David Crowther

Patent Trials and Appeals Board

Dec 27, 2019

14697760 - (R) (P.T.A.B. Dec. 27, 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.
14/697,760 04/28/2015 David Crowther GINS 0135 PUS2 5477
22045 7590 12/27/2019
Brooks Kushman
1000 Town Center
22nd Floor
Southfield, MI 48075
EXAMINER
BRYANT, REBECCA CAROLE
ART UNIT PAPER NUMBER
2877
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
docketing@brookskushman.com
kdilucia@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DAVID CROWTHER
____________________

Appeal 2018-0075101
Application 14/697,760
Technology Center 2800
____________________

Before KAREN M. HASTINGS, CHRISTOPHER C. KENNEDY, and
DEBRA L. DENNETT, Administrative Patent Judges.

DENNETT, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
This is in response to a Request for Rehearing (“Req. Reh’g”), dated
September 30, 2019, of our Decision, mailed August 1, 2019 (“Decision”),
wherein we affirmed the Examiner’s § 103(a) rejection of claims 34–60 and
65–77.

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 GII
Acquisition, LLC, d/b/a General Inspection, LLC. Appeal Br. 1.
Appeal 2018-007510
Application 14/697,760

2
We have reconsidered our Decision, in light of Appellant’s comments
in the Request for Rehearing, and we find no error in the disposition of the
disputed § 103(a) rejection.
In a request for rehearing, an appellant is charged with stating the
points believed to have been misapprehended or overlooked by the Board.
37 C.F.R. § 41.52. We review the points of the Decision contested by
Appellant and determine whether we, in fact, made an error in fact finding or
applying the law, and further determine whether any error changes the
outcome of the Decision when viewing all the evidence and arguments anew
in light of the preponderance of the evidence standard. In re Oetiker, 977
F.2d 1443, 1445 (Fed. Cir. 1992) (“patentability is determined on the totality
of the record, by a preponderance of evidence with due consideration to
persuasiveness of argument”); Gardner v. TEC Sys., Inc., 725 F. 2d 1338,
1344 (Fed. Cir. 1984) (any error concerning nonessential facts is harmless
and not a basis for reversal).
We have reviewed the arguments set forth by Appellant in the
Request for Rehearing. Appellant argues that the Board “misapprehended
what is disclosed within the prior art.” Req. Reh’g 2. Appellant contends
that “the claim limitations require that both the upper and lower ends of the
fastener be held, [and] that “the fastener be held in a vertical orientation.”
Id. Appellant further argues that “the Board’s assertion that Reeves and
Mufti collectively teach holding a fastener at both the upper and lower ends
in a vertical orientation is erroneous.” Id. These arguments are not
persuasive.
With regard to Appellant’s first point, Appellant argues that “there is
no mention in Mufti of securing both ends of the fastener.” Id. However, as
Appeal 2018-007510
Application 14/697,760

3
discussed in our Decision, “[n]on-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references.” Dec. 8 (quoting In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986)). Reeves discloses holding a
pipe (fastener) at opposite ends, e.g., by motor driven rollers (75), which
support the pipe and restrict its movement. See Reeves Fig. 7.
Appellant argues that in Reeves “it is necessary to only clamp the first
end of the pipe to be inspected . . . and leave the second end . . . exposed.”
Req. Reh’g. 2–3. To the extent that Appellant is arguing that “holding” in
the claims requires clamping in place at both ends, we do not find support
for such an interpretation in the claims or Specification. See generally
Spec., Claims App.
With regard to Appellant’s second point—that the fastener be held in
a vertical orientation—we note that claim 34 recites “hold[ing] the fastener
in a generally vertical orientation,” and claim 48 recites “holding the
fastener . . . in a generally vertical orientation.” Claims App. 1, 3 (emphases
added). Despite Appellant’s contention, neither claim requires that the
fastener be held in a vertical direction. See id. As noted in our Decision, the
Examiner found that the orientation of objects is a matter of perspective, and
determined that the orientation serves no particular purpose in the claimed
invention. Dec. 5 (citing Final Act. 12). We agree with the Examiner’s
finding and conclusion.
Moreover, Appellant acknowledges that Mufti discloses orienting a
fastener “within a few degrees of vertical.” Req. Reh’g. 2; see also Mufti
Fig. 2. The generally vertical orientation of the fastener in claims 34 and 48
Appeal 2018-007510
Application 14/697,760

4
does not serve to distinguish the claims from the prior art cited by the
Examiner.
No persuasive merit is present in Appellant’s arguments made in the
Request for Rehearing. Thus, we decline to modify our decision to affirm
the Examiner’s § 103(a) rejection of the appealed claims.
This Decision on the Request for Rehearing incorporates our Decision
and is final for the purposes of judicial review. See 37 C.F.R. § 41.52(a)(1).
CONCLUSION
In conclusion, based on the foregoing, this Request for Rehearing is
denied with respect to making changes to the final disposition of the
rejections therein.
Outcome of Decision on Rehearing:
Claims 35 U.S.C
§
Reference(s)/Basis Denied Granted
34–60, 65–
77
103(a) Reeves, Mufti 34–60, 65–
77

Final Outcome of Appeal after Rehearing:
Claims 35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
34–60, 65–
77
103(a) Reeves, Mufti 34–60, 65–
77

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)(v)(2010).
DENIED