Ex Parte Romeo et al

Board of Patent Appeals and Interferences

Feb 27, 2009

11069818 (B.P.A.I. Feb. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DEREK JOSEPH ROMEO, PAUL ANDREW COGLEY, AMY
LYNN MATUSHESKI, KEITH ERIC PETROFSKY, PETER PRIVERT,
URAIWAN TANGPRASERTCHAI, STEVEN PAUL GREINER, NEIL
EDWARD DARIN, and JOSEPH R. BROOKS
____________

Appeal 2008-5970
Application 11/069,818
Technology Center 3700
____________

Decided:1 March 2, 2009
____________

Before JENNIFER D. BAHR, MICHAEL W. O’NEILL, and
STEFAN STAICOVICI, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2008-5970
Application 11/069,818

Derek Joseph Romeo et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 8-10, 14, and 27-31. Claims
1-7, 11-13, and 17-26 have been withdrawn. Claims 15 and 16 have been
allowed. We have jurisdiction over this appeal under 35 U.S.C. § 6 (2002).

THE INVENTION
The Appellants’ invention is drawn towards a food product kit for
cooking, browning, and crisping a rising dough ring having a first smaller
uncooked size and a second larger cooked size. Specification 4, ¶ 44. The
food product kit includes a susceptor food support surface 14 and a
susceptor ring 16 freely supported above the rising dough rim.
Specification 4, ¶ 44; Specification 8, ¶ 56; and fig. 3.

Claims 8 and 27 are representative of the claimed invention and reads
as follows:
8. A food product kit, for cooking, browning and crisping a
rising dough rim having a first smaller uncooked size and
a second larger cooked size, comprising:

a support wall with a susceptor food support surface
portion supporting said rising dough rim;

a susceptor ring for use above said food support surface
having a susceptor surface facing both a top and a side of
said rising dough rim, said susceptor ring having a size
larger than the first uncooked size of said rising dough
rim, approximately equal to the second, larger, cooked
size of said rising dough rim;
said susceptor ring freely supported above said rising
dough rim such that, as said rising dough rim is cooked,
said rising dough rim rises and contacts said susceptor
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surface effective to conductively heat, brown and crisp at
least a portion of said rising dough rim and is
subsequently confined in size by said susceptor ring
surface.
27. A food product kit, for cooking, browning and crisping a
rising dough rim having a first smaller uncooked size and
a second larger cooked size, comprising:
a support wall with a susceptor food support surface
portion supporting said rising dough rim; and
a susceptor ring unconstrained from lateral movement by
said food support surface, said susceptor ring having a
susceptor surface facing said rising dough rim, said
susceptor ring having a size larger than the first uncooked
size of said rising dough rim, approximately equal to the
second, larger, cooked size of said rising dough rim; and
said susceptor ring freely supported above said rising
dough rim such that, as said rising dough rim is cooked,
said rising dough rim rises and contacts said susceptor
surface effective to conductively heat, brown and crisp at
least a portion of said rising dough rim and is
subsequently confined in size by said susceptor ring
surface.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:

Peleg US 5,247,149 Sep. 21, 1993
Woodward US 6,054,697 Apr. 25, 2000

The following rejections are before us for review:
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Application 11/069,818
The Examiner rejected claims 8-10, 14, and 27 under 35 U.S.C.
§ 102(b) as anticipated by Peleg.
The Examiner rejected claims 8-10 and 27-31 under 35 U.S.C.
§ 102(b) as anticipated by Woodward.

THE ISSUES
1. Have the Appellants shown that the Examiner erred in determining
that Peleg discloses (a) a “susceptor ring” that is “freely supported”
above the rising dough rim; and (b) a susceptor ring “unconstrained
from lateral movement” by the food support surface?
2. Have the Appellants shown that the Examiner erred in determining
that Woodward discloses (a) a “susceptor ring” that is “freely
supported” above the rising dough rim; (b) a susceptor ring
“unconstrained from lateral movement” by the food support surface;
and (c) a “food support surface having a depressed central portion
surrounded by a raised peripheral rim”?

SUMMARY OF DECISION
We AFFIRM.

FINDINGS OF FACT
The following enumerated findings of facts (FF) are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 848 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
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1. Peleg discloses an appliance for transporting and cooking a frozen
food having a bottom crusted surface and an upper surface partially
covered with sauce and partially browned and crisped, i.e., a pizza pie.
Peleg, col. 2, ll. 60-63.
2. The appliance of Peleg includes a rigid, circular shaped, tray-like
receptacle 120 for supporting the food (food support surface) and a
concave-shaped, circular dome 128 (susceptor ring) that is adapted to
be seated on a footing 126 of the receptacle 120. Peleg, col. 13, ll. 38-
40 and 49-53 and fig. 12.
3. The stepped footing 126 serves to position and secure the dome 128.
Peleg, col. 13, ll. 47-48. Peleg does not disclose any element, i.e.,
screw, clamp, snap-fit assembly, that would constrain or restrict the
motion of dome 128.
4. The receptacle 120 of Peleg includes a plastic layer 122 and an
interactive layer 124. The dome 128 includes a plastic layer 130 and a
susceptor layer 132 on the inner surface of the dome 128. Peleg, col.
13, ll. 40-42 and 50-51 and fig. 12.
5. An ordinary and customary meaning of the term “support” is “to hold
up or serve as a foundation or prop for.” Merriam Webster’s
Collegiate Dictionary 1184 (Tenth Ed. 1997).
6. An ordinary and customary meaning of the term “free” is “not bound,
confined, or detained by a force.” Merriam Webster’s Collegiate
Dictionary 465 (Tenth Ed. 1997).
7. Based on FF5 and 6, a person of ordinary skill in the art would readily
understand that an ordinary and customary meaning of the limitation
of “freely supported” is to hold up without being bound, confined or
detained by a force.
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8. A Modified Figure 12 of Peleg is reproduced below:

Dome 128
Gradient portion B
of footing 126
Flat portion A
of footing 126
Dome end 134

The Modified Figure 12 of Peleg depicts the stepped footing
126 having a flat portion A and a gradient portion B. The dome 128
rests on the flat portion B.
9. Woodward discloses a pizza cooking assembly including a pan 300
(support wall) with a susceptor support surface portion for supporting
a pizza dough 650 and a ring shield 550 (susceptor ring) having an
upper metallic or metallized layer 552 and a lower, insulating material
554 (susceptor surface) which faces both the top and the side of the
pizza dough 650. Woodward, col. 9, ll. 27-33 and fig. 22.
10. In use, the ring shield 550 of Woodward rests on a ledge 315 of a pan
300 created between a narrowed portion 320 and the rim 310.
Woodward, col. 9, ll. 58-60 and fig. 21. The purpose of the ledge 315
is to “provide easy, one-motion grasping and removal” of the shield
550. Woodward, col. 8, ll. 59-60 and figs. 15 and 21.
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11. Woodward does not disclose any element, i.e., screw, clamp, snap-fit
assembly, that would constrain or restrict the motion of ring shield
550.
12. The pan 330 of Woodward includes a raised peripheral rim 310 and a
concave shaped base (depressed central portion). Woodward, col. 5,
ll. 65-67 through col. 6, l. 1 and fig. 21.
13. A person of ordinary skill in the art would readily appreciate that a
flat surface has the capability to slide over a gradient surface.
14. A Modified Figure 21 of Woodward is reproduced below:

Narrowed
portion
320
Ring shield 550
Pan 300
Rim 310
Depressed food support
surface
Ledge 315

The Modified Figure 21 of Woodward depicts the ring shield
550 of Woodward resting on a ledge 315 of the pan 300 created
between a narrowed portion 320 and the rim 310.
15. A person of ordinary skill in the art would readily appreciate
that a curved surface has the capability to slide over a flat surface.
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PRINCIPLES OF LAW
Anticipation
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (1987).
It is not necessary that the reference teach what the subject application
teaches, but only that the claim read on something disclosed in the reference,
i.e., that all of the limitations in the claim be found in or fully met by the
reference. Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772 (Fed. Cir.
1983).

OPINION2
Issue (1)
Claims 8-10 and 14
The Appellants argue the rejection under 35 U.S.C. §102(b) of claims
8-10 and 14 together as a group. Therefore, in accordance with 37 C.F.R.
41.37(c)(1)(vii)(2008), we have selected claim 8 as the representative claim
to decide the appeal, with claims 9, 10 and 14 standing or falling with claim
8.
The Appellants argue that,

2 We refer herein to the Appeal Brief (“App. Br.”), filed May 14, 2007,
the Reply Brief (“Reply Br.”), filed January 22, 2008, and the Examiner’s
Answer (“Ans.”), mailed November 20, 2007.
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“Peleg does not disclose a susceptor ring for use above
said food support surface having a susceptor surface
facing both a top and a side of said rising dough rim
where the susceptor ring is freely supported.
None of the susceptor rings in Peleg are both freely
supported and have susceptor surfaces facing both a top
and a side of the rising dough rim.”
App. Br. 8. Underlining in original.
In response, the Examiner takes the position that,
“the susceptor ring (128) for use above said food support
surface (120) having a susceptor surface (132) facing
both a top and a side of said rising dough rim (22), and
the outer end (134) of the susceptor dome (128) is
adapted to be freely seated (col. 13, lines 51-52) on the
footing (126) of the outer end (134) of the dome (128) is
considered freely seat on the footing (126), it is not
bonded or fastened to the footing, because it has to be
removable in order to insert the food onto the receptacle
(120) before cook and remove the food after cooked.”
Answer 4-5. Underlining and bold in original.
Finally, the Appellants point to column 13, lines 46-48 of Peleg to
show that the footing 126 “serves to position and secure” the susceptor dome
128. App. Br. 8. Accordingly, the Appellants argue that “[i]f the footing
126 is secured to the open susceptor dome 128, it is not ‘freely supported’ as
required by claim 8.” App. Br. 8. Emphasis added.
It appears that the Appellants’ are interpreting the term “secure” to
mean fastened or fixed. In other words, according to the Appellants the term
“secure” appears to imply that the motion of dome 128 of Peleg is somehow
constrained or restricted by the footing 126. We disagree with the
Appellants’ interpretation for the following reasons. The Appellants’
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Specification does not expressly define the terms “free” and “support” or
otherwise indicate that these terms are used in a manner other than their
ordinary and customary meaning. Accordingly, we construe each of these
terms in accordance with its ordinary and customary meaning. As shown
above, an ordinary and customary meaning of the term “support” is “to hold
up or serve as a foundation or prop for.” Merriam Webster’s Collegiate
Dictionary 1184 (Tenth Ed. 1997) (FF 5). An ordinary and customary
meaning of the term “free” is “not bound, confined, or detained by a force.”
Merriam Webster’s Collegiate Dictionary 465 (Tenth Ed. 1997) (FF 6).
Hence, a person of ordinary skill in the art would readily understand that an
ordinary and customary meaning of the limitation of “freely supported” is to
hold up without being bound, confined or detained by a force (FF 7). We
note that Peleg does not disclose any type of element, i.e., a screw, a clamp,
a snap-fit assembly, that could be used to fasten or fix the dome 128 to the
footing 126 such as to constrain or restrict the motion of the dome 128 (FF
3). As shown above, the dome 128 is adapted to be merely seated on the
footing 126 of the receptacle 120 (FF 2). A person of ordinary skill would
readily appreciate that the dome 128 is merely resting on the footing 126 and
is not fastened or otherwise constrained or restrained. Moreover, we fully
agree with the Examiner’s position that the dome 128 cannot be “secured,”
as the Appellants imply, because it must allow for the food to be inserted
and removed. Answer 5. To interpret the term “secure” as the Appellants
do represents an unreasonably narrow reading or interpretation of the Peleg
disclosure. Such a reading or interpretation would vitiate the teachings of
Peleg showing a dome 128 resting on the footing 126 of receptacle 120,
which permits a user to insert and remove the food product from the interior
of the dome 128 and the receptacle 120. As such, because the dome 128 can
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Application 11/069,818
be simply lifted from the footing 126 of the receptacle 120, we find that the
dome 128 (ring susceptor) of Peleg is held up without being bound, confined
or detained by a force, hence is “freely supported,” as required by claim 8.
Accordingly, the rejection of claim 8, and claims 9, 10 and 14
standing or falling with claim 8, is sustained.

Claim 27
The Appellants argue that Peleg “does not disclose a susceptor ring
unconstrained by lateral movement.” App. Br. 9. According to the
Appellants, “the abutment of the stepped footing 126 and the ring outer end
134 clearly prevents the ring from moving laterally (side-by-side).” Reply
Br. 6. We disagree with the Appellants position for at least two reasons.
First, we note that the stepped footing 126 includes a flat portion A
and a gradient B (FF 12). Moreover, the dome end 134 includes a flat
surface that is supported by the flat portion A of the stepped footing 126 (FF
8). A person of ordinary skill in the art would readily appreciate that a flat
surface has the capability to slide over a gradient surface (FF 13). In this
case, the same person of ordinary skill in the art would readily recognize that
the flat dome end 134, as shown enhanced in FF8, is capable of sliding over
the gradient portion B of the stepped footing 126. Hence, in contrast to the
Appellants’ contention, the dome 128 of Peleg is “laterally unconstrained”
because flat dome end 134 is capable of sliding over the gradient portion B
of the stepped footing 126.
Second, we note that although claim 27 requires that the susceptor
ring be “unconstrained by lateral movement,” claim 27 is not so limiting as
to exclude a susceptor ring that is ”unconstrained by lateral movement”
during the cooking of the dough. In other words, when the ring-like portion
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20 of the dough in Peleg expands and rises, the dough is capable of touching
the inner surface of the dome 128 and lifting it upwards. A person of
ordinary skill in the art would readily appreciate that when the dome 128 is
lifted such that the flat dome end 134 does not contact the flat portion A of
the stepped footing 126, the dome 128 (ring susceptor) becomes laterally
unconstrained, that is, it can move sideways.
For the foregoing reasons, we find that Peleg discloses a “susceptor
ring unconstrained by lateral movement,” as required by claim 27.
Accordingly the rejection of claim 27 is likewise sustained.

Issue (2)
Claims 8-10
The Appellants argue the rejection under 35 U.S.C. §102(b) of claims
8-10 together as a group. We have selected claim 8 as the representative
claim to decide the appeal, with claims 9 and 10 standing or falling with
claim 8.
The Appellants argue that Woodward does not disclose a susceptor
ring that is “freely supported,” as required by claim 8. According to the
Appellants, the ring shields 350 and 550 of Woodward “are restricted from
movement by engagement with the rim 310 of the pan 300.” App. Br. 9-10.
Furthermore, the Appellants argue that in contrast to the ring of the
Appellants’ invention which “centers about the food product during
cooking” the ring of Woodward is not configured for “self-centering because
the rim 310 prevents lateral movement thereof.” App. Br. 10.
In response, the Examiner takes the position that, because the ring
shield 550 of Woodward allows for the food (i.e., pizza) to be inserted and
removed, the ring 550 is freely supported. Answer 6. Between the
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Appellants and the Examiner we find that the Examiner has the better
argument.
As shown above, a person of ordinary skill in the art would readily
understand that an ordinary and customary meaning of the limitation of
“freely supported” is to hold up without being bound, confined or detained
by a force (FF 7). Similar to the teachings of Peleg, we note that Woodward
does not disclose any type of element, i.e., a screw, a clamp, a snap-fit
assembly, that could be used to fasten or fix the ring shield 550 to the ledge
315 of the pan 300 such as to constrain or restrict the motion of the ring 550
(FF 11). The ring shield 550 is adapted to be merely seated on the ledge 315
of the pan 300 (FF 10). Moreover, Woodward specifically teaches that the
purpose of the ledge 315 is to “provide easy, one-motion grasping and
removal” of the shield 550 (FF 10). Hence, a person of ordinary skill would
readily appreciate that in order to “provide easy, one-motion grasping and
removal” of the ring shield 550, the ring shield is merely resting on the ledge
315 and is not fastened or otherwise constrained or restrained. Moreover,
we fully agree with the Examiner’s position that the ring shield of
Woodward cannot be constrained, as the Appellants imply, because it must
allow for the food to be inserted and removed. Answer 6.
With respect to the Appellants’ argument that the ring of Woodward
is not configured for “self-centering,” we note that claim 8 does not require
“self-centering,” but merely that the susceptor ring be “freely supported.” In
conclusion, because the ring shield 550 can be simply lifted from the ledge
315 of the pan 300, we find that the ring shield of Woodward is held up
without being bound, confined or detained by a force, hence is “freely
supported,” as required by claim 8. Accordingly, the rejection of claim 8,
and claims 9 and 10 standing or falling with claim 8, is sustained.
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Claim 27
The Appellants argue that Woodward does not disclose a susceptor
ring “unconstrained by lateral movement.” App. Br. 10. According to the
Appellants, “the engagement of Woodward’s rim 310 against the ring
shields 350 or 550 clearly constrains the ring shields from lateral
movement.” App. Br. 10. See also Reply Br. 7. We disagree with the
Appellants position for at least two reasons.
First, we note that the narrowed portion 320 of the ring shield 550
includes a curved portion that rests on the ledge 315 of the pan 300 (FF 14).
Moreover, we note that the rim 310 is inclined to the ledge 315 (FF 14). A
person of ordinary skill in the art would readily appreciate that a curved
surface has the capability to slide over a flat surface (FF 15). In this case,
the same person of ordinary skill in the art would readily recognize that the
curved portion of the narrowed portion 320 of the ring shield 550, as shown
enhanced in FF 14, is capable of sliding over and onto the inclined portion of
the rim 310 of the pan 300. Hence, in contrast to the Appellants’ contention,
the ring shield 550 of Woodward is “laterally unconstrained” because the
curved portion of the narrowed portion 320 is capable of sliding over and
onto the inclined portion of the rim 310.
Second, we note that although claim 27 requires that the susceptor
ring be “unconstrained by lateral movement,” claim 27 is not so limiting as
to exclude a susceptor ring that is ”unconstrained by lateral movement”
during the cooking of the dough. In other words, when the outer portion of
the dough in Woodward expands and rises, the dough is capable of touching
the inner surface of the ring shield 550 and lifting it upwards. A person of
ordinary skill in the art would readily appreciate that when the ring shield
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550 is lifted such that it does not contact the ledge 315 of the pan 300, the
ring shield 550 (ring susceptor) becomes laterally unconstrained, that is, it
can move sideways.
For the foregoing reasons, we find that Woodward discloses a
susceptor ring “unconstrained by lateral movement,” as required by claim
27. Accordingly the rejection of claim 27 is likewise sustained.

Claims 28-31
The Appellants argue the rejection under 35 U.S.C. §102(b) of claims
28-31 together as a group. We have selected claim 28 as the representative
claim to decide the appeal, with claims 29-31 standing or falling with claim
28.
The Appellants argue that Woodward does not disclose a susceptor
ring that is “freely supported,” as required by claim 28. For the reasons
discussed above this argument is not persuasive. As shown above, the ring
shield of Woodward is “freely supported.”
The Appellants further argue that Woodward does not disclose a
“food support surface having a depressed central portion surrounded by a
raised peripheral rim.” App. Br. 11. In response, the Examiner points to
Figure 21 of Woodward to show a raised peripheral rim 320 and the pan 300
having a depressed central portion SS. Answer 7. We agree with the
Examiner that Woodward specifically teaches that the pan 330 of Woodward
includes a raised peripheral rim 310 and a concave shaped base (depressed
central portion) (FF 12 and 14). In conclusion, we find that Woodward
discloses a “food support surface having a depressed central portion
surrounded by a raised peripheral rim.” Accordingly, we shall sustain the
rejection of claim 28, and claims 29-31 standing or falling with claim 28.
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CONCLUSION
1. The Appellants have failed to demonstrate that the Examiner erred in
determining that Peleg discloses (a) a “susceptor ring” that is “freely
supported” above the rising dough rim; and (b) a susceptor ring
“unconstrained from lateral movement” by the food support surface.
2. The Appellants have failed to demonstrate that the Examiner erred in
determining that Woodward discloses (a) a “susceptor ring” that is
“freely supported” above the rising dough rim; (b) a susceptor ring
“unconstrained from lateral movement” by the food support surface;
and (c) a “food support surface having a depressed central portion
surrounded by a raised peripheral rim?”

DECISION
The decision of the Examiner to reject claims 8-10, 14, and 27-31 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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED

JRG

FITCH EVEN TABIN AND FLANNERY
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
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