Ex Parte Battiston

Board of Patent Appeals and Interferences

Mar 31, 2004

09432313 (B.P.A.I. Mar. 31, 2004)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 38
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JOSEPH BATTISTON
____________
Appeal No. 2004-0331
Application No. 09/432,313
____________
ON BRIEF
____________
Before COHEN, STAAB, and BAHR, Administrative Patent Judges.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
Joseph Battiston (appellant) appeals from the examiner’s Final
Rejection (Paper No. 24, mailed February 27, 2002) of claims 1-4,
12-14 and 18. Claim 11 has been withdrawn from consideration
pursuant to 37 CFR § 1.142(b) as not being readable on the elected
species. Claims 5-10 and 15-17, the only other claims currently
pending in the application, were “objected to as not being readable
on the elected invention” (Final Rejection, page 2). Subsequent to
the Final Rejection, appellant filed a Petition under 37 CFR
Appeal No. 2004-0331
Application No. 09/432,313
1Although the preamble of claim 1 suggests that the claim is
directed to “a pan” per se, a reading of the claim as a whole
makes clear that the claimed subject matter involves both “a pan”
and “a seat” arranged on top of the pan. Accordingly, for
purposes of this appeal, we consider that claims 1-4 and 12-14
are directed to the combination of a pan and a seat. In the
event of further prosecution, this apparent claim inconsistency
is deserving of correction.
2
§ 1.181 (Paper No. 33) requesting the Commissioner to overrule the
examiner’s objection regarding claims 5-10 and 15-17. In a
Decision on Petition (Paper No. 34), the Technology Center Director
determined upon review of the Examiner’s Answer that “the examiner
has withdrawn the objections” and that “these objections are no
longer being made.” Accordingly, appellant’s petition was
dismissed as moot.
Appellant’s invention is directed to a pan for use with a
commode (claims 1-4 and 12-14)1 and to a splash guard pan (claim
18).
The following prior art references are relied upon by the
examiner as evidence of obviousness:
Haskins 2,500,544 March 14, 1950
Ross et al. (Ross) 5,343,573 Sept. 6, 1994
In addition, the examiner relied upon appellant’s admitted
prior art (AAPA) as set forth in the “Background of The Invention”
section of the specification at pages 1-3.
Appeal No. 2004-0331
Application No. 09/432,313
2The Final Rejection also included three additional prior
art rejections; however, these rejections have since been
withdrawn. See page 3 of the Answer under the heading “Issues.”
3
Claims 1-4, 12-14 and 18 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the collective teachings of
AAPA, Rose and Haskins.2
Reference is made to appellant’s Appeal Brief (Paper No. 29)
and to the Examiner’s Answer (Paper No. 30) for the respective
positions of appellant and the examiner regarding the merits of
this rejection.
While appellant states on page 5 of the Brief that claims 1-4
and 12-14 stand or fall as a first group and that claim 18 stands
or falls alone as a second group, we do not see that appellant has
presented a separate argument for each of the groupings with
respect to the above noted rejection maintained by the examiner on
appeal. Accordingly, we shall decide this appeal on the basis of
representative claim 1, with claims 2-4, 12-14 and 18 standing or
falling therewith. See, for example, In re Young, 927 F.2d 588,
590, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991) and In re Wood, 582 F.2d
638, 642, 199 USPQ 137, 140 (CCPA 1978).
Appeal No. 2004-0331
Application No. 09/432,313
3In our evaluation of the applied prior art, we have
considered the entirety of each prior art disclosure for what it
would have fairly taught one of ordinary skill in the art. See
In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the Board has taken into account not
only the specific teachings, but also the inferences which one
skilled in the art would reasonably have been expected to draw
from the applied prior art disclosures. See In re Preda, 401
F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
4
Discussion
In reaching our conclusion on the obviousness issue raised in
this appeal, this panel of the Board has carefully considered
appellant’s specification and claim 1, the teachings of the applied
prior art,3 and the viewpoints of appellant and the examiner. As a
consequence of our review, we make the determination which follows.
We sustain the rejection of claim 1 under 35 U.S.C. § 103(a)
as being unpatentable over AAPA, Rose and Haskins. It follows that
the rejection of claims 2-4, 12-14 and 18 is likewise sustained
since these claims stand or fall with claim 1 as earlier indicated.
Appellant’s claim 1 is directed to a pan having an upper
generally rectangular rim having a front and a rear and an opening
therethrough, the rim having a length and a width with the length
being larger than the width and extending from the front to the
rear, and a seat arranged on the top of the rim and having an
elongated opening which substantially corresponds to the opening in
Appeal No. 2004-0331
Application No. 09/432,313
5
the rim. The pan further includes sides extending downwardly from
the rim to form a bottom portion, with the bottom portion being
displaced rearwardly with respect to the midpoint of the length
dimension.
As aptly recognized by the examiner (Answer, pages 4-5), AAPA
(as described in the “Background” section of appellant’s
specification) reveals knowledge in the art at the time of
appellant’s invention of a commode seat having an opening of
generally circular shape, and a pan that is also circular in
configuration to fit underneath and coincide with the opening in
the commode seat. AAPA also reveals that it was known at the time
of appellant’s invention to provide a commode seat having an
elongated opening where the minor axis width of the elongated
opening is about the same dimension as a prior circular opening and
the major axis length of the elongated opening is longer than a
prior circular opening.
Rose reveals that it was known in the art at the time of
appellant’s invention to provide a commode chair comprising a rim
34 defining an elongated opening 32 where the length is longer than
the width, and a pan 36 configured to fit underneath the seat
having an elongated opening to coincide with the elongated opening
in the seat. Thus, Rose teaches a commode seat and pan combination
Appeal No. 2004-0331
Application No. 09/432,313
4The test for obviousness is what the combined teachings of
the references would have suggested to one of ordinary skill in
the art. See In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881
(CCPA 1981).
6
having corresponding openings that are elongated front to back. It
is also clear from a consideration of Figure 4 and 6 of Rose that
the pan configuration is such that its front surface extends
forward relative to the bottom of the pan, whereby the midpoint of
the bottom of the pan is offset rearwardly relative to the midpoint
of the length dimension of the opening of the pan.
Haskins shows that it was conventional in the bed pan art at
the time of appellant’s invention to provide a pan comprising an
upper rim 40 and four planar sides depending therefrom. As we see
it, Haskins is at least suggestive of a bed pan or commode pan of
generally rectangular shape.
In applying the test for obviousness,4 we conclude that the
collective teachings of AAPA, Rose and Haskins clearly reveals
knowledge in the art that would have been suggestive to the
ordinarily skilled artisan of a pan for use with a commode
configured to have an elongated, generally rectangular opening, and
a cooperating seat having a corresponding elongated opening, as set
forth in appellant’s claim 1. Further, in keeping with the
teachings of Rose, it would have been obvious to the ordinarily
Appeal No. 2004-0331
Application No. 09/432,313
7
skilled artisan to configure the pan such that its front surface
extends forward relative to the bottom of the pan, which would
result in the midpoint of the bottom of the pan being offset
rearwardly relative to the midpoint of the length dimension of the
opening of the pan.
Appellant’s arguments on pages 12-14 of the Brief have been
considered but are not persuasive of error on the part of the
examiner in rejecting the appealed claims as being unpatentable
over AAPA, Rose and Haskins. We simply to not agree with the
argument of appellant that AAPA in combination with Rose and
Haskins fail to teach a pan having a bottom portion being displaced
rearwardly with respect to the midpoint of the length dimension of
the pan opening. From our perspective, this spatial relationship
of the pan bottom relative to the pan opening is clearly taught in
Rose in Figures 4 and 6. More particularly, Figure 4 clearly shows
the midpoint of the bottom of the pan as being offset or displaced
rearwardly relative to the midpoint of the length dimension of the
opening at the top of the pan.
In light of the foregoing, we shall sustain the standing
rejection under 35 U.S.C. § 103(a) of claims 1-4, 12-14 and 18 as
being unpatentable over the collective teachings of AAPA, Rose and
Haskins.
Appeal No. 2004-0331
Application No. 09/432,313
8
The decision of the examiner is affirmed.
No time period for taking any subsequent action in connection
with this appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
LJS/lp
Appeal No. 2004-0331
Application No. 09/432,313
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DAVID A. JACKSON ESQ.
KLAUBER AND JACKSON
411 HACKENSACK AVENUE
HACKENSACK, NJ 07601