Ex Parte Andersen

Board of Patent Appeals and Interferences

Apr 10, 2009

10768222 (B.P.A.I. Apr. 10, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte John L. ANDERSEN
____________________

Appeal 2009-3238
Application 10/768,2221
Technology Center 3600
____________________

Decided:2 April 10, 2009
____________________

Before JAMESON LEE, RICHARD TORCZON, and MICHAEL P.
TIERNEY, Administrative Patent Judges.

TIERNEY, Administrative Patent Judge.

DECISION ON APPEAL

1 Real Party of Interest in this case is Builder’s Best, Inc. (App. Br. 2)
2 The two-month period for filing an appeal or commencing a civil action,
as recited in 37 C.F.R. § 1.304, begins to run from the decided date shown
on this page of the decision. The time period does not run from the Mail
Date (paper delivery) or Notification Date (electronic delivery).
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A. STATEMENT OF THE CASE
This is a decision on appeal by the real party in interest, Builder’s
Best, Inc. under 35 U.S.C. § 134(a) from a final rejection of claims 1-17.
Appellant requests reversal of the Examiner’s rejection of those claims. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.

References Relied on by the Examiner
Simon 2,752,217 Dec. 21, 1953
Harpenau 6,419,102 B1 Jul. 16, 2002
Mustoe 6,938,640 B2 Sep. 6, 2005

The Rejections on Appeal
The Examiner rejected claims 1-7 and 9-17 under 35 U.S.C. § 103(a)
as unpatentable over Mustoe (U.S. 6,938,640 B2) in view of Simon (U.S.
2,752,217).
The Examiner rejected claim 8 under 35 U.S.C. § 103(a) as
unpatentable over Mustoe (U.S. 6,938,640 B2) in view of Simon (U.S.
2,752,217) and further in view of Harpenau (U.S. 6,419,102 B1).
The Invention
The invention relates to in-wall housings for venting clothes dryers.
The housings can be attached to a wood wall stud of a house or other
building through the use of standoffs that attach and hold the housing.
(Spec., p. 1; App. Br., Claims App’x.).
Claims 1, 10 and 17 are independent claims. Appellant argues claims
1, 10, and 17 together, with claims 2-7 and 10-17 standing or falling together
with independent claims 1, 10, and 17. Appellant argues claim 8 separately.
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Claim 1 is illustrative of the claimed invention and is reproduced below:
1. A housing for dryer venting comprising:
a top wall, a bottom wall, and two side walls, that
combined define an inner space sized to house a portion of
venting attached to a clothes dryer;
a front face plate extending from at least one of the walls;
and
a plurality of standoffs extending rearwardly from the
front plate wherein each of the standoffs has a portion adapted
to attach to a wood stud to hold the housing in place.
(App. Br., Claims App’x.). Claim 8 depends from claim 4, which depends
from claim 1, where claim 8 requires top, bottom and side walls be at angle
of from 90.5 to 92.5o degrees with respect to a rear wall. (Id.).
B. ISSUE
1. Has Appellant shown that the Examiner erred in determining that
attaching cabinets to wall studs represents analogous art?
2. Has Appellant shown that the Examiner erred in determining that the
combined teachings of Simon and Mustoe provide reason to one of ordinary
skill in the art to attach dryer housings to wall studs via rearwardly
extending standoffs?
3. Has Appellant shown that the Examiner relied upon impermissible
hindsight in relying upon three references to arrive at the claimed invention
of claim 8?

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C. FINDINGS OF FACT
Mustoe
1. Mustoe teaches a housing (“box”) assembly 20, 22 for the in-wall
(recessed) mounting of a dryer exhaust hose 40. (Mustoe, col. 3, ll. 22-25;
col. 4, ll. 43-46; figs. 1, 3, and 5-6).
2. Mustoe, figures 1 and 3, depicted below, respectively show the
structure and mounting detail of the housing:

Figure 1 is depicted above and shows the shape of the housing 22.
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Figure 3 is depicted above and shows the housing 22 mounted
between two wall studs 66.
3. Mustoe teaches flanges 36, designed to be fastened to wall studs 66
that are disposed behind the flanges 36. (Id., col. 4, ll. 47-49; fig. 3).
4. The Examiner found that the fastening means taught by Mustoe for
attaching flanges 36 (called a front-face plate by Examiner) to the studs 66,
amounted to the use of rearwardly extending fasteners. (Ans., p. 4 and 7).
5. The Appellant has not disputed the Examiner’s finding that Mustoe
teaches rearward extending fasteners, extending from a front face plate.
Simon
6. Simon teaches an improved means for installing cabinets, wherein the
improvement is directed to overcoming time-consuming and inaccurate
installations, associated with conventional in-wall housings. (Simon, col. 1,
ll. 18-28).
7. Simon teaches that its invention is directed to cabinets, but for
convenience Simon states that its invention will be described as a medicine
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cabinet with the understanding that the principles “can be applied with equal
cogency to other types of cabinets.” (Id., col. 1, ll. 18-22).
8. Simon’s medicine cabinet, has recesses 36, defined by lateral
protuberances 50 having arcuate edges 51 that engage adjacent surfaces of
wall studs 30 and serve to resist dislodgement of the cabinet 10. (Id., col. 3,
ll. 13-15 and 29-40).
9. Simon, figures 2 and 4, depicted below, show a protuberance 50, an
arcuate edge 51 of the protuberance, and a wall stud 30:

Figures 2 and 4, depicted above, show a protuberance, an arcuate edge
of the protuberance, and a wall stud.
10. Simon teaches that the arcuate edges 51 of the protuberances 50 act as
wedges or dogs to resist dislodgement or outward movement of the cabinet.
(Simon, col. 3, ll. 31-38).
11. Simon further teaches that the arcuate edges 51 of the protuberances
reduce both the load on the fasteners used to mount the cabinet and also their
tendency to pull out of the studs 30. (Id., col. 3, ll. 38-41).
12. Simon additionally teaches that the arcuate edges 51 are designed so
that they bite into the inner edges of the stud 30 in the manner of a hook,
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such that removal of the cabinet is prevented even in the absence of nails or
screws. (Id., at col. 3, ll. 46-53).
13. The Examiner found that Simon’s acurate edges 51 amounted to a
beveled portion that acted to assist in boring the standoffs (“protuberances
50”) into the wood stud. (Ans., p. 4-5).
Harpenau
14. Harpenau teaches a wall outlet box for a dryer vent exhaust conduit
(Harpenau, Abstract, col. 3, ll. 62-63).
15. The Examiner found that Harpenau teaches a top wall, bottom wall,
and side wall, that are at angles greater than 90 degrees with respect to the
back wall. (Ans., p. 5 and 8).
16. Appellant did not dispute the Examiner’s finding that Harpenau
teaches a top wall, bottom wall, and side wall, that are at angles greater than
90 degrees with respect to the back wall.
D. PRINCIPLES OF LAW
An invention is not patentable under 35 U.S.C. § 103 if it is obvious.
KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1745-46 (2007). The
determination of obviousness requires a suggestion of all limitations in a
claim. CMFT Inc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1342 (Fed. Cir.
2003) (citing, In re Royka, 490 F.2d 981, 985 (CCPA 1974)). The
suggestion of all limitations however need not be literally expressed in the
prior art. In re Sheckler, 438 F.2d, 999, 1001 (CCPA 1971). In particular,
the combination of familiar elements according to known methods is likely
to be obvious when it does no more than yield predictable results. KSR at
1739.

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E. ANALYSIS
The Rejection of Claims 1-7 and 9-17
The Examiner determined that Appellant’s claims 1-7 and 9-17, which
are directed to dryer unit housings having standoffs, were obvious over
Mustoe and Simon. The Examiner found that Mustoe’s dryer vent housing
comprises a top wall, a bottom wall, two side-walls, a rear wall attached to
the top, bottom, and side walls, and a front face extending from the walls.
(Ans., p. 4). The Examiner also found that Mustoe teaches rearward facing
fasteners extending from the front face. (Id., at p. 7). The Examiner
acknowledged that Mustoe did not teach a plurality of standoffs. (Id., at p.
4). The Examiner however found that Simon taught a cabinet having
plurality of standoffs, which included beveled portions that assisted in
boring the standoffs into wood and aided in holding the cabinet in place.
(Id.). In view of Simon’s teaching of standoffs, the Examiner concluded that
it would have been obvious to one of ordinary skill to utilize the standoffs of
Simon in place of the rearward facing fasteners of Mustoe to prevent the
cabinet from being dislodged from the studs. (Id., at p. 4-5 and 7-8).
Appellants contend that claims 1-17 and 9-17 are non-obvious over
the prior art. The appellant states that the combination of Mustoe in view of
Simon does not render the claims obvious, for the following reasons: (1)
Simon is not analogous art; (2) Appellant’s standoffs, unlike Simon’s
protuberances, “are used to protrude into a stud and assist in attaching the in-
wall ventilation housing to a stud;” and (3) the combination of Mustoe and
Simon does not teach a faceplate having rearward facing standoffs. Each of
these issues is addressed below.
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Analogous Art
Appellant argues that Simon is non-analogous art, because it is
directed to a medicine cabinet, rather than a box for dryer ventilation. (App.
Br., at p. 6).
References qualify as prior art for an obviousness determination only
when analogous to the claimed invention. In re Bigio, 381 F.3d 1320, 1325
(Fed. Cir. 2004). Two separate tests define the scope of analogous prior art:
(1) whether the art is from the same field of endeavor, regardless of the
problem addressed, and (2) if the reference is not within the field of the
inventor's endeavor, whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved. Id.
Appellant’s field of endeavor is the attachment of in-wall box-like
housings to building studs. Simon teaches that its invention is directed to
cabinets, but for convenience, Simon states that its invention will be
described as a medicine cabinet with the understanding that the principles
“can be applied with equal cogency to other types of cabinets.” (Simon, col.
1, ll. 18-22). Simon’s cabinet, like Appellant’s dryer housing, is a box-like
structure that is designed to be mounted in a wall between two studs or other
vertical members. (Simon, col. 1, ll. 15-17). Thus, as both Simon and
Appellant’s invention are from the same field of endeavor, attachment of in-
wall boxes to studs, we conclude that Simon represents analogous art.
Additionally, Appellant’s stated problem to be solved is the mounting
of an in-wall box to a stud. More particularly, Appellant states that typical
in-wall boxes have a lip extending around the face of the box, which
requires extra caulking and/or drywall cutting steps during installation.
(Spec. pgs. 1-2). Appellant seeks an in-wall box for dryer venting that is
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less laborious to install. (Id., at 2). Even if the cabinet of Simon were from
a different field of endeavor, the teachings of Simon would have
commended themselves to the inventor’s attention, because Simon also
relates to overcoming time-consuming and inaccurate installations
associated with conventional in-wall housings. (Simon, col. 1, ll. 18-28).
Accordingly, we find that the Examiner did not err in concluding that Simon
was analogous art.
Protruding into Stud
Appellant contends that the protrusions of Simon do not protrude into
a stud and assist in attaching the cabinet to a stud. (Rep. Br., p. 1). None of
Appellant’s claims explicitly require that the standoff “protrude into a stud.”
There are three independent claims, claims 1, 10 and 17. Independent
claim 1, requires a plurality of standoffs wherein each of the standoffs has a
portion adapted to attach a wood stud to hold the housing in place. (App.
Br., Claims App’x.). Independent claim 10 requires that at least one
standoff have a beveled portion adapted to sink into a wood stud when
pressure is applied to the housing. (Id.). Independent claim 17 requires the
step of applying pressure against a housing to force a portion of the standoff
into the wood stud. (Id.).
Simon discloses protuberances 50 having arcuate edges 51 that
engage adjacent surfaces of wall studs 30 for the purpose of resisting
dislodgement of the cabinet 10. (Simon, col. 3, ll. 29-40). Simon further
teaches that the arcuate edges 51 are designed to bite into the inner edges of
the stud 30 in the manner of a hook, such that removal of the cabinet is
prevented even in the absence of nails or screws. (Id., at col. 2, ll. 38-53).
Accordingly, we agree with the Examiner and find that Simon describes
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protuberances (standoffs) that meet the standoff limitations recited in
Appellant’s claims.

Rearward Facing Standoffs
Appellant contends that the combination of Mustoe in view of Simon
does not teach the use of rearward extending standoffs. Appellant states that
Simon’s standoffs are located on the side, rather than on the face plate.
(App. Br., p. 6). Appellant also states that common sense does not suggest
the obviousness of the claimed invention. (Id.).
Obviousness, is not limited to the express teachings of a single prior
art reference, but is based upon what the combined teachings of the prior art
suggests to the person of ordinary skill in the art. In re Keller, 642 F.2d 413,
425 (CCPA 1981). Mustoe describes the use of rearward engaging
fasteners, extending from the front-face 36 to a stud 66 behind the face.
Simon teaches that standoffs facilitate the installation of cabinets. One of
ordinary skill in the art has ordinary creativity and is not an automaton. One
of ordinary skill in the art would have recognized that Simon’s standoffs,
which Simon uses to fasten sidewalls, would also facilitate in the installation
of Mustoe’s “rearward” engaging fasteners. Accordingly, we find that the
Examiner did not err in finding that the combination of Mustoe and Simon
teach the use of rearward facing standoffs extending rearward from a front
face plate.
We sustain the rejection of claims 1-7 and 9-17, under 35 U.S.C.
§103(a), as obvious over the combination of Mustoe and Simon.

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The Rejection of Claim 8
Claim 8 requires that Appellant’s top wall, bottom wall and side walls
be at an angle of 90.5 to 92.5o with respect to the rear wall. The Examiner
held claim 8 to be obvious over Mustoe and Simon and Harpenau.
Harpenau teaches a dryer vent housing comprising a top wall, bottom
wall, and side walls that are at an angle of greater than 90° with respect to
the rear wall (Ans. p. 5). The Examiner found that one of ordinary skill in
the art would have known and recognized that the angles claimed were
suitable for dryer vent housings. (Id.). Based on these findings the
Examiner concluded that use of the claimed angles would have been obvious
to one of ordinary skill in the art, in view of Mustoe, Simon, and Harpenau,
for the purpose of enabling the housing to fit in apertures that could not fit a
straight walled box. (Id., at p. 6 and 8-9).
Appellant contends that the addition of Harpenau to the combination
of Mustoe and Simon amounts to hindsight. (App. Br., p. 6-7). In
particular, Appellant contends that the use of three references (Mustoe,
Simon, and Harpenau) to arrive at the claimed invention is a strong indicator
of hindsight. (Reply Br., p. 1-2).
Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning. Such a reconstruction is
proper however, so long as it takes into account only knowledge, which was
within the level of ordinary skill at the time the claimed invention was made,
and does not include knowledge gleaned only from the applicant's
disclosure. In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Moreover, the reliance on a large number of references in a rejection does
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not, without more, weigh against the obviousness of the claimed invention.
In re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991).
Harpenau teaches a dryer vent housing comprising a top wall, bottom
wall, and side walls that are at an angle of greater than 90° with respect to
the rear wall. Appellant does not dispute the Examiner’s finding that it was
known in the art that not all housing or apertures for in-wall boxes include
straight walls or sides. Appellant also does not dispute the Examiner’s
finding that one of ordinary skill in the art would have appreciated that the
selection of the claimed angles would permit the attachment of in-wall boxes
to accommodate the fitting of the housing within an aperture. (Ex. Ans.,
pgs. 5-6). We conclude that the selection of the claimed angles for the in-
wall box having rear facing standoffs would have been obvious to one of
ordinary skill in the art as it combines known in-wall box elements (angled
top/bottom/side walls) for their known purpose (accommodate the
attachment of the in-wall box to a stud) to yield predictable results (ease of
installation).
We sustain the Examiner’s rejection of claim 8 under 35 U.S.C.
§103(a), as obvious over the combination of Mustoe, Simon, and Harpenau.
F. CONCLUSION
Appellant has not shown that the Examiner erred in determining that
attaching cabinets to wall studs represents analogous art.
Appellant has not shown that the Examiner erred in determining that
the combined teachings of Simon and Mustoe provide reason to one of
ordinary skill in the art to attach dryer housings to wall studs via rearwardly
extending standoffs.
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Appellant has not shown that the Examiner employed impermissible
hindsight in demonstrating that claim 8 would have been obvious to one of
ordinary skill in the art.
G. ORDER
The rejections of claims 1-7 and 9-12 under 35 U.S.C. § 103(a) as
unpatentable over Mustoe in view of Simon is affirmed.
The rejections of claim 8 under 35 U.S.C. § 103(a) as unpatentable
over Mustoe in view of Simon and Harpenau is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

rvb

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