Ex Parte Anderson et al

Patent Trial and Appeal Board

Sep 20, 2013

12255473 (P.T.A.B. Sep. 20, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/255,473 10/21/2008 Richard N. Anderson 40518.0008USU1 3396
23552 7590 09/20/2013
MERCHANT & GOULD PC
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
JOHNSON, BLAIR M
ART UNIT PAPER NUMBER
3634
MAIL DATE DELIVERY MODE
09/20/2013 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
____________

Ex parte RICHARD N. ANDERSON, DONALD E. FRASER,
STEPHEN R. HAARER, and EUGENE THOMPSON
____________

Appeal 2011-012668
Application 12/255,473
Technology Center 3600
____________

Before EDWARD A. BROWN, LYNNE H. BROWNE and
CARL M. DeFRANCO JR., Administrative Patent Judges.

DeFRANCO, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-012668
Application 12/255,473

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s final
rejection of claims 1, 3-10 and 12-28. Claims 2 and 11 have been canceled.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
THE CLAIMED SUBJECT MATTER
The claimed subject matter relates to “an improved headrail for an
architectural covering that provides a seal to substantially prevent light
leakage between a top portion of the headrail and an adjacent beam (e.g., a
top window jamb).” Spec., para. [0013]. Claims 1, 13 and 18 are the
independent claims on appeal. Claim 1 is representative of the appealed
claims and recites:
1. A headrail for an architectural covering, the
headrail comprising:
a top surface; and
a light-blocking strip attached to a rear portion of
the top surface, the light-blocking strip comprising a plurality
of bristles extending above the top surface of the headrail,
wherein the bristles are pliable and resilient to conform to
available space between the top surface of the headrail and a
bottom surface of a window jamb when the headrail is mounted
below window jamb.
THE REJECTION ON APPEAL
Appellants seek review of the Examiner’s final rejection of claims 1,
3-10 and 12-28 under 35 U.S.C. § 103(a) as being unpatentable over Tyner
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Application 12/255,473

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(US 2004/0226662 A1, pub. Nov. 18, 2004), Peale (US 5,501,261, iss. Mar.
26, 1996), and Fischbach (US 6,490,832 B1, iss. Dec. 10, 2002).1
ANALYSIS
Appellants argue the claims as a single group and proffer claim 1 as
“representative.” Br. 10. We agree with Appellants’ recognition of claim 1
as representative and treat claims 3-10 and 12-28 as standing or falling with
claim 1.
Appellants do not dispute that Tyner as modified by Peale “teaches
the use of continuous strips or ‘wipers’ to block light spill above a door or
window covering.” Br. 14. Rather, Appellants’ contention lies with the
Examiner’s reliance on Fischbach and the Examiner’s finding and rationale
in substituting Fischbach’s bristle/brush seal 66 for Peale’s rubber seal 110.
Id. at 11-13, 14-15. Specifically, Appellants raise the issue of whether
Fischbach is non-analogous art. Id. at 12. Appellants argue that the function
of Fischbach’s sealing brush (i.e., keeping dust and debris away from
moving parts within the headrail of the door) is not the same as the “light-
blocking” function of the claimed bristle strip and therefore does not create a
prima facie case of obviousness. Id.
The Examiner posits that Fischbach qualifies as analogous art because
it is reasonably pertinent to “the particular problem addressed by Appellant,
which simply is to provide a seal.” Ans. 5. The Examiner found that
Fischbach’s dust seal and Appellants’ light seal are analogous due to the
“physical similarities of the seals, in that they are both long strips of flexible

1 Appellants argue an additional reference, “Dixon.” Br. 13-14. The
Examiner, however, did not rely on Dixon in rejecting the claims on appeal,
thus, we do not address Appellants’ arguments with respect to Dixon.
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material, which flexibility enhances their effectiveness, and the fact that they
are both designed to seal against an unwanted element.” Id. In other words,
because they are both flexible sealing strips designed to seal against
unwanted elements, the Examiner determined that they are analogous and
merely substituting Fischbach’s bristle seal for Peale’s rubber seal would
have been well within the purview of the skilled artisan. Id.
We apply a two-step “test” to determine whether a prior art reference
is “analogous” art and therefore may be used as evidence with respect to a
question of obviousness under § 103. In re Wood, 599 F.2d 1032 (CCPA
1979). Under this two-step test, if a reference is reasonably pertinent to the
particular problem the inventor was trying to solve, then the reference is
analogous and therefore may be used as evidence of obviousness. Id. “A
reference is reasonably pertinent if it, as a result of its subject matter,
‘logically would have commended itself to an inventor’s attention in
considering his problem.’” K-Tec, Inc. v. Vita-Mix Corp., 696 F.3d 1364,
1375 (Fed. Cir. 2012).
Claim 1 is broadly drawn to a “light-blocking strip” that is “pliable
and resilient to conform to [the] space” between a window jamb and the
headrail of an architectural covering. In describing the claimed invention,
the Specification states that the “present invention . . . provides a seal to
substantially prevent light leakage” between the headrail and the window
jamb. Id. at [0013] (emphasis added). As further described, the seal
comprises a “strip 38 [] preferably made from a material that can be easily
compressed between the top surface 24 of the headrail 20 and the top beam
60 to conform and fill in the gap.” Id. at [0026]. Tellingly, the Specification
states that “[m]aterials used for weather stripping exterior doors may
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similarly be used to seal the light gap caused by the standoff between the
headrail and the top beam or jamb of the architectural opening.” Id. at
[0029] (emphasis added); see also [0019]. These descriptions from
Appellants’ Specification reinforce the Examiner’s finding that Fischbach is
analogous art.
The Supreme Court has counseled us to construe the scope of
analogous art broadly, stating that “familiar items may have obvious uses
beyond their primary purposes, and in many cases a person of ordinary skill
will be able to fit the teachings of multiple patents together like pieces of a
puzzle.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007); see also
Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010). With that
instruction in mind, the Federal Circuit has therefore surmised,
for example, that an inventor considering a hinge and latch
mechanism for portable computers would naturally look to
references employing other “housings, hinges, latches, springs,
etc.,” which in that case came from areas such as “a desktop
telephone directory, a piano lid, a kitchen cabinet, a washing
machine cabinet, a wooden furniture cabinet, or a two-part
housing for storing audio cassettes.”

In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1380 (Fed. Cir. 2007)
(quoting In re Paulsen, 30 F.3d 1475, 1481-82 (Fed.Cir.1994)).
Here, an inventor considering pliable and resilient strips for sealing
gaps within a window-type architectural opening would naturally look to
sealing strips used in other types of architectural openings, such as doors.
While Appellants were trying to solve the specific problem of light-
blocking, they did not limit potential solutions to the field of light blocking,
but fully recognized the problem as one of providing a pliable seal that
would conform to the jamb of any type of architectural opening, be it a
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window or a door. As Appellants expressly acknowledge in their
Specification, “weather stripping” for doors is pertinent to the problem of
sealing a light gap. See Spec. [0019] and [0029]. Fischbach’s disclosure of
a pliable seal for filling the gap between a door and its jamb logically would
have commended itself to the inventor’s attention and thus is reasonably
pertinent to the problem faced by Appellants. See K-Tec, 696 F.3d at 1375.
As such, Appellants have not persuaded us that Fischbach is non-analogous
art.
Further, to the extent that Appellants take issue with Fischbach’s
sealing brush being “incorporated within the body of the housing” (Br. 12),
the Examiner did not rely on Fischbach for the location of the seal but rather
relied on Peale, which clearly shows the light-blocking seal 110 on the
outside of the shade’s housing 58. See Peale, Fig. 4. As such, because
Appellants do not address the rejection as articulated by the Examiner, we
are not persuaded of error in the Examiner’s prima facie case of
obviousness.
Accordingly, we sustain the rejection of claim 1 under 35 U.S.C.
§ 103(a) as being unpatentable over Tyner, Peale and Fischbach. We
likewise sustain the rejection of claims 3-10 and 12-28, which fall with
claim 1.

Appeal 2011-012668
Application 12/255,473

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DECISION
We affirm the Examiner’s decision rejecting claims 1, 3-10 and 12-28.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a) (1)(iv).

AFFIRMED

rvb