Ex Parte Tosdale et al

Patent Trial and Appeal Board

May 12, 2017

12562890 (P.T.A.B. May. 12, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/562,890 09/18/2009 David R. Tosdale 062103-0954 5193
26371 7590 05/16/2017
FOT FY Rr T ARDNFR T T P
EXAMINER
3000 K STREET N.W. STAPLETON, ERIC S
SUITE 600
WASHINGTON, DC 20007-5109 ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
05/16/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID R. TOSDALE and THERESA M. MAYER
Appeal 2015-0043891
Application 12/562,8902
Technology Center 3700
Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1, 6—12, 14—18, 20, 21, and 23. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
1 Our decision references Appellants’ Specification (“Spec.,” filed Sept. 18,
2009), Appeal Brief (“Appeal Br.,” filed Aug. 4, 2014), and Reply Brief
(“Reply Br.,” filed Mar. 2, 2015), as well as the Examiner’s Answer
(“Answer,” mailed Jan. 2, 2015).
2 According to Appellants, “[t]he real party in interest is The Vollrath
Company, L.L.C.” Appeal Br. 2.
Appeal 2015-004389
Application 12/562,890
According to Appellants, the “invention relates generally to the field
of food pans.” Spec. 12. Claims 1, 12, and 18 are the only independent
claims on appeal. Appeal Br., Claims App. We reproduce claims 1 and 12,
below, as illustrative of the claims on appeal.
1. A food pan for use with food service equipment
having a well, the food pan comprising:
a receptacle configured to receive food and having a non-
rectangular periphery defined by a side wall;
an outer rim surrounding the receptacle, wherein the outer
rim has a rectangular periphery including four straight edges
joined together by four comers, each straight edge perpendicular
to the adjacent edges and parallel to the opposite straight edge;
an interference portion comprising a wall extending below
the outer rim, wherein the wall surrounds the receptacle and is
located between the receptacle and the rectangular periphery of
the outer rim; and
a ledge extending between the receptacle and the wall of
the interference portion, wherein the ledge and the wall of the
interference portion couple the non-rectangular periphery of the
receptacle to the outer rim;
wherein the outer rim is configured to support the food pan
on the food service equipment with the receptacle and the wall
of the interference portion extending into the well of the food
service equipment;
wherein the interference portion is configured to contact
an inside surface of the well of the food service equipment to
limit rotation of the food pan relative to the food service
equipment.
12. A food pan system for use with food service
equipment having a well, the food pan system comprising:
a first food pan including a receptacle and a rim having a
non-rectangular periphery with a first curved edge; and
a second food pan including a receptacle and a rim having
a non-rectangular periphery with a second curved edge;
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wherein with the first curved edge contacting the second
curved edge, the food pans have a combined rectangular outer
periphery comprising four straight sides.
Id.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. claims 1, 6, 7, 9-11, 18, 20, and 21 under 35 U.S.C. § 102(b) as
anticipated by Wagandt (US 436,883, iss. Sept. 23, 1890);
II. claims 12 and 17 under 35 U.S.C. § 102(b) as anticipated by
LeVan (US D262,931, iss. Feb. 9, 1982);
III. claims 1, 6—11, 18, 20, and 21 under 35 U.S.C. § 103(a) as
unpatentable over Wagandt and Heaney (US 4,660,734, iss.
Apr. 28, 1987); and
IV. claims 12, 14—17, and 23 under 35 U.S.C. § 103(a) as
unpatentable over LeVan and Bukowski (US D501,760 S, iss.
Feb. 15,2005).
ANALYSIS
Rejection I
Independent claim 1, and its dependent claims 6, 7, and 9-11
As set forth above, independent claim 1, from which claims 6, 7,
and 9-11 depend, recites a specific arrangement of components of a food
pan, including a receptacle, a ledge, an interference portion including a wall,
and an outer rim. See Appeal Br., Claims App.; see also Appeal Br. 8; see
also Reply Br. 2—3. We are persuaded by the arguments set forth by
Appellants in the Appeal and Reply Briefs (see Appeal Br. 8—11; see also
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Reply Br. 3—4), and, thus, we determine that the Examiner does not support
adequately the finding that Wagandt discloses all of the limitations of
claim 1 (see Final Action 2—3; see also Answer 2—3).
For example, the Examiner does not support adequately the finding
that Wagandt teaches the claimed interference portion including a wall (see,
e.g., Answer 3), and in the above-noted portions of the Appeal and Reply
Briefs, Appellants argue persuasively that various portions of Wagandt
cannot disclose the claimed “wall [that] surrounds the receptacle and is
located between the receptacle and the rectangular periphery of the outer
rim.” More specifically, Appellants point out that
[i]f the “bent flanges” of the edge of adjacent “sections A”
[in Wagandt] ... are assumed to be the claimed “wall,” the bent
flanges do not “surround[] the receptacle” as claimed. Rather,
Wagandt’s “bent flanges” ... are only formed along the mating
edges of adjacent “sections A.” In the muffin pan illustrated in
Figure 5, the bent flanges are found on either two sides or three
sides of each “compartment a.”
If the downwardly extending “outer edges e” are assumed
to be the claimed “wall,” they are not “located between the
receptacle and the rectangular periphery of the outer rim” as
claimed, but rather at the periphery of the muffin pan. Similarly,
if a “section A” of Wagandt’s muffin pan is viewed individually,
the downwardly extending portions of the “outer edges e” and
the “bent flanges” are located at the periphery of the “section A.”
Appeal Br. 10.
In response to Appellants’ arguments in the Appeal Brief, the
Examiner provides no further explanation as to how Wagandt discloses the
claimed interference portion wall. See Answer 12—13. Thus, based on the
foregoing, we do not sustain the anticipation rejection of independent
claim 1 and its dependent claims 6, 7, and 9-11.
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Independent claim 18, and its dependent claims 20 and 21
Independent claim 18 recites limitations similar to those discussed
above for independent claim 1, and is rejected based on a similar rationale as
claim 1. Thus, we do not sustain the anticipation rejection of independent
claim 18 and its dependent claims 20 and 21 for reasons similar to those
discussed above for claim 1.
Rejection II
With respect to the rejection of independent claim 12, from which
claim 17 depends, the Examiner finds that in its Figures 1 and 2, LeVan
teaches the claimed first and second food pans with curved edges that, when
in contact with one another, provide an arrangement in which the food pans
have a combined rectangular outer periphery comprising four straight sides.
Answer 5. We agree with Appellants that “[t]he rounded comers of LeVan’s
serving dishes are not shown in contact,” and, we determine that the
Examiner fails to establish adequately that placing LeVan’s serving dishes
such that curved edges of two serving dishes would provide an arrangement
in which the food pans have a combined rectangular outer periphery
comprising four straight sides. Appeal Br. 17—18. Thus, we do not sustain
the anticipation rejection of independent claim 12, or dependent claim 17.
Rejection III
Independent claim 1, and its dependent claims 6—11
As discussed above, independent claim 1, from which claims 6—11
depends, recites a specific arrangement of components of a food pan,
including a receptacle, a ledge, an interference portion including a wall, and
an outer rim. See Appeal Br., Claims App.; see also Appeal Br. 8; see also
Reply Br. 2—3. In addition to relying on the findings regarding Wagandt set
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forth above in the discussion of Rejection I, the Examiner appears to find
that Heaney discloses each of the limitations of claim 1. See, e.g.,
Answer 7—8.
Initially, it is not clear to us how the Examiner proposes to combine
the teachings of Heaney with the disclosure of Wagandt, as the Examiner
instead appears to rely on each of Heaney and Wagandt to individually
disclose all of the elements of independent claim 1. Thus, we determine that
the Examiner fails to establish a prima facie case of obviousness. See
Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990) (The requirement
under 35 U.S.C. § 132 that an Applicant is notified of the basis for a
rejection “is violated when the rejection is so uninformative that it prevents
the applicant from recognizing and seeking to counter the grounds for
rejection.”). Appellants do not raise this argument, and, thus, this argument
is technically waived. See 37 C.F.R. § 41.37(iv). However, we raise this
issue sua sponte. See In re Gartside, 203 F.3d 1305, 1315—16 (Fed. Cir.
2000). Based on the foregoing, we do not sustain the obviousness rejection
of claims 1 and 6—11.
In addition, we disagree with the Examiner that Wagandt discloses the
claimed specific arrangement of components of a food pan, including a
receptacle, a ledge, an interference portion including a wall, and an outer
rim, for the reasons discussed above for Rejection I. With respect to the
Examiner’s apparent finding that Heavey also discloses the claimed specific
arrangement of components of a food pan, we determine that the Examiner
does not provide evidence or reasoning adequate to support the finding. For
example, the Examiner does not indicate clearly where Heavey teaches the
claimed wall including an interference portion (see, e.g., Answer 7—8), and
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Appellants argue persuasively that various portions of Heavey cannot
disclose the claimed “wall [that] surrounds the receptacle and is located
between the receptacle and the rectangular periphery of the outer rim” (see
Appeal Br. 14—15; see also Reply Br. 6). In particular, Appellants point out
that
[t]he Examiner appears to regard the “gussets 50” of Heaney as
the claimed “wall” of the “interference portion.” However, as
recited in claim 1, “the wall surrounds the receptacle.” None of
the “gussets 50” surrounds the pan’s food receptacle. Instead,
each “comer segment 42” includes a “gusset 50.” The teachings
of Heaney are limited to individual gussets in discrete locations
at the comers of the pan. See, e.g., Heaney, col. 2, line 50 —
col. 3, line 22[,] and col. 3, lines 52—54. The Examiner has put
forth no reason why a person having ordinary skill would ignore
the teachings of Heaney and extend a gusset around the entirety
of the receptacle. Accordingly, none of the “gussets 50” can
properly be regarded as the claimed “wall.”
Appeal Br. 14—15.
In response to Appellants’ arguments in the Appeal Brief, the
Examiner provides no further explanation. See Answer 12—13. Thus, based
on the foregoing, we do not sustain the anticipation rejection of independent
claim 1 and its dependent claims 6—11.
Independent claim 18, and its dependent claims 20 and 21
Independent claim 18 recites limitations similar to those discussed
above for independent claim 1, and is rejected based on a similar rationale as
claim 1. Thus, we do not sustain the obviousness rejection of independent
claim 18 and its dependent claims 20 and 21 for reasons similar to those
discussed above for claim 1.
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Rejection IV
As set forth above, independent claim 12, from which claims 14—17
and 23 depend, recites first and second food pans with curved edges that,
when in contact with one another, provide an arrangement in which the food
pans have a combined rectangular outer periphery comprising four straight
sides. Appeal Br., Claims App. In addition to relying on the findings
regarding LeVan set forth above in the discussion of Rejection II, the
Examiner appears to find that a duplication of Bukowski’s Figure 1 would
result in an arrangement in which the food pans have a combined rectangular
outer periphery comprising four straight sides. See, e.g., Answer 10-11.
Initially, because it is not clear to us how the Examiner proposes to
combine the teachings of Bukowski with the disclosure of LeVan, but
instead appears to rely on each of LeVan and Bokowski individually to
disclose all of the elements of independent claim 12, we determine that the
Examiner fails to establish a prima facie case of obviousness. See Chester v.
Miller at 1578 (Fed. Cir. 1990) (The requirement under 35 U.S.C. § 132 that
an Applicant is notified of the basis for a rejection “is violated when the
rejection is so uninformative that it prevents the applicant from recognizing
and seeking to counter the grounds for rejection.”). Appellants do not raise
this argument, and, thus, this argument is technically waived. See 37 C.F.R.
§ 41.37(iv). However, we raise this issue sua sponte. See In re Gartside
at 1315—16 (Fed. Cir. 2000). Based on the foregoing, we do not sustain the
obviousness rejection of claims 12, 14—17, and 23.
In addition, we disagree that LeVan discloses the claimed first and
second food pans with curved edges that, when in contact with one another,
provide an arrangement in which the food pans have a combined rectangular
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outer periphery comprising four straight sides, for the reasons discussed
above for Rejection II. With respect to the Examiner’s apparent finding that
a duplication of Bukowski’s Figure 1 would result in an arrangement in
which the food pans have a combined rectangular outer periphery
comprising four straight sides, the Examiner does not provide evidence or
reasoning adequate to support the finding that the food pans would have a
combined rectangular outer periphery comprising four straight sides.
Further, it appears, as argued by Appellants, that “[pjlacing the curved edges
of two of the pans as shown in Bukowski[’s Figure 1] in contact would not
result in a combined rectangular outer periphery of the two pans. . . . [T]he
outermost sides (topmost and bottommost as shown) of the combined outer
periphery [would instead be] curved.” Appeal Br. 20. Thus, the foregoing
provides a separate reason we do not sustain the obviousness rejection of
claims 12, 14—17, and 23.
DECISION
We REVERSE the Examiner’s obviousness rejections of claims 1, 6—
12, 14—18, 20, 21, and 23.
REVERSED
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