Ex parte IYENGAR et al.

Board of Patent Appeals and Interferences

Jul 6, 1998

07826171 (B.P.A.I. Jul. 6, 1998)

Application for patent filed January 24, 1992.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte RANGA G. IYENGAR,
JEFFREY L. BURMAN
and GARY E. SHERER
_____________
Appeal No. 95-4735
Application 07/826,1711
______________
ON BRIEF
_______________
Before MEISTER, BARRETT and WEIFFENBACH, Administrative Patent Judges.
WEIFFENBACH, Administrative Patent Judge.
Appeal No. 95-4735
Application 07/826,171
2
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the examiner's final rejection of the
following design claim:
The ornamental design for a baking pan as shown and described.
The Prior Art
The following prior art references are relied upon by the examiner in support of the rejection of the
claims for obviousness:
Young 2,074,448 Mar. 23, 1937
Finley 3,799,048 Mar. 26, 1974
EKCO Housewares Co. Price List, No. PL-13461 (EKCO); Cookie Sheet No. 64100M410,
page 13, May 1, 1981.

The Rejection
The claim stands rejected under 35 U.S.C. § 103 as being unpatentable over EKCO in view of
Finley and Young.
Opinion
The claimed subject matter is directed to the ornamental design for a shallow baking pan having
a rectangular shape and including twin grip handles, each having a hole therein, with sloping sides from the
top rim of the pan to the bottom of the pan. The rim of the pan is a wide flat trim
Appeal No. 95-4735
Application 07/826,171
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terminating in a rolled lip. See Fig. I below. A groove on the bottom surface of the pan extends from the
interior thereof outwardly in rectangularly shaped convolutions of ever increasing size that generally conform
in shape to the shape of the pan’s outer periphery. See Fig. II below.
Fig. I Fig. II
In order for a design to be unpatentable because of obviousness, there must be a “Rosen”
disclosure, i.e., a basic design reference in the prior art, “a something in existence, the design characteristics
of which are basically the same as the claimed design.” In re Borden, 90 F.3d 1570,
Appeal No. 95-4735
Application 07/826,171
The lower left portion of the pan was not illustrated in the reference because the reference gave a series of2
pictures cascading from the top of the page and the lower left corner of the pan was overlapped by the next succeeding
picture in the cascade. In reproducing the illustration, the overlapping picture was deleted. We find that the partial
portion of the pan illustrated in EKCO is sufficiently clear to show that the top of the pan is ornamentally the same as
appellant’s top view.
4
1574, 39 USPQ2d 1524, 1526 (Fed. Cir. 1996); In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350
(CCPA 1982). The examiner’s basic reference is EKCO. EKCO discloses a three dimensional top view
of a shallow baking pan (see Fig. IV below) which has the same general appearance to Figs. 2 and 3,
combined, of the top view of appellants’ overall design (see Fig. III below).
Fig. III: top and side views of appellants’ pan Fig. IV: the EKCO pan2
Appeal No. 95-4735
Application 07/826,171
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Appeal No. 95-4735
Application 07/826,171
6
The pan shown in the EKCO reference has a rectangular shape and includes twin grip handles, each having
a hole therein, with sloping sides from the top rim of the pan to the bottom of the pan. The examiner
concedes that the pan disclosed by EKCO does not disclose the spiral indented rib on the bottom surface
of the pan or the wide flat trim terminating in a rolled lip. The examiner relies on Finley and Young,
respectively, for these features.
Both Finley and Young are directed to baking pans. Finley discloses a round pan having a round
spiral indented rib on the bottom surface of the pan. See Fig. V below. Finley’s pan also has
a narrow flat rim terminating in a rolled lip. See Fig. VI below. Young discloses a shallow pie pan having
a wide flat trim terminating in a rolled lip. (see Fig. VII below).
Fig. V Fig. VI Fig. VII
Appeal No. 95-4735
Application 07/826,171
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The examiner made factual findings that a spiral indented rib or groove on the bottom surface of
a pan and a wide flat rim on a pan terminating with a rolled lip are old and well known in the art. The
examiner concluded that
it would have been obvious to one of ordinary skill in the art at the time the invention was
made to provide the EKCO catalog reference with a spiral indented rib as taught by Finley
and a wide flat rim terminating with a rolled lip as taught by Young. Merely changing the
spiral to a rectangular spiral to conform with the chosen shape is an obvious and minor
modification since if you change the shape of the pan then the spiral would also have to
change.
Appellants argue that Finley’s design shows features which are not within the scope of appellants’
claim such as wire shaped handles (12 and 13) and openings on the top rim of the pan while “Young shows
a round pan having a rolled lip” (brief: p. 7). Appellants assert that their design “is rectangular shaped and
has a rectangular pathway of ever decreasing length lines which meet at substantially at a right angle as one
moves from the outside of the design to the inside” and that there “is no spiral (curved) like appearance in
the nature of a helix with one or more turns about an axis” (id.). Appellants equate their groove design to
a maze at Hampton Court Palace in England. Appellants also argue that the prior art relied upon by the
examiner provides no motivation for one to make the changes to the EKCO pan to arrive at appellants’
design illustrated by Figs. 1-8. On page 8 of the brief, appellants maintain that
Appeal No. 95-4735
Application 07/826,171
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[i]n the present design one gets a distinctively different feeling when looking at the
bottom of the pan of this design with its long outer lines taking right angle turns and getting
smaller and smaller in size with the lines parallel to the pan ends being shorter than the lines
parallel to the side of the pan.
No such feeling is obtained by viewing of the art cited alone or even if combined.
Accordingly, where the determination of obviousness is so subjective, the artistic
impression (i.e. how one perceives the end result) is all important.
After careful consideration of the issues raised in this appeal and with the arguments of both the
appellants and the examiner, we find that the rejection of the claim based upon EKCO, Finley and Young
is not well founded and will not be sustained.
We do not consider ECKO as a Rosen reference. The pan shown in the ECKO reference does
not reveal that the bottom surface of the pan has any groove or ornamental design therein. Even if we were
to agree with the examiner that ECKO is a Rosen reference, we cannot agree that the visual appearance
of the groove or indentation in the appellants’ design is suggested by Finley as the examiner contends.
While Finley conceptially shows a groove in the bottom surface of a pan which extends from the interior
thereof outwardly in spaced convolutions of ever increasing size that conform in shape to the pan’s outer
periphery, the resulting configuration of the convolutions is a spiral. Such a configuration presents a
significantly different appearance than the rectanguarly shaped convolutions on the bottom surface of the
claimed design. In our view, the examiner has
Appeal No. 95-4735
Application 07/826,171
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improperly focused on Finely’s concept, rather than upon the actual visual appearance which would be
suggested thereby. In re Harvey, 12 F.3d 1061, 1064, 29 USPQ2d 1206, 1208 (Fed. Cir. 1993).
Accordingly, for the foregoing reasons, the examiner’s rejection under 35 U.S.C. § 103 is reversed.
REVERSED
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LEE E. BARRETT ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
CAMERON WEIFFENBACH )
Administrative Patent Judge )
Appeal No. 95-4735
Application 07/826,171
JEFFREY A. WEINSTEIN, ESQ.
EKCO GROUP INC.,
98 SPIT BROOK ROAD
STE. 102
NASHUA, NEW HAMPSHIRE 03062