Ex Parte Koefelda et al

Patent Trial and Appeal Board

Dec 19, 2018

13429507 (P.T.A.B. Dec. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/429,507 03/26/2012
26096 7590 12/21/2018
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Gerald R. Koefelda
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
ATTORNEY DOCKET NO.
10459 PUS; 67080-534
PUSl
CONFIRMATION NO.
5434
EXAMINER
BRADEN, SHAWNM
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
12/21/2018 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERALD R. KOEFELDA and ALAN J. COOK
Appeal2017-003275
Application 13/429,507
Technology Center 3700
Before STEVEN D.A. McCARTHY, MICHELLE R. OSINSKI, and
BRENT M. DOUGAL, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 STATEMENT OF THE CASE
2 The Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
3 decision finally rejecting claims 1, 3, 4, 6, 7, 12-14 and 16-26. We have
4 jurisdiction under 35 U.S.C. § 6(b).
5 We REVERSE. Pursuant to our authority under 37 C.F.R. § 41.50(b),
6 we enter NEW GROUNDS OF REJECTION against claims 19, 21 and 22
7 under pre-AIA 35 U.S.C. § 102(b) as being anticipated by Carr (US Des.
8 253,333, issued Nov. 6, 1979).
9
The Appellants identify Rehrig Pacific Company as the real party in
interest. (See Appeal Brief, dated May 9, 2016, at 1 ).
Appeal2017-003275
Application 13/429,507
1 CLAIMS 1, 3, 4, 6 AND 7
2 Claim 1 recites a tray including troughs and "a plurality of elongated
3 peaks between each of the troughs, wherein the peaks include a plurality of
4 ribs formed on an underside of the peaks." The Examiner rejects claims 1, 3
5 and 4 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Jackson
6 (US 2,150,623, issued Mar. 14, 1939) and Morrison (US 3,828,705, issued
7 Aug. 13, 1974). (See Final Office Action, mailed Dec. 9, 2015 ("Final
8 Act."), at 2). Jackson describes a baking pan for producing hearth bread.
9 (See Jackson 1, first col., 11. 1---6). Each such pan includes a foraminated
10 ( that is, perforated) bottom 1 O; angled, foraminated side walls 11; and solid
11 end walls 12. (See Jackson 1, second col., 11. 12-18 & 29--43; see also id.,
12 Figs. 1-5).
13 Jackson additionally describes combining multiple baking pans into a
14 set by means of a continuous wire frame so that multiple loaves of hearth
15 bread might be baked simultaneously. (See Jackson 1, first col., 11. 41--46;
16 see also id., Figs. 2--4). As best shown in Figure 1, the continuous wire
17 frame arranges the pans side-by-side in spaced parallel relation (see Jackson
18 2, first col., 11. 38--44), leaving a gap between each pair of adjacent pans.
19 Jackson's teachings have for their object "the construction of a pan having
20 minimum wall space whereby the heated air of the oven may circulate about
21 and contact intimately with the surface of the loaf within the pan." (Jackson
22 1, first col., 11. 7-13; see also id., 11. 14--20). The gaps between adjacent
23 pans in each set help to maintain the free circulation of air along the
24 foraminated side walls 11 of the pans so as to permit the heat convected by
25 the rising air to intimately contact the surface of loaves baking in the pans.
2
Appeal2017-003275
Application 13/429,507
1 The Examiner finds that the upper edges of the side walls 11 define
2 peaks as recited in claim 1; but acknowledges that Jackson fails to describe
3 ribs formed on undersides of the peaks. (See Final Act., 2). Morrison
4 teaches forming a one-piece, metallic pallet using a conventional stamping
5 machine. The pallet is corrugated to increase its strength. That is, the pallet
6 is formed with a series of parallel crests 14 and troughs 16 connected by side
7 walls 22. (See Morrison, col. 1, 11. 23-25; col. 2, 11. 60-64; col. 3, 11. 10-13
8 & 30-33; & Fig. 1). In order to further increase the strength of the pallet,
9 the pallet also includes ribs 26 drawn or embossed below the crests 14. (See
10 Jackson, col. 3, 11. 14--29; col. 4, 11. 54--59; & Fig. 2). The Examiner
11 concludes that one familiar with the teachings of Jackson and Morrison
12 would have modified Jackson's baking pan sets to add ribs similar to the ribs
13 2 6 described by Morrison "to add further strength and durability to the
14 pans." (See Final Act. 3).
15 As the Appellants correctly point out, Morrison teaches forming the
16 ribs 2 6 by drawing material spanning the crests 14 of the corrugated pallet.
17 (See Appeal Brief, dated May 9, 2016 ("App. Br.") 7 & 8). On the other
18 hand, Jackson does not teach providing any material spanning the upper
19 edges of the side walls 11 of the pans. In fact, the gaps between the pans
20 promotes intimate contact between heated air circulating around the pans
21 and with the surfaces of the loaves baking in the pans. Considering the
22 teachings of Jackson and Morrison as a whole, one of ordinary skill in the art
23 would not have had reason to modify Jackson's combinations of baking pans
24 in the manner proposed by the Examiner. We do not sustain the rejection of
25 claims 1, 3 and 4 under§ 103(a) as being unpatentable over Jackson and
26 Morrison.
3
Appeal2017-003275
Application 13/429,507
1 The Examiner rejects claims 6 and 7 under§ 103(a) as being
2 unpatentable over Jackson, Morrison and Apps (US 4,759,451, issued July
3 26, 1988). (See Final Act. 3). Apps describes a tray 10 having stacking legs
4 20 for engaging slots 18 recessed into inner walls of a corresponding tray to
5 adjust the stacking height of the two trays with respect to one another. (See
6 Apps, col. 2, 11. 29--44; col. 3, 11. 1-21; & Fig. 4). The Examiner cites Apps
7 for the teaching that:
8 [a] tray can be stacked (fig. 2) on an identical tray in a first
9 orientation or nested (fig. 3) with the identical tray at a second
10 orientation, 180 degrees from the first orientation in the same
11 field of endeavor for the purpose of stacking without crushing
12 the contents and nesting to take up less space when empty.
13 (Final Act. 3). This teaching does not remedy the deficiencies of the
14 combined teachings of Jackson and Morrison as applied to the subject matter
15 of parent claim 1. Therefore, we do not sustain the rejection of claims 6 and
16 7 under§ 103(a) as being unpatentable over Jackson, Morrison and Apps.
17
18 CLAIMS 12-14 AND 16-18
19 Claim 12 recites a tray including a base and:
20 a plurality of walls extending upward from the base, wherein the
21 plurality of walls are configured such that the tray can be stacked
22 on an identical tray in a first orientation and can be nested with
23 the identical tray at a second orientation, wherein the second
24 orientation is 180 degrees from the first orientation.
25 The Examiner rejects claims 12-14 and 18 under§ 103(a) as being
26 unpatentable over Jackson and Apps. (See Final Act. 4).
27 As discussed earlier, Jackson describes combining multiple baking
28 pans into a set by means of a continuous wire frame so that multiple loaves
29 of hearth bread might be baked simultaneously. (See Jackson 1, first col.,
4
Appeal2017-003275
Application 13/429,507
1 11. 1---6 & 41--46; see also id., Figs. 2--4). The Examiner finds that Jackson's
2 baking pan sets do not satisfy the quoted limitation. (See Final Act. 4 & 5).
3 Instead, the Examiner finds that Apps teaches the quoted limitation.
4 (See Final Act. 5). The Examiner reasons that it would have been obvious:
5 to add the structure to have the tray ... stacked on an identical
6 tray in a first orientation or nested with the identical tray at a
7 second orientation, wherein the second orientation is 180 degrees
8 from the first orientation in order to stack multiple containers
9 with contents like bread loaded and when they are empty nest the
10 containers to take up less space.
11 (Final Act. 6). As the Appellants correctly point out, however, adding legs
12 and slots similar to the stacking legs 20 and slots 18 of Apps to a set of
13 baking pans as described by Jackson would have added significant weight,
14 volume and complexity to the pans. (See App. Br. 9). Since the Examiner
15 has not shown that baking pans are stacked in the manner claimed, in
16 ordinary use, one of ordinary skill in the art would have required some
17 reason why stacking the baking pan sets would have been desirable to justify
18 the modification proposed by the Examiner. The Examiner has proposed no
19 such reason. Therefore, we do not sustain the rejection of claims 12-14 and
20 18 under§ 103(a) as being unpatentable over Jackson and Apps.
21 The Examiner rejects claim 16 under§ 103(a) as being unpatentable
22 over Jackson, Apps and Hassell (US 7,249,675 B2, issued July 31, 2007).
23 (See Final Act. 6). Hassell describes a portable storage container 10
24 pivotably mounting bail members 18 permitting such containers to be nested
25 or stacked at various heights. (See Hassell, col. 2, 11. 50---63; col. 3, 11. 46-
26 60; col. 4, 11. 32-34; & Figs. 1-8). The Examiner cites Hassell as teaching:
27 a pair of supports (19) each pivotally secured to the tray, wherein
28 the tray can be supported on the pair of supports of the identical
29 tray at a height greater than the second orientation in the same
5
Appeal2017-003275
Application 13/429,507
1 field of endeavor for the purpose of having optional heights for
2 stacking to allow for more volume of stacked container.
3 (Final Act. 6). This teaching does not remedy the deficiencies of the
4 combined teachings of Jackson and Apps as applied to the subject matter of
5 parent claim 12. Therefore, we do not sustain the rejection of claim 16
6 under§ 103(a) as being unpatentable over Jackson, Apps and Hassell.
7 The Examiner rejects claim 17 under§ 103(a) as being unpatentable
8 over Jackson, Apps and Jung (US 1,568,742, issued Jan. 5, 1926). (See
9 Final Act. 7). Figure 6 of Jung depicts a set of baking pans for baking rye
10 bread connected together in spaced parallel relation by a magnetic strap 16
11 engaging rolled edge portions J 6a, J 6b of the pans and by ribs J 6c extending
12 between the adjacent pans of the set. (See Jung 2, 11. 57-84). The Examiner
13 cites Jung as teaching that "the peaks include a plurality of ribs (16c) formed
14 on an underside of the peaks in the same field of endeavor for the purpose of
15 insuring rigidity." (Final Act. 7). This teaching does not remedy the
16 deficiencies of the combined teachings of Jackson and Apps as applied to
17 the subject matter of parent claim 12. Therefore, we do not sustain the
18 rejection of claim 17 under§ 103(a) as being unpatentable over Jackson,
19 Apps and Jung.
20
21 CLAIMS 19-26
22 Claim 19 recites:
23 19. A tray comprising:
24 a base, the base including a plurality of parallel troughs
25 formed in an upper surface of the base for receiving items
26 therein, a plurality of elongated peaks connecting adjacent pairs
27 of the plurality of troughs to one another; and
6
Appeal2017-003275
Application 13/429,507
1 a plurality of walls extending upward from a perimeter of
2 the base.
3 The Examiner rejects claims 19-26 under§ I03(a) as being
4 unpatentable over Cots (FR 2 756 706 Al, publ. June 12, 1998)2 and Apps.
5 (See Final Act. 8). Cots describes an improved method for making bread
6 using a bread pan comprising a perforated metal sheet supported in an
7 undulating configuration over a wire reinforcement frame. (See Cots 6 &
8 Fig. 1 ). The Examiner finds that Cots describes the recited base but not the
9 plurality of walls extending upwardly from the perimeter of the base. (See
10 Final Act. 8). Instead, the Examiner finds that Apps describes the walls.
11 (See Final Act. 8-9). The Examiner reasons that it would have been
12 obvious:
13 to add a plurality of walls extending upward[ly] from a perimeter
14 of the base, and wherein the tray can be stacked on an identical
15 tray in a first orientation and the tray can be nested with the
16 identical tray at a second orientation, wherein the second
17 orientation is 180 degrees from the first orientation and wherein
18 one of the plurality of walls includes at least one foot protruding
19 outward therefrom for stacking on an identical tray of the tray of
20 Cots as taught by Apps in order to stack and nest the tray.
21 (Final Act. 9).
22 The rejection of claims 19-26 suffers from the same deficiencies as
23 the rejection of claim 12. As the Appellants correctly point out,
24 "modification of Cots to permit stacking would [have] be[ en] a substantial
25 change in [the] design and purpose of the Cots bakery nets." (See App. Br.
26 11 ). Since the Examiner has not shown that baking pans are stacked in the
2 References to "Cots" will be to a machine translation in the file for the
application underlying this appeal.
7
Appeal2017-003275
Application 13/429,507
1 manner claimed, in ordinary use, one of ordinary skill in the art would have
2 required some reason why stacking the baking pan sets would have been
3 desirable to justify the modification proposed by the Examiner. The
4 Examiner has proposed no such reason. Therefore, we do not sustain the
5 rejection of claims 19-24 under§ 103(a) as being unpatentable over Cots
6 and Apps.
7 Claim 25 depends from claim 1. Claim 26 depends from claim 12.
8 The Examiner has not articulated how the combined teachings of Cots and
9 Apps might have rendered the subject matter of claim 1 or of claim 12
10 obvious. Therefore, we do not sustain the rejection of claim 25 or of claim
11 26 under§ 103(a) as being unpatentable over Cots and Apps.
12
13 NEW GROUNDS OF REJECTION AGAINST CLAIMS 19, 21 AND 22
14 We enter new grounds of rejection against claims 19, 21 and 22 under
15 pre-AIA 35 U.S.C. § 102(b) against claims 19, 21 and 22 as being
16 anticipated by Carr. 3 Figures 1-7 of Carr depict several views of a baking
17 pan. (See generally Carr, Description, 11. 1-8). The baking pan is a tray as
18 recited in claim 19. As depicted in Figure 7, the pan includes a base and a
19 plurality of walls extending upwardly from a perimeter of the base. The
20 base, as depicted in Figures 3 and 5 of Carr, and as indicated by the shading
21 in Figures 1 and 2, includes four troughs formed in an upper surface of the
22 base; and three elongated peaks connecting adjacent pairs of the plurality of
3 The entry of new grounds under 37 C.F.R. § 4I.50(b) is discretionary.
In the event of further prosecution, the Examiner should draw no conclusion
as to our views regarding the patentability of the appealed claims as a whole
from our decision to enter new grounds of rejection against claims 19, 21
and 22 alone.
8
Appeal2017-003275
Application 13/429,507
1 troughs to one another. Therefore, the baking pan or tray depicted in Figures
2 1-7 of Carr satisfy each limitation of claim 19.
3 As depicted in Figures 3 and 5 of Carr, and as indicated by the
4 shading in Figures 1 and 2, the troughs defined by the base of the baking pan
5 or tray are curved, as recited in claim 21; and the peaks defined by the base
6 are curved, as recited in claim 22. Therefore, the baking pan or tray depicted
7 in Figures 1-7 of Carr satisfy each limitation of claims 21 and 22.
8
9 DECISION
10 We REVERSE the Examiner's decision rejecting claims 1, 3, 4, 6, 7,
11 12-14 and 16-26.
12 More specifically, we do not sustain the rejection of claims 1, 3 and 4
13 under§ 103(a) as being unpatentable over Jackson and Morrison; the
14 rejection of claims 6 and 7 under§ 103(a) as being unpatentable over
15 Jackson, Morrison and Apps; the rejection of claims 12-14 and 18 under
16 § 103(a) as being unpatentable over Jackson and Apps; the rejection of claim
17 16 under§ 103(a) as being unpatentable over Jackson, Apps and Hassell; the
18 rejection of claim 17 under§ 103(a) as being unpatentable over Jackson,
19 Apps and Jung; or the rejection of claims 19-26 under§ 103(a) as being
20 unpatentable over Cots and Apps.
21 Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter NEW
22 GROUNDS OF REJECTION against claims 19, 21 and 22 under pre-AIA
23 35 U.S.C. § 102(b) as being anticipated by Carr (US Des. 253,333, issued
24 Nov. 6, 1979).
25 37 C.F.R. § 4I.50(b) provides that, "[a] new ground of rejection
26 pursuant to this paragraph shall not be considered final for judicial review."
9
Appeal2017-003275
Application 13/429,507
1 Regarding the new ground of rejection, 37 C.F.R. § 4I.50(b) also provides
2 that Appellants must exercise, WITHIN TWO MONTHS, one of the
3 following options:
4 (1) Reopen prosecution. Submit an
5 appropriate amendment of the claims so rejected or
6 new [ e ]vidence relating to the claims so rejected, or
7 both, and have the matter reconsidered by the
8 examiner, in which event the prosecution will be
9 remanded to the examiner ... [; or]
10 (2) Request rehearing. Request that the
11 proceeding be reheard under §41.52 by the Board
12 upon the same record ....
13 If the Appellants elect prosecution before the Examiner and this does
14 not result in allowance of the application, abandonment, or a second appeal,
15 this case should be returned to the Patent Trial and Appeal Board for final
16 action on the affirmed rejection, including any timely request for rehearing
17 thereof.
18 No time period for taking any subsequent action in connection with
19 this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
20 § 1.136(a).
REVERSED; 37 C.F.R. § 4I.50(b)
10