1985).
Baldwin does not challenge Frohlich’s position - that the preamble merely states an
intended use of the claim. Baldwin merely asserts that Marney fails to disclose a pizza heater for
keeping pizzas warm during delivery (opposition at 16), and argues in a conclusory manner that
the preamble is a positive limitation. Specifically, Baldwin has failed to sufficiently explain why
the preamble “breaths life and meaning” into the claims as asserted. Frohlich has presented a
reasonable interpretation of Baldwin claim 40 - that the preamble merely recites an intended use
of an apparatus. Baldwin has failed to demonstrate how Frohlich’s interpretation is erroneous.
Baldwin also argues that the examiner, during ex parte prosecution of Baldwin’s
involved application, considered the Marney reference. However, ex parte determinations made
by an examiner are not binding on the board during an inter partes proceeding. For all of these
reasons, Baldwin’s claims 40, 46 and 48 are unpatentable.
Baldwin claims 21-25, 27, 29, 31-35, 37, 39, 44-45, 47, and 49
Frohlich argues that Baldwin claims 21-25, 27, 31-35, 37, 39, 44-45, 47, and 49 are
obvious over Marney in view of either Toshiba, Howell, Goswami, Le Poidevin, or Salyer
(Motion at 16). With respect to Baldwin claims 31-35, 37 and 39, which depend either directly
or indirectly from Baldwin claims 30 and 36, the additional references that Frohlich relies on as
applied by Frohlich do not make up for the deficiencies of Marney with respect to Baldwin
claims 30, 36 and 38. Accordingly, Frohlich has failed to sufficiently demonstrate that Baldwin
claims 31-35, 37 and 39 are unpatentable.
Obviousness of Baldwin claims 21-25 and 27
Frohlich argues that Baldwin claims 21-23 are obvious over Marney in view of Le
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