Ex Parte Blucher

Board of Patent Appeals and Interferences

Jun 23, 2006

09491639 (B.P.A.I. Jun. 23, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TIMOTHY L. BLUCHER
____________

Appeal No. 2006-1267
Application No. 09/491,639
____________

HEARD: JUNE 6, 2006
____________

Before FRANKFORT, CRAWFORD and BAHR, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal from the examiner's final
rejection of claims 1 through 5, 9, 11, 28 through 35, 38 through
48, 52 through 59 and 63. Claims 6, 7, 49 through 51 and 60 through
62, the only other claims remaining in the application, have been
withdrawn from further consideration. Claims 8, 10, 12 through 27,
36 and 37 have been cancelled.

Appeal No. 2006-1267
Application No. 09/491,639

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Appellant’s invention relates to a flexible, polymeric,
contour fit pan liner within a food service pan to form a barrier
between food placed within the pan and the interior surface of the
pan. As noted on page 5 of the specification, the pan liner is
preferably formed of a high temperature nylon resin material
suitable for food cooking and food preparation which will
preferably withstand a temperature of about 400ºF. Independent
claims 1, 32, 34, 38, 42 and 53 are representative of the subject
matter on appeal and a copy of those claims can be found in the
“Claims Appendix” attached to appellant’s brief.

The prior art references relied upon by the examiner in
rejecting the appealed claims are:
Ibsch, Jr. (Ibsch) 2,542,413 Feb. 20, 1951
Geigel 3,357,152 Dec. 12, 1967
Binks 4,320,699 Mar. 23, 1982
Van Erden et al. (Van Erden) 4,759,642 Jul. 26, 1988
Ferlanti 4,828,134 May 9, 1989
M&Q Plastics Products brochure.

Claims 38, 42 through 45 and 53 through 56 stand rejected
under 35 U.S.C. § 102(b) as being anticipated by Binks.

Appeal No. 2006-1267
Application No. 09/491,639

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Claims 1 through 5, 9, 30 through 35, 38, 42 through 48, 52
through 59 and 63 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Binks in view of Geigel and Van Erden.

Claims 11, 28, 29, 39, 40 and 41 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Binks in view of Geigel
and Van Erden as applied above, and further in view of the M&Q
brochure.

Claims 1 through 5, 9, 11, 28 through 35, 38 through 48, 52
through 59 and 63 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ibsch or Ferlanti in view of Geigel, Van Erden
and the M&Q brochure.

Rather than reiterate the examiner's full statement of the
above-noted rejections and the conflicting viewpoints advanced by
the examiner and appellant regarding those rejections, we make
reference to the answer (mailed June 9, 2005) for the examiner's
reasoning in support of the rejections, and to appellant’s brief
(filed May 16, 2005) for the arguments thereagainst.

Appeal No. 2006-1267
Application No. 09/491,639

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OPINION
In reaching our decision in this appeal, we have given careful
consideration to appellant’s specification and claims, to the
applied prior art references, and to the respective positions
articulated by appellant and the examiner. As a consequence of our
review, we have made the determination that none of the examiner’s
rejections on appeal will be sustained. Our reasons follow.

We turn first to the examiner's rejection of claims 38, 42
through 45 and 53 through 56 under 35 U.S.C. § 102(b) as being
anticipated by Binks. The examiner’s statement of this rejection is
found on pages 4-5 of the answer. For the reasons set forth on
pages 16-21 of the brief, we agree with appellant that Binks does
not anticipate the pan liner system recited in independent claims
38, 42 and 53 on appeal, or claims 43 through 45 and 54 through 56
that depend from claims 42 and 53, respectively. The examiner
points specifically to Figure 2 of Binks to support the rejection.
Like appellant, it is clear to us that Binks discloses a flat sheet
or liner (10) of heat softenable tetrafluoroethylene (TFE) polymer
which is simply laid in a relatively shallow pan (11) and
subsequently heated to soften and become limp, thereby allowing the
liner to conform to the pan’s heated cooking surface under a load
Appeal No. 2006-1267
Application No. 09/491,639

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of the material to be subjected to the cooking heat (col. 4, lines
42-46). Contrary to the examiner’s assertions, the flat sheet of
Binks is not “formed in the shape of a bag having side edges and a
contoured bottom edge” as set forth in claim 38, or “formed as a
bag comprising two polymeric sides meeting at sealed side edges and
having open top edges” and a contoured bottom edge means as
required in claim 53. Moreover, the sheet liner of Binks does not
have two sides meeting at side edges and a contoured bottom edge
having a single central edge portion and two contoured edge
portions extending outwardly from each end of the single central
edge portion to meet the side edges, with the polymeric side edges
bonded together along at least the two contoured edge portions and
the side edges, as in claim 42 on appeal.

For the above reasons, we will not sustain the examiner's
rejection of claims 38, 42 through 45 and 53 through 56 under 35
U.S.C. § 102(b) as being anticipated by Binks.

As for the rejection of claims 1 through 5, 9, 30 through 35,
38, 42 through 48, 52 through 59 and 63 under 35 U.S.C. § 103(a) as
being unpatentable over Binks in view of Geigel and Van Erden, we
agree with appellant’s assessment set forth in the brief (pages 21-
Appeal No. 2006-1267
Application No. 09/491,639

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30). Simply stated, neither the plastic bag of Geigel for carrying
cement, flour, fertilizer, carbon black, etc, nor the reclosable
cereal bag of Van Erden provide any teaching, suggestion or
incentive for modifying the flat sheet pan liner of Binks so as to
result in the pan liner system and food preparation and service
system claimed by appellant. Thus, we will not sustain the
examiner's rejection of claims 1 through 5, 9, 30 through 35, 38,
42 through 48, 52 through 59 and 63 under 35 U.S.C. § 103(a) as
being unpatentable over Binks in view of Geigel and Van Erden.

We have also reviewed the M&Q brochure relied upon by the
examiner in the rejection of dependent claims 11, 28, 29, 39, 40
and 41 under 35 U.S.C. § 103(a) as being unpatentable over Binks in
view of Geigel and Van Erden as applied above, and further in view
of the M&Q brochure. Here again, we agree with appellant’s
assessment of the rejection on appeal, noting particularly pages
42-43 of the brief. Thus, we will not sustain the examiner’s
rejection of claims 11, 28, 29, 39, 40 and 41 under 35 U.S.C.
§ 103(a).

Appeal No. 2006-1267
Application No. 09/491,639

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The last of the examiner’s rejections for our review is that
of claims 1 through 5, 9, 11, 28 through 35, 38 through 48, 52
through 59 and 63 under 35 U.S.C. § 103(a) as being unpatentable
over Ibsch or Ferlanti in view of Geigel, Van Erden and the M&Q
brochure. Like the situations above where the examiner was
proposing to modify the pan liner of Binks based on the teachings
of Geigel, Van Erden and the M&Q brochure, we find no teaching,
suggestion or incentive for modifying the pan liners of either
Ibsch or Ferlanti relying on the plastic bag of Geigel which
carries cement, flour, fertilizer, carbon black, etc, or the
reclosable cereal bag of Van Erden. The addition of the M&Q
brochure does nothing to alter that view. Thus, for the reasons set
forth on pages 43-45 of the brief, we will not sustain the
examiner’s rejection of claims 1 through 5, 9, 11, 28 through 35,
38 through 48, 52 through 59 and 63 under 35 U.S.C. § 103(a) as
being unpatentable over Ibsch or Ferlanti in view of Geigel, Van
Erden and the M&Q brochure.1

1 Given our disposition of the examiner’s rejections under
35 U.S.C. § 103, we have found it unnecessary to comment on
appellant’s evidence of non-obviousness in the form of the
declarations from Dr. Melvin Druin and Timothy Blucher.
Appeal No. 2006-1267
Application No. 09/491,639

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Since we have refused to sustain any of the rejections on appeal, it follows that the
decision of the examiner is reversed.
REVERSED

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )

Comment [jvn1]: Type or Paste
Address

Appeal No. 2006-1267
Application No. 09/491,639

9
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1100 New York Avenue, N.W.
Washington, DC 20005

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