Ex Parte 8,230,816 et alDownload PDFPatent Trial and Appeal BoardSep 23, 201595002143 (P.T.A.B. Sep. 23, 2015) Copy Citation 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 ________________ Appeal 2015-004780 Inter Partes Reexamination Control 95/002,143 Patent No. US 8,230,816 B2 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. Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 2 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. Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 3 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 4 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 5 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 6 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 7 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 8 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 9 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 10 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 11 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 12 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 13 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 14 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 15 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 16 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 17 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 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 Appeal 2015-004780 Reexamination Control 95/002,143 Patent US 8,230,816 B2 19 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 Copy with citationCopy as parenthetical citation