Ex Parte Allen

Patent Trial and Appeal Board

Feb 21, 2017

12326331 (P.T.A.B. Feb. 21, 2017)

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.
12/326,331 12/02/2008 Kraig Herman Allen Polyvac.1026 3193
26812 7590
HAYES SOLOWAY P.C.
175 CANAL STREET
MANCHESTER, NH 03101
EXAMINER
KIRSCH, ANDREW THOMAS
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
02/23/2017 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):
TSULLIVAN@HAYES-SOLOWAY.COM
dbrancheau@hayes-soloway.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KRAIG HERMAN ALLEN
Appeal 2015-005195
Application 12/326,331
Technology Center 3700
Before LYNNE H. BROWNE, ANNETTE R. REIMERS, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kraig Herman Allen (Appellant) appeals under 35 U.S.C. § 134 from
the rejection of claims 1—10, 12, 14, 16—18, 20—22, and 24 under 35 U.S.C.
§ 103(a) as unpatentable over McAlpine (US 6,749,077, iss. June 15, 2004)
and Bindman (US 5,367,742, iss. Nov. 29, 1994).1 We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm-in-part.
1 The rejection of claim 5 under 35 U.S.C. § 112, first paragraph is
overcome by the Amendment filed August 8, 2014. See Advisory Act. In
addition, the Examiner withdraws the rejection of claim 23 under 35 U.S.C.
§ 103(a) as unpatentable over McAlpine and Bindman. Ans. 11.
Appeal 2015-005195
Application 12/326,331
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A system for a modular component sterilization case, the
system comprising:
a plurality of case walls, each case wall having a plurality
of through-holes, wherein each of the plurality of through-holes
is formed through an entire thickness of each case wall,
respectively;
a plurality of connectors, each having at least two
connector elements, and at least one bracing element for each of
the at least two connector elements, wherein the at least one
bracing element is positioned a spaced distance from at least one
of the two connector elements, wherein a gap is formed between
the at least one bracing element and the at least one of the two
connector elements, and wherein at least one of the plurality of
case walls is removably insertable within the gap;
at least one protrusion element connected to each of the at
least two connector elements, wherein the at least one protrusion
element is flexibly movable within the gap, and wherein the at
least one protrusion element engages with one of the plurality of
through-holes within at least one of the plurality of case walls
when it is positioned within the gap; and
at least one latch connector having at least one latch
connector element that mechanically connects to one of the
plurality of through-holes within at least one of the case walls
and a latch connected to the at least one latch connector element,
wherein the latch is movable relative to the latch connector
element, wherein the latch releasably engages another of the case
walls.
DISCUSSION
Claims 1—7, 9, 10, 12, 14, and 20—22
Appellant argues claims 1—7, 9, 10, 12, 14, and 20—22 together. See
Appeal Br. 17—19; see also Reply Br. 9. We select independent claim 1 as
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Application 12/326,331
the illustrative claim, and claims 2—7, 9, 10, 12, 14, and 20-22 stand or fall
with claim 1.
The Examiner finds that McAlpine discloses all of the limitations of
claim 1 except for
at least one latch connector having at least one latch connector
element that mechanically connects to one of the plurality of
through-holes within at least one of the case walls and a latch
connected to the at least one latch connector element, wherein
the latch is movable relative the latch connector element, wherein
the latch releasably engages another of the case walls.
Final Act. 6. The Examiner finds that “Bindman discloses an openable ring
including at least one latch connector (10) having at least one latch
connector element (13) and a latch (14) connected to the at least one latch
connector element, wherein the latch (19) is movable (pivotable) relative the
latch connector element (13).” Id. Based on these findings, the Examiner
determines that it would have been obvious “to have included the latch,
connector, and latch element of Bindman for the purposes of providing a
click or snap closure to the ringlet for secure attachment through a through-
hole aperture in a wall panel, while permitting removal of the ring from the
panel.” Id. (citing Bindman 2:17—32).
Appellant contends that “[n]o combination of McAlpine and Bindman
discloses” “a ‘latch connector element’ that mechanically connects to at least
one of the case walls. A ‘latch’ is connected to the latch connector element.
The latch is movable relative to the latch connector element. And, the latch
releasably engages another of the case walls.” Appeal Br. 14 (emphasis
omitted). In support of this contention, Appellant argues that:
Bindman fail[s] to overcome the shortcomings of McAlpine,
since Bindman teaches that latch connector element 13 and latch
14 are a ‘snap’ or ‘click’ closure which engage together. See Col.
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Application 12/326,331
2, lines 17-44 of Bindman. These structures do not engage with
walls at all—they only engage with each other. Thus, neither
structure identified by the Examiner ‘mechanically connects’ to
one case wall or ‘releasably engages’ to another case wall, as
required by claim 1.
Id. at 16.
Responding to this argument, the Examiner explains that:
Appellant’s drawings as originally filed at Figs. 8 and 9 do not
specifically show any configuration of the latch connector
element 36 “mechanically connecting” to any of the through-
holes, nor is it described in the specification at the first paragraph
of the Detailed Description, spanning pages 4-5: “The latch
connector 18 includes at least one latch connector element 36 that
mechanically connects to one of the case walls 12, 12 A. A latch
46 is movably oriented relative to the latch connector element 36.
The latch 46 releasably engages another of the case walls 12,
12A”, and latch 46 is only shown as potentially engaging a case
wall by contact only, as it is projections 32, 38, and 48 which are
described by the specification at the first paragraph of page 7, as
engaging through the through-holes. Therefore, the threshold of
what can be considered engagement of the latch and latch
connector element with the case walls is at most by mere contact
as defined by the original specification as filed, and the contact
of the connectors 41 of Me Alpine et al. modified by Bindman
with the through holes at least during assembly meets the
requirement of the claim [ed] mechanical connection to the
through-holes and releasabl[e] engagement with the through-
holes.
Ans. 12—13. In other words, the Examiner construes the claim terminology
“mechanically connects to” as broad enough to encompass indirect
connection, such as the connection between the latching ends of Bindman’s
ring 10 to an item the ring is attached to via an opening in that item. In
support of this claim construction, the Examiner directs our attention to
Figures 8 and 9, the paragraph spanning pages 4—5 of the Specification, and
the first paragraph on page 7 of the Specification. See id. The Examiner
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Application 12/326,331
construes the claim language “releasably engages” as broad enough to
encompass indirect engagement in a similar manner. See id.
Replying to this argument, Appellant focuses on the Examiner’s
statement about contact “at least during assembly” and argues that:
Appellant believes the Examiner is now reasoning that while
placing the shower curtain ring of Bindman through the holes in
the walls, it is possible that the point 13 and the cavity 14 will at
least each momentarily engage with a different wall. The cavity
14 of Bindman cannot engage with the hole in the wall panel 11
of Me Alpine.
Reply Br. 7. However, as discussed supra, we do not understand the
rejection to propose engagement of Bindman’s cavity 14 and McAlpine’s
hole in the wall panel 11. Rather, we understand the rejection to rely on
engagement of Bindman’s ring with McAlpine’s holes in its wall panel to
meet the limitation at issue. Thus, Appellant does not apprise us of error.
Appellant further argues that in the proposed combination “[t]he
panels clearly would be held together by the entire shower curtain ring when
the point 13 engages with the cavity 14, not by any engagement of the point
13 or cavity 14 with a wall.” Reply Br. 8. However, in view of the
uncontested claim construction applied by the Examiner, claim 1 does not
preclude indirect engagement via the ring body. Accordingly, Appellant
does not apprise us of error.
In addition, Appellant argues that “locking projections 32, 38, and 48
engaging with holes in a case wall is more than ‘mere contact,’ such as the
momentary contact during assembly the Examiner relies on.” Reply Br. 8.
However, as discussed supra, we do not understand the rejection to only rely
on such momentary contact. Thus, Appellant’s argument is unconvincing.
Finally, Appellant argues that:
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Application 12/326,331
The key to understanding the flawed rejection is to
recognize the unambiguous fact that pending claim 1 is directed
to a “latch connector element” being engaged with one case wall
and a “latch” being engaged with a different case wall, and the
rejection is based on a “latch connector element” which engages
with the “latch.”
Reply Br. 9 (emphasis omitted). However, this argument is not
commensurate in scope with claim 1, as claim 1 does not preclude either the
latch connector element or the latch from being engaged with the same wall,
so long as the latch also engages a different wall. Thus, Appellant does not
apprise us of error.
For these reasons, we sustain the Examiner’s decision rejecting claim
1, and claims 2—7, 9, 10, 12, 14, and 20-22, which fall therewith.
Claim 8
The Examiner finds that “McAlpine et al. in view of Bindman
discloses the claimed invention including wherein the latch is pivotally
connected to . . . the latch connector element [because] the living hinge of
the ring of Bindman must be pivoted to remove/engage the latch elements 13
and 14[].” Final Act. 8—9.
Appellant contends that “Bindman fails to disclose any pivotal
connection between structures 13 and 14, identified by the Examiner as the
latch connector element and the latch, respectively.” Appeal Br. 18. In
support of this contention, Appellant argues that “[o]ne having skill in the art
would not consider deflection properties of a shower curtain holder ring to
equate to being ‘pivotally connected.’” Id. at 18—19.
Responding to this argument, the Examiner explains that “Appellant’s
pivotal connection functions under the same deflection properties as those
exhibited by Bindman. Appellant does not disclose any manner of pivotal
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Application 12/326,331
connection between the latch and latch connector element other than the ‘the
latch connector element 36 may be a flexible tabs [sic]. . Ans. 14 (citing
Spec. 9:14—11:2).
Replying to this argument, Appellant directs our attention to “page 10,
line 22 of the description [which] states, ‘ [a] latch 46 is pivotable with the
latch frame 44 at a proximal end of the latch 46’ and FIG. 9 [which]
illustrates a pivoting latch.” Reply Br. 10.
“In determining the ordinary and customary meaning of the claim
term as viewed by a person of ordinary skill in the art, it is appropriate to
consult a general dictionary definition of the word for guidance.” Comaper
Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (citing Phillips c.
AWHCorp., 415 F.3d 1303, 1322-23 (Fed. Cir. 2005) (enbanc)). An
ordinary and customary meaning of the noun “pivot” is “a shaft or pin on
which something turns” and for the adjective “pivot” is “turning on or as if
on a pivot.” Merriam-webster.com, http://www.merriam-
webster.com/dictionary/pivot (last accessed February 15, 2017). Thus, an
ordinary and customary meaning of the claim term “pivotally” is turning as
if on a shaft or pin. As shown in the marked-up copy of Figure 9 reproduced
below, in the instant invention, latch 46 turns at the pivot axis indicated
(which appears to be a live hinge) as if on a shaft. Thus, the definition
discussed supra, is consistent with the use of this term in the Specification,
and we adopt it as our own.
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Application 12/326,331
Figure 9 depicts a side view of a latch connector. See Spec. 4.
Bindman fails to disclose elements 13 and 14 turning as if on a shaft,
a pin, a pivot axis, or any similar structure. Thus, Appellant is correct that
Bindman’s latch is not pivotally connected to its latch connector element.
For this reason, we do not sustain the Examiner’s decision rejecting
claim 8.
Claims 16—18 and 24
Appellant argues claims 16—18 and 24 together. See Appeal Br. 17,
18. We select independent claim 16 as the representative claim, and claims
17, 18, and 24 stand or fall with claim 16.
The Examiner’s rejection of claim 16 is similar to the rejection of
claim 1 discussed supra, with the addition of findings pertaining to the
bracing element. See Final Act. 10—11. In particular, the Examiner finds
that McAlpine discloses
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Application 12/326,331
a plurality of connectors (as in re claim 1 above), each of the
plurality of connectors having at least a first region and at least a
second region, the first region in substantially symmetrical
opposition to the second region about an axis (see Fig. 6 above),
wherein each region of each of the plurality of connectors
includes a connector element and a pair of bracing elements,
wherein the connector element and the pair of bracing elements
are integrally connected with the connector at a first end and free
from connection at a second end (see Fig. 6 above).
Final Act. 10—11.
To aid in our discussion of this rejection, we include a copy of the
marked-up version of Me Alpine’s Figures 5 and 6 included in the Final
Action:
./**
Figures 5 and 6 illustrate parts of the container. See McAlpine 3:34; see also
Final Act. 5. As quoted above, the Examiner refers to the rejection of claim
1 to identify the elements in McAlpine that correspond to the claimed
plurality of connectors. See id. at 10. The rejection of claim 1 identifies
McAlpine’s comer posts 42 as corresponding to the plurality of connectors.
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Application 12/326,331
See id. at 4. Thus, in this rejection, we understand the Examiner to also
identify Me Alpine’s comer posts 42 as corresponding to the claimed
plurality of connectors. For the connector element and the bracing elements,
the Examiner refers to the marked-up copy of Figure 6, reproduced supra.
See id. at 11. The marked-up copy of Figure 6 identifies the first bracing
element as a portion of Me Alpine’s outer flange 44a and the second bracing
element as a portion of Me Alpine’s inner flange 44b. See id. at 5. This
figure does not indicate what element corresponds to the connector element,
but the rejection identifies the second end of the connector element as
corresponding to the free end of spaced lug 45. See id. at 11. Accordingly,
we understand the rejection to equate spaced lug 45 with the claimed
connector element.
Appellant contends that neither McAlpine nor Bindman disclose “the
connector element and the pair of bracing elements are integrally connected
with the connector at a first end and free from connection at a second end.”
Appeal Br. 17. In support of this contention, Appellant argues that “it is
impossible for the connector element, identified as 44a, to be ‘free from
connection at a second end. ’ Indeed, the connector element 44a would have
one of the bracing elements connected to the end, as is shown in the
annotated figure provided by the Examiner.” Id. at 18.
Appellant’s argument is not responsive to the rejection as articulated
by the Examiner. See Final Act. 10-11. As discussed supra, the rejection
equates spaced lug 45 with the claimed connector element. Spaced lug 45 is
connected to the connector at one end and is “free from connection at the
other end” as required by claim 16. Thus, Appellant’s argument is
unconvincing.
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Application 12/326,331
Accordingly, we sustain the Examiner’s decision rejecting claim 16,
and claims 17, 18, and 24, which fall therewith.
DECISION
The Examiner’s rejection of claims 1—7, 9, 10, 12, 14, 16—18, 20-22,
and 24 is AFFIRMED.
The Examiner’s rejection of claim 8 is REVERSED.
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)(l)(iv).
AFFIRMED-IN-PART
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