Ex Parte Hartman

Patent Trial and Appeal Board

Sep 25, 2018

12899426 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/899,426
113442 7590
Shahrooz Isaac Zaghi
24925 Palmilla Dr.
Calabasas, CA 91302
10/06/2010
09/25/2018
FIRST NAMED INVENTOR
Racquel Hartman
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. CONFIRMATION NO.
01159:11148.11 5787
EXAMINER
STAPLETON, ERIC S
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
09/25/2018 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 PATENT TRIAL AND APPEAL BOARD
Ex parte RACQUEL HARTMAN1
Appeal 2017-011149
Application 12/899,426
Technology Center 3700
Before: BENJAMIN D. M. WOOD, JILL D. HILL, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
1 The real party in interest is identified as the applicant Racquel Hartman.
Appeal Br. 3.
Appeal 2017-011149
Application 12/899,426
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
13-23. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
THE INVENTION
The claims are directed to a baking pan for tilted cakes. Sole
independent claim 13, reproduced below, is illustrative of the claimed
subject matter:
13. A baking pan for baking a tilted cake
compnsmg:
a pan portion comprising a bottom wall and a
sidewall,
wherein the bottom wall is flat and
continuous,
wherein the sidewall extends directly upward
from the perimeter of the bottom wall and
terminates in an open upper rim,
wherein the sidewall comprises a first side
located on an opposite side of the pan from a
second side, the first side having a height shorter
than a height of the second side,
wherein the open upper rim comprises a
flange which comprises a top side and a bottom
side,
wherein the flange defines a first plane and the
bottom wall defines a second plane, and
wherein the first and second planes intersect at
an acute angle; and
a stand comprising an upper end, a lower end and
a foot, the stand being disposed externally of the pan
portion and adjacent to the first side,
wherein the upper end of the stand is affixed to
the flange on a same side as the first side and the
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Appeal 2017-011149
Application 12/899,426
stand is not connected to the upper open rim on a
same side as the second side, and
wherein the foot extends from the lower end of the
stand under the pan portion, and
wherein the foot is configured to rest on a surface
thereby maintaining the first plane parallel to the
surface and suspending the bottom wall above and
out of direct contact with the surface.
REFERENCE
Eisenbeisz US 6,431,392 Bl Aug. 13, 2002
REJECTION
Claims 13-23 are rejected underpre-AIA 35 U.S.C. I02(b) as
anticipated by Eisenbeisz.
ANALYSIS
To illustrate the Examiner's mapping of Eisenbeisz to independent
claim 13, and Appellant's response to that mapping, Figure 2 of Eisenbeisz
with annotations from both the Examiner and Appellant is reproduced
below:
In the annotated version of Eisenbeisz Figure 2, reproduced above,
Appellant labels the four sides of Eisenbeisz's paint tray as "Side A"
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Appeal 2017-011149
Application 12/899,426
through "Side D." Reply Br. 2. All other annotations are from the
Examiner. Ans. 3. For purposes of this discussion, we adopt Appellant's
labeling.
As illustrated, the Examiner identifies sides A, B, and/or C as
corresponding to the claimed first and second sides, and the slanted portion
of the tray bottom as corresponding to the claimed bottom surface. Id. The
Examiner also identifies two "foot" portions, id., which implies that the
structure to which the foot portions are attached corresponds to the claimed
stand.
Appellant responds, inter alia, that if side C is one of the first or
second sides, neither side A nor side B can be considered "on an opposite
side of the pan" from side C, as claim 13 requires. Reply Br. 3. 2 Appellant
also argues that if sides A and B are considered the first and second sides,
then the structure that the Examiner identifies as the stand would not be
affixed at its upper end to the flange "on a same side as the first side," as
claim 13 also requires. Id. at 4--5.
"Anticipation requires the presence in a single prior art reference
disclosure of each and every element of the claimed invention, arranged as
in the claim." Lindemann Maschinenfabrik GMBH v. Am. Hoist & Derrick
Co., 730 F.2d 1452, 1458 (Fed. Cir. 1984). We do not sustain this rejection
because we are not persuaded that Eisenbeisz discloses each element of
claim 13. Specifically, as Appellant has set forth, the Examiner has not
2 According to the Appellant, the Examiner does not identify side D as either
a first or second side because side D "does not extend 'directly upward from
the perimeter of"' what the Examiner identifies as the bottom wall. Reply
Br. 3; see App. Br. 9 (claim 13) (requiring the sidewall to "extend[] directly
upward from the perimeter of the bottom wall").
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Application 12/899,426
explained how Eisenbeisz discloses the claimed first side and second side.
For example, the Examiner has not construed the term "opposite," or
explained how side C may be "on an opposite side of the pan" from either
side A or side B under any reasonable construction of the term "opposite."
Although sides A and B may reasonably be considered on opposite sides of
the pan from each other, the Examiner has not explained how the structure
identified as the stand is affixed to the flange on either side A or side B.
Further, the Examiner has not alleged, much less shown, that one of side A
or B has "a height shorter than a height of' the other side.
Because we are not persuaded that Eisenbeisz discloses all of the
limitations claim 13, we do not sustain the Examiner's rejection of claim 13,
as well as dependent claims 14--23, as anticipated by Eisenbeisz.
DECISION
For the above reasons, the Examiner's rejection of claims 13-23 is
reversed.
REVERSED
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