Ex Parte 8,230,816 et al

Patent Trial and Appeal Board

Sep 23, 2015

95002143 (P.T.A.B. Sep. 23, 2015)

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.
95/002,143 09/06/2012 8,230,816 688475-2RX 2536
32914 7590 09/24/2015
GARDERE WYNNE SEWELL LLP
INTELLECTUAL PROPERTY SECTION
3000 THANKSGIVING TOWER
1601 ELM ST
DALLAS, TX 75201-4761
EXAMINER
GELLNER, JEFFREY L
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/24/2015 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
________________

CARLSON PET PRODUCTS, INC.
Respondent, Requester

v.

Patent of RICHELL U.S.A., INC.
Appellant, Patent Owner
________________

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1

Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, MICHAEL L. HOELTER and
BRETT C. MARTIN, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1
Issued July 31, 2012 to Satoshi Hirokawa and Orie Tani (the
“’816 patent”). The ’816 patent issued from Appl. 13/097,603, filed
April 29, 2011.
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STATEMENT OF THE CASE 1
The Appellant/Patent Owner appeals from the Examiner’s decision rejecting 2
unamended original claims 1–13 and new claims 14–24. (“Appellant’s Brief 3
in Inter Partes Reexamination Proceeding,” dated July 1, 2014 (“Appeal 4
Brief” or “App. Br. PO”) at 2). The Examiner’s findings and conclusions 5
are stated in a “Right of Appeal Notice,” mailed April 1, 2014 (“RAN”).
2
6
The Patent Owner relies on the Appeal Brief and a “Patent Owner’s Rebuttal 7
Appeal Brief in Inter Partes Reexamination Proceeding,” dated October 15, 8
2014 (“Reb. Br. PO”). The Requester relies on a “Respondent’s Brief under 9
37 C.F.R. § 41.68,” dated July 28, 2014 (“Resp. Br. Req’r”). A hearing was 10
held on September 11, 2015. We have jurisdiction over the cross-appeal 11
under 35 U.S.C. § 134(b) and 35 U.S.C. § 315(a). 12
13
DISPOSITION 14
We AFFIRM the Examiner’s decision rejecting claims 1 and 14 under 15
35 U.S.C. § 103(a) (2006) as being unpatentable over Gent (US 5,878,596, 16
issued Mar. 9, 1999) and Holbrook (GB 907,632, publ. Oct. 10, 1962) (See 17
RAN 5 and 7 (Grounds 9 and 16)).
3
18
We REVERSE the Examiner’s decision rejecting: 19

2
The Examiner’s Answer mailed September 15, 2014, incorporates the
RAN by reference.
3
The numbering of the grounds of rejection is taken from pages 3–7 of
the RAN. The Examiner maintains all of the numbered grounds of rejection
on page 11 of the RAN.
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claims 1, 3, 4 and 14–16 under 35 U.S.C. § 102(b) (2006) as being 1
anticipated by Kleinsasser (US 6,477,984 B1, issued Nov. 12, 2002) (See 2
RAN 3 and 6 (Grounds 1 and 13)); 3
claims 2 and 13 under § 103(a) as being unpatentable over Kleinsasser 4
and either Lehtonen (US 1,542,151, issued June 16, 1925), Matsuda (JP Des. 5
Reg. 1169549, publ. Feb. 14, 2003) or Beatty (US 2,610,830, issued Sept. 6
16, 1952) (See RAN 3–4 (Grounds 2–4)); 7
claims 5–7, 9, 11 and 12 under § 103(a) as being unpatentable over 8
Kleinsasser and Scherer (US 5,782,039, issued July 21, 1998) (See RAN 4 9
(Ground 5)); 10
claims 5–9, 11 and 12 under § 103(a) as being unpatentable over 11
Kleinsasser and Irisohyama (JP Des. Reg. 1087937, publ. Oct. 10, 2000) 12
(See RAN 4–5 (Ground 6)); 13
claim 3 under § 103(a) as being unpatentable over Kleinsasser and 14
Monahan (US 2003/0197164 A1, publ. Oct. 23, 2003) (See RAN 5 15
(Ground 7)); 16
claim 4 under § 103(a) as being unpatentable over Kleinsasser and 17
Eisele (US 5,402,988, issued Apr. 4, 1995) (See RAN 5 (Ground 8)); 18
claims 10 under § 103(a) as being unpatentable over Kleinsasser, 19
Irisohyama and either Lehtonen, Matsuda or Beatty (See RAN 5–6 20
(Grounds 10–12)); 21
claims 17–24 under §103(a) as being unpatentable over Kleinsasser 22
and either Kenichi (JP P2002-21376 A, publ. Jan. 23, 2002) or Irisohyama 23
(See RAN 7 (Grounds 14 and 15)); and 24
claims 15 and 16 under § 103(a) as being unpatentable over Gent and 25
Holbrook (See RAN 7 (Ground 16)). 26
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THE ’816 PATENT 1
The claims on appeal relate to self-supporting pet barriers comprising 2
front panels and at least one side panel. Claims 1, 6, 13, 14, 18 and 23 are 3
independent. Claim 1 is illustrative: 4
1. A self-supporting pet barrier, 5
comprising: 6
at least two front panels configured to be 7
coupled to form a front barrier, 8
wherein a first front panel of the at 9
least two front panels is configured to be 10
coupled to a second front panel of the at 11
least two front panels to allow adjustment of 12
an extent to which the first front panel and 13
the second front panel overlap such that the 14
width of the front barrier is adjustable; 15
at least one leg configured to be coupled to 16
the front barrier, wherein the at least one leg is 17
configured to assist with maintaining the self-18
supporting pet barrier in a vertical position, 19
wherein the self-supporting pet barrier 20
is configured to form an open configuration 21
that is self-supporting in use, and 22
wherein a plan view of the self-23
supporting pet barrier in the open 24
configuration defines a non-enclosing 25
figure; and 26
at least one side barrier configured to be 27
coupled to the front barrier, 28
wherein the front barrier comprises a 29
first side and a second side, and 30
wherein the at least one side barrier is 31
configured to extend beyond the front 32
barrier on the first side of the front barrier 33
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and the at least one leg is configured to 1
extend beyond the front barrier on the 2
second side of the front barrier. 3
(App. Br. PO 36). 4
5
ISSUES 6
Only issues and findings of fact contested by the Patent Owner or the 7
Requester have been considered. See 37 C.F.R. § 41.67(c)(1)(vii); In re 8
Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Five issues are dispositive of 9
this appeal: 10
First, would a barrier “configured to form an open configuration that 11
is self-supporting in use,” as recited in independent claims 1 and 14, have 12
been obvious from the combined teachings of Gent and Holbrook? (See 13
App. Br. 31–32; Resp. Br. Req’r 18–20; Reb. Br. PO 18–19). 14
Second, would a barrier “wherein the at least one leg and the at least 15
one side barrier comprise floor contacting surfaces,” as recited in 16
independent claim 14, and “wherein at least one of the floor contacting 17
surfaces comprises a friction increasing member,” as recited in claim 15, 18
have been obvious from the combined teachings of Gent and Holbrook? 19
(See App. Br. 32; Resp. Br. Req’r 20; Reb. Br. PO 19–20). 20
Third, would a barrier “wherein the at least one leg is configured to 21
extend from only one side in use,” as recited in claim 16, have been obvious 22
from the combined teachings of Gent and Holbrook? (See App. Br. 33; 23
Resp. Br. Req’r 20; Reb. Br. PO 20). 24
Fourth, does Kleinsasser describe a self-supporting pet barrier 25
including “at least one leg configured to be coupled to the front barrier, 26
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wherein the at least one leg is configured to assist with maintaining the self-1
supporting pet barrier in a vertical position,” as recited in claims 1, 6, 14 and 2
18? (See App. Br. 6–9; Resp. Br. Req’r 2–4; Reb. Br. PO 2–5). 3
Fifth, does Kleinsasser describe a self-supporting pet barrier including 4
a plurality of stabilizing members configured to be coupled to the front 5
barrier, wherein the plurality of stabilizing members comprise at least one 6
leg, . . . wherein the plurality of stabilizing members are configured to assist 7
with maintaining the self-supporting pet barrier in a vertical position,” as 8
recited in claims 13 and 23? (See App. Br. 6–9; Resp. Br. Req’r 2–4; Reb. 9
Br. PO 2–5). 10
11
FINDINGS OF FACT 12
The record supports the following findings of fact (“FF”) by a 13
preponderance of the evidence. See Rambus Inc. v. Rea, 731 F.3d 1248, 14
1255 (Fed Cir. 2013); Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 15
1988). 16
17
Gent 18
1. Gent describes a fencing unit 2 for use in a hog confinement 19
facility. (Gent, col. 3, ll. 15–20). 20
2. Gent’s fencing unit 2, as depicted in Figure 1, includes a 21
stationary section 4 and an adjustable member 6. The stationary section 4 22
includes two parallel, vertical end plates 10, 11 connected by thin, elongated, 23
horizontally-extending rods 12. (Gent, col. 3, ll. 15–27). The adjustable 24
member 6 likewise includes two parallel, vertical end plates 24, 26 25
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connected by thin, elongated, horizontally-extending rods 30. (Gent, col. 3, 1
ll. 36–45). 2
3. The end plate 10 of the stationary section 4 of Gent’s fencing 3
unit 2 has openings 14 for slidably receiving the rods 30 of the adjustable 4
member 6. (Gent, col. 3, ll. 32–36). Likewise, the end plate 26 of the 5
adjustable member 6 has openings 28 for receiving the rods 12 of the 6
stationary section 4. (Gent, col. 3, ll. 38–45). This arrangement enables the 7
fencing unit 2 to expand or contract in width. (Gent, col. 3, ll. 55–66). 8
4. Gent teaches that the “[e]nd plate 10 of stationary member 4 is 9
provided with a foot 34 which supports the end 8 of stationary member 4. 10
Similarly second end of stationary member 4 is provided similarly with foot 11
35.” (Gent, col. 3, ll. 45–49). An additional foot 32 supports the end 12
plate 24 at the free end 20 of the adjustable member 6. (Gent, col. 3, ll. 51–13
54). 14
5. The feet 32, 34, 35 as depicted in Figure 1 of Gent are 15
elongated members extending normally to the planes defined by the parallel, 16
horizontally-extending bars 12, 30 of the stationary section 4 and the 17
adjustable member 6. In other words, the feet 32, 34, 35 are configured to 18
extend from both sides of the fencing unit 2, rather than only one side, in 19
use. The feet 32, 34, 35 include central bores or openings through which the 20
feet may be secured to the floor of a confinement building. 21
6. Gent teaches that it “is intended that feet 34 and 35 be secured 22
to the floor of the confinement building.” (Gent, col. 3, ll. 49–50). The 23
Patent Owner argues that this teaching implies that the feet 32, 34, 35 do not 24
support the fencing unit 2 in practice, such that the fencing unit 2 is not self-25
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supporting. Despite this argument, the teachings of Gent support the finding 1
that the fencing unit 2 is self-supporting by a preponderance of the evidence. 2
7. The configuration of the feet 32, 34, 35, with elongated portions 3
extending from both sides of the fencing unit 2, indicate that the feet 32, 34, 4
35 are capable of stably supporting the fencing unit 2. This indication is 5
supported by the teachings of Gent as a whole. As noted earlier, Gent 6
describes the foot 34 as supporting the end 8 of the stationary member 4. 7
Structural similarity implies that the feet 32 and 35 perform similar 8
functions. Elsewhere, Gent teaches that “[e]ach end plate of the stationary 9
member is provided with a foot which supports the end of the stationary 10
member.” (Gent, col. 2, ll. 17–19 (italics added for emphasis)). Gent’s 11
teaching to secure the feet 34, 35 of the stationary section 4 to the floor does 12
not rebut these teachings. 13
8. The Requester correctly points out that Gent teaches only that 14
the feet 34, 35 may be secured (or are intended to be secured) to the floor, 15
implying that the fencing unit 2 is self-supporting without the feet being 16
secured. (See Resp. Br. Req’r 19, citing Gent, col. 2, ll. 19–21). Gent’s 17
teachings are consistent with a desire to secure the feet 34, 35 to the floor to 18
prevent the stationary section 4 from being slid out of position rather than as 19
a necessary measure to maintain the fencing unit 2 in a vertical position. 20
The teachings of Gent as a whole support the finding that Gent’s fencing 21
unit 2 is self-supporting. 22
9. Gent’s fencing unit 2 includes mounting hooks 36 connected to 23
the vertical end plate 24 of the adjustable member 6 for connecting the 24
fencing unit 2 to other gate members. (Gent, col. 3, ll. 60–62). As depicted 25
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in Figure 1, the mounting hooks 36 include vertically-upright pins for 1
engagement with complementary fixtures on the other gate members. 2
3
Holbrook 4
10. Holbrook describes barrier members. One of Holbrook’s 5
barrier members include two A-shaped end frames 1 connected by tubular 6
cross members 4, 5. (Holbrook 1, l. 80– col. 3, l. 1 and Fig. 1). The space 7
between the cross members 4, 5 is spanned by vertical web members 11 and 8
sheet metal panels 12. (Holbrook 2, ll. 15–25 and Fig. 1). The A-shaped 9
end frames 1 mount pins 6, 7. (Holbrook 2, ll. 3–5 and Fig. 2). 10
11. Holbrook also teaches pivotally connecting multiple barrier 11
members together using the pins 6, 7 to form a continuous barrier. 12
(Holbrook 1, ll. 77–80; 2, ll. 26–30; and Fig. 3). As depicted in Figure 3, the 13
pivotal connection between the multiple barrier members permits barrier 14
members on the sides of the continuous barrier to extend beyond one side or 15
the other of the barrier members in the middle of the continuous barrier. 16
17
Kleinsasser 18
12. Kleinsasser describes a gate assembly for confining animals 19
such as hogs in a narrow alleyway between indoor animal holding pens. 20
(See Kleinsasser, col. 1, ll. 9–13 and col. 2, ll. 13–15). 21
13. Kleinsasser’s gate assembly includes a base member 10. The 22
rearward portion of the base member 10 sits on a transverse axle 11 mounted 23
on a pair of ground wheels 12. (Kleinsasser, col. 3, ll. 46–50 and Figs. 1 and 24
2). The forward portion of the base member 10 is mounted on a front wheel 25
17. (Kleinsasser, col. 3, ll. 61–65 and Figs. 1 and 2). Kleinsasser teaches 26
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that “the [base member 10] is mounted for movement across the ground on 1
the rear wheels 12 and the front wheel 17.” (Kleinsasser, col. 3, ll. 61–65). 2
This teaching implies that the wheels 12, 17 support the base member 10 3
above the ground or floor. 4
14. The base member 10 includes a central lowered section 19 5
“extend[ing] across the base [member] between the wheels [12, 17] at a 6
height just above the floor.” (Kleinsasser, col. 4, ll. 11–13 and Figs. 2 and 7
4). The central section 19 supports a pair of gate panels 22, 23 for sliding 8
movement along the central section. (Kleinsasser, col. 4, ll. 13–16 and 9
Figs. 1 and 2). As the Patent Owner correctly points out, this description 10
implies that the gate panels 22, 23 are supported above the ground or floor 11
by the wheels 12, 17 beneath the base member 10. 12
15. A vertical post 22A, 23A at the outer edge of each gate 13
panel 22, 23 pivotably supports a supplementary gate panel 22C, 23C. 14
(Kleinsasser, col. 4, ll. 36–39 and Fig. 1). Kleinsasser teaches that, when the 15
supplementary gate panels 22C, 23C are extended outwardly in a direction 16
parallel to the gate panels 22, 23, the supplementary gate panels extend over 17
inclined portions of adjacent holding pens so as to leave no opening through 18
which an animal confined by the gate assembly might attempt to escape. 19
(Kleinsasser, col. 5, ll. 1–4 and Fig. 1). Kleinsasser’s teaching that the 20
“supplementary panels … provide a portion extending over the incline 21
section[s]” of the adjacent holding pens (Kleinsasser, col. 5, ll. 1–4) implies 22
that the supplementary gate panels 22C, 23C do not contact the holding pens 23
so as to assist in maintaining Kleinsasser’s gate assembly in a vertical 24
position. 25
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16. Kleinsasser’s gate assembly also includes side guide plates 22F, 1
23F, which extend in a direction normal to the surfaces of the gate panels 2
22, 23. (Kleinsasser, col. 5, ll. 16–20 and Figs. 1 and 2). Figure 1 of 3
Kleinsasser depicts the side guide plates 22F, 23F positioned above the floor 4
or ground rather than in contact with the ground. Kleinsasser describes the 5
side guide plates 22F, 23F as “carr[ied]” by the vertical posts 22A, 23A 6
(Kleinsasser, col. 5, ll. 16–17) rather than as supporting the gate panels 22, 7
23. (See App. Br. PO 7). As the Patent Owner correctly points out (see id.), 8
Kleinsasser’s description indicates that it is the base member 10 and the 9
wheels 12, 17, rather than the side guide plates 22F, 23F, which fully 10
support the gate assembly. The side guide plates 22F, 23F are intended 11
merely to guide the gate assembly as it moves up or down an alleyway. (See 12
Reb. Br. PO 3–4). 13
17. The Abstract of Kleinsasser states that a bottom edge of the 14
gate assembly, presumably formed by the gate panels 22, 23 and the side 15
guide plates 22F, 23F, is “shaped and arranged to co-operate with the alley 16
floor to close the alley against passage of animals.” In order to close the 17
alley against the passage of animals, it is sufficient to leave a gap between 18
the bottom edges of the gate panels 22, 23 and the bottom edges of the side 19
guide plates 22F, 23F, on the one hand, and the floor, on the other, that is 20
too narrow for an animal (such as a hog) to enter. The Patent Owner 21
correctly points out that, as depicted in Figure 1, such “co-operation” does 22
not imply contact between the side guide plates 22F, 23F and the floor 23
sufficient for the side guide plates to assist in maintaining the gate assembly 24
in a vertical position. (See Reb. Br. PO 2–3). In fact, contact between the 25
side guide plates 22F, 23F (or rollers replacing or supplementing the side 26
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guide plates) and the ground would be undesirable as such contact could 1
retard the ability of the gate assembly to move up or down an alleyway. 2
18. Kleinsasser teaches that the “side [guide] plates [22F, 23F] may 3
be replaced or supplemented by rollers which run along the front face of the 4
pens or along a track at the floor to provide a guiding action” when the gate 5
assembly is moving down an alleyway. (Kleinsasser, col. 5, ll. 32–35). The 6
Requester argues that these rollers “run along the floor” and that the rollers 7
“consistently contact the floor to vertically support the self-supporting pet 8
barrier.” (Resp. Br. Req’r 2–3). Neither the Examiner nor the Requester has 9
proven either assertion by a preponderance of the evidence. Kleinsasser 10
merely teaches that the rollers replacing, or supplementing, the side guide 11
plates 22F, 23F may “run . . . along a track at the floor to provide a guiding 12
action.” (Kleinsasser, col. 5, ll. 32–35). The phrase “at the floor” is 13
consistent with a track running along the sides of the alleyway at floor level. 14
Because Kleinsasser does not describe the roller or tracks further, and does 15
not show the rollers or tracks in any drawing figure, the Requester has not 16
excluded the possibility that the tracks run along the sides of the alleyway at 17
floor level. 18
19. Neither the Examiner nor the Requester has proven that the side 19
guide plates 22F, 23F contact the floor. Neither has proven that the rollers 20
described in column 5 of Kleinsasser run along the floor or consistently 21
contact the floor. Therefore, they have not proved that either the side guide 22
plates 22F, 23F, or the rollers, are configured to assist with maintaining 23
Kleinsasser’s gate assembly in a vertical position. 24
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ANALYSIS 1
First Issue 2
The Examiner rejects claims 1 and 14 under § 103(a) as being 3
unpatentable over Gent and Holbrook. Gent describes a fencing unit 2 4
including at least two front panels 4, 6 configured to be coupled to form a 5
front barrier (see FF 1–3) and at least one leg 32, 34, 35 configured to be 6
coupled to the front barrier (see FF 5). Gent’s fencing unit 2 does not 7
include at least one side barrier configured to be coupled to the front barrier. 8
Nevertheless, Gent’s fencing unit 2 includes mounting hooks in the form of 9
vertically-upright pins for connection to other gate members. (FF 9). 10
Holbrook teaches pivotally connecting barrier members together using 11
vertically-upright pins to form continuous barriers of length greater than the 12
length of individual barrier members alone. (FF 10–11). At least with 13
respect to claim 1, the Requester argues that it would have been obvious to 14
attach side barriers to Gent’s fencing unit 2 because 15
1) doing so would have been a simple combination 16
of one known design feature into the gate system 17
of Gent, which would [have] yield[ed] a 18
predictable result . . .; and/or 19
2) Gent demonstrates that is it desirable to mount 20
auxiliary gate members or barrier members to the 21
gate system of Gent and Holbrook includes the 22
flats with holes therein for mounting adjacent 23
barriers. 24
(Request 17 (citations omitted)). The Examiner adopts this reasoning (see 25
RAN 5) and the Patent Owner does not challenge the argument in this 26
appeal. 27
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Instead, the Patent Owner argues that Gent and Holbrook, separately 1
or collectively, fail to teach a pet barrier “configured to form an open 2
configuration that is self-supporting in use,” as recited in independent 3
claims 1 and 14. More specifically, the Patent Owner defines “self-4
supporting” to mean that “the gate is supported by its own parts in use.” We 5
adopt that definition for purposes of the appeal as the broadest reasonable 6
interpretation. The Patent Owner further argues that Gent’s fencing unit 2 is 7
not self-supporting in use because the feet 32, 34, 35 (see FF 5) cannot 8
support the fencing unit without additional structure to secure the feet to a 9
floor. We find that Gent’s feet 32, 34, 35 are capable of supporting the 10
fencing unit 2; and that the fencing unit 2 is self-supporting in use. (See 11
FF 6–8). Even if the feet 32, 34, 35 were not capable of supporting the 12
fencing unit 2, the side barriers, which the rejection proposes to add to 13
Gent’s fencing unit 2, would provide such support. In view of these 14
findings, we sustain the rejection of claims 1 and 14 under § 103(a) as being 15
unpatentable over Gent and Holbrook. 16
17
Second Issue 18
The Examiner also rejects claim 15 under § 103(a) as being 19
unpatentable over Gent and Holbrook. Claim 14 recites a self-supporting 20
pet barrier “wherein the at least one leg and the at least one side barrier 21
comprise floor contacting surfaces.” Claim 15 recites “wherein at least one 22
of the floor contacting surfaces comprises a friction increasing member.” 23
The Requester argues that “[s]ecuring the feet of Gent to the floor of the 24
confinement building results in the feet having floor contacting surfaces 25
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comprising a friction increasing member.” (Resp. Br. Req’r 20). No other 1
detail is offered. 2
The Patent Owner correctly points out that Gent does not describe 3
how the feet 32, 34, 35 of Gent’s fencing unit 2 are secured to the floor. 4
Nothing in Gent suggests that the means of securement include adding what 5
one of ordinary skill in the art ordinarily might understand as friction 6
increasing material to the feet 32, 34, 35. (See Reb. Br. 19). If the 7
Requester contends that securing the feet 32, 34, 35 necessarily would 8
increase the frictional force induced by the contact between the feet and the 9
floor, the Requester has not proven this to be the case. We do not sustain the 10
rejection of claim 15 under § 103(a) as being unpatentable over Gent and 11
Holbrook. 12
13
Third Issue 14
The Examiner rejects claim 16 under § 103(a) as being unpatentable 15
over Gent and Holbrook. Claim 16 recites a pet barrier “wherein the at least 16
one leg is configured to extend from only one side in use.” The feet 32, 34, 17
35 of Gent’s fencing unit 2 are configured to extend from both sides of the 18
fencing unit 2, rather than only one side, in use. (FF 5). 19
The Requester argues that the side barriers, which the rejection 20
proposes to add to Gent’s fencing unit 2, would extend from only one side of 21
the fencing unit 2. Even if this were the case, claim 14, from which claim 16 22
depends, separately recites that “the at least one side barrier is configured to 23
extend beyond the front barrier on the first side.” The Patent Owner 24
correctly points out that the Requester has not explained how the side 25
barriers that the rejection proposes to add to Gent’s fencing unit 2 could 26
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correspond to the legs recited by claims 14 and 16. (See Reb. Br. 20). We 1
do not sustain the rejection of claim 16. 2
3
Fourth and Fifth Issues 4
The Examiner rejects claims 1, 3, 4 and 14–16 under § 102(b) as 5
being anticipated by Kleinsasser. Each of claims 1, 6, 14 and 18 recites a 6
self-supporting pet barrier including “at least one leg configured to be 7
coupled to the front barrier, wherein the at least one leg is configured to 8
assist with maintaining the self-supporting pet barrier in a vertical position.” 9
Each of claims 13 and 23 recites a self-supporting pet barrier including a 10
plurality of stabilizing members configured to be coupled to the front 11
barrier, wherein the plurality of stabilizing members comprise at least one 12
leg, . . . wherein the plurality of stabilizing members are configured to assist 13
with maintaining the self-supporting pet barrier in a vertical position.” 14
Kleinsasser describes a gate assembly including gate panels 22, 23. 15
The gate panels 22, 23 are supported above the ground or floor by the 16
wheels 12, 17 of a base member 10. (FF 14). Vertical posts 22A, 23A at the 17
outer edges of the gate panels 22, 23 pivotably support supplementary gate 18
panels 22C, 23C and side guide plates 22F, 23F. (FF 15 and 16). The 19
Requester argues that Kleinsasser’s side guide plates 22F, 23F are legs 20
configured to assist with maintaining the gate assembly in a vertical 21
position. Alternatively, the Requester argues that rollers that may replace or 22
supplement the side guide plates 22F, 23F are legs configured to assist with 23
maintaining the gate assembly in a vertical position. (See Resp. Br. Req’r 2–24
3). 25
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The Patent Owner correctly points out that the gate panels 22, 23, 1
even in combination with the supplementary gate panels 22C, 23C and side 2
guide plates 22F, 23F, are not self-supporting in the sense that this 3
combination is not supported by its own parts in use. The gate panels 22, 4
23; the supplementary gate panels 22C, 23C; and the side guide plates 22F, 5
23F, are all supported by the wheels 12, 17 of the base member 10. (See 6
App. Br. PO 7–8; Reb. Br. 3–4). Kleinsasser does not suggest that the side 7
guide plates 22F, 23F, or any rollers that might replace or supplement the 8
plates, play any role in supporting the gate panels 22, 23, or the parts that the 9
gate panels carry. We find that the neither the Examiner nor the Requester 10
has shown that the side guide plates 22, 23F, or any rollers that might 11
replace or supplement the plates, are configured to assist with maintaining 12
the gate panels 22, 23, or the parts that the gate panels carry, in a vertical 13
position. (FF 16–19). 14
The Requester offers no other explanation as to how Kleinsasser’s 15
gate assembly might satisfy the limitations of claims 1, 6, 13, 14, 18 and 23. 16
We do not sustain the rejection of claims 1, 3, 4 and 14–16 under § 102(b) as 17
being anticipated by Kleinsasser. 18
The remaining rejections at issue in this appeal rely on Kleinsasser as 19
a primary reference to teach a self-supporting pet barrier including “at least 20
one leg configured to be coupled to the front barrier, wherein the at least one 21
leg is configured to assist with maintaining the self-supporting pet barrier in 22
a vertical position.” The Requester does not identify any other teaching in 23
the art that might suggest modifying Kleinsasser’s gate assembly so as to 24
satisfy this limitation. Therefore, we do not sustain the rejection under 25
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18
§ 103(a) of claims 2 and 13 as being unpatentable over Kleinsasser and 1
either Lehtonen, Matsuda or Beatty; claims 5–7, 9, 11 and 12 as being 2
unpatentable over Kleinsasser and Scherer; claims 5–9, 11 and 12 as being 3
unpatentable over Kleinsasser and Irisohyama; claim 3 as being unpatentable 4
over Kleinsasser and Monahan; claim 4 as being unpatentable over 5
Kleinsasser and Eisele; claims 10 as being unpatentable over Kleinsasser, 6
Irisohyama and either Lehtonen, Matsuda or Beatty; or claims 17–24 under 7
§103(a) as being unpatentable over Kleinsasser and either Kenichi or 8
Irisohyama. 9
10
DECISION 11
We AFFIRM the Examiner’s decision rejecting claims 1 and 14. 12
We REVERSE the Examiner’s decision rejecting claims 2–13 and 13
15–24. 14
In the event neither party files a request for rehearing within the time 15
provided in 37 C.F.R. § 41.79, and this decision becomes final and 16
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must 17
timely serve notice on the Director of the United States Patent and 18
Trademark Office. See 37 C.F.R. § 90.1 and 3 C.F.R. § 1.983. 19
20
AFFIRMED-IN-PART 21

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Patent Owner:

GARDERE WYNNE SEWELL LLP
INTELLECTUAL PROPERTY SECTION
3000 THANKSGIVING TOWER
1601 ELM ST
DALLAS, TX 75201-4761

Third Party Requester:

PANITCH, SCHWARZE, BELISARIO & NADEL LLP
ONE COMMERCE SQUARE
2005 MARKET ST, SUITE 2200
PHILADELPHIA, PA 19103-7086