10878764 (B.P.A.I. Jul. 27, 2010)

Ex Parte Fairhurst

Board of Patent Appeals and InterferencesJul 27, 2010

10878764 (B.P.A.I. Jul. 27, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/878,764 06/28/2004 Angela L. Fairhurst 13113652 6191 28960 7590 07/27/2010 HAVERSTOCK & OWENS LLP 162 N WOLFE ROAD SUNNYVALE, CA 94086 EXAMINER STULII, VERA ART UNIT PAPER NUMBER 1781 MAIL DATE DELIVERY MODE 07/27/2010 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte ANGELA L. FAIRHURST ____________ Appeal 2009-013707 Application 10/878,764 Technology Center 1700 ____________ Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and CATHERINE Q. TIMM, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL1 This is an appeal from the final rejection of claims 1-5, 8-16, and 19- 30. We have jurisdiction under 35 U.S.C. § 6(b). Claim 1 is illustrative: 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-013707 Application 10/878,764 1. A baking pack, comprising: ready-to-bake refrigerated or frozen cookie dough; an integrated baking sheet configured to be flattened and received in a toaster oven, the dough being wrapped in the integrated baking sheet such that the integrated baking sheet covers the dough on all sides, the integrated baking sheet forming an inner wrap; an outer wrap, wherein the dough is first wrapped in the integrated baking sheet and then wrapped in the outer wrap such that the outer wrap covers on all sides the dough wrapped in the integrated baking sheet; wherein the amount of dough and the dimensions of the integrated baking sheet are proportioned such that when the dough is wrapped, the dough is contained in the integrated baking sheet, and when the dough is unwrapped and formed into one or more dough pieces, the dough pieces are arranged on the integrated baking sheet for baking. The Examiner relies upon the following references as evidence of obviousness (Ans. 3): Ayres 2,745,753 May 15, 1956 Schneider 2,813,033 Nov. 12, 1957 Bridgford 3,507,668 Apr. 21, 1970 Perkins GB 2 220 346 A Jan. 10, 1990 Blaschke 6,413,563 B1 Jul. 02, 2002 Appellant’s claimed invention is directed to a baking pack comprising ready-to-bake dough that is wrapped on all sides with an integrated baking sheet that is configured to be unwrapped and flattened for reception in a toaster oven. An outer wrap is applied to the integrated baking sheet. The appealed claims stand rejected under 35 U.S.C. § 103(a) as follows: 2 Appeal 2009-013707 Application 10/878,764 (a) claims 1-5, 9-16, and 20-29 over Schneider in view of Bridgford, Ayres and Blaschke, (b) claims 8, 19, and 30 over the references in (a) above further in view of Perkins, (c) claims 1-5, 9-16, and 20-29 over Bridgford in view of Schneider, Ayres and Blaschke, (d) claims 8, 19, and 30 over the combination of references stated in (d) further in view of Perkins. We have thoroughly reviewed each of Appellant’s arguments for patentability. However, we are in complete agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of § 103 in view of the applied prior art. Accordingly, we will sustain the Examiner’s rejections for essentially those reasons expressed in the Answer, and we add the following primarily for emphasis. There is no dispute that Schneider, like Appellant, discloses a baking pack comprising ready-to-bake cookie dough having an integrated baking sheet that is capable of being flattened and received in an oven for cooking or baking, and that Schneider discloses placing a plurality of such integrated baking sheets in layers in a container which serve as an outer wrap. As recognized by the Examiner and emphasized by Appellant, Schneider does not teach that the integrated baking sheet covers the dough on all sides, as presently claimed. However, we fully concur with the Examiner that Bridgford, Ayres and Blaschke evidence the obviousness of modifying Schneider by having the integrated baking sheet cover the dough on all sides. We are convinced that one of ordinary skill in the baking art would 3 Appeal 2009-013707 Application 10/878,764 have found it obvious to completely wrap the dough with the integrated baking sheet as an alternative to using the disclosed top sheet of wax paper. Bridgford, in particular, demonstrates that it was known in the art to completely wrap the dough product with an integrated baking sheet that is placed in an oven for cooking. Contrary to Appellant’s argument, we agree with the Examiner that it is of no moment that the integrated baking sheet of Bridgford is not intended to be flattened before placement in the oven. Manifestly, the integrated baking sheet of Bridgford is capable of being flattened and, therefore, necessarily is configured to be flattened. Appellant’s argument in the Reply Brief establishes no meaningful, substantive distinction between a sheet that is configured to be flattened and capable of being flattened. Moreover, we have no doubt that one of ordinary skill in the art would have found it obvious to configure the shape of the integrated baking sheet in accordance with the desired final shape of the baked product. A principal argument of Appellant repeated throughout the Main Brief and Reply Brief is that “[n]either Schneider, Bridgford, Ayres nor Blaschke teach [sic, teaches] that the doughy pieces are wrapped with an inner wrap and an outer wrap, one of which is an integrated baking sheet configured to be flattened and received in a toaster oven, and neither can their combination” (App. Br. 10, second para.). However, as pointed out by the Examiner, Bridgford indeed teaches a doughy piece that is wrapped with an inner, integrated baking sheet and an outer wrap wherein the inner wrap is configured to be flattened and received in a toaster oven. Furthermore, in our view, it is not necessary for a finding of obviousness under § 103 that any one of the cited references teaches these claimed elements. Rather, for 4 Appeal 2009-013707 Application 10/878,764 the reasons set forth above, it is our view that it would have been obvious for one of ordinary skill in the art to make a baking pack comprising an integrated baking sheet which wraps dough on all sides, and an outer wrap, wherein the integrated baking sheet can be unwrapped and flattened before being placed in an oven. We agree with the Examiner that one of ordinary skill in the art would have found it obvious to flatten the integrated baking sheet of Bridgford to the extent or degree desired. The fact that Bridgford desires to mold the baked dough into the shape of a loaf of bread does not undermine the obviousness of using an integrated baking sheet of the type disclosed by Bridgford for unleavened dough that does not require shaping by side walls of the integrated baking sheet. As a final point, we note that Appellant bases no argument upon objective evidence of non-obviousness, such as unexpected results. In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner’s decision rejecting the appealed claims is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a) (2008). AFFIRMED ssl HAVERSTOCK & OWENS LLP 162 N WOLFE ROAD SUNNYVALE, CA 94086 5