Ex Parte LoganDownload PDFBoard of Patent Appeals and InterferencesFeb 24, 201111335020 (B.P.A.I. Feb. 24, 2011) Copy Citation 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 Copy with citationCopy as parenthetical citation