Ex Parte Tingley

Patent Trial and Appeal Board

Dec 12, 2017

12892162 (P.T.A.B. Dec. 12, 2017)

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.
12/892,162 09/28/2010 Jason Tingley 0007703-0647090-Ul 1755
26874 7590 12/14/2017
FROST RROWN TODD T T C
EXAMINER
3300 Great American Tower ROSS, DANA
301 East Fourth Street
CINCINNATI, OH 45202 ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
12/14/2017 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):
patents @ fbtlaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON TINGLEY
Appeal 2017-000430
Application 12/892,162
Technology Center 3700
Before: CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-000430
Application 12/892,162
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claims are directed to a segmented industrial baking pan. Spec.
12. Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A baking pan, comprising:
(a) a plurality of baking subunits, wherein each
baking subunit further includes:
(i) two side portions; and
(ii) two end portions; and
(b) a strap surrounding the baking subunits,
wherein the strap further includes:
(i) an upper portion, wherein the top edge
of the an [sic] upper portion is adapted
to cooperate with the top edges of the
side portions and end portions of the
baking subunits to form permanent
connections therewith; and
(ii) a lower portion located beneath the
upper portion, wherein a plurality of
points of permanent attachment
between the exterior of the baking
subunits and the strap are located
within the lower portion of the strap;
and
(c) a plurality of joining members located
between and perpendicular to the baking
subunits, wherein each joining member
further includes end portions that are adapted
to cooperate with the top edges of the side
portions of the baking subunits to form
permanent connections therewith.
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Appeal 2017-000430
Application 12/892,162
REFERENCES
Debs
Herring
Howard
US 3,032,233
US 5,692,431
US 2002/0000442 A1
May 1, 1962
Dec. 2, 1997
Jan. 3, 2002
REJECTIONS
Claims 1, 4—9, 12—15, and 18—20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Herring and Debs. Final Act. 3.
Claims 2, 3, 10, 11, 16, and 17 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Herring, Debs, and Howard. Id. at 7.
ANALYSIS
Unpatentable over Herring and Debs
Claims 1 and 4—8
Regarding independent claim 1, the Examiner finds that Herring
teaches, e.g., the claimed strap, the top edge of which is adapted to cooperate
with the top edges of the side portions and end portions of the baking
subunits to form permanent connections therewith. Final Act. 3 (citing
Herring, 5:66—6:15, Fig. 2). The Examiner further finds that Herring’s strap
includes the claimed second portion having “points of permanent
attachment” between the strap and the baking subunits, and a plurality of
joining members having end portions “adapted to cooperate with the top
edges of the side portions of the baking subunits to form a permanent lock
seam therewith.” Id. (citing Herring, 6:29-31, 44^46, Figs. 1, 2).
According to the Examiner, “when the baking subunits are placed in the
strap of Herring . . . the subunits are held permanently within the strap unless
tampered with by a user.” Id. at 2.
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Appeal 2017-000430
Application 12/892,162
Appellant disputes that Herring teaches any permanent connections or
attachments between a strap or joining members and baking subunits. Br.
5—9; see also Ans. 8—9 (same). Appellant argues that the Examiner’s
construction “renders the claim limitation of permanence meaningless.” Id.
at 5. According to Appellant, “as would be understood by a person having
ordinary skill in the art, the usage of the term ‘permanent’ in connection
with an attachment indicates that the attachment cannot be undone without
extraordinary measures or without damaging or destroying the joined
object.” Id. Appellant also contends that Herring teaches that its baking
trays are “releasably connected to the frame that serves as a carrier for the
baking trays,” and therefore does not teach permanent connections between
the baking trays and the frame. Id. at 6 (citing Herring, 3:13—15, 27—30,
4:9-12, 5:17—20, claim 1); see also id. at 7—9 (disputing that Herring teaches
permanent connections between a strap second portion and baking subunits
and between joining members and baking subunits).
We disagree with the Examiner’s interpretation of “permanent
connection” and “permanent attachment” as used in claim 1. In effect, the
Examiner interprets these terms so broadly that they encompass Herring’s
releasably connected bread pans. Herring specifically teaches that its pans
are releasably connected from the carrier so that the pans can be replaceable,
such that when a pan’s release coating “ceases to be effective, the complete
mould or pan is discarded and replaced by a new one.” Herring, 5:18—30.
Replaceable bread pans that are releasably connected to a carrier cannot
reasonably be said to be permanently connected to the carrier. Accordingly,
we do not sustain the Examiner’s rejection of claim 1, and its dependent
claims 4—8, as unpatentable over Herring and Debs.
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Appeal 2017-000430
Application 12/892,162
Claims 9, 12—15, and 18—20
Each of independent claims 9 and 15 recites a baking pan having a
strap with a lower portion (claim 9) or third portion (claim 15) that includes
“a plurality of indentations formed therein” and “an attachment point
between the exterior of the baking subunits and the strap . . . located within
each indentation.” Br. 17—18 (Claims App.). The Examiner acknowledges
that Herring does not teach a strap portion having the claimed indentations
and attachment points, and therefore relies on Debs for this teaching. Final
Act. 5.1 According to the Examiner, Debs “teaches a baking pan assembly
having a plurality of baking subunits (10) surrounded by a strap (28) having
indentations (32) therein to receive rivets (30).” Id.', see Debs, Fig. 2.
Appellant responds that Deb does not teach indentations. Br. 11.
Instead, according to Appellant, “Debs specifically and explicitly teaches
holes.” Id. Appellant further contends that “[a] hole is not an indentation”
because “[a] hole indicates an aperture in a surface (as is required for
riveting)” and “an indentation indicates a recess in a surface.” Id. Appellant
also disputes that a hole and an indentation can “be viewed as being
equivalent, because whereas a hole cannot be spot welded, an indentation
can, and whereas a hole can be riveted, an indentation cannot.” Id. In the
Answer, the Examiner “concedes that a hole is in fact not an indentation,”
but finds that “the two are functionally equivalent for the intended purpose
of securely attaching the baking subunits to the strap and that the rivet holes
of Debs merely serve as an equivalent alternative to the indentations of
claims 9 and 15.” Ans. 10.
1 Because the parties’ discussion and our analysis are the same for both claims,
we will cite only to those portions of the papers that discuss claim 9.
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Appeal 2017-000430
Application 12/892,162
In this case, the Examiner concedes that Debs does not teach the
indentations recited in claims 9 and 15. Further, we do not consider Debs’
teaching of holes as curing this deficiency. The Examiner fails to provide
sufficient evidence or argument to establish that holes and indentations are
“functionally equivalent” or that such functional equivalency is sufficient to
support a determination of unpatentability. Accordingly, we do not sustain
the Examiner’s rejection of independent claims 9 and 15 and their dependent
claims 12—14 and 18—20 as unpatentable over Herring and Debs.
Unpatentable over Herring, Debs, and Howard
Claims 2, 3, 10, 11, 16, and 17
Claims 2 and 3 depend from claim 1, claims 10 and 11 depend from
claim 9, and claims 16 and 17 depend from claim 15. Br. 16—17, 19 (Claims
App.). The Examiner’s rejection of these claims relies on the same
unsupported findings discussed above for claims 1, 9, and 15. Final Act. 7—
9. The Examiner does not rely on Howard to cure the deficiencies of
Herring and Debs. Accordingly, for similar reasons as discussed above, we
do not sustain the Examiner’s rejection of claims 2, 3, 10, 11, 16, and 17 as
unpatentable over Herring, Debs, and Howard.
DECISION
We REVERSE the Examiner’s decision to reject claims 1—20.
REVERSED
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