10844369 (B.P.A.I. Jun. 28, 2012)

Ex Parte Steinhauer

Board of Patent Appeals and InterferencesJun 28, 2012

10844369 (B.P.A.I. Jun. 28, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/844,369 05/13/2004 G. Alan Steinhauer STEIN-001 6479 21884 7590 06/29/2012 WELSH FLAXMAN & GITLER LLC 2000 DUKE STREET, SUITE 100 ALEXANDRIA, VA 22314 EXAMINER LEFF, STEVEN N ART UNIT PAPER NUMBER 1782 MAIL DATE DELIVERY MODE 06/29/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte G. ALAN STEINHAUER ____________ Appeal 2010-004866 Application 10/844,369 Technology Center 1700 ____________ Before CHUNG K. PAK, CHARLES F. WARREN, and PETER F. KRATZ, Administrative Patent Judges. KRATZ, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellant requests rehearing of our Decision of September 30, 2011, wherein the Examiner’s decision to reject the appealed claims under 35 U.S.C. § 103(a) was affirmed-in-part. In accordance with Appellant’s Request, we have reconsidered our Decision in light of the Request, but we find no reason to modify our Decision. Appeal 2010-004866 Application 10/844,369 2 Concerning the affirmed product claims, Appellant acknowledges in the Request (Req.) that “the Examiner is correct in indicating that it would have been obvious to one of ordinary skill in the art to fill the taco of Puskar with multiple conventional ingredients” (Req. 2). However, Appellant restates their disagreement with the Examiner’s viewpoint, which we affirmed with respect to the product claims (Req. 2 and 3). In this regard, Appellant maintains that Puskar taken together with the other applied prior art would not have reasonably suggested to one of ordinary skill in the art; that is, an artisan of ordinary skill imbued with prior art knowledge as to how edible ingredients can be added to an edible shell to incorporate multiple ingredients in the shell, the option of arranging at least one of the multiple ingredients in a layer relative to one or more of the other ingredients in the shell. From our perspective, this layering option would have been suggested to an ordinarily skilled artisan and would have been obviously accomplished in any well-known fashion, such as by adding a layer of some lettuce, by hand, along a shell surface or otherwise such that at least some of the lettuce forms a layer in the taco shell relative to one or more other ingredients added to the shell. Nothing more is required by representative product- by-process claim 8 when it is given its broadest reasonable construction. Appellant has not identified any facts or arguments timely presented in the Appeal Brief that the Board misapprehended or overlooked in rendering the Decision that warrants a different outcome (see generally Request). Consequently and for the reasons and facts furnished by the Examiner in the Answer, particularly (Ans. 13-14), which facts and reasoning were Appeal 2010-004866 Application 10/844,369 3 adopted by the Board in rendering its Decision as to the affirmed claims as indicated in the Decision (Dec. 6), we are not persuaded of error that requires modification of the Board Decision. In conclusion, Appellant’s request is granted to the extent that we have reconsidered our Decision, but is denied with respect to making any change therein. DENIED sld