Ex Parte Gaudry et al

Patent Trial and Appeal Board

Jun 23, 2016

12413509 (P.T.A.B. Jun. 23, 2016)

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.
12/413,509 03/27/2009 Katherine S. Gaudry KSDE.001CP1 9209
7590 06/23/2016
Kate Gaudry
5503 Charlcote Rd.
Behtesda, MD 20817
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
06/23/2016 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 PATENT TRIAL AND APPEAL BOARD
——————
Ex parte KATHERINE S. GAUDRY, QUENTIN GAUDRY, and
DEBORAH DENNING1
——————
Appeal 2015-000249
Application 12/413,509
Technology Center 1700
——————
Before ROMULO H. DELMENDO, JAMES C. HOUSEL, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
decision rejecting claims 1–14, 17, and 23–35 in the above-identified
application. We have jurisdiction pursuant to 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 According to Katherine S. Gaudry, who is the first named inventor
appearing on behalf of Appellants, the named inventors are the real parties in
interest. Appeal Br. 3.
Appeal 2015-000249
Application 12/413,509
2
BACKGROUND
Appellants’ invention relates to forming food items into two- or three-
dimensional shapes using a flexible strip or a moldable substance. Spec. ¶ 2.
The sole independent claims 1 and 14 are representative:
1. A method for baking a baked item, comprising:
positioning a flexible strip on a surface along at least part of
a desired shape;
positioning an initial food item next to the strip, said strip at
least partially containing said initial food item within the
desired shape;
baking the initial food item and the strip; and
separating the baked food item from the baked strip,
wherein the baked food item separated from the baked strip
comprises a shape substantially similar to the desired shape,
wherein the flexible strip comprises at least three discrete
vertical supports, each vertical support being substantially non-
bendable,
wherein the strip further comprises a covering layer at least
partly covering each of the at least three vertical supports, the
covering layer at least covering one side of the flexible strip and
having substantially no shape memory and
wherein a first support of the at least three vertical supports
is connected to a second support of the at least three vertical
supports by a plurality of independent connectors wherein at
least a portion of each connector of the plurality of independent
connectors extends from the first support to the second support.
. . . .
14. A method for baking a cake, comprising:
forming a depressed indentation into a moldable substance,
the moldable substance being moldable in that:
the substance has a low viscosity such that the substance
is soft and flexible; and
the moldable substance is capable of being shaped, in a
reversible manner into a shape and subsequently maintaining
the shape;
positioning cake batter at a selected location relative to the
moldable substance;
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baking the cake batter and the moldable substance; and
separating the baked cake batter from the baked moldable
substance,
wherein the baked cake batter separated from the baked
moldable substance comprises a shape substantially similar to
the indentation or substantially complementary to the
indentation, and
wherein the moldable substance continues to be moldable
when the cake batter is positioned at the selected location.
Appeal Br. 26, 28 (emphasis added).
The Examiner maintains the following grounds of rejection:2
I. Claim 24 under 35 U.S.C. § 112, para. 1, as failing to comply with
the written description requirement. See Final Action 4–5.
II. Claim 333 under 35 U.S.C. § 112, para. 2, as being indefinite for
failing to particularly point out and distinctly claim the subject matter the
applicant regards as the invention. See Final Action 5–6; Answer 2.
III. Claims 1–6, 8–11, 13, 26, and 32 under 35 U.S.C. § 103(a) as
being unpatentable over Oliver4 in view of Perez ’104,5 Perez ’703,6 and
Close.7 See Final Action 7–12.

2 Claims 14, 17, and 27–31 were originally rejected under 35 U.S.C. ¶ 112
para. 1 as being non-enabling. See Final Action 2–4. However, this
rejection has been withdrawn. See Answer 2.
3 Claims 14, 17, and 27–31 were also originally rejected on the same
grounds. See Final Action 5–6. However, the rejection has been limited to
claim 33. See Answer 2.
4 U.S. Patent No. 4,156,516 [hereinafter Oliver] (issued May 29, 1979).
5 U.S. Patent Application No. US 2006/0027104 A1 [hereinafter Perez ’104]
(published Feb. 9, 2006).
6 U.S. Patent Application No. US 2007/0029703 A1 [hereinafter Perez ’703]
(published Feb. 8, 2007).
7 U.S. Patent No. 5,453,287 [hereinafter Close] (issued Sept. 26, 1995).
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IV. Claim 34 under 35 U.S.C. § 103(a) as being unpatentable over
Oliver in view of Perez ’104, Perez ’703, and Close, and further in view of
any one of Hines,8 Terracciano,9 or Kresa.10 Final Action 12–13.
V. Claims 1–11, 13, 23, 24, 26, and 32–35 under 35 U.S.C. § 103(a)
as being unpatentable over Oliver in view of Perez ’104, Perez ’703, and
Close, and further in view of Kikuchi11 and Ikeda.12 Final Action 14–16.
VI. Claim 12 under 35 U.S.C. § 103(a) as being unpatentable over the
combination as applied to claim 1 in rejections III or V, that relies on Oliver
as the primary reference, and in further view of either Close or Tipton.13
Final Action 16.
VII. Claim 25 under 35 U.S.C. § 103(a) as being unpatentable over the
combination as applied to claim 7 in rejection V,14 and in view of Sitro15 or
Bouton-Hughes,16 and in further view of Wooden Hinges17 or Richey.18
Final Action 17.

8 U.S. Patent No. 2,004,810 [hereinafter Hines] (issued June 11, 1935).
9 U.S. Patent No. 5,709,155 [hereinafter Terracciano] (issued Jan. 20, 1998).
10 U.S. Patent No. 5,240,342 [hereinafter Kresa] (issued Aug. 31, 1993).
11 U.S. Patent No. 4,778,687 [hereinafter Kikuchi] (issued Oct. 18, 1988).
12 U.S. Patent No. 5,009,905 [hereinafter Ikeda] (issued Apr. 23, 1991).
13 U.S. Patent No. 3,107,587 [hereinafter Tipton] (issued Oct. 22, 1963).
14 The Examiner also indicates that claim 25 is unpatentable over the
combination as applied to claim 7 in rejection III. See Final Action 17.
However, rejection III is not applied to claim 7. See id. at 7.
15 U.S. Patent No. 5,765,470 [hereinafter Sitro] (issued Jun. 16, 1998).
16 U.S. Patent No. 5,989,616 [hereinafter Bouton-Hughes] (issued Nov. 23,
1999).
17 Wooden Hinges, http://web.archive.org/web/20070630012830/
http://www.woodgears.ca/wood_hardware/hinges.html (last visited Dec. 20,
2011).
18 U.S. Patent No. 3,992,005 [hereinafter Richey] (issued Nov. 16, 1976).
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VIII. Claims 14, 17, and 31 under 35 U.S.C. § 103(a) as being
unpatentable over Helm19 in view of Conant,20 Doane,21 and any of
Schloss,22 Kusinera,23 or Beggar’s Chicken.24
IX. Claims 14, 17, and 31 under 35 U.S.C. § 103(a) as being
unpatentable over Helm in view of Conant, Doane, Rebecca,25 and any of
Schloss, Kusinera, or Beggar’s Chicken.
X. Claims 14, 17, and 31 under 35 U.S.C. § 103(a) as being
unpatentable over any one of Schloss, Kusinera, or Beggar’s Chicken, and in
further view of Helm.
XI. Claims 27–30 under 35 U.S.C. § 103(a) as being unpatentable over
the combinations as applied to claim 14 above, which relies on Helm,

19 Sarajane Helm, Making Faces & Making Molds, Sarajane’s Polyclay
Gallery, http://web.archive.org/web/20070308065811/
http://www.polyclay.com/make_a_mold1.htm (archived Mar. 8, 2007).
20 Patricia Conant, Golden Fruitcake with Amaretto, The Epicurean Table,
http://web.archive.org/web/20060118045456/http://www.epicureantable.co
m/tutfrcake.htm (archived Jan. 18, 2006).
21 United States Patent No. US 6,713,624 B1 [hereinafter Doane] (issued
Mar. 30, 2004).
22 Andrew Schloss, Cooking With Clay, Philly.com (Mar. 9, 1988), http://
articles.philly.com/1988-03-09/food/26275987_1_clay-cookware-clay-pot-
hot-pot.
23 Celia Kusinera, Beggar’s Chicken, English Patis (Dec. 26, 2004), http://
desarapen.blogspot.com/2004/12/beggars-chicken.html.
24 Beggar’s Chicken, The Cook and the Chef (May 10, 2006), http://www.
abc.net.au/tv/cookandchef/txt/s1635138.htm.
25 Rebecca, Rhubarb Marzipan Tarts, Google Groups (Mar. 26, 2003,
4:44:27 PM UTC−7), https://groups.google.com/d/msg/alt.food.vegan/-
tUGwKiiG7g/zgRUrZrP5c4J.
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Schloss, Kusinera, or Beggar’s Chicken as the primary reference, and in
further view of Lee,26 Reddyrat,27 and Lékué & Beranbaum.28
For rejections III and V, Appellants present arguments relating to the
applicable claims as a group. See Appeal Br. 14–15, 18–19. Therefore,
consistent with the provisions of 37 C.F.R. § 41.37(c)(1)(iv) (2013), we limit
our discussion to independent claim 1 for rejection III and claim 7 for
rejection V, and all claims stand or fall together.
DISCUSSION
I
Claim 24 depends from claim 7, which depends from claim 1, and
requires that the connector between the vertical supports “extends through
an inside of each of one or more of the adjacent supports.” Appeal Br. 29.
As a depiction of an embodiment of claim 24, Appellants refer to Figure 8A,
reproduced below:

26 Melinda Lee, Honey-Roasted Guinea Hen, Recipe Archives, http://web.
archive.org/web/20060324201144/http://melindalee.com/recipearchive.
html?action=124&item_id=638 (archived Mar. 24, 2006).
27 Reddyrat, Greasing & Flouring Cake Pans, Chowhound (July 24, 2006,
6:46 PM), http://chowhound.chow.com/topics/311902.
28 Lékué & Rose Levy Beranbaum, How to Bake with Silicone Pans (2005),
http://www.realbakingwithrose.com/images/lekue_booklet.pdf.
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Figure 8A depicts vertical supports 805 connected by strings 810b which are
depicted as solid lines between the supports, and dotted lines inside the
regions representing the supports. According to the Specification, these
strings “extend through a first support and extend through a second support.”
Spec. ¶ 86.
The Examiner finds that the Specification does not support the subject
matter of claim 24 because the Specification “does not specifically state that
the connector extends through ‘an inside of each of one or more of the
adjacent supports.’” Final Action 5. Moreover, the Examiner finds that
“Item 810b on figure 8A is not clear regarding the position of the connector
with respect to the supports.” Id.
“The written description requirement does not require the applicant
‘to describe exactly the subject matter claimed, [instead] the description
must clearly allow persons of ordinary skill in the art to recognize that [he or
she] invented what is claimed.’” Union Oil Co. of California v. Atl.
Richfield Co., 208 F.3d 989, 997 (Fed. Cir. 2000). Because Figure 8A
depicts a string represented as passing through an inside of a support, we
find that the Specification clearly allows persons of ordinary skill in the art
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to recognize that Appellants invented what is claimed. Therefore, we
determine that the Specification contains an adequate written description of
the subject matter of claim 24.
II
Claim 33 requires that “the connector does not fix a distance
separating the first support from the second support.” Appeal Br. 30. The
Examiner finds that the meaning of this limitation is unclear, because “as
shown in figures 8a–8d of applicant’s drawings[,] the distance separating the
first and second support would have been fixed to a certain degree.” Final
Action 6. The Examiner states that in Appellants’ drawings, “the purpose of
the connectors would result in fixing the distance between the supports
because there would only have been a limited distance between the vertical
supports.” Answer 4.
The Examiner’s rejection appears to rely on interpreting the term fix
so broadly that the claim loses all effective meaning. We give the term fix
its ordinary meaning in this context, which refers to setting a definite
distance between the supports. See, e.g., Fix, verb, Merriam-Webster
Dictionary, http://www.merriam-webster.com/dictionary/fix (last visited
June 14, 2016) (“3a: to set or place definitely: establish”). This is the
broadest reasonable interpretation of the term, and it is consistent with the
Specification, which makes a distinction between the terms fix and constrain
in relation to how the connectors affect the movement of the supports. See
Spec. ¶ 86. In light of this interpretation, we find that the Examiner erred in
rejecting claim 33 on the ground of indefiniteness.
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III
Claim 1 requires that “a first support . . . is connected to a second
support of the at least three vertical supports by a plurality of independent
connectors wherein at least a portion of each connector of the plurality of
independent connectors extends from the first support to the second
support.” Appeal Br. 26. According to the Examiner, see Final Action 10,
this limitation is found in Figure 13 of Oliver, which is reproduced below:

Figure 13 depicts “an exploded fragmentary perspective view of a
frictionally hinged freestanding wall section,” Oliver 5:24–25, which
includes hinge members 83, pins 84, and apertures 85 and 86, see id. at
6:13–16. The Examiner determines that items 85 and 86 “can be reasonably
construed as being independent of each other because they all separately
connect a first vertical support to a second vertical support and each of these
connectors ‘extend’ from the first support to the second support.” Answer 5.
Appellants argue that, unlike the string connectors 810a–c depicted in
Figure 8A of the Specification, supra, items 85 and 86 of Oliver are not
“independent connectors” as required by claim 1, and instead are “part of a
single hinge component.” Appeal Br. 15.
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We give claim terms their broadest reasonable interpretation
consistent with the Specification. See In re Translogic Tech. Inc., 504 F.3d
1249, 1256 (Fed. Cir. 2007). Appellants’ implied argument is that two
connectors cannot be independent if they are part of a single component.
See Appeal Br. 15. However, Appellants do not clearly articulate any reason
why the Examiner’s interpretation is unreasonably broad, or inconsistent
with the Specification. Therefore, we determine that the broadest reasonable
construction of the term independent connectors includes portions of a
single structure that form independent connections with a neighboring
support. In light of this construction, we find no reversible error in the
Examiner’s finding that Oliver discloses independent connectors.
Appellants also raise an issue with the number of references that the
Examiner has combined in order to reject claims on the basis of obviousness.
See Appeal Br. 14. As Appellants acknowledge, “a large number of
references does not, by itself, weigh against obviousness.” See id.; see also
In re Gorman, 933 F.2d 982, 987 (Fed. Cir. 1991). Moreover, Appellants do
not raise in their Appeal Brief any specific argument that one of ordinary
skill in the art would not have had reason to combine Oliver with the
teachings of the other three references. Therefore, we find no reversible
error in the Examiner’s determination that claim 1 is obvious based on a
combination of Oliver, Perez ’104, Perez ’703, and Close.
IV
Claim 34 requires that “a connector of the plurality of connectors is
flexible.” Appeal Br. 30. The Examiner finds that Hines, Terraciano, and
Kresa teach the use of flexible connectors, in the sense that the disclosed
hinge connectors can be made of metal or plastic, and “metal and plastic
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have been well recognized to have a degree of flexibility,” which the
Examiner equates with malleability. See Final Action 13.
“A construction that is ‘unreasonably broad and which does not
‘reasonably reflect the plain language and disclosure’ will not pass muster.”
Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015)
(citing In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010)). We
determine that the Examiner’s construction of the term flexible is
unreasonably broad in light of the Specification, which distinguishes
between a “floppy (e.g., like a string), flexible, or semi-rigid” connector, on
the one hand, and “a rigid, pivotable component” such as a hinge, on the
other hand. Spec. ¶ 86. Therefore, we reverse the Examiner’s rejection of
claim 34 over the combination of Oliver, Perez ’104, Perez ’703, and Close
in view of Hines, Terracciano or Kresa.
V
Kikuchi describes placing fish in a rollable bamboo mat and heating,
to form a cylindrically-shaped fish roll. See Kikuchi Abstract, 1:43–55,
2:40–49. Ikeda describes a bamboo mat used to roll sushi that is formed of a
series of parallel bamboo rods 19 parallel and hingedly mounted together by
interlacing of flexible fibers 19a between the rods.” Ikeda 4:16–19; see also
Fig. 3. As Appellants acknowledge, the bamboo mats are similar to the
structure depicted in Figure 8A. See Appeal Br. 18–19.
Regarding claims 1–6, 8–11, 13, 26, and 32, which were held obvious
in rejection III based on Oliver, Perez ’104, Perez ’703, and Close, the
Examiner applies Kikuchi and Ikeda as additional references that describe
the use of “independent connectors” between supports in a flexible structure
for shaping food products. See Final Action 14. For the reasons discussed
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above with respect to rejection III, we find no error in the Examiner’s
rejection of these claims.
Regarding claims 7, 23, 24, and 33–35, which according to the
Examiner contain limitations reading on the structure of a sushi mat, the
Examiner determines that it would have been obvious to one of ordinary
skill in the art to substitute the string connectors of Kikuchi and Ikeda with
the hinged connectors of Oliver, given that the flexible strips of all three
references function in a similar way, and with similar utility. See Appeal Br.
14–16.
Appellants argue that the bamboo mats described in Kikuchi and
Ikeda are not analogous art. Appeal Br. 18. According to Appellants, the
hinge structures used in Oliver are designed “to provide a snug friction fit,
thus enabling wall section 2 to retain a particular bent configuration.” Id. at
19 (citing Oliver 6:13–18). However, Appellants argue that
bamboo mats do not have this friction feature that would allow
them to retain a bent configuration. Thus, a flexible strip
constructed as proposed in the Action would seem to be
incapable of maintaining its shape, and thus, e.g., positioning
the initial food . . . would itself seem to cause the strip to
collapse. The collapse would seem even more likely given
expansive forces that the food item may exert on the strip while
baking.
Id.
Prior art is analogous if either (1) “it is from the same field of
endeavor,” or (2) “it is reasonably pertinent to the particular problem the
inventor is trying to solve.” Circuit Check Inc. v. QXQ Inc., 795 F.3d 1331,
1335 (Fed. Cir. 2015). As the Examiner correctly notes, Kikuchi, like
Appellants or Oliver, teaches enclosing a food product in a flexible strip and
cooking it, so that the food product retains its shape. Answer 7 (citing
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Kikuchi 2:37–45). Ikeda is also from the field of shaping food products.
Indeed, Appellants’ disclosure of structures resembling sushi mats in the
current Specification (¶ 187) and Drawings (Fig. 8A) supports a
determination that Kikuchi and Ikeda are in the same field of endeavor as
Appellants’ invention. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
2004) (explaining that the test “for analogous art requires the PTO to
determine the appropriate field of endeavor by reference to explanations of
the invention’s subject matter in the patent application, including the
embodiments, function, and structure of the claimed invention.”). Moreover
the sushi mat structures in Kikuchi and Ikeda are reasonably pertinent to the
problem of designing a flexible strip for shaping baked materials. Therefore,
we determine that Kikuchi and Ikeda are analogous references to
Appellants’ invention and Oliver.
Regarding Appellants’ argument that the sushi mat structure of
Kikuchi and Ikeda would not provide a “snug friction fit” feature as taught
by Oliver, we do not find this argument persuasive. First, Appellants do not
direct our attention to any evidence, apart from mere argument, that bamboo
mats would not form a snug friction fit, or would be incapable of resisting
expansive baking forces, such that the structure would be unsuitable as a
substitution for the hinged structure in Oliver. Second, Appellants do not
direct our attention to evidence of reversible error in the Examiner’s finding
that the function of shape retention in claim 1 can be performed by the
covering layer “having substantially no shape memory,” meaning that it can
retain its shape in a bent configuration. Answer 8–9 (citing Spec. ¶ 88–89).
Consequently, the evidence before us shows that the bamboo mat structure
of Kikuchi or Ikeda, on its own, need not be capable of retaining its structure
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if the structure is used in a flexible strip taught by the combination of Oliver,
Perez ’104, Perez ’703, and Close.
For the above reasons, we are not persuaded of reversible error in the
Examiner’s rejection of 1–11, 13, 23, 24, 26, and 32–35 over Oliver, Perez
’104, Perez ’703, and Close, in further view of Kikuchi and Ikeda.
VI, VII
Appellants make no distinct argument regarding the patentability of
dependent claims 12 and 25. See Appeal Br. 15, 19. Because these claims
depend from claim 1, and we affirm the Examiner’s rejections of claim 1, we
also affirm the Examiner’s rejections of claims 12 and 25 in rejections VI
and VII.
VIII–XI
Claim 14 is directed to a method for baking a cake that makes use of a
moldable substance to define the shape of the cake batter while baking,
“wherein the moldable substance continues to be moldable when the cake
batter is positioned at the selected location.” Appeal Br. 28. The Examiner
rejects claim 14 based on three different combinations of references, each of
which includes Helm, Schloss, Kusinera, and Beggar’s Chicken.
Helm teaches cooking cakes using molds made of putty. See Helm 1
(describing a putty that “can also be baked as with cakes”). However,
according to a declaration submitted by Appellants, this putty is cured and
hardened prior to use as a cooking mold. See Gaudry Decl. ¶ 4, August 23,
2013. The Examiner appears to accept this testimony as precluding the
continued moldability of the moldable substance after the cake batter has
been positioned inside it, as required by claim 14. See Answer 10–12.
However, the Examiner cites Schloss, Kusinera, and Beggar’s Chicken,
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which teach a method of cooking a chicken in wet clay, and argues that “one
having ordinary skill in the art would have been led to experiment with other
food safe moldable substances and to thus modify the process as taught by
[Helm] and to use another moldable and ovenable substance.” Answer 11.
In rejection IX, the Examiner additionally cites Rebecca, which discloses a
recipe for a rhubarb marzipan tart, and therefore teaches the baking of a pie
filling in a moldable substance (the crust) that continues to be moldable after
the uncooked pie filling is placed inside the crust. See Final Action 22–23.
According to the Examiner, the pie crust would be removable, for example,
if the dough contains gluten and the food product is being made for a person
who cannot consume gluten, see Answer 17–18.
Having considered the Examiner’s findings, including the additional
references for rejections VIII–X, we determine that the Examiner has not
made a prima facie case of obviousness with respect to claim 14. The
teachings of Schloss, Kusinera, and Beggar’s Chicken, and Rebecca are not
reasonably applicable to the problem of molding cake batter while baking,
such that one of ordinary skill in the art would have reason to combine the
references as indicated by the Examiner. For the above reasons, we
determine that the Examiner reversibly erred in rejecting claim 14 on the
basis of obviousness, as well as claims 17 and 31 which depend therefrom.
Because the additional references cited in rejection XI do not cure the
deficiencies of the above rejections, we also determine that the Examiner
reversibly erred in rejecting claims 27–30, which depend from claim 14.
DECISION
The Examiner’s decision to reject claims 24 and 33 under 35 U.S.C.
§ 112 is reversed.
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The Examiner’s decision to reject claims 1–13, 23–26, and 32–35
under 35 U.S.C. § 103(a) is affirmed.
The Examiner’s decision to reject claims 14, 17, and 27–31 under
35 U.S.C. § 103(a) is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)
AFFIRMED-IN-PART