Crain Cutter Company, Inc.

Patent Trials and Appeals Board

May 28, 2020

14742642 - (D) (P.T.A.B. May. 28, 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.
14/742,642 06/17/2015 Lance Darrell Crain 27090-29761/US 1758
758 7590 05/28/2020
FENWICK & WEST LLP
SILICON VALLEY CENTER
801 CALIFORNIA STREET
MOUNTAIN VIEW, CA 94041
EXAMINER
FUQUA, SHAWNTINA T
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
05/28/2020 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):
PTOC@Fenwick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LANCE DARRELL CRAIN,
GREGORY JOSEPH CHAMBERS, and TAN DINH NGUYEN
Appeal 2019-005317
Application 14/742,642
Technology Center 3700
Before CHARLES N. GREENHUT, BENJAMIN D. M. WOOD, and
BRANDON J. WARNER, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1,2 appeals from the
Examiner’s decision to reject claims 1–13. See Appeal Br. 9; Final Act. 1.
We have jurisdiction under 35 U.S.C. § 6(b).

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Crain Cutter Co., Inc.
of Milpitas, California. Appeal Br. 2.
2 The pages of the Appeal Brief are not enumerated. We begin our page
number references starting with the cover page containing the application
bibliographic information as page 1.
Appeal 2019-005317
Application 14/742,642

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We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to a carpet seaming iron. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A carpet seaming iron comprising:
a bimetal thermostat configured to turn power on or off to
a heating element by the motion of a bimetallic strip;
a base assembly having a surface on which the bimetal
thermostat is positioned; and
a bimetal thermostat top cover coupled to the base
assembly, the bimetal thermostat top cover securing the bimetal
thermostat to the base assembly by applying a force onto the
bimetal thermostat holding the bimetal thermostat against the
base assembly.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Haller US 2,725,453 A Nov. 29, 1955
Goodrich US 6,172,335 B1 Jan. 9, 2001
REJECTIONS
Claim 3 is rejected under 35 U.S.C. § 112, first paragraph, as failing
to comply with the written description requirement. Final Act. 2–3.
Claim 3 is rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite. Final Act. 3.
Claims 1–13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haller and Goodrich. Final Act. 4.
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Application 14/742,642

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OPINION
§ 112
Appellant does not contest the rejections of claim 3 under 35 U.S.C.
§ 112. We therefore summarily sustain these rejections. In re Berger, 279
F.3d 975 (Fed. Cir. 2002) (affirming the Board’s affirmance of an
uncontested rejection, holding that the appellant had waived the right to
contest the rejection by not presenting arguments on appeal to the Board);
Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“the applicant can
waive appeal of a ground of rejection”).

§ 103(a)
Appellant argues the claims subject to the rejection based on Haller
and Goodrich as a group for which we select claim 1 as representative under
37 C.F.R. § 41.37(c)(1)(iv).
The Examiner relies on Haller as disclosing the basic structure of
claim 1. Final Act. 4 (citing Haller col. 4, ll. 17–21; Fig. 1). Haller, and the
Examiner’s references thereto, are unremarkable in that Haller’s teachings
are essentially consistent with Appellant’s acknowledged prior art as
depicted in Figure 1 of the present application. The Examiner recognizes
Haller lacks the recited top cover structure, relying instead on Haller’s screw
16 to secure bimetal thermostat 14. Final Act. 4. The Examiner relies on
Goodrich’s bracket 45 as satisfying the recited aspects of the top cover
limitation, and concludes that it would have been obvious to modify Haller’s
structure to include a bracket like that described in Goodrich to secure
Haller’s thermostat. Final Act. 4 (citing Goodrich col. 7, ll. 21–28; Fig. 9).
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Application 14/742,642

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The first issue Appellant raises is an assertion that the Examiner
erroneously “conflates the terms ‘bimetal thermostat’ and ‘thermistor.’”
Appeal Br. 5; see, e.g., Final Act. 4 (referring to “thermostat 44” instead of a
“thermistor” or “thermocouple” which Goodrich describes as exemplary
embodiments of temperature sensor 44, contrasting their control responses
with that of a conventional “thermostat” (col. 7, ll. 55–65)). We do not think
this, perhaps inadvertent, label on the part of the Examiner undermines the
Examiner’s rejection. Even if, assuming only for argument’s sake, as
Appellant suggests, this demonstrates a lack of understanding on the part of
the Examiner as to the differences between thermistors and thermostats,
Appellant cites no authority, and we are not aware of any authority for the
notion that demonstrating a technical misstatement or a lack of expertise on
the part of the Examiner undermines an Examiner’s rejection. The standards
associated with 35 U.S.C. § 103(a) are objective ones. They are based on
what the hypothetical person skilled in the art would understand, as opposed
to any particular patent examiner.
Here, the discussion in column 7 of Goodrich demonstrates that one
skilled in the art would readily appreciate the differences between resistive
temperature sensing elements and bimetallic thermostats. Absent from that
discussion is any mention or implication that the mounting configurations
therefor would bear significant structural differences as Appellant argues.
Appeal Br. 6. Indeed, if such structural differences were truly necessary, the
fact that Appellant’s own Specification discloses an embodiment with a
bimetallic thermostat (paras. 9–49) and an embodiment where the bimetallic
thermostat is replaced with a thermistor (paras. 50–54) would seem to
provide Appellant ample opportunity to explain what specific differences
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between the two would make mounting arrangements for each incompatible
with the other. Appellant has not done so either in Appellant’s briefing or
Appellant’s Specification. Quite to the contrary, Appellant’s Specification
describes the temperature sensor fastening arrangement as only “slightly
different.” Para. 50; see also para 52 (“Element cover 16130 is similar to
element cover 1030 (Fig. 3). . . . Bracket 16140 is similar to bracket 1040
(Fig. 3) except for that it is turned upside down.”).
That some relatively minor structural modification might be made in
order to make Goodrich’s bracket work to secure Haller’s thermocouple
does not demonstrate nonobviousness of the combination. “It is well-
established that a determination of obviousness based on teachings from
multiple references does not require an actual, physical substitution of
elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012). The fact that
judgment and mechanical skill may be required to arrive at a particular
combination (Appeal Br. 8–9) does not necessarily mean that particular
combination constitutes a nonobvious invention. Graham v. John Deere Co.
of Kansas City, 383 U.S. 1, 10–12 (1966) (discussing Hotchkiss v.
Greenwood, 11 How. 248 (1851)). One of ordinary skill can use his or her
ordinary skill, creativity, and common sense to make the necessary
adjustments and further modifications to result in a properly functioning
device. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(“the [obviousness] analysis need not seek out precise teachings directed to
the specific subject matter of the challenged claim, for [an examiner] can
take account of the inferences and creative steps that a person of ordinary
skill in the art would employ”).
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It is noted that Appellant makes the assertion that “the Office Action
completely ignores the need for a reasoned explanation about why it would
have been obvious to modify Goodrich’s top cover used to secure a
thermistor to instead be used to secure Haller’s bimetal thermostat.” Appeal
Br. 7. This is an argument that is essentially related to the existence of the
Examiner’s articulated reasoning, as opposed to its merits. The Examiner
clearly articulated reasoning in support of the proposed combination, “for
the purpose of attaching [Haller’s] thermostat to the heading base assembly,
thereby ensuring reliable operation of the iron and consistent performance
between different irons of the same design.” Final Act. 4–5 (citing Goodrich
col. 7, ll. 30–33). The merits of the Examiner’s reasoning in this regard stand
uncontroverted. “Filing a Board appeal does not, unto itself, entitle an
appellant to de novo review of all aspects of a rejection.” See Ex parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (citations omitted).
“[T]he Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection.” Id. at 1075–76 (citations omitted). The
Board will not advocate for Appellant by scouring the record to see if the
Board can identify some flaw in the Examiner’s findings of fact, articulated
reasoning, or legal conclusions. See, e.g., Halliburton Energy Services, Inc.
v. M-I LLC, 514 F.3d 1244, 1250 n.2 (Fed. Cir. 2008) (“A skeletal
‘argument’, really nothing more than an assertion, does not preserve a
claim.”).
For the foregoing reasons we sustain the Examiner’s rejections.
CONCLUSION
The Examiner’s rejections are AFFIRMED.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
3 112 first
paragraph
Written Description 3
3 112, second
paragraph
Indefiniteness 3
1–13 103(a) Haller, Goodrich 1–13
Overall
Outcome
1–13

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).
AFFIRMED