Ex Parte Glynn

Patent Trial and Appeal Board

Feb 27, 2013

11474618 (P.T.A.B. Feb. 27, 2013)

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.
11/474,618 06/26/2006 Kenneth P. Glynn GTI-105A 1251
7590 02/28/2013
KENNETH P. GLYNN
GLYNNTECH, INC.
6 Minneakoning Road
Flemington, NJ 08822
EXAMINER
MATHEW, HEMANT MATHAI
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
02/28/2013 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 KENNETH P. GLYNN
____________

Appeal 2011-000248
Application 11/474,618
Technology Center 3700
____________

Before LINDA E. HORNER, KEN B. BARRETT, and
CARL M. DeFRANCO, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Kenneth P. Glynn (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 21-40, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter NEW GROUNDS OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).
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THE INVENTION
Appellant’s claimed invention relates to “a reversible grill with a
plurality of orifices or slots to permit food fats, such as grease, to drip down
into or through the device” and nesting recesses in one side of the grill for
cooking meatballs and other small food masses. Spec., para. [0002]. Claims
21 and 29 are independent. Claim 21, reproduced below, is illustrative of
the subject matter on appeal.
21. A reversible grilling device for grilling, broiling, frying,
baking, and steaming, which consists of:
a single component element of rigid heat conductive
material having a top and a bottom and at least one side wall,
said side wall having a height of about 0.5 inches to about
3 inches, said top having a flat surface and said bottom having a
flat surface, said single component element having a plurality of
orifices passing from said top to said bottom, and said top flat
surface having a plurality of nesting recesses, each of said
nesting recesses traversing a plurality of said orifices;
wherein said device is adapted to be placed adjacent a
heating means for cooking with said top surface up to cook a
plurality of food units in said plurality of recesses, and said
device is adapted to be placed adjacent said heating means for
cooking with said bottom surface up to cook at least one food
unit on said flat surface.
Independent claim 29 is also directed to a reversible grilling device.
Claim 29 is similar to claim 21 except that claim 29 omits the limitation of
“each of said nesting recesses traversing a plurality of said orifices” and
claim 29 calls for the nesting recesses to be “spherical section recesses.”

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THE REJECTIONS
Appellant seeks review of the following rejections:1
1. Claims 29-34 and 38-40 under 35 U.S.C. § 103(a) as being
unpatentable over Geronimo (EP 0 498 048 A1; pub. Aug. 12, 1992);
2. Claims 21-27, 29, and 33 under 35 U.S.C. § 103(a) as being
unpatentable over Castellani (US 6,431,059 B1; iss. Aug. 13, 2002);
and
3. Claims 28 and 35-37 under 35 U.S.C. § 103(a) as being unpatentable
over Castellani and Geronimo.
ANALYSIS
Rejection 1 - Claims 29-34 and 38-40 as unpatentable over Geronimo
The Examiner found that Geronimo discloses a grilling device
including a top flat surface having a plurality of nesting recesses (grease
guiding channels 13), “each of said nesting recesses being spherical section
recesses (as schematically shown in Fig. 2).” Ans. 4. See also Ans. 9-10
(finding that “the grease-guiding channels also have spherical section
recesses in which a section of the channels are spherically shaped (as
schematically shown in Fig[s]. 3 and 4)”).
The Specification describes that “[i]n some preferred embodiments of
the present invention grilling device the plurality of recesses are a plurality

1 To the extent Appellant also seeks review of the Examiner’s objections to
any of claims 21, 23, 25, 29, and 31 (Br. 4-5), such objections are
reviewable by petition under 37 C.F.R. § 1.181, and thus are not within the
jurisdiction of the Board. See Manual of Patent Examining Procedure
(MPEP) §§ 1002.02(c)(4) and 1201 (8th Ed., Rev. 9, Aug. 2012).
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of spherical section recesses.” Spec., para. [0013]. Figure 1 shows a
reversible grilling device 1 having a top surface 3 with rectangular drainage
slots 9, 13, 35, 55, and 57 cut therethrough and nesting recesses 17, 19, 21,
and 41 cut therein. Spec., para. [0026]. A portion of the drainage slots are
located within the nesting recesses. Spec., para. [0027]; fig. 1. The nesting
recesses are shown as being cut in the shape of a portion of a sphere and are
described as being “for receiving meatballs and other similar piece meal
foods.” Spec., para. [0026]; fig. 1. Based on the description of the invention
provided in the Specification, we agree with Appellant (Br. 7) that a person
skilled in the art would understand “spherical section recesses” to refer to
“recesses that have the shapes of a section of a sphere.”
Geronimo discloses a gridiron having grease guiding channels 13
stamped in a top surface thereof and slots 12 formed through the top surface
and disposed between the grease guiding channels 13. Geronimo, col. 3, ll.
20-29; figs. 2, 3. As visible in the figures of Geronimo, the grease guiding
channels 13 are elongated, tapered troughs each with an arcuate end and a
pointed end and having a parabolic cross-section. Figs. 2-4; Br. 7. Contrary
to the Examiner’s finding, Geronimo’s channels 13 are not recesses that
have the shapes of a section of a sphere. Based on our interpretation of
“spherical section recesses” discussed supra, we find that Geronimo does
not disclose “nesting recesses being spherical section recesses” as called for
in independent claim 29. The Examiner’s conclusion of obviousness of
claim 29 is based on an erroneous finding of fact as to the disclosure of
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Geronimo. For this reason, we cannot sustain the rejection of claim 29, or
its dependent claims 30-34 and 38-40 as being unpatentable over Geronimo.

Rejection 2 - Claims 21-27, 29, and 33 as unpatentable over Castellani
Appellant argues the claims subject to this ground of rejection as a
group. Br. 7-8. We select claim 29 as representative, and claims 21-27 and
33 stand or fall with claim 29. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner found that Castellani discloses a grilling device
including a bottom having a flat surface and that is capable of being placed
adjacent a heating means for cooking with the bottom surface and is capable
to cook at least one food unit on the flat surface depending on the food being
cooked and the size of the food being cooked. Ans. 6-7 (citing Castellani,
fig. 2).2 Appellant asserts that the devices of Castellani “structurally do not
have flat bottoms” and that “Castellani’s single-component element has a
bottom with a plurality of convex bumps formed opposite the concave
recesses on the top.” Br. 8. Appellant argues “[w]ithout a flat bottom, [the]
Castellani device cannot be used to be turned over for grilling steaks and

2 The Examiner found that Castellani discloses all the elements called for in
claim 29 except that it does not specifically disclose the side wall having a
height of about 0.5 inches to about 3 inches. Ans. 7. The Examiner
determined that the specific dimensions of the side wall height would have
been obvious to one of ordinary skill in the art as a matter of routine
experimentation. Id. Appellant does not contest the Examiner’s
determination as to obviousness of the claimed side wall height or contest
the Examiner’s findings that Castellani discloses the other elements called
for in claim 29 except for the particular claim limitations discussed in this
opinion.
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fish” and that “if Castellani were flipped upside-down, the drainage holes in
that orientation would be above the places where grease would collect, and
no drainage holes would be found where the grease does collect.” Id.
We agree with the Examiner that Castellani’s device, which is formed
out of a single material such as metal, is capable of being used over a
heating means with either side facing up for cooking a food unit thereon.
Ans. 11. With regard to Appellant’s argument that the bottom of
Castellani’s device does not have a flat surface, we find that the portion of
the bottom that lies between the adjacent recesses forms a flat surface on
which a food unit can be cooked. See Castellani, figs. 1, 2. As to
Appellant’s argument that the bottom of Castellani cannot be used to grill
steaks or fish, claim 29 calls for the bottom to be adapted to be used to cook
at least one food unit on the flat surface. The claim does not specify the
particular type of food or a food unit of a particular size to be cooked. With
regard to Appellant’s argument that when flipped with the bottom facing up,
no drainage holes would be found where the grease collects, such argument
is not persuasive of error because it is not commensurate with the language
of claim 29, which does not call for the orifices to be located where grease
collects when the bottom is facing up. As such, we sustain the Examiner’s
rejection of claims 21-27, 29, and 33 under 35 U.S.C. § 103(a) as
unpatentable over Castellani.
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Rejection 3 - Claims 28 and 35-37 as unpatentable over Castellani and
Geronimo
The Examiner found that it would have been obvious to one of
ordinary skill in the art at the time of Appellant’s invention to modify the
device of Castellani to add a hanging orifice (claim 28), based on the
teachings of Geronimo, “to allow for the baking device to be hung on a wall
rack for easy storage.” Ans. 8. The Examiner also found that it would have
been obvious to one of ordinary skill to modify the device of Castellani to
add a base and legs (claims 35-37), as taught in Geronimo, “to allow the
baking device to stand within the oven and allow space to be created under
the cooking surface for warm air to travel and heat the baking device and
food evenly.” Ans. 8-9.
With regard to claim 28, Appellant argues that to use the handle of
Geronimo as a hanging orifice, the legs of the grill would protrude from the
wall in a dangerous manner, which would discourage anyone from using the
handle in such a manner or applying it to Castellani. Br. 9. We agree with
the Examiner (Ans. 12) that based on the teaching in Geronimo to add a
handle to a gridiron, it would have been obvious to add a handle to the
device of Castellani, and that in making such a modification, a gap would be
formed between the handle and the pan thereby creating an orifice by which
the pan could be hung. As such, we affirm the rejection of claim 28 under
35 U.S.C. § 103(a) as unpatentable over Castellani and Geronimo.
Appellant presents no arguments specifically rebutting the Examiner’s
rejection of claims 35-37. As such, we affirm the rejection of claims 35-37
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under 35 U.S.C. § 103(a) as unpatentable over Castellani and Geronimo for
the same reasons as provided supra in our analysis of claims 21, 23, and 26,
from which these claims depend.
NEW GROUNDS OF REJECTION
We enter new grounds of rejection under 35 U.S.C. § 103(a) of claims
30-32 as being unpatentable over Castellani and of claims 34 and 38-40 as
being unpatentable over Castellani and Geronimo. Claims 30-32, 34, and
38-40 depend directly or indirectly from independent claim 29, and their
claim limitations mirror the limitations found in dependent claims 22, 23,
26, 28, and 35-37, respectively. For the same reasons that we affirmed the
rejections of dependent claims 22, 23, and 26 as being unpatentable over
Castellani and claims 28 and 35-37 as being unpatentable over Castellani
and Geronimo, we now enter new grounds of rejection of dependent claims
30-32, 34, and 38-40 under 35 U.S.C. § 103(a). We note that Appellant did
not contest the Examiner’s findings (Ans. 7) that Castellani discloses the
subject matter of claims 22, 23, and 26. Br. 7-8. Appellant also did not
present arguments specifically rebutting the Examiner’s rejection (Ans. 8-9)
of claims 35-37 over the combination of Castellani and Geronimo. Br. 9.
Appellant did present arguments rebutting the rejection of claim 28, but we
found those arguments unpersuasive, and thus enter a new ground of
rejection of claim 34 for the same reasons relied on by the Examiner in the
rejection of claim 28.
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DECISION
We REVERSE the decision of the Examiner to reject claims 30-32,
34, and 38-40. We AFFIRM the decision of the Examiner to reject claims
21-29, 33, and 35-37. We enter NEW GROUNDS OF REJECTION of
claims 30-32, 34, and 38-40 under 35 U.S.C. § 103(a).
Regarding the affirmed rejections, 37 C.F.R. § 41.52(a)(1) provides
“Appellant may file a single request for rehearing within two months from
the date of the original decision of the Board.”
In addition to affirming the Examiner’s rejections of one or more
claims, this decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the Examiner, in which event the proceeding
will be remanded to the Examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .
Should Appellant elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed
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rejections, the effective date of the affirmance is deferred until conclusion of
the prosecution before the Examiner unless, as a mere incident to the limited
prosecution, the affirmed rejections are overcome.
If Appellant elects prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejections, including any timely request for rehearing
thereof.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)

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