Ex Parte Barrese

Board of Patent Appeals and Interferences

Feb 24, 2010

10928844 (B.P.A.I. Feb. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CHARLES BARRESE
____________

Appeal 2009-007179
Application 10/928,844
Technology Center 3700
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Decided: 24 February 2010
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Before JAMESON LEE, SALLY GARDNER LANE and SALLY C.
MEDLEY, Administrative Patent Judges.

MEDLEY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2009-007179
Application 10/928,844

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A. STATEMENT OF THE CASE
Ex-cell Home Fashions Inc. (“Ex-cell”), the real party in interest,
seeks review under 35 U.S.C. § 134(a) of a Final Rejection of claims 14-24.
We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
References Relied on by the Examiner
Moore D489,249 May 04, 2004
Sherman 2,758,645 Aug. 14, 1956
Brewington 1,143,100 Jun. 15, 1915

Rejections on Appeal
The Examiner rejected claims 14, 17-21, 23 and 24 under 35 U.S.C. §
102(b) as anticipated by Brewington.
The Examiner rejected claims 15 and 16 as unpatentable under 35
U.S.C. § 103(a) over Brewington and Sherman.
The Examiner rejected claims 14 and 17-24 as unpatentable under 35
U.S.C. § 103(a) over Moore and Brewington.
The Invention
Ex-cell discloses, referring to Ex-cell’s figure 1 reproduced below
[numbers from figure 1 inserted], a hook for supporting a shower curtain
and shower liner. Abs; Spec. pp. 6-7.
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Application 10/928,844

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Ex-cell’s figure 1 is reproduced below:

Figure 1 depicts a hook.
Claim 14, reproduced from the Claims Appendix of the Brief, reads as
follows:
A hook for simultaneously supporting a shower curtain and a
shower curtain liner on a rod, each of the shower curtain and the
shower curtain liner having an opening therein proximate the top edge
thereof, said hook comprising:
a single continuous wire having a first bend proximate a mid
section of the single continuous wire and first and second sections
extending from the first bend in a generally parallel, spaced
relationship to second and third bends of the single continuous wire,
wherein each of the second and third bends are generally
perpendicular to the first bend and collectively the first, second, and
third bends define a recess to engage the rod, wherein the first section
extends from the second bend to a fourth bend of the single
continuous wire and the second section extends from the third bend to
a fifth bend of the single continuous wire, wherein the fourth and fifth
bends are directed generally opposite from and away from one
another, and wherein the first section extends from the fourth bend to
an end of the first section defining a first upstanding outer member for
engaging the opening of the shower curtain and the second section
extends from the fifth bend to an end of the section defining a second
upstanding outer member for engaging the opening of the shower
curtain liner.

Br. 14, Claims App’x.
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Application 10/928,844

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B. ISSUE
Has Ex-cell shown that the Examiner incorrectly found that
Brewington describes a first bend proximate the mid section of a single
continuous wire and first and second sections extending from the first bend
in a parallel, spaced relationship?
C. FINDINGS OF FACT
Brewington
1. Brewington describes, referring to Brewington’s figure 2 reproduced
below [numbers from figure 2 inserted], a drapery pin composed of a
doubled portion of wire, bent at its upper end at the midlength of the
wire into a hook [10] carried down in its doubled condition [11], [12]
and then twisted [13] reaching point [14] where the two ends are
separated and carried horizontally in the same line but in opposite
directions [15], [16] and from which rings [25] are formed with the
outer ends of the rings extending to vertical pointed pins [26].
P. 1, ll. 77-103; p. 2, ll. 13-18.
Brewington’s figure 2 is below:

Figure 2 depicts a drapery pin.
2. The drapery pin is made of a single strand of wire bent upon itself at
its midlength, the middle portion being partially twisted as desired and
the ends carried in opposite directions horizontally and thereafter bent
laterally and horizontally. P. 1, ll. 67-76.
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3. The doubled portion of the wire is carried down in its doubled
condition at [11] to [12] and is then twisted at [13]. P. 1, ll. 77-85.
4. Brewington depicts the two sections of the doubled portion of wire
that extend from the bend at the upper end of the midlength of the
wire as being in contact with one another. Figs. 2-6.
D. ANALYSIS
Anticipation of Claims 14, 17-21, 23 and 24
Independent claim 14 recites (disputed limitations in italics): “[a]
hook . . . comprising: a single continuous wire having a first bend proximate
a mid section of the single continuous wire and first and second sections
extending from the first bend in a generally parallel, spaced relationship to
second and third bends of the single continuous wire . . . .” Br. 14, Claims
App’x.
Ex-cell and the Examiner disagree as to whether Brewington
describes the disputed limitation. Referring to annotated figure 1 below, the
Examiner finds that Brewington describes a single continuous wire including
first and second sections extending to first, second and third U-shaped bends
collectively defining a recess (i.e., hook [10]). Ans. 4.
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Brewington’s annotated figure 1 is below:

Annotated figure 1 depicts a drapery hook.
The Examiner further finds that the first and second sections of
Brewington’s “doubled portion of the wire” are spaced to at least some
degree since they are not connected together and are disposed adjacent to
one another. Ans. 5. Last, the Examiner finds that spaces between the first
and second sections of wire are illustrated in figure 2 at twisting [13]. Ans.
5-6.
Ex-cell directs attention to a dictionary definition and argues that the
term “spaced relationship” means a relationship in which there is a space
between the two wire sections and which are not in physical contact with
each other. Br. 7. Ex-cell further argues that Brewington’s description of “a
single strand of wire … bent upon itself at mid-length” indicates that the two
portions are bent into contact with one another precluding a spaced
relationship. Br. 8. Ex-cell also argues that the twisting [13] of the doubled
portion of wire would keep the doubled portions in contact with each other.
Br. 8.
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Contrary to the Examiner’s findings, Brewington depicts the first and
second sections of wire that extend from the first bend at the mid section of
the wire as contacting one another. Figs. 2-6. Since the first and second
sections of wire extending from the first bend contact one another, they are
also physically connected to one another, such as by friction, rather than
having a spaced relationship.
In addition, even assuming that there are spaces between the first and
second sections of wire at twisting [13] as the Examiner finds, such a
description does not meet the disputed claim limitations. The spaces
between the wires at twisting [13] are not located on the first and second
sections of wire extending from the first bend proximate the mid section to
the second and third bends. See annotated figure 1 above. The spaces
between the first and second sections of wire at twisting [13] are located
beyond the second and third bends, rather than at a location extending from
the first bend to the second and third bends.
For all these reasons, the Examiner erred in finding claims 14, 17-21,
23 and 24 anticipated by Brewington.
Obviousness of claims 15 and 16
As applied by the Examiner, Sherman does not make up for the
deficiencies of Brewington. For the same reasons as those explained before
addressing claims 14, 17-21, 23 and 24, the Examiner erred in determining
that claims 15 and 16 would have been obvious over Brewington and
Sherman.
Obviousness of claims 14 and 17-24
As applied by the Examiner, Moore does not make up for the
deficiencies of Brewington. For the same reasons as those explained before
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Application 10/928,844

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addressing claims 14, 17-21, 23 and 24, the Examiner erred in determining
that claims 14 and 17-24 would have been obvious over Moore and
Brewington.
E. CONCLUSION
The Examiner incorrectly found that Brewington describes a first
bend proximate the mid section of a single continuous wire and first and
second sections extending from the first bend in a generally parallel, spaced
relationship.
F. ORDER
The decision of the Examiner rejecting claims 14, 17-21, 23 and 24
under 35 U.S.C. § 102(b) as anticipated by Brewington is reversed.
The decision of the Examiner rejecting claims 15 and 16 as
unpatentable under 35 U.S.C. § 103(a) over Brewington and Sherman is
reversed.
The decision of the Examiner rejecting claims 14 and 17-24 as
unpatentable under 35 U.S.C. § 103(a) over Moore and Brewington is
reversed.
REVERSED

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