Ex Parte Palese

Board of Patent Appeals and Interferences

Feb 29, 2008

11244377 (B.P.A.I. Feb. 29, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEFFREY W. PALESE
____________

Appeal 2008-1118
Application 11/244,377
Technology Center 1700
____________

Decided: February 29, 2008
____________

Before EDWARD C. KIMLIN, PETER F. KRATZ, and
JEFFREY T. SMITH, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 14-18.
Claim 14 is illustrative:
14. A patty forming apparatus comprising:

a base comprising a base wall;

a cover connected with the base for pivotal movement relative to the
base, the cover comprising a top wall and a side wall that extends from the
Appeal 2008-1118
Application 11/244,377

top wall, the cover having a closed condition in which the side wall engages
the base wall to define a closed patty forming chamber;

a plate member supported by a shaft having a threaded connection
with the top wall, the shaft being rotatable to adjust the axial position of the
plate member relative to the side wall to thereby adjust the volume of the
patty forming chamber;

the shaft comprising a flattened surface and indicia spaced axially
along the flattened surface;

a locking member on the shaft, the locking member having a locking
position fixing the shaft at a selected axial position which fixes the axial
position of the plate member relative to the side wall and thereby fixes the
volume of the patty forming chamber;

the locking member comprising an indicator that identifies the indicia
associated with the selected axial position when in the locking position the
indicia being indicative of the approximate weight of a patty having a
volume equal to the fixed volume of the patty forming chamber.

The Examiner relies upon the following references as evidence of
obviousness:
Grieco 6,242,027 B1 Jun. 5, 2001
Pragotrade USA, Inc., The Ultimate Patty Maker…Makes Perfect Patties
Everytime, Brochure Distributed Mar. 2003 (Admitted Prior Art).

Appellant's claimed invention is directed to an apparatus for forming a
patty of meat. The apparatus comprises, inter alia, a plate member supported
by a threaded shaft that is rotatable to adjust the axial position of the plate.
The volume of the patty forming chamber is adjusted by adjusting the axial
position of the plate. A locking member fixes the shaft at a selected axial
position and the shaft has a flattened surface that has spaced indicia thereon.
The locking member comprises an indicator which identifies the indicia
2
Appeal 2008-1118
Application 11/244,377

associated with the selected axial position which indicates the volume of the
patty forming chamber.
Appealed claims 14-18 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Pragotrade in view of Grieco.
We have thoroughly reviewed each of Appellant's arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner's rejection for the reasons set
forth in the Answer and we add the following primarily for emphasis.
There is no dispute that Pragotrade, like Appellant, discloses a patty
forming apparatus comprising the claimed features with the exception of a
flattened surface on the threaded shaft with indicia that indicates the volume
of the patty forming chamber. However, Grieco evidences that it was
known in the art to place a graded scale or indicia on a flat surface of a food
forming apparatus which indicates the thickness or weight of the food
substance. Consequently, we are in full agreement with the Examiner that it
would have been obvious for one of ordinary skill in the art to modify the
apparatus of Pragotrade by placing indicia on a surface of the apparatus
which serves to indicate the volume of the patty forming chamber. Since the
patty forming chamber of Pragotrade's apparatus is adjustable by rotating the
shaft, we are persuaded that one of ordinary skill in the art would have found
it obvious to include the indicia of a graded scale on the shaft of Pragotrade
in order to allow the user to measure the amount of adjustment.
Appellant submits that "Pragotrade and Grieco do not teach or suggest
a shaft with a flattened portion that includes weight indicia, and a locking
3
Appeal 2008-1118
Application 11/244,377

member that comprises an indicator for indicating the indicia" (Principal Br.
4, second para.). However, it is not necessary for a finding of obviousness
that the references explicitly disclose a claimed feature inasmuch as one may
consider the inferences and creative steps a person of ordinary skill in the art
would employ. KSR Int'l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1740 (2007).
It is proper to consider the common sense of one of ordinary skill in the art
in determining the obviousness of a claimed invention. In the present case,
we are confident that one of ordinary skill in the art would have found it
obvious to employ graduated indicia on any viable surface of Pragotrade's
apparatus which allows for measuring the adjustable volume of the patty
forming chamber. Since the threaded shaft of Pragotrade's apparatus
functions to control the volume of the patty forming chamber, it stands to
reason that it would be a logical place to add the indicia.
Appellant contends that "[t]he truth of the matter is that a threaded
shaft with a flat including indicia and a locking member for indicating the
indicia is not the logical choice – it is the choice made in hindsight with
knowledge of the teachings of the present invention" (Reply Br. 4, second
para.). Appellant then poses the question if other surfaces not disclosed by
Pragotrade would be considered the logical choice by the Examiner for the
indicia, such as "a slot or window in the sidewall so that the actual position
of the adjustable plate can be viewed used as the indicator for indicia on the
side wall" (id.).
However, the flaw in Appellant's premise is that it presumes that there
would have been only one logical place to locate the indicia on the apparatus
of Pragotrade. Also, it stands to reason that simply because there may be
more than one logical place to locate indicia does not mean that the selection
4
Appeal 2008-1118
Application 11/244,377

of one such place that is not explicitly disclosed in the prior art would have
been nonobvious to one of ordinary skill in the art. In our view,
impermissible hindsight is not required to arrive at the legal conclusion that
it would have been obvious for one of ordinary skill in the art to place
indicia of a graduated scale on a member of Pragotrade's apparatus that
moves to adjust the volume of the patty forming chamber.
As a final point, we note that Appellant bases no argument upon
objective evidence of nonobviousness, such as unexpected results, which
would serve to rebut the prima facie case of obviousness established by the
Examiner.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner's decision rejecting the appealed claims is
affirmed.
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

cam

TAROLLI, SUNDHEIM, COVELL & TUMMINO, LLP
1300 EAST NINTH STREET, SUITE 1700
CLEVELAND, OH 44114
5