency mainly resides in the fact that it would require further electrical circuitry to decouple the motor from the fans and also that Mr. Hunter’s design suggestions would increase the cost and footprint of the device. Nowhere has the Opponent suggested that a skilled person would not be able to carry out the process of using a variable speed motor to run two fans at different speeds. I accept based on the difficulties highlighted by Professor Keener that it may require a reasonable degree of trial and error, or may even be time consuming, however the nature of work does not appear to me to constitute a research program that would be considered undue effort in this field of technology.

Therefore, I consider the specification is clear enough and complete enough for the invention to be performed by a person skilled in the art. As noted in paragraph 101 above, the technical contribution is within having two separate cooking compartments with separate heating control. The technical contribution is not in having a single motor operating two fans. Hence, the breadth of the claim is justified by the technical contribution. As a result, claim 15 is supported by the description.

Sufficiency and Support- conclusion

I am satisfied that the specification provides sufficient information to enable the skilled person to perform the invention across the scope of the claims and claims are supported by matter disclosed in the specification. The Opponent has been unsuccessful in making out these grounds of opposition.

Conclusion

The opposition has been unsuccessful on all grounds. Subject to appeal, I will direct the application to proceed to grant.

Costs

The opposition has been unsuccessful. Costs are awarded against the Opponent under Schedule 8.

Pradnya Satarkar
Delegate of the Commissioner of Patents

Annex A

a.A cooking system comprising:

a housing having a first internal compartment and a second internal compartment;
a first cooking container defining a first cooking volume, said first cooking container

being removably receivable within said first internal compartment to close off an opening to
said first internal compartment when inserted therein,

and a second cooking container defining a second cooking volume, said second cooking container being removably receivable within said second internal compartment to close off an opening to said second internal compartment when inserted therein;
a first heating element and a second heating element disposed in said housing, said first heating element being in thermal communication with said first cooking volume and said

a first fan and a second fan disposed in said housing, said first fan being in fluid

communication with said first cooking volume and said second fan being in fluid
communication with said second cooking volume.

a.The cooking system of claim 1, wherein said first cooking container and said second

cooking container are individually insertable into said first cooking compartment and said
second cooking compartment respectively.

a.The cooking system of claim 1 or 2, wherein said first internal compartment and said

second internal compartment are fluidly separate.

a.The cooking system of any one of the preceding claims, wherein said first fan is

stacked vertically relative to said first heating element within said housing and said second fan is stacked vertically relative to said second heating element within said housing.

a.The cooking system of any one of the preceding claims, wherein said first fan

includes a first inlet, a second inlet, and an outlet, said first inlet and said second inlet being arranged in fluid communication with said outlet.

a.The cooking system of any one of the preceding claims, wherein said first fan has a

first axially oriented inlet and a first radially oriented outlet and said second fan has a second
axially oriented inlet and a second radially oriented outlet.

a.The cooking system of any one of the preceding claims, wherein said first cooking

container includes a first handle and said second cooking container includes a second handle.

a.The cooking system of any one of the preceding claims, further comprising a motor

operably coupled to each of said first fan and said second fan.

a.The cooking system of claim 8, wherein said motor is located externally from said

first internal compartment and said second internal compartment.

a.The cooking system of any one of claims 8 and 9, wherein said motor is positioned

between said first internal compartment and said second internal compartment.

a.A cooking system, comprising:

a housing having a first internal cooking compartment with a first cooking container

wherein the first and second cooking containers are substantially horizontally coplanar when disposed in the first and second internal cooking compartments respectively, and wherein the first and second cooking containers have respective first and second perforated bases.

a.The cooking system of claim 11, wherein the first cooking container includes a first

external handle attached thereto and the second cooking container includes a second external
handle attached thereto.

a.The cooking system of any one of claims 11 to 12, wherein the first internal cooking

compartment and the second internal cooking compartment are independently operable to
cook food using at least one of conduction, convection, radiation, and induction.

a.The cooking system of any one of claims 11 to 13, further comprising a control system

configured to operate the first and second cooking assemblies, the control system being
configured to receive inputs corresponding to at least one of a temperature, a cook time, and a
food type.

a.The cooking system of any one of claims 11 to 14, further comprising a motor

operably coupled to each of the first and second fans, the motor configured to operate the first
and second fans at the same speed or at different speeds.

a.A cooking system, comprising:

a housing having first and second internal independently removable cooking

first and second heating elements disposed in the housing adjacent the cooking volume of the first and second cooking containers, respectively, the first and second heating elements being independently operable; and
first and second fans disposed in the housing adjacent the first and second heating

a.The cooking system of claim 16, further comprising a control system configured to

operate cooking processes of food contained in the first and second cooking containers.

a.The cooking system of claim 17, wherein the control system is configured to

independently operate the first and second heating elements and the first and second fans.

a.The cooking system of any one of claims 17 to 18, wherein the control system is

configured to receive inputs corresponding to at least one of a temperature, a cook time, and a
food type.

a.The cooking system of any one of claims 17 to 19, wherein the control system is

configured to adjust cooking parameters based on sensed data without user input.