Ex Parte Logan

Board of Patent Appeals and Interferences

Feb 24, 2011

11335020 (B.P.A.I. Feb. 24, 2011)

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.
11/335,020 01/18/2006 Eugene T. Logan SIG-001 7233
26821 7590 02/25/2011
THOMPSON & THOMPSON, P.A.
P.O BOX 166
SCANDIA, KS 66966
EXAMINER
ALEXANDER, REGINALD
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
02/25/2011 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 Eugene T. Logan
__________

Appeal 2009-008425
Application 11/335,020
Technology Center 3700
___________

Before: RICHARD E. SCHAFER, JAMESON LEE, and KARL
EASTHOM, Administrative Patent Judges.

SCHAFER, Administrative Patent Judge.

DECISION ON APPEAL1

Applicant appeals the rejection of the subject matter of Claims 1 and
3-9 under 35 U.S.C. § 103(a) as unpatentable over the combined teachings
of Grycan,2 Frantz,3 and Shaddy.4 35 U.S.C. §§ 134(a) and § 6(b).

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 2009-008425
Application 11/335,020

- 2 -
We reverse.

The Invention
The invention is directed to a cooking utensil such as a cookie sheet.
The utensil includes an aluminum cooking surface having a “clear anodized
coating.”
Claim 1 is representative of the invention (emphasis added):
1. An insulated cooking utensil, comprising:
upper and lower substantially planar sheet members
disposed in substantially parallel relationship with each other
and secured together;
an air chamber interposed between the upper and lower
sheet members for insulating the upper sheet member from
direct heat during a cooking operation; and
a plurality of spaced detents provided in the lower sheet
member to support and maintain the upper and lower sheet
members in a spaced relationship with the air chamber
interposed therebetween;
said upper sheet member being made of aluminum and
having a cooking surface on an upper side thereof covered by a
clear anodized coating; and
further comprising an angular disposed flange extending
along one side of the cooking utensil and disposed at an angle
extending outwardly and upwardly relative to the cooking
surface, said angular disposed flange having an elongated
thumbgrip detent formed in its upper surface to facilitate
gripping and
handling the cooking utensil between a user's thumb and fingers.
App. Br. A1, Claims Appendix.

2 U.S. Patent 5,921,173.

3 U.S. Patent 6,736,051.

4 U.S. Patent 5,655,805.
Appeal 2009-008425
Application 11/335,020

- 3 -
The Rejection
The Examiner rejected the claims under 35 U.S.C. § 103(a) as
unpatentable over the combined teachings of Grycan, Frantz and Shaddy.
For the purposes of our decision we need only discuss the Grycan and Frantz
references.
Grycan teaches an aluminum cookie sheet having a non-stick coating
on the cooking surface. Grycan 5:3-9. Grycan does not teach the use of a
clear anodized coating. The examiner finds that Frantz teaches a clear
anodized coating on an aluminum cooking surface. Answer 3. The
examiner held that it would have been obvious to substitute Frantz’s clear
anodized coating for Grycan’s non-stick coating. Answer 3.
Applicant disagrees that it would have been obvious to replace
Grycan’s non-stick coating with Frantz’s clear anodized coating. Brief5 9-
11. Applicant argues that Frantz does not teach the use of clear anodized
coating on a cooking surface. Brief 11. In other words, Applicant argues
that the person having ordinary skill in the art would not have known, or
otherwise had a reason, to substitute a clear anodized coating for Grycan’s
non-stick coating on the cooking surface.
Analysis
The examiner relies on Frantz as teaching a clear anodized coating on
a cooking surface. Answer 3. Frantz teaches a griddle for toasting the
inside surfaces of cut contoured bread such as a hamburger bun. Frantz
3:46-52. Frantz’s Fig. 5, reproduced below, shows a cross-section of
Frantz’s griddle. Frantz 3: 31-33.

5 Second Appeal Brief filed January 17, 2008.
Appeal 2009-008425
Application 11/335,020

- 4 -
The griddle cooking surface 12, shown below at the lower portion of Fig. 5,
toasts the flat surface of the bread. Frantz 3:46-51.

The cooking surface 12 shown above in Fig. 5 is made of aluminum and is
said to have a hard anodized coating. Frantz 3:67-4:3. The Griddle also
includes an independently floating perforated plate 14 made of a
homopolymer (i.e. plastic) material. Frantz 4:7-11. Aluminum pins or
fingers 18 having a clear anodized coating are inserted into each of the
perforations. Frantz 4:11-14. The fingers provide gentle pressure on the
bun upper surface accelerating the toasting process without distorting the
bun. Frantz, 3:2-6.
We take official notice that “hard anodized coating” and “clear
anodized coating” are terms of art that identify both the method of forming
the coatings and certain coating properties. Anodizing takes place in an
electrolytic cell called an anodizing cell. The aluminum or other metal to be
coated serves as the anode in the cell. Aqueous sulfuric acid solution is a
Appeal 2009-008425
Application 11/335,020

- 5 -
commonly used anodizing electrolyte. Application of a direct electric
current causes the formation of a thin aluminum oxide coating on the
aluminum. The nature of the oxide layer depends upon the particular
anodizing conditions and the electrolyte used. Hard anodizing typically uses
an aqueous sulfuric acid electrolyte maintained at a low temperature. Clear
anodizing typically takes place in a room temperature aqueous sulfuric acid
electrolyte followed by an immersion treatment in hot water. The hot water
immersion converts the aluminum oxide to a clear hydrated form that seals
the surface. Clear anodizing is the most commonly used method for
anodizing aluminum.
Applicant argues that a “clear anodized coating on a cooking
surface . . . is neither taught nor suggested by the applied references . . . .”
Brief 11, emphasis omitted.
The Examiner’s finding to the contrary –that Frantz teaches the use of
a clear anodized coating on an aluminum cooking surface-- is not supported
by a preponderance of the evidence. Frantz’s aluminum fingers are said to
merely provide gentle pressure on the bun upper surface accelerating the
toasting process without distorting the bun’s shape. Frantz, 3:2-6. The
reference no where says or suggests that the fingers are heated. Further,
Frantz’s teaching of the use of a hard anodized coating for the cooking
surface 12 while using a clear anodize coating on the fingers further suggests
that that the fingers are not heated and do not have a cooking surface. We
find that Frantz’s fingers are not heated and do not include “cooking
surfaces.” Frantz’s teaching of the clear anodized coating on the fingers,
does not provide an adequate reason to employ clear anodized coating on an
aluminum cooking surface.
Appeal 2009-008425
Application 11/335,020

- 6 -
The Examiner has offered three reasons said to provide a basis for
substituting a clear anodized coating for Grycan’s non-stick coating: (1) “to
provide a more protective cover on the cooking surface and prevent
corrosion” (Answer. 3); (2) that Grycan’s non-stick coating and Frantz’s
clear anodized finish “provide essentially the same results” (Answer 3); and
(3) Frantz’ clear anodized coating “would provide an improved look and
non-stick performance” (id., 4). Applicant contests that these findings are
supported by the record. Reply 2.
We have not been directed to evidence in the record that supports the
Examiner’s findings. Rejections for obviousness cannot be based on mere
conclusory statements. Instead, there must be some articulated reasoning
supported by factual underpinnings to support the legal conclusion of
obviousness. See KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 418
(2007). The evidence relied upon does not provide the disclosures necessary
to establish by a preponderance that as applied to an aluminum cooking
surface, a clear anodized coating would be more protective and prevent
corrosion, would act essentially the same as a non-stick coating (i.e., a “mere
substitution,” KSR, 550 U.S. at 416), or would have a better appearance and
better non-stick performance than a non-stick coating.
In concluding that the claimed invention has not been shown to have
been obvious, we also find it noteworthy that we have not been directed to a
single prior art reference that teaches an aluminum cooking or heated surface
having a clear anodized coating. Aluminum cookware has been
commercially available long prior to Applicant’s filing date. The lack of a
reference teaching the use of the most common and conventional type of
aluminum anodizing on an aluminum surface intended for cooking or
Appeal 2009-008425
Application 11/335,020

- 7 -
heating food further supports a conclusion that a cooking surface “covered
by a clear anodized coating” would not have been obvious to a person
having ordinary skill in the art.
DECISION
We reverse the rejection of Claim 1. Since dependent Claims 3-9 also
require a cooking surface having a clear anodized coating, we also reverse
the rejection of those claims.
REVERSED
rvb

THOMPSON & THOMPSON, P.A.
P.O. BOX 166
SCANDIA, KS 66966