Justin Samuels et al.

Patent Trials and Appeals Board

May 20, 2021

2021000092 (P.T.A.B. May. 20, 2021)

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.
15/168,768 05/31/2016 Justin Samuels 70028.11 2287
14045 7590 05/20/2021
Todd S. Sharinn
c/o Gilbridge, Tusa, Last & Spellane, LLC
31 Brookside Dr
Greenwich, CT 06836
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
05/20/2021 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 JUSTIN SAMUELS and SAMUEL ROCKWELL
Appeal 2021-000092
Application 15/168,768
Technology Center 1700
Before DONNA M. PRAISS, N. WHITNEY WILSON, and
MONTÉ T. SQUIRE, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s July 25, 2019 decision to finally reject claim 12 (“Final Act.”). A
telephonic hearing was held on May 17, 2021. A transcript of the hearing
will be made part of the record. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word Appellant to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Justin
Samuels, Samuel Rockwell, and WaffleWaffle, LLC (Appeal Br. 1).
2 Claims 1 and 8, the only then-pending claims, were rejected in the Final
Action, but claim 8 was canceled in an Amendment After Final Action filed
September 12, 2019. Thus, claim 1 is the only pending claim and the only
claim on appeal.
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Application 15/168,768

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CLAIMED SUBJECT MATTER
Appellant’s disclosure is directed, in part, to “an asymmetrical planar
bread food product” (Abstract). The claimed subject matter is directed to
such a product, which might otherwise be called a one-sided waffle, having
one side with a smooth surface and one side with a waffle pattern (id.).
Claim 1, reproduced below from the Claims Appendix, is illustrative of the
claimed subject matter:
1. An asymmetrical planar waffle product,
comprising:
a first patterned baked surface that is a negative image of
a first positive relief pattern in an associated first baking plate,
and a second patterned baked surface that is a negative image of
a second positive relief pattern in an associated second baking
plate,
wherein said first and second patterned baked surfaces
have been formed by exposing a waffle-forming material
directly against said respective first and second positive relief
patterns,
wherein said waffle-forming material is selected from the
group consisting of batter and dough,
wherein said first positive relief pattern is a waffle
pattern,
wherein said second positive relief pattern is a smooth
surface, and
wherein at least one of said first and second baking plates
further comprises a stop extending above said first and second
positive relief pattern to limit proximity of said baking plates to
each other, thereby defining a chamber therebetween for
receiving said waffle-forming material.

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Freeman US 3,799,047 March 26, 1974
Krepshaw, “Mix-and-match grill begs for mixing, not matching,” C/Net
Review, https:www.wet.com/news/mix-and-match-grill-begs-for-mixing-
not-matching/ (February 2, 2010) (“Krepshaw”)

REJECTION
Claim 1 is rejected under 35 U.S.C. § 103 as unpatentable over
Krepshaw in view of Freeman.
OPINION
The Examiner finds that Krepshaw teaches a one-sided waffle formed
from a grilling apparatus which comprises interchangeable, removable plates
(the Big Boss Grill) (Ans. 4). The Examiner further finds that the plates
include one with a waffle pattern and some that include a smooth, flat
surface (i.e. the sandwich and griddle plates) (id.). Krepshaw states:
Oh, sure, every waffle iron produces different waffles, as they
all vary in size and shape, but when it comes right down to it,
they are basically two-sided butter and syrup holders. Since any
waffle known to man can only actually hold butter and syrup on
one side at a time in its convenient pockets, perhaps it’s time to
consider the one-sided waffle. . . . Now I don't know if trying to
make one-sided waffles would just end up being a messy batter
explosion, but I do know it's the first thing I’d try.

(Krepshaw 1, emphasis added). The Examiner finds that based on
Krepshaw, a person of skill in the art would have been motivated to make a
one-sided waffle using the mix-and-match grill plates to form a smooth side
and a waffled side. While Krepshaw does mention making a one-sided
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waffle using batter, the Examiner cites Freeman as teaching the use of batter
to form waffles, and determines that it would have been obvious to make the
waffles described by Krepshaw using batter because batter is a conventional
waffle forming material (Ans. 5).
Appellant first argues that “[n]one of the disclosures for the Big Boss
Grill cited by the Examiner suggests or discloses that two plates of differing
patterns may be used in combination to produce” the claimed one-sided
waffle (Appeal Br. 7–8). This argument is not persuasive. Claim 1 is
directed to the asymmetrical baked bread product (i.e., the one-sided waffle),
not the device for making such a product. Accordingly, whether
documentation pertaining to the Big Boss Grill discloses, encourages, or
discourages, its use to form one-sided waffles is not central to the issue of
the obviousness of claim 1.3 Indeed, as pointed out by the Examiner (Ans.
6), the rejection is an obviousness rejection over Krepshaw in view of
Freeman. Krepshaw explicitly states that “Now I don't know if trying to
make one-sided waffles would just end up being a messy batter explosion,
but I do know it's the first thing I’d try.” In our view, this language makes
plain that Krepshaw suggests making a one-sided waffle.
Appellant also argues that the various plate pairs from the Big Boss
Grill are designed to work together, so that a person of skill in the art would
not have been led to mix and match the plates (Appeal Br. 8). However, this

3 During the oral hearing, Appellant’s counsel made reference to and quoted
passages from documentation pertaining to the Big Boss Grill in an effort to
show that the Big Boss Grill discourages and/or teaches away from mixing
and matching the grill plates as suggested by Krepshaw. This
documentation, however, is not of record and, therefore, will not be
considered as evidence by the Board.
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argument does not account for the teaching in Krepshaw discussed above to
do exactly that: mix and match the plates.
Appellant also contends that “Krepshaw never defines what is meant
by a ‘one sided waffle’ except that the side opposite the waffle side differs
therefrom” (Appeal Br. 9). This argument is not consistent with the
teachings of Krepshaw and is not, therefore, persuasive of reversible error.
In particular, Krepshaw specifically states that there is no reason to have
places on the “bottom” side of the one-sided waffle to hold butter and syrup
(Krepshaw, 1). This would have suggested that the “bottom” of the waffle
would be smooth, which would be achievable with several of the plates from
the Big Boss Grill.
Appellant further argues that the claimed one-sided waffle is superior
to prior art waffles (Appeal Br. 9–10). Whether or not this is correct, it does
not meaningfully address or otherwise rebut the Examiner’s findings that
support the obviousness rejection, which a preponderance of the evidence
supports.
Appellant also argues (Appeal Br. 10) that Krepshaw does not enable
a one-sided waffle because there is no reason to expect that the Big Boss
Grill could make such a waffle without creating “a messy batter explosion.”
We do not find this argument persuasive. Rather, on this record, we agree
with the Examiner (Ans. 8) that a person of skill in the art would have
adjusted the amount, consistency, or depth of the batter to be able to make a
claimed one-sided waffle, even if doing so created a mess.
Appellant argues that the Big Boss Grill literature fails to teach the
combination of baking plates necessary to make the claimed one-sided
waffle, and implicitly teaches away from such a combination (Appeal Br.
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13). This argument is not persuasive of reversible error for several reasons.
First, as noted above, the rejection is over Krepshaw in view of Freeman, not
Big Boss Grill. Thus, the teachings of literature relating to the Big Boss
Grill are not dispositive. Moreover, such literature is not of record in the
present appeal and will not, therefore, be considered. Finally, even if the
literature were silent with respect to mixing and matching the grill plates,
this would not be a teaching away absent a clear instruction not to do so.4
Accordingly, based on the evidence of record, the Appeal Brief, the
Answer, and arguments made on Appellant’s behalf at the telephonic
hearing, we determine that Appellant has not demonstrated reversible error
in the rejection.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1 103 Krepshaw, Freeman 1

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

4 Merely stating that two plates must be used at all times, which Counsel for
Appellant indicated was written in the Big Boss Grill manual (which is not
of record), would not teach away from using two different plates.
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AFFIRMED