Ex Parte Murat et al

Patent Trial and Appeal Board

May 30, 2013

10496625 (P.T.A.B. May. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MARIE-PIERRE MURAT,
INES BIRLOUEZ-ARAGON, JEAN-LOUIS LANOISELLE
and ERIC CHRISTIAN JACQUES RHETAT
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Appeal 2011-003976
Application 10/496,625
Technology Center 3700
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Before STEVEN D.A. McCARTHY, MICHAEL L. HOELTER and
ANNETTE R. REIMERS, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s 1
final decision rejecting claims 23, 24 and 26-44. Claims 1-22 and 25 are 2
cancelled. We have jurisdiction under 35 U.S.C. § 6(b). 3
We REVERSE.4

1 The Appellants identify the real party in interest as SEB S.A.
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Application 10/496,625

2
Claims 23 and 36 are independent: 1
23. A food cooking basket for pressure 2
cooking in a pressure cooker, the basket 3
comprising a sheet of rigid material defining a 4
bottom and side walls of the basket, said sheet 5
being provided with perforations, wherein the 6
perforations are provided at least through the side 7
wall and represent at least 30% to 58% of the total 8
area of the sheet. 9
10
36. A method of manufacturing a food-11
cooking basket for a pressure cooker by stamp[ing 12
a sheet of metal, the method comprising: 13
perforating the sheet of metal or providing a 14
previously-perforated sheet; 15
cutting the sheet to obtain a blank having the 16
final shape of the basket; 17
stamping the blank in its central position; 18
and 19
trimming the edge to obtain the basket. 20
21
The Examiner rejects: 22
claims 23, 24, 26, 27, 29-32 and 34 under 35 U.S.C. 23
§ 102(b) as being anticipated by O’Reilly (US 3,489,075, 24
issued Jan. 13, 1970); 25
claims 36-39 and 41-44 under § 102(b) as being 26
anticipated by Gantos (US 6,055,901, issued May 2, 2000); 27
claim 28 under 35 U.S.C. § 103(a) as being unpatentable 28
over O’Reilly and Reames (US 6,196,120 B1, issued Mar. 6, 29
2001); 30
claim 33 under § 103(a) as being unpatentable over 31
O’Reilly and Bauer (DE 35 06 058 A1, publ. Aug. 21, 1986); 32
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claim 35 under § 103(a) as being unpatentable over 1
O’Reilly and Societe Bellino & Cie GmbH (FR 777.582, publ. 2
Feb. 23, 1935)(“Bellino”); and 3
claim 40 under § 103(a) as being unpatentable over 4
Gantos and Reames. 5
Regarding independent claim 23, the Appellants argue that O’Reilly 6
fails to describe a food cooking basket comprising a sheet provided with 7
perforations, “wherein the perforation . . . represent at least 30% to 58% of 8
the total area of the sheet.” (See, e.g., Br. 5-6). The Examiner cites to claim 9
1 of O’Reilly as well as to O’Reilly’s drawing as evidence to the contrary. 10
(See Ans. 3 and 6). Claim 1 of O’Reilly recites a “utensil for the steam 11
cooking of vegetables at a pressure not substantially greater than 12
atmospheric pressure, comprising a basket formed from sheet metal and 13
provided with a lower wall and an annular side wall and having perforations 14
over substantially the entire area thereof.” (O’Reilly, col. 2, ll. 25-30). 15
Figures 1 and 2 of O’Reilly depict cutaway portions of O’Reilly’s basket 11. 16
The evidence provided by the Examiner fails to show by a preponderance of 17
evidence that O’Reilly’s basket 11 is such that “the perforation . . . represent 18
at least 30% to 58% of the total area of the sheet.” In effect, the Examiner 19
does not persuade us that O’Reilly’s teaching of perforations “over 20
substantially the entire area thereof,” without more, anticipates a claim 21
reciting perforations that slightly exceeds half “the total area of the sheet.” 22
We do not sustain the rejection of claims 23, 24, 26, 27, 29-32 and 34 under 23
§ 102(b) as being anticipated by O’Reilly. 24
Regarding dependent claim 28, the Examiner cites Reames as 25
teaching “the use of perforations sized between 3-5 mm.” (Ans. 4). The 26
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Examiner does not explain persuasively how this teaching might have 1
provided one of ordinary skill in the art to modify O’Reilly’s basket 11 such 2
that “the perforation . . . represent at least 30% to 58% of the total area of the 3
sheet.” We do not sustain the rejection of claim 28 under § 103(a) as being 4
unpatentable over O’Reilly and Reames. 5
Regarding claim 33, the Examiner cites Bauer as teaching “the use of 6
handle 12 on a cooking basket, the handle including a grip portion 13 7
forming an inwardly directed setback which does not rest on the edge of the 8
basket.” (Ans. 4). The Examiner does not explain persuasively how this 9
teaching might have provided one of ordinary skill in the art to modify 10
O’Reilly’s basket 11 such that “the perforation . . . represent at least 30% to 11
58% of the total area of the sheet.” We do not sustain the rejection of claim 12
33 under § 103(a) as being unpatentable over O’Reilly and Bauer. 13
Regarding claim 35, the Examiner cites Bellino as teaching, “in a food 14
cooking device, the use of two support rows for two cooking baskets at 15
various heights within a cooking vessel.” (Ans. 5). The Examiner does not 16
explain persuasively how this teaching might have provided one of ordinary 17
skill in the art to modify O’Reilly’s basket 11 such that “the perforation . . . 18
represent at least 30% to 58% of the total area of the sheet.” We do not 19
sustain the rejection of claim 35 under § 103(a) as being unpatentable over 20
O’Reilly and Bellino. 21
Regarding independent claim 36, the Appellant argues that Gantos 22
fails to describe a method including the steps of “perforating [a] sheet of 23
metal or providing a previously-perforated sheet;” and then “cutting the 24
sheet to obtain a blank having the final shape of the basket.” (See Br. 11). 25
The Examiner concludes Gantos teaches that “providing a finish is the next 26
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and final step in the construction of the basket after the stamping of the 1
metal. Thus, it can be concluded that the step of providing perforations has 2
taken place before the metal is stamped, since a finish would be damaged 3
during the production of perforations.” (Ans. 7). 4
Gantos does not describe a method including either the step of 5
perforating a sheet of metal or the step of providing a previously-perforated 6
sheet. Column 5, lines 61-64 discloses merely that, “[f]ollowing the 7
stamping process, a finish may be applied to the inset 14 and support ring 16 8
using conventional techniques and apparatus. The finish can be applied 9
either before or after the handle posts 52 are attached.” This passage does 10
not imply that providing a finish is the next and final step in the construction 11
of the basket after the stamping of the metal. The passage, even in 12
combination with the Examiner’s technical reasoning, does not provide the 13
Examiner a sound basis for belief that the method described at column 5, 14
lines 51-64 of Gantos inherently includes the steps of “perforating the sheet 15
of metal or providing a previously-perforated sheet;” and then “cutting the 16
sheet to obtain a blank having the final shape of the basket.” 17
The evidence provided by the Examiner fails to show by a 18
preponderance of evidence that the method described by Gantos expressly or 19
inherently includes these steps. We do not sustain the rejection of claims 20
36-39 and 41-44 under § 102(b) as being anticipated by Gantos. Since the 21
Examiner does not explain persuasively how the teachings of Reames might 22
have remedied this deficiency, we do not sustain the rejection of claim 40 23
under § 103(a) as being unpatentable over Gantos and Reames. 24
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DECISION 1
We REVERSE the Examiner’s decision rejecting claims rejecting 2
claims 23, 24 and 26-44. 3
4
REVERSED 5
6
Klh 7