Bela Domocsok

Patent Trials and Appeals Board

Dec 21, 2020

2020004941 (P.T.A.B. Dec. 21, 2020)

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.
15/038,999 05/24/2016 Bela Domocsok PATINORG-0002 1858
23599 7590 12/21/2020
MILLEN, WHITE, ZELANO & BRANIGAN, P.C.
2200 CLARENDON BLVD.
SUITE 1400
ARLINGTON, VA 22201
EXAMINER
TSANG, LISA L
ART UNIT PAPER NUMBER
3642
NOTIFICATION DATE DELIVERY MODE
12/21/2020 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):
docketing@mwzb.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BELA DOMOCSOK

Appeal 2020-004941
Application 15/038,999
Technology Center 3600
____________

Before JOHN C. KERINS, JILL D. HILL, and GEORGE R. HOSKINS,
Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 13–29 and 32. Claims 1–12 and 30 are
canceled, and claims 31 and 33 are indicated as being allowed. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the named sole inventor, Bela
Domocsok, as the real party in interest. Appeal Br. 2.
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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a brood comb frame for cylindrical
brood chamber hives. Claim 13 is illustrative, and is reproduced below with
certain portions emphasized:
13. A brood comb frame for cylindrical brood chamber hives,
the brood comb frame carrying a comb and being supplied with
connection bodies for connection to a rotating structure, wherein

the brood comb frame is supplemented with a grid ring, the grid
ring is located at least partially surrounding the brood comb
frame carrying the comb and opposite to the comb, the brood
comb frame and the grid ring being attached and connected to
each other via connection sections,

the grid ring being supplied with a first edge extending beyond a
longitudinal external plane resting on a first side surface of the
brood comb frame, wherein a height of the first edge measured
from the longitudinal external plane of the brood comb frame is
in a range of 1–8 mm, and

the connection sections attaching and connecting the brood comb
frame and the grid ring are spaced apart from each other by at
least one bee space, said at least one bee space comprising an
empty space having sole functions of containing bees and letting
bees go through, and wherein a radial dimension of said at least
one bee space is in a range of 4–25 mm.

THE REJECTIONS
The Examiner rejects:
(i) claims 13–29 and 32 under 35 U.S.C. § 112(a), as failing to
comply with the written description requirement;
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(ii) claims 13–15, 20, 22, 25, and 26 under 35 U.S.C. § 103 as being
unpatentable over Zoltan (WO 2008/044082 A1, published Apr. 17, 2008) in
view of Winter (US 611,746, issued Oct. 4, 1898), Wren (GB 586,654,
published Mar. 26, 1947), and Simoni (US 4,094,026, issued June 13, 1978);
(iii) claims 16, 19, 23, and 28 under 35 U.S.C. § 103 as being
unpatentable over Zoltan in view of Winter, Wren, Simoni, and Korean
Published Application KR100757995 B1, published Sept. 11, 2007
(hereinafter KR ‘995, to maintain consistency with terminology used in
prosecution);
(iv) claims 17, 18, and 24 under 35 U.S.C. § 103 as being
unpatentable over Zoltan in view of Winter, Wren, Simoni, KR ‘995, and
Atkinson (US 93,395, issued Aug. 10, 1869);
(v) claims 21 and 27 under 35 U.S.C. § 103 as being unpatentable
over Zoltan in view of Winter, Wren, Simoni, and Platt, Jr. (US 4,402,099,
issued Sept. 6, 1983);
(vi) claim 29 under 35 U.S.C. § 103 as being unpatentable over Zoltan
in view of Winter, Wren, Simoni, and de Souza (US 2008/0064298 A1,
published Mar. 13, 2008); and
(vii) claim 32 under 35 U.S.C. § 103 as being unpatentable over
Zoltan in view of Winter, Wren, Simoni, and Clerkin (US 7,416,469 B2,
issued Aug. 26, 2008).

ANALYSIS
Claims 13–29, 32--§ 112(a)--Written Description
The Examiner finds that the application as filed fails to evidence that
Appellant was in possession, at the time of that filing, of a bee space that
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comprises an empty space “having the sole functions of containing bees and
letting bees go through.” Final Act. 4. Appellant initially responds that the
Specification provides clear disclosure of bee spaces for containing bees and
allowing bees to go through, and “do[es] not disclose any other functions for
bee spaces 34.” Appeal Br. 4 (emphasis omitted). Appellant provides a list
of page-and-line references, and of paragraph references, where the term
“bee space” is mentioned. Id.
Appellant’s Reply Brief posits that “there is no question of whether
applicants possessed a bee space which functions to contain bees and let
them go through at the time of filing,” and that “there is no question that this
is the sole function for this space described in the specification (no other
function mentioned).” Reply Br. 2. Appellant insists that, “[o]ne skilled in
the art would clearly understand that applicants possessed the claimed
structure by their explicit description of the bee space structure and function
and the complete and utter lack of any other function described for this space
in the specification.” Id. at 3.
Appellant’s arguments in this regard are not accurate. Paragraph 20
of the Substitute Specification filed February 12, 2018, sets forth that
“[a]nother part of the idea behind the invention was that if bee spaces are
created along the delimiting walls of the hive in an unusual way with the
help of the novel structural elements, then the self-operating ventilation of
the hive may also be solved, which significantly assists the nectar drying
activity of the bees related to honey production.” Substitute Spec. ¶ 20.2
This creation of, or enhancement of, ventilation in the hive brought about by

2 Identical language appears in the Specification as originally filed on May
24, 2016, at page 5, lines 6–9.
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the presence of the bee spaces is patently a function that is different from,
and in addition to, containing bees and letting them go through. The
ventilation function provided by the construction of the bee spaces would be
performed regardless of the presence or absence of bees.
Because Appellant limited its argument to the incorrect allegation that
no function other than those recited as the “sole functions” in claim 13 are
present in the Specification, the argument does not identify error in the
rejection, which ends the inquiry. We do, however, wish to briefly discuss
the legal standard for negative claim limitations, which the “sole functions”
language is in the nature of.
“Negative claim limitations are adequately supported when the
specification describes a reason to exclude the relevant limitation.” Santarus,
Inc. v. Par Pharmaceutical, Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012); see
also Inphi Corp. v. Netlist, Inc., 805 F.3d 1350, 1354–55 (Fed. Cir. 2015).
The Inphi decision clarified that the Santarus decision did not create a
heightened written description standard for negative claim limitations.
Inphi, 805 F.3d at 1357.
Negative claim limitations most commonly are directed to exclusion
of physical structure, chemical compounds (Santarus), particular types of
signals (Inphi), and the like. In such cases, properly described, alternative
features, and negative limitations directed to one or more such alternatives,
will generally be sufficient to satisfy the written description requirement.
See Inphi, 805 F.3d at 1357. However, when a patent specification directly
forecloses the negative limitation, a claim containing such limitation fails to
satisfy the requirement. See, In re Bimeda Research & Dev. Ltd., 724 F.3d
1320, 1327 (Fed. Cir. 2013) (claim excluding one composition but allowing
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presence of antibiotics not adequately supported by specification describing
non-antibiotic treatment).
In the present case, the negative limitation is atypically directed to
functional aspects of physical structure. Appellant does not, and seemingly
cannot, explain how the same claimed structure can perform the function of
containing bees and letting them go through, and at the same time preclude
the function of providing self-ventilation, as described in paragraph 20 of the
Substitute Specification, so as to support the “sole functions” limitation.3
The rejection of claim 13, and of claims 14–29 and 32 depending
therefrom, as failing to comply with the written description requirement, is
sustained.

Claims 13–15, 20, 22, 25, and 26--§ 103--Zoltan/Winter/Wren/Simoni
The Examiner finds that Zoltan discloses a brood comb frame that
carries a comb (26), and a grid ring (9) supplementing the brood comb
frame, with the grid ring at least partially surrounding the brood comb
frame. Final Act. 5. The Examiner states that Zoltan does not disclose that
the brood comb frame and the grid ring are attached and connected to one
another via connection sections spaced apart from each other by at least one
bee space, nor that the grid ring has a first edge extending beyond a
longitudinal external plane extending along a first side surface of the brood

3 The Specification identifies additional “functions” of the bee spaces that, to
an extent, involve the movement of the bees in the hive. Those include
deterrence of propilization or building in the bee spaces between the rotating
brood chamber and the hive, and controlling of travel of the various types of
bees only along specific routes, the latter potentially being a more specific
form of containing and allowing passage. (Substitute Spec. ¶ 23).
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comb frame. Id. The Examiner cites to Winter as disclosing a brood comb
frame a2, which is supplemented by a grid ring a1, with the grid ring located
at least partially surrounding the brood comb frame and located opposite to
the comb, and that the brood comb frame and grid ring are spaced apart from
each other by a bee space through which bees can pass to traverse the hive.
Id. at 6.
The Examiner concludes that it would have been obvious to modify
the brood comb frame and grid ring of Zoltan so as to be attached and
connected to each other via connection sections, with the connection
sections being spaced apart from each other by at least one bee space
comprising an empty space having a radial dimension, in view of the
teachings of Winter. The Examiner reasons that the modification would
provide better insulation to the hive and protect it against cold and heat at
various times throughout the year, a feature disclosed by Winter. Final Act.
6.
Although the bulk of Appellant’s arguments and the Examiner’s
retorts are directed to the proposed combination of Winter with Zoltan and
the resultant structure, Appellant additionally argues that Zoltan does not
disclose a grid ring, contrary to the Examiner’s finding. Appeal Br. 11, 16.
Appellant maintains that element 9 of Zoltan, identified by the Examiner as
corresponding to the claimed grid ring, instead corresponds to the claimed
brood comb frame. Id. at 16. Appellant points out that Zoltan refers to
element 9 as a rotating nest frame, and that Figures 8–11 of Zoltan do not
show this rotating nest frame as having an external ring corresponding to the
claimed grid ring. Id. Appellant, citing to Figures 9 and 10 of Zoltan, posits
that it can be seen that rotating nest frame 9 encircles the comb, in order to
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secure the comb, whereas the claimed grid ring is located on a side of the
brood comb frame on a side opposite the comb. Id. at 11.
The Examiner initially criticizes this argument as an individual attack
on the Zoltan reference, whereas the rejection, in this pertinent part, is based
on a combination of Zoltan and Winter. Ans. 17. We address aspects of the
proposed combination later in this section. Specifically concerning Zoltan,
however, we conclude that Appellant appropriately attacks Zoltan
individually because the Examiner made the finding that Zoltan, prior to any
modification, discloses both a brood comb frame and a grid ring, and
Appellant disputes that finding.
The Examiner explains, as to the Zoltan disclosure, that the structure
corresponding to the claimed brood comb frame is the “structure as a whole
in figures 9 and 10,” and that the brood comb frame is “supplemented with a
grid ring (9; the frame has a grid ring ‘supplemented’ to it).” Ans. 18. The
Examiner additionally says that Figure 10 of Zoltan illustrates the grid ring 9
located at least partially surrounding the brood comb frame that is carrying
the comb, and is opposite to the comb, as seen in Figures 8, 10, and 13,
where the grid ring is on an exterior of the frame opposite to the comb,
which is on an interior of the frame. Id.
We do not clearly understand the Examiner’s interpretation of Zoltan
in terms of structure disclosed therein as corresponding to the claim
limitations directed to a brood comb frame and a grid ring. With respect to
the Examiner’s position that the entire structure in Figures 9 and 10
corresponds to the brood comb frame, with grid ring 9 supplemented thereto,
it appears to us that the only structure illustrated in Figures 9 and 10 is
element 9, the rotating nest frame (with flattened portions 20 referred to as
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fixing breakdowns), alleged to correspond to the claimed grid ring. We also
are at a loss as to how an “entire structure” shown in a figure can be said to
be “supplemented by” something shown that is part of the entire structure.
In the event that the Examiner instead intended to refer to the
embodiments shown in Figures 12–16 of Zoltan, we are also at a loss as to
how this structure can be interpreted to include a brood comb frame and, as a
separately identifiable element, a grid ring, as claimed. Possibly, element
17, which is positioned to support the backside of a comb, might be
interpreted as being a brood comb frame, and element 19, surrounding the
comb at its radial periphery, might be interpreted as corresponding to a grid
ring. See, Zoltan, Fig. 13. However, Zoltan discloses that “[t]he 17 closing
rotating nest frame is formed in such a way that it is actually a 9 rotating
nest frame,” that is statically reinforced along one side, up to the bee cell 26,
such that it functions as a middle wall, with the reinforcing extending to “19
nappe” which is part of the rotating nest frame. Zoltan, p. 11, ll. 16–20.
Given this disclosure, and given that the Examiner does not actually rely on
Zoltan in the manner we conjecture above, we decline to attempt to salvage
the Examiner’s finding as to Zoltan disclosing a brood comb frame and grid
ring as claimed.
Since the rejection is expressly based on the above, flawed, finding
that lacks evidentiary support in the Zoltan reference, we do not sustain the
rejection of claim 13 as being obvious over Zoltan, Winter, Wren, and
Simoni.
For the sake of thoroughness, we have noted that the Examiner posits
that Zoltan and Winter in combination result in a structure that includes the
grid ring missing from Zoltan. We conclude that the combination is not
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tenable. Given the unsupported finding that Zoltan discloses a grid ring, we
view the proposed combination as adding to the Zoltan structure a grid ring
in the nature of outer ring a1 shown most clearly in Figure 3 of Winter, but
also viewable in Figure 2.
Appellant argues that Winter discloses providing the outer ring spaced
apart from the inner ring that bounds the hive, so as to form a hollow space,
which may remain empty or be filled with an insulative material, but would
not function as a bee space. Appeal Br. 7. To this point, Appellant notes
that the hollow space is closed off from the hive due to adjacent inner rings
a2 abutting one another, as can be seen in Figure 3. Id.; see also id. at 8. As
such, according to Appellant, combining the teachings of Zoltan and Winter
does not result in the creation of a bee space for controlling movement and
allowing passage of bees. Appeal Br. 13 (“the presently claimed invention
would not have been obtained from the references for the reasons stated
above relative to the actual disclosures of Zoltan ‘082 and Winter ‘746.”)
The Examiner responds that Winter is essentially being relied on only
for its teaching of a grid ring that is spaced apart from a brood comb ring by
connection sections, and that the resulting structure in Zoltan will have bee
spaces between the adjacent, spaced-apart comb faces, and also between the
brood comb frame and grid ring. Ans. 12. The Examiner characterizes the
arguments pointing out that Winter fails to provide a gap or passage between
the inner rings, as an individual attack on Winter, which fails to address the
structure resulting from the Examiner’s proposed modification of Zoltan. Id.
We surmise from this that the structure resulting from the Examiner’s
combination does not include the inner rings of the brood comb frame
abutting one another, thus allowing bees to enter the space between the
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brood comb frame and the grid ring. Appellant points out, however, that if
this is the structure envisioned by the Examiner, this would destroy the
function of the enclosed space of Winter acting as an insulator. Reply Br. 5.
As Appellant notes, if there is a gap for bees to access the space between the
brood nest frame and the grid ring, the air in that space would not be
isolated. Instead, air would freely flow into and out of the space, and into
and out of the nest area, thereby destroying or severely limiting any
insulative effect intended by Winter. Id. at 5–6.
Appellant has the better position here, particularly in view of the fact
that the reason provided by the Examiner to modify Zoltan at the outset is
“in order to better insulate the hive and protect it against cold and heat,”
from the external environment. Final Act. 6. The Examiner’s proposed
modification to Zoltan to reach the claimed invention, as we understand it,
would not achieve that result to any discernable or predictable measure.
Accordingly, the combination does not save the Examiner’s rejection, either.
The rejection of claim 13, and of claims 14, 15, 20, 22, 25, and 26,
depending therefrom, as being unpatentable over Zoltan, Winter, Wren, and
Simoni, is not sustained.

Claims 16, 19, 23, and 28--§ 103--Zoltan/Winter/Wren/Simoni/KR ‘995
Claims 17, 18, and 24--§ 103--Zoltan/Winter/Wren/Simoni/KR ‘995/
Atkinson
Claims 21 and 27--§ 103--Zoltan/Winter/Wren/Simoni/Platt, Jr.
Claim 29--§ 103--Zoltan/Winter/Wren/Simoni/de Souza
Claim 32--§ 103--Zoltan/Winter/Wren/Simoni/Clerkin
In these rejections, the Examiner does not rely on any of the
additional references to cure the deficiencies of Zoltan or of Zoltan
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combined with Winter. Accordingly, all of these rejections are not
sustained.
CONCLUSION
The rejection of claims 13–29 and 32 under 35 U.S.C. § 112(a), as
failing to comply with the written description requirement, is affirmed.
All grounds of rejection of the claims on appeal under 35 U.S.C.
§ 103 are reversed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
13–29, 32 112(a) Written Description 13–29, 32
13–15,
20, 22,
25, 26
103 Zoltan, Winter,
Wren, Simoni
13–15, 20,
22, 25, 26
16, 19,
23, 28
103 Zoltan, Winter,
Wren, Simoni, KR
‘995
16, 19, 23,
28
17, 18, 24 103 Zoltan, Winter,
Wren, Simoni, KR
‘995, Atkinson
17, 18, 24
21, 27 103 Zoltan, Winter,
Wren, Simoni, Platt,
Jr.
21, 27
29 103(a) Zoltan, Winter,
Wren, Simoni, de
Souza
29
32 103(a) Zoltan, Winter,
Wren, Simoni,
Clerkin
32
Overall
Outcome
13–29, 32
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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