Archer, Geoffrey Russell.

Patent Trials and Appeals Board

Oct 18, 2019

14350757 - (D) (P.T.A.B. Oct. 18, 2019)

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.
14/350,757 04/09/2014 Geoffrey Russell Archer 0854-001 6847
28840 7590 10/18/2019
Tomlinson McKinstry, P.C.
Two Leadership Square
211 North Robinson, Suite 450
Oklahoma City, OK 73102
EXAMINER
COURSON, TANIA C
ART UNIT PAPER NUMBER
2861
NOTIFICATION DATE DELIVERY MODE
10/18/2019 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@tmoklaw.com
rossc@tmoklaw.com
theresas@tmoklaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEOFFREY RUSSELL ARCHER
Appeal 2019-001182
Application 14/350,757
Technology Center 2800
Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and LILAN
REN, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1, 3–5, and 7–10.3
We AFFIRM.

1 This Decision includes citations to the following documents: Specification
filed April 9, 2014, as amended (“Spec.”); Final Office Action dated June
16, 2017 (“Final”); Appeal Brief filed November 6, 2017 (“Appeal Br.”);
Examiner’s Answer dated March 27, 2018 (“Ans.”); and Reply Brief filed
April 6, 2018 (“Reply Br.”).
2 We use the word “Appellant” to refer to the “Applicant” as defined in 37
C.F.R. § 1.42(a). The Appellant and the real party in interest is the inventor,
Geoffrey Russell Archer. Appeal Br. 1.
3 We have jurisdiction under 35 U.S.C. § 6(b).
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CLAIMED SUBJECT MATTER
The invention relates to an improved traffic management device, e.g.,
a parking or traffic cone, that incorporates “integrated carrying
means whereby a worker can grasp and carry a plurality of stacked devices
and, in preferred forms, do so using a single hand.” Spec. ¶ 6. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A traffic management device comprising:
a body generally defining an exterior surface and an interior
space;
a base supporting the body, the base including a portion
extending laterally outward from the body and disposed
as to support the device on a surface when in use; and
a handhold formed in the body and including at least a first
opening in the body, the opening extending from the
exterior surface to the interior space and being
configured for receiving a hand there through for
grasping and carrying the device;
wherein the device and handhold are configured to permit a
plurality of said devices to be stacked such that the
exterior body surface of an inferior-positioned one of
said plurality of said devices is receivable within the
interior space of a superior-positioned one of said
plurality of said devices;
wherein the devices are stackable in a predetermined orientation
with at least a portion of the openings of said devices
being overlapping to permit grasping of said plurality of
said devices simultaneously thereby; and
wherein the interior space is defined by an interior surface of
the body and the device further includes a registration
structure that includes an interior structure disposed on
the interior surface of the device and an exterior structure
disposed on the exterior surface of the device such that
the interior structure of a superior-positioned device
cooperates with the exterior structure of an inferior-
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positioned device, to assist in bringing the devices into
said predetermined orientation during stacking.
Amended claims filed November 4, 2016.
REFERENCES
The Examiner relies on the following references as evidence of
unpatentability:
Gagliano US 5,305,705 Apr. 26, 1994
Johanson et al. US 2004/0007612 A1 Jan. 15, 2004
Mohelsky et al. US 2004/0159280 A1 Aug. 19, 2004
Kuo US 7,056,055 B1 June 6, 2006
Nezu JP 2001172928 A June 26, 2001
REJECTIONS
1. Claims 1, 3–5, 7, and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Nezu in view of Mohelsky.
2. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Nezu in view of Mohelsky, Gagliano, and Kuo.
3. Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Nezu in view of Mohelsky, Gagliano, Kuo, and Johanson.
OPINION
As to the rejection of claims 1, 3–5, 7, and 8, the Appellant argues in
support of patentability of claims 1, 3, and 5. Appeal Br. 3–5. As to the
rejections of claims 9 and 10, the Appellant argues only that the additional
references cited in these rejections do not cure the deficiencies in the
Examiner’s rejection of claim 1. Id. at 6. For the reasons stated in the Final
Office Action, the Answer, and below, we sustain all grounds of rejection.
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Claim 1
The Examiner found that Nezu discloses a traffic management device
as recited in claim 1 with the exception of
a registration structure that includes an interior structure
disposed on the interior surface of the device and an exterior
structure disposed on the exterior surface of the device such that
the interior structure of a superior-positioned device cooperates
with the exterior structure of an inferior-positioned device, to
assist in bringing the devices into [a] predetermined orientation
during stacking
(Claim 1 supra pp. 2–3). Final 4–6. The Examiner found that Mohelsky
discloses a pylon that includes a registration structure as recited in claim 1,
i.e., steps 4 (id. at 6), illustrated in Mohelsky Figure 1, reproduced below.

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Mohelsky Figure 1 is a perspective view of pylon 1. Mohelsky ¶ 20.
Pylon 1 has a hollow, tapered body with inclined side wall 2 extending
upwardly from base 3. Id. ¶ 29. A plurality of molded steps 4 in side wall 2
define alternating horizontal step surfaces 5 and vertical step surfaces 6. Id.
¶ 30. “Rectangular apertures 10 above the horizontal step surfaces 5 permit
insertion through the pylon of the standard lumber sizes to form a fence or
barrier between adjacent pylons for example.” Id. Mohelsky discloses that
pylon 1 “is light weight, relatively flexible, durable, able to return to its
original shape, stackable, user friendly, easy to transport and store with
adjustable carrying handle.” Id. ¶ 12; see also id. ¶ 31, Fig. 3.
The Examiner found that one of ordinary skill in the art would have
modified Nezu’s traffic management device to include a registration
structure “to assist in bringing the devices into the predetermined orientation
during stacking as disclosed by Mohelsky.” Id. The Examiner found that the
modification of Nezu to include a registration structure would have
“allow[ed] the cones of Nezu to stay in the appropriate orientation to allow
the user to grip multiple handholds at the same time.” Id.
The Appellant argues that Nezu, if modified to include Mohelsky’s
steps, would not have resulted in the claim 1 device. Appeal Br. 3.
Specifically, the Appellant argues that “[t]he sides of the steps 4 are parallel.
Simple geometry makes it impossible for such a configuration to stack on
itself — . . . [the sidewalls] would occupy the same space when stacked.
This is why cones taper — to allow for stacking. The cones of Mohelsky do
not taper.” Id. The Appellant acknowledges that Mohelsky Figure 3
illustrates pylons in a stacked configuration, but contends that “[i]f
Mohelsky's pylons are identically sized, the configuration shown in Figure 3
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is either 1) impossible or 2) destructive to the pylons. An artisan would not
modify Nezu in a way which causes damage to the invention.” Id. at 4.
“[A] prior art printed publication cited by an examiner is
presumptively enabling barring any showing to the contrary by a patent
applicant or patentee.” In re Morsa, 713 F.3d 104, 109 (Fed. Cir. 2013)
(quoting In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012));
see also Antor Media, 689 F.3d at 1288 (“Unlike claimed disclosures in a
patent, unclaimed disclosures are thus not examined by the PTO at all. As
these unclaimed, unexamined disclosures still receive a presumption of
enablement during prosecution of a later patent, there is no reason why
printed publications, which of course also lack the scrutiny of examination,
should not logically receive the same presumption and for the same
reasons.”). “The presumption in Antor is a procedural one—designed to put
the burden on the applicant in the first instance to challenge cited prior art;
the PTO need not come forward with evidence of enablement before it may
rely upon a prior art reference as grounds for a rejection.” Morsa, 713 F.3d
at 110 (citing Antor Media, 689 F.3d at 1288).
The Appellant’s arguments are not persuasive of error in the
Examiner’s conclusion of obviousness as to claim 1 as they are not
supported by sufficient evidence. First, contrary to the Appellant’s
contention that Mohelsky’s cones “do not taper” (Appeal Br. 3), Mohelsky
explicitly describes pylon 1 as “a hollow tapered body having an inclined
side wall 2” (Mohelsky ¶ 29).
Second, there is insufficient support for the Appellant’s assertion that
“the sides of steps 4 are parallel” (Appeal Br. 3). Mohelsky describes steps 4
as “defin[ing] alternating horizontal step surfaces 5 and vertical step surfaces
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6.” Mohelsky ¶ 30. To the extent that the Appellant is arguing that “vertical”
means step surfaces 6 cannot be inclined, we are not persuaded that the
ordinary artisan would have understood this term as being so limited.
Mohelsky, does not define the term “vertical.” The American Heritage
Dictionary of the English Language defines “vertical” as “1. Being or
situated at right angles to the horizon; upright.” Ahdictionary.com (accessed
Oct. 8, 2019), https://ahdictionary.com/word/search.html?q=vertical.
According to the American Heritage Dictionary, “vertical” typically is used
to mean “approximately at right agles to the horizon or to level ground.” Id.
(“Vertical and upright are often used to signify contrast with what is
horizontal: wallpaper with vertical stripes; an upright column.
Perpendicular and plumb are generally used to specify an angle of precisely
90 degrees . . . .”).
Finally, even if the ordinary artisan would have understood
Mohelsky’s description of “vertical” step surfaces 6 as meaning that step
surfaces 6 are not inclined, we are not convinced that the ordinary artisan
would have been dissuaded from modifying Nezu’s device to include
steps—a registration structure—as taught by Mohelsky. Mohelsky discloses
that pylon 1 is relatively flexible and able to return to its original shape.
Mohelsky ¶ 12. From this disclosure, the ordinary artisan would have
understood that any deformation that might occur to steps 4 upon stacking
pylons 1 would not be permanent. Although Nezu does not appear to specify
the material used to construct its traffic management device, it is reasonable
to assume that one of ordinary skill in the art would have constructed the
device from a flexible material, as taught by Mohelsky, and as was known in
the art at the time of the invention, e.g., the ordinary artisan would have been
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aware that orange traffic cones are flexible (see Spec. ¶ 2 (“Traffic
management devices in the form of cones, commonly-known as parking
cones, traffic cones, orange cones, etc., are well-known.”)). Moreover, given
the Appellant’s statement that “[s]imple geometry” would make stacking
Mohelsky’s pylons 1 impossible if step surfaces 6 were not at an incline, we
find that it would have been within the skill level of the ordinary artisan to
modify Nezu’s cone to include steps that would allow stacking (see Ans. 4–
54), e.g., by using inclined step surfaces 6.
In sum, because we are not convinced of reversible error in the
Examiner’s conclusion of obviousness as to claim 1, we sustain the rejection
of this claim, as well as the rejection of claims 4 and 8, which depend from
claim 1.
Claim 3
Claim 1 recites “a handhold formed in the body and including at least
a first opening in the body, the opening extending from the exterior surface
to the interior space and being configured for receiving a hand there through
for grasping and carrying the device.” Claim 1 supra p. 2. Claim 3 depends
from claim 1, and recites that “the handhold includes a pair of openings.”
Appeal Br., Appendix 1, 1. The Examiner determined that including a
second opening in Nezu’s device would have been obvious as it would have
amounted to nothing more than a mere duplication of parts. Final 7.
The Appellant argues that adding a second opening amounts to more
than a duplication of parts because the combination of first and second
openings does not perform the same function as the first opening. Appeal Br.

4 The pages of the Answer are not numbered. We have numbered the pages
such that the Examiner’s Response to Appellant Argument begins on page 3.
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4. More specifically, the Appellant contends the combination of first and
second openings creates a handle structure. Id.
“It is well settled that the mere duplication of parts has no patentable
significance unless a new and unexpected result is produced.” In re Harza,
274 F.2d 669, 671 (CCPA 1960). As noted by the Examiner, a handle
structure is not claimed. Ans. 5. The Examiner found, and the Appellant
does not dispute, that Nezu discloses “a handhold (finger recess 4) formed in
the body (2) and including at least a first opening (window opening 5) in the
body (2)” (Final 5). Thus, consistent with Harza, the Examiner had a
reasonable basis for finding that it would have been obvious to have formed
a second opening in the body of Harza’s device. The Appellant’s arguments,
absent persuasive, supporting evidence, are insufficient to demonstrate a
new and unexpected result in the addition of a second opening. See In re
Geisler, 116 F.3d 1465, 1470–71 (Fed. Cir 1997) (attorney characterization
of improved results as “surprising” was insufficient to establish unexpected
results).
Because we are not convinced of reversible error in the Examiner’s
conclusion of obviousness as to claim 3, we sustain the rejection of this
claim.
Claim 5
Claim 5 depends from claim 1 and recites “wherein the registration
structure comprises a slot and a groove cooperatively engageable one with
the other.” Appeal Br., Appendix 1, 2. The Examiner found that “Mohelsky
discloses a device wherein the registration structure comprises a slot
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(exterior surface of molded steps 4) and a groove (interior surface of molded
steps 4) cooperatively engageable one with the other (allowing for the
stacking orientation shown in Figure 3).” Final 7–8.
The Appellant argues that the Examiner reversibly erred in finding
Mohelsky discloses a registration structure as recited in claim 5. Appeal Br.
5. The Appellant contends that the cavities on the interior surface of
Mohelsky’s steps are not “grooves” because they are not long, narrow
depressions. Id. This argument is not persuasive because the Appellant has
not identified evidence to support its contention that Mohelsky’s cavities fail
to meet the definition of a groove because (1) they are less than a third of the
side wall length, and (2) the depths of the cavities is never constant over
their lengths (see id.). See generally Spec. (providing no definition of
“groove” or “slot”); see, e.g., Ahdictionary.com (accessed Oct. 8, 2019),
https://ahdictionary.com/word/search.html?q=groove (groove: “a long
narrow furrow or channel”).
The Appellant also argues that for the reasons given with respect to
claim 1, “the geometry of Mohelsky is such that the cavities don't guide
motion, because they do not ‘receive’ a corresponding ridge without
deformation.” Appeal Br. 5. This argument is unpersuasive for the reasons
discussed above as to claim 1 (see supra p. 7), and because the Appellant
has not identified evidentiary support for its contention that “[a]n artisan
wouldn’t consider a groove to ‘receive’ a ridge if the ridge causes the groove
or ridge to deform” (id.).
In sum, because we are not convinced of reversible error in the
Examiner’s conclusion of obviousness as to claim 5, we sustain the rejection
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of this claim, as well as the rejection of claim 7, which depends from
claim 5.
Claims 9 and 10
As indicated above, the Appellant’s arguments in support of
patentability of claims 9 and 10 are based on limitations in claim 1. See
Appeal Br. 6. For the reasons discussed in connection with the rejection of
claim 1, we are not persuaded of reversible error in the Examiner’s
conclusion of obviousness as to claims 9 and 10. Accordingly, we sustain
the rejections of these claims.

CONCLUSION
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1, 3–5, 7, 8 103(a) Nezu, Mohelsky  1, 3–5, 7, 8
9 103(a) Nezu, Mohelsky,
Gagliano, Kuo 
9
10 103(a) Nezu, Mohelsky,
Gagliano, Kuo,
Johanson
10
Overall
Outcome
1, 3–5, 7–10

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

AFFIRMED