Ex Parte Blake

Board of Patent Appeals and Interferences

Sep 10, 2010

10909827 (B.P.A.I. Sep. 10, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte THOMAS E. BLAKE, III
____________

Appeal 2009-011972
Application 10/909,827
Technology Center 3600
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Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown in the PTOL-90A cover letter attached to this decision.

Appeal 2009-011972
Application 10/909,827

STATEMENT OF THE CASE
Thomas E. Blake, III (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 8, 10 and 13. The Examiner withdrew
claims 1-7, 9, 11, 12, and 14-17 from consideration as being drawn to a non-
elected invention and non-elected species. We have jurisdiction under
35 U.S.C. § 6(b).

The Invention
The claimed invention is to a releasable latch for a vehicle which
latches together two parts, such as a cover to a cargo hold.
Claim 8, reproduced below, with emphasis added, is representative of
the subject matter on appeal.
8. A releasable latch having a latched condition
latching two parts together and an unlatched condition
releasing a cover for movement relative to another part,
said releasable latch comprising:
a base molded of a first plastic material;
a handle supported by said base and being movable
relative to said base to latch and unlatch said parts, said
handle being molded of a second plastic material different
than said first plastic material;
a catch supported by said base and said handle to
form a molded assembly, said catch being movable to the
unlatched condition relative to said base by movement of
said handle, said catch being molded of a third plastic
material different than said first plastic material and
different than said second plastic material,
said first plastic material, said second plastic
material, and said third plastic material each having
different and dissimilar properties such that said base,
said handle, and said catch are unlikely to adhere to each
other during the molding of said base, said handle, and
said catch.
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Application 10/909,827

The Rejections
The following Examiner’s rejection is before us for review:
Claims 8, 10, and 13 are rejected under 35 U.S.C. § 103(a) as obvious
over Sandhu (U.S. Patent No. 5,292,159, issued Mar. 8, 1994) in view of
Ruegg (U.S. Patent No. 5,568,952, issued Oct. 29, 1996).2

SUMMARY OF DECISION
We REVERSE.

OPINION
Issue
In light of the Appellant’s contentions and the Examiner’s positions,
the issue before us is as follows:
Did the Examiner err in concluding that the combination of Sandhu
and Ruegg discloses first, second and third plastic materials each having

2 We note that the Final Office Action mailed September 11, 2006 had
claims 8 and 13 rejected under 35 U.S.C. § 102(b) as anticipated by Sandhu
and claim 10 rejected under 35 U.S.C. § 103(a) as obvious over Sandhu in
view of Ruegg. However, in the Grounds of Rejection section of the
Examiner’s Answer mailed November 27, 2007, there was no mention of the
35 U.S.C. § 102(b) rejection of claims 8 and 13, only a rejection of claims 8,
10, and 13 under 35 U.S.C. § 103(a) as obvious over Sandhu in view of
Ruegg. Accordingly, on February 24, 2009, the application was remanded
to the Examiner for clarification regarding the status of the 35 U.S.C.
§ 102(b) rejection of claims 8 and 13. On April 3, 2009, the Examiner
responded by noting that the rejection of claims 8 and 13 under 35 U.S.C.
§ 102(b) as anticipated by Sandhu was withdrawn. Therefore, the only
remaining rejection for our review is the rejection of claims 8, 10, and 13
under 35 U.S.C. § 103(a) as obvious over Sandhu in view of Ruegg.
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different and dissimilar properties such that the base, the handle, and the
catch are unlikely to adhere to each other during the molding of the base, the
handle, and the catch?
Analysis
Appellant contends that the combination of Sandhu and Ruegg fails to
disclose all of the limitations of the claims. Reply Br. 12. More
particularly, Appellant contends that “neither Sandhu et al. nor Ruegg taken
alone or in combination disclose or suggest that the first plastic material, the
second plastic material, and the third plastic material each have different and
dissimilar properties such that the base, the handle, and the catch are
unlikely to adhere to each other during the molding of the base, the handle,
and the catch.” Reply Br. 14. Appellant also contends that the claim
recitation of the first, second, and third plastic material each having different
and dissimilar properties such that the base, the handle, and the catch are
unlikely to adhere to each other during the molding of the base, the handle,
and the catch does not recite a method of forming, but rather is “a limitation
of the properties of the base, the handle, and the catch and how these
elements react to one another.” Id.
The Examiner’s position is that Sandhu discloses all the limitations of
claim 8, except that Sandhu “fails to positively [recite] that the first, second
and third plastic material[s] each have different and dissimilar properties
such that the base, the handle and the catch are unlikely to adhere to each
other during the manufacturing of the base, the handle and the catch.” Ans.
3. The Examiner posits that Ruegg “teaches that it is well known in the art
to provide a latch mechanism that has different parts (20 and 40) of different
plastic material[s] (Col. 5 Lines 45-56) wherein the materials are capable of
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Application 10/909,827

being molded together (Col. 8 Lines 12-14)” and that “[b]y being molded
together, the different materials are capable of having different and
dissimilar properties so that the members are unlikely [to] adhere to each
other.” Ans. 4. The Examiner concludes that “[i]t would have been obvious
to one having ordinary skill in the art at the time the invention was made to
provide the elements of the device described by Sandhu ‘159 with a
respective material that is capable of having different and dissimilar
properties such that the elements are unlikely to adhere to each other during
manufacturing in order to reduce time and cost of the process.” Id.
Sandhu discloses a latch mechanism 10 for releasably locking a
vehicle glove box door, the latch mechanism 10 having a latched condition
and an unlatched condition. Col. 2, ll. 29-35. The latch mechanism 10
includes a body or housing 20, a handle member 22, and a locking or
actuator member 24. Col. 2, ll. 36-39. The handle member 22 is pivotably
supported on the body or housing 20 in receptive apertures 36, 38. Col. 2,
ll. 43-46. The actuator member 22 is spring biased by spring 36 and is
supported on the handle member 24 and the body or housing 20. Col. 2,
ll. 30-42. The body or housing 20 is formed of a 30% glass reinforced
plastic material, such as for example Rynite®. Col. 3, ll. 61-63. The handle
member 22 is preferably formed of a 30% glass reinforced molded plastic,
such as for example nylon. Col. 3, ll. 63-65. The actuator member 24 is
preferably formed of an injection molded plastic material such as Delrin®.
Col. 4, ll. 1-3.
Ruegg discloses a shackle seal having a body portion 10, a socket or
housing 20, and an elongated strap 12. Col. 4, l. 63 through Col. 5. l. 18.
The socket or housing 20 is generally conical in configuration and has an
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Application 10/909,827

inlet opening 21 and an outlet opening 22. Col. 5, ll. 18-22. The body
portion 10, the strap 12 and the socket or housing 20 are preferably
integrally formed of synthetic resinous material having some resiliency such
as polyethylene or polypropylene. The strap 12 may be securely engaged
within the socket or housing 20 by at least two separate locking assemblies
or cages 40, 41. Col. 5, ll. 49-50. The cages 40, 41 are provided within the
socket or housing 20 and are molded or formed of a resinous material having
a higher melting point, e.g., long chain synthetic polymeric amides generally
known as nylon, than the resinous material of the strap 12 and socket or
housing 20. Col. 5, ll. 51-56. In some embodiments, the fixed locking cage
40 may be molded together with the socket or housing 20 while a separate
floatable or movable locking cage 41 may be separately molded and inserted
in the opposite end of the socket or housing 20 thereafter. Col. 8, ll. 11-16.
We agree with Appellant that the recitation of “said first plastic
material, said second plastic material, and said third plastic material each
having different and dissimilar properties such that said base, said handle,
and said catch are unlikely to adhere to each other during the molding of
said base, said handle, and said catch” is a limitation of the properties of the
plastic materials of the base, handle, and catch. We also agree with
Appellant that the combination of Sandhu and Ruegg fails to disclose the
claim limitation of the first plastic material, the second plastic material, and
the third plastic material each having different and dissimilar properties such
that the base, the handle, and the catch are unlikely to adhere to each other
during the molding of the base, the handle, and the catch.
We note that the Examiner has simply failed to make any findings
with respect to the plastic materials of Sandhu and Ruegg being unlikely to
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adhere to each other if molded together. More particularly, the Examiner
has not made any findings as to whether the first plastic material (i.e., “30%
glass reinforced plastic material, such as for example Rynite[®]” at column
3, lines 61-62) of Sandhu’s body or housing member 20, the second plastic
material (i.e., “30% glass reinforced molded plastic, such as for example
nylon” at column 3, lines 64-65) of Sandhu’s handle member 22, and the
third plastic material (i.e., “injection molded plastic material, such as for
example Delrin[®]” at column 4, lines 2-3) of Sandhu’s actuator member 24
would be unlikely to adhere to each other during the molding process. The
Examiner has also failed to make any findings as to whether the plastic
material (i.e., “synthetic resinous material having some resiliency such as
polyethylene or polypropylene” at column 5, lines 47-48) of Ruegg’s socket
or housing 20 and the plastic material (i.e., “long chain synthetic polymeric
amides generally known as nylon” at column 5, lines 55-56) of Ruegg’s
locking cage 40 would be unlikely to adhere to each other during the
molding process.
Instead, the Examiner has simply stated that Sandhu discloses
materials capable of having different and dissimilar properties, but that
Sandhu fails to disclose whether the materials are unlikely to adhere during
molding. The Examiner then attempts to cure the deficiencies of Sandhu by
pointing to Ruegg’s statement, at column 8, lines 12-14, that “in some
embodiments, the fixed locking cage 40 may be molded together with the
housing”. But the Examiner’s proffered statement from Ruegg does not
shed any light on whether the plastic material of the socket or housing 20 is
unlikely to adhere to the plastic material of the locking cage 40. In other
words, just because Ruegg discloses that the fixed locking cage 40 and the
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socket or housing 20 are molded together does not mean that the plastic
material of the fixed locking cage 40 does not adhere to the plastic material
of the socket or housing 20 during the molding process. Ruegg is
completely silent as to the whether the two plastic materials are unlikely to
adhere to each other during the molding process.
Therefore, although the Examiner has relied on Ruegg to teach that
two plastic material components can be molded together and not adhere to
each other, the Examiner has not provided any evidence showing this to be
the case. The Examiner’s finding that Ruegg teaches that it is well known in
the art to provide a latch mechanism that has different parts 20, 40 of
different plastic materials that are capable of being molded together and, by
being molded together, the different materials are capable of having different
and dissimilar properties so that the members are unlikely to adhere to each
other, is merely a conclusory statement unsupported by evidence. The
Examiner has simply not established by a preponderance of the evidence that
Ruegg teaches molding together two or more components made of different
plastic materials with the components not adhering to each other once the
molding is completed. Accordingly, the Examiner has not established that
the combination of Sandhu and Ruegg renders obvious a releasable latch as
called for in claim 8, comprising a base, a handle, and a catch made of three
different plastic materials which are unlikely to adhere to each other during
the molding of the base, handle, and catch.
Based on the foregoing, we cannot sustain the Examiner’s decision to
reject claims 8, 10, and 13 under 35 U.S.C. § 103(a) as being obvious over
Sandhu in view of Ruegg.

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CONCLUSION
The Examiner erred in concluding that one of ordinary skill in the art
would modify Sandhu by the teachings of Ruegg in order for its first, second
and third plastic materials to each have different and dissimilar properties
such that the base, the handle, and the catch are unlikely to adhere to each
other during the molding of the base, the handle, and the catch.

DECISION
We reverse the Examiner’s decision to reject claims 8, 10, and 13
under 35 U.S.C. § 103(a) as obvious over Sandhu in view of Ruegg.

REVERSED

Klh

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