Steve MeyerDownload PDFPatent Trials and Appeals BoardNov 1, 20212021002736 (P.T.A.B. Nov. 1, 2021) 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. 16/059,530 08/09/2018 Steve Meyer P07797US3 8424 34082 7590 11/01/2021 ZARLEY LAW FIRM P.L.C. CAPITAL SQUARE 400 LOCUST, SUITE 200 DES MOINES, IA 50309-2350 EXAMINER RODDEN, JOSHUA E ART UNIT PAPER NUMBER 3649 NOTIFICATION DATE DELIVERY MODE 11/01/2021 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 following e-mail address(es): crasmussen@zarleylaw.com emarty@zarleylaw.com kconrad@zarleylaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte STEVE MEYER ____________ Appeal 2021-002736 Application 16/059,530 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, TARA L. HUTCHINGS, ROBERT J. SILVERMAN, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision to reject claims 1–10 and 12–20. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We REVERSE. Appeal 2021-002736 Application 16/059,530 2 CLAIMED SUBJECT MATTER The Appellants’ claimed invention relates to a chop rack for grilling (Spec. 1, l. 12). Claims 1 and 16, reproduced below, are representative of the subject matter on appeal. 1. A chop rack comprising: a tray having a base; the base having a top portion, a middle portion, and a bottom portion; a row of slots positioned in the middle portion, wherein each slot is configured to only expose a bone of a meat product to a direct heat source such that the bone is heated to a higher temperature than the rest of the meat product and limit grease from the meat product passing through the slot; a perimeter of the tray having a continuous sidewall, wherein the sidewall is configured to retain the grease from the meat product within the tray; wherein the top portion and bottom portion are solid; and a meat product having a bone, wherein the bone is positioned directly over the at least one slot such that the bone is the only portion of the meat product exposed to a direct heat source such that the bone is heated to a higher temperature than the rest of the meat product and grease is retained within the tray due to the bone covering the at least one slot. 16. A chop rack comprising: a tray having a base; the base having a top portion, a middle portion, and a bottom portion; at least one slot positioned in the middle portion; and a meat product having a bone, wherein the bone is positioned directly over the at least one slot such that the bone is the Appeal 2021-002736 Application 16/059,530 3 only portion of the meat product exposed to a direct heat source such that the bone is heated to a higher temperature than the rest of the meat product. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Name Reference Date Painter Des. 256,654 Sept. 2, 1980 Chen Des. 417,124 Nov. 30, 1999 Borovicka US D635,825 S Apr. 12, 2011 Williams US 4,566,429 Jan. 28, 1986 Pappas US 5,720,217 Feb. 24, 1998 France US 9,505,542 B2 Nov. 29, 2016 Oak & Cherry Smoked Pork Chops – The BBQ Brethren Forums, http://www.bbq-brethren.com/forum/showthread.php?t=125925, last visited Oct. 11, 2016 (hereinafter “Oak”) The following rejections are before us for review: 1. Claims 1, 2, 5, 6, 12, and 20 are rejected under 35 U.S.C. § 103 as unpatentable over Painter and Oak. 2. Claims 1, 2, 5–7, and 12 are rejected under 35 U.S.C. § 103 as unpatentable over France and Oak. 3. Claims 1, 2, 7, and 12–19 are rejected under 35 U.S.C. § 103 as unpatentable over Borovicka and Oak. 4. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as unpatentable over Painter, Oak, and Williams. 5. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as unpatentable over France, Oak, and Williams. 6. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as unpatentable over Borovicka, Oak, and Williams. Appeal 2021-002736 Application 16/059,530 4 7. Claims 3 and 4 are rejected under 35 U.S.C. § 103 as unpatentable over Borovicka, Oak, and Chen. 8. Claim 10 is rejected under 35 U.S.C. § 103 as unpatentable over France, Oak, and Pappas. FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence1. ANALYSIS Rejection of claims under 35 U.S.C. § 103 as unpatentable under Painter as a base reference The Appellant argues that the rejection of claim 1 under 35 U.S.C. § 103 as unpatentable under Painter and Oak is improper (Appeal Br. 2–8). In particular, the Appellant argues that the rejection lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness (Appeal Br. 7, 8). In contrast, the Examiner has determined that the rejection of record is proper (Final Act. 2–4, Ans. 3–17). We agree with the Appellant. Here, claim 1 requires the structural features of the tray as well as a “meat product” placed over a slot. Specifically, the claim requires: a meat product having a bone, wherein the bone is positioned directly over the at least one slot such that the bone 1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2021-002736 Application 16/059,530 5 is the only portion of the meat product exposed to a direct heat source such that the bone is heated to a higher temperature than the rest of the meat product and grease is retained within the tray due to the bone covering the at least one slot. (Claim 1, emphasis added). Here, initially we note that Painter’s tray discloses a row of “circular” drip openings as opposed to the claimed row of “slots.” Thus, the disclosed “circular opening” is different in shape than the claimed “slot.” Further, Painter’s circular openings have not been shown to be of the proper size to support a pork chop to stand up in the manner claimed. In contrast, Painter’s circular openings appear to be significantly larger, in relation to other dimensions of the Painter device, than the size needed to support bone of a meat product to stand up and would thus not allow the bone when positioned above the slot to be the “only portion of meat product exposed to [the] direct heat source” as claimed. Here, the rationale that the combination of references would have been combined and obvious to try as set forth in the rejection lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness. For this reason, this rejection of claim 1, and its dependent claims 2, 5, 6, 12, and 20, is not sustained. Claims 16–18 are directed to similar subject matter, and the rejection of these is not sustained for the same reasons given above. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as unpatentable over Painter, Oak, and Williams. Claim 8 requires the slot have a length of no more than 1.375” and claim 9 requires the slot has a width of no more than 0.6”. The rejection cites to Williams at column 3, lines 23–35, as disclosing the claimed dimensions for the slot and that the combination with the Appeal 2021-002736 Application 16/059,530 6 primary references discussed above would have been obvious for the purpose of using a slot of known size to be used in grilling food items (Final Act. 12). We disagree with Examiner. The tray of Painter uses circular openings in contrast to the claimed “slot”. Further, while Williams does disclose a specific slot size for grilling, it does not disclose placing a bone in that slot, and it would not have been obvious to modify the references in the cited combination to meet the claimed limitations without impermissible hindsight. Here, the cited rejections lack articulated reasoning with rational underpinnings to support a conclusion of obviousness. Accordingly, the rejection of claims 8 and 9 under Painter, Oak, and Williams is not sustained. Rejection of claims under 35 U.S.C. § 103 as unpatentable under France as a base reference The Appellant argues that the rejection of claim 1 under 35 U.S.C. § 103 as unpatentable under France and Oak is improper (Appeal Br. 2–8). In particular, the Appellant argues that the rejection lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness (Appeal Br. 7, 8). In contrast, the Examiner has determined that the rejection of record is proper (Final Act. 5–7, Ans. 3–17). We agree with the Appellant. Here, claim 1 requires the structural features of the tray as well as a “meat product” placed over a slot. Specifically, the claim requires: a meat product having a bone, wherein the bone is positioned directly over the at least one slot such that the bone is the only portion of the meat product exposed to a direct heat Appeal 2021-002736 Application 16/059,530 7 source such that the bone is heated to a higher temperature than the rest of the meat product and grease is retained within the tray due to the bone covering the at least one slot. (Claim 1, emphasis added). Here, initially we note that France’s tray shown in Figure 9B does disclose a row of slots (170, 190) but that it unclear that the slots are sized large enough to support a meat bone in the manner claimed. Further, the slots (170, 190) are long in length (relative to their widths), and would appear to expose other areas of the meat to the direct heat source besides the “bone” in the manner claimed. The claim requires the bone when positioned directly over the slot to be the “only portion of meat product exposed to [the] direct heat source” and the slots in France appear to be of improper size length to permit this due to the length of the slot. Here, the rationale that the combination of references would have been obvious to try for the reasonable expectation of success of cooking the meat near the bone lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness. For this reason, the rejection of claim 1, and its dependent claims 2, 5–7, and 12, is not sustained. Claims 16–18 are directed to similar subject matter and the rejection of these is not sustained for the same reasons given above. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as unpatentable over France, Oak, and Williams. Claim 8 requires the slot have a length of no more than 1.375” and claim 9 requires the slot has a width of no more than 0.6”. The rejection cites to Williams at column 3, lines 23–35, as disclosing the claimed dimensions for the slot and that the combination would have been obvious for the purpose of using a slot of known size to be used in Appeal 2021-002736 Application 16/059,530 8 grilling food items (Final Act. 13). We disagree with Examiner. While Williams does disclose a specific slot size for grilling, it does not disclose placing a meat bone in the slot and the cited combination would not have been obvious without impermissible hindsight. Here, the cited rejections lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness. Accordingly, the rejection of claims 8 and 9 under France, Oak, and Williams is not sustained. Claim 10 has been rejected under 35 U.S.C. § 103 as unpatentable over France, Oak, and Pappas. Claim 10 requires the slot have a length greater than 1.0”. The Examiner cites to Pappas as disclosing this structure at column 3, lines 29–40, and that the combination would have been obvious to use a slot with a known size for grilling food items (Final Act. 15). We disagree with Examiner. While Pappas does disclose a specific slot size for grilling, it does not disclose placing a bone in that slot and the cited combination would not have been obvious in the cited combination without impermissible hindsight. Here, the cited rejection lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness. Accordingly, the rejection of claim 10 under France, Oak, and Pappas is not sustained. Rejection of claims under 35 U.S.C. § 103 as unpatentable under Borovicka as a base reference The Appellant argues that the rejection of claim 1 under 35 U.S.C. § 103 as unpatentable under Borovicka and Oak is improper (Appeal Br. 2– 8). In particular, the Appellant argues that the rejection lacks articulated Appeal 2021-002736 Application 16/059,530 9 reasoning with rational underpinnings to support a conclusion of obviousness (Appeal Br. 7, 8). In contrast, the Examiner has determined that the rejection of record is proper (Final Act. 7–9, Ans. 3–17). We agree with the Appellant. Here, claim 1 requires the structural features of the tray as well as a “meat product” placed over a slot. Specifically, the claim requires: a meat product having a bone, wherein the bone is positioned directly over the at least one slot such that the bone is the only portion of the meat product exposed to a direct heat source such that the bone is heated to a higher temperature than the rest of the meat product and grease is retained within the tray due to the bone covering the at least one slot. (Claim 1, emphasis added). Here, initially we note that Borovicka’s tray in Figure 1 shows openings that appear to be shaped like “squares” rather than the claimed shape of a “slot.” Regardless, in Borovicka it’s unclear that the openings are sized large enough to support the bone in the manner claimed. The claim requires the bone when positioned over the slot to be the “only portion of meat product exposed to [the] direct heat source” and the openings in Borovicka are throughout the tray and thus the openings not supporting the bone would expose the rest of the meat product to direct heat. Here, the rationale that the combination of references would have been obvious to try for the reasonable expectation of success of cooking the meat near the bone lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness. For this reason, this rejection of claim 1, and its dependent claims 2, 7, and 12–15, is not sustained. Claims 16–19 are Appeal 2021-002736 Application 16/059,530 10 directed to similar subject matter and the rejection of these claims is not sustained as well. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as unpatentable over Borovicka, Oak, and Williams. Claim 8 requires the slot have a length of no more than 1.375” and claim 9 requires the slot has a width of no more than 0.6”. The rejection cites to Williams at column 3, lines 23–35 as disclosing the claimed dimensions for the slot and that the combination would have been obvious for the purpose of using a slot of a known size in grilling food items (Final Act. 13). We disagree with Examiner. Further, while Williams does disclose a specific slot size for grilling, it does not disclose placing a bone in that slot, or would it have been obvious in the cited combination without impermissible hindsight. Here, the cited rejections lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness. Accordingly, the rejection of claims 8 and 9 under Borovicka, Oak, and Williams is not sustained. The rejection of claims 3 and 4 under 35 U.S.C. § 103 as unpatentable over Borovicka, Oak, and Chen fails to cure the deficiencies of the base rejection and this rejection is not sustained. CONCLUSIONS OF LAW We conclude that Appellant has shown that the Examiner erred in rejecting the claims as listed in the Rejections section above. Appeal 2021-002736 Application 16/059,530 11 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 5, 6, 12, 20 103 Painter, Oak 1, 2, 5, 6, 12, 20 1, 2, 5–7, 12 103 France, Oak 1, 2, 5–7, 12 1, 2, 7, 12– 19 103 Borovicka, Oak 1, 2, 7, 12– 19 8, 9 103 Painter, Oak, Williams 8, 9 8, 9 103 France, Oak, Williams 8, 9 8, 9 103 Borovicka, Oak, Williams 8, 9 3, 4 103 Borovicka, Oak, Chen 3, 4 10 103 France, Oak, Pappas 10 Overall Outcome 1–10, 12–20 REVERSED Copy with citationCopy as parenthetical citation