Ex Parte Blau

Board of Patent Appeals and Interferences

Jul 16, 2010

11187098 (B.P.A.I. Jul. 16, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
11/187,098 07/22/2005 Irwin Blau PP 2005/1 5998
7590 07/16/2010
PHILIP G. KOENIG
UNIT 114
7 WAINWRIGHT ROAD
WINCHESTER, MA 01890
EXAMINER
POON, PETER M
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
07/16/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte IRWIN BLAU
____________

Appeal 2009-010556
Application 11/187,098
Technology Center 3600
____________

Before JOHN C. KERINS, MICHAEL W. O’NEILL and FRED A.
SILVERBERG, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL1

1The 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 on the PTOL-90A cover letter attached to this decision.
Appeal 2009-010556
Application 11/187,098

2
STATEMENT OF THE CASE
Irwin Blau (Appellant) seeks our review under 35 U.S.C. § 134 of the
Examiner’s final rejection of claims 1-9, the only claims pending in the
application.2 We have jurisdiction under 35 U.S.C. § 6(b) (2002). We
REVERSE.
THE INVENTION
Appellant’s claimed invention is to a humane animal trap. Claim 1,
reproduced below, is illustrative of the claimed subject matter, and reads as
follows:
1. A humane animal trap comprising:

an elongated plastic enclosure having at one end a
rectangular opening for permitting entry by an
animal; and

an integral one-way door hinged to the top of said
opening, said door having an upper portion
comprising a plurality of apertures providing an
ample supply of air to a trapped animal and a
weighted lower portion, and said door further
having a height slightly greater than the height of
said opening whereby said door is adapted when at
rest to close said opening and to swing uniformly
upward into said opening when pressed against by
an animal entering the trap.

2 Appellant also “appeals” the decision of the Examiner to make final the
second office action (dated March 24, 2008). This action taken by the
Examiner is not appealable, rather, any redress that might be available for
this action must be sought by petition.
Appeal 2009-010556
Application 11/187,098

3
THE REJECTIONS
The Examiner has rejected claims 1-9 as failing to meet the written
description requirement set forth in the first paragraph of 35 U.S.C. § 112.
The Examiner has also rejected claims 1-9 under 35 U.S.C. § 103(a) as
being unpatentable over Stahl (US 5,682,705, issued Nov. 4, 1997) in view
of Relf (US 6,029,392, issued Feb. 29, 2000).
ISSUES
Does Appellant’s application as originally filed evidence that
Appellant was in possession of an invention directed to a humane animal
trap that includes an integral one-way door?
Does the Stahl patent disclose or suggest an animal trap having an
integral one-way door having a plurality of apertures that are capable of
providing an ample supply of air to a trapped animal, and having a weighted
lower portion?

ANALYSIS
35 U.S.C. § 112, First Paragraph, Written Description Requirement
The Examiner asserts that the term “integral” is not supported by the
original disclosure, noting that “the specification, drawing, and claims never
mentioned that the door is integral until after the first Office Action was
mailed. (Answer 5). Appellant counters that, “[t]hroughout the description
of the invention, in the application as filed, and in all of the drawings, only
doors of integral construction are shown or described.” (Appeal Br. 7).
Appellant cites to several excerpts from the Specification, including one
found in paragraph [021], which states that Figures 1-3 “illustrate[] an
animal trap of the enclosure type, consisting of only two discrete parts, . . .
enclosure 10 . . . and a one-way metal or hard plastic door”. (Id.).
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Application 11/187,098

4
The Specification does not use the term “integral” in describing or
defining a characteristic of the door. Notwithstanding, Figures 1-3 of the
drawings illustrate doors that consist of or are composed of parts that
together constitute a whole.3 It is well established that, under proper
circumstances, drawings alone may provide a written description of an
invention as required by §112. Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555,
1564 (Fed. Cir. 1991). Here, a person of ordinary skill in the art would
recognize that Appellant was in possession of an invention that includes an
integral one-way door, in that Appellant’s disclosure makes clear that the
door is one of two discrete parts making up the trap, as buttressed by
Appellant’s acknowledgement that Figures 1-3 all show forms of an integral
door.
The rejection of claims 1-9 under 35 U.S.C. §112, first paragraph, will
not be sustained.
35 U.S.C. § 103(a)--Obviousness--Stahl in view of Relf
The Examiner found that the Stahl patent discloses all features set
forth in the claims with the exception of forming the enclosure of plastic,
and concludes that it would have been obvious to form the Stahl enclosure
from plastic in view of Relf. Appellant does not contest that conclusion, and
instead contends that three elements found in claim 1 are not disclosed by
Stahl.4 More particularly, Appellant argues that Stahl does not disclose an
integral door; does not disclose a door having apertures that allow a supply

3 See definition of “integral”, RANDOM HOUSE DICTIONARY (2010), accessed
at http://dictionary.reference.com/browse/integral (last viewed on July 12,
2010).
4 Appellant does not present any separate arguments for the patentability of
dependent claims 2-9.
Appeal 2009-010556
Application 11/187,098

5
of air to a trapped animal; and does not disclose a door with a weighted
lower portion.
Appellant asserts that the Stahl door is not of integral construction, in
that it is made up of a door panel 30, and lure housing 38 that is detachably
mounted on the door panel, and a lure 40 placed within the housing.
(Appeal Br. 9). Nowhere, however, does Stahl disclose that the lure housing
is detachable, under any normal conditions, from the door panel. Stahl does
not appear to contemplate replacing the lure after the trap is constructed.
Furthermore, a person skilled in the art would recognize that it would be
extremely undesirable to have a detachable lure housing, in that the
probability of a trapped animal gaining access to the lure contained within
the housing would be dramatically increased.
We agree with the Examiner that “Stahl has an integral door as much
as the present invention does”. (Answer 6). Appellant considers to be
“integral” the doors illustrated in Figures 4 and 5, which doors have a
“separately manufactured element . . . secured by any suitable means to the
front or rear surface of door 12 at its base.” (Spec., para. [026]; Appeal Br.
7). The door construction in Stahl, too, has a separately manufactured
element (the lure housing) mounted on the rear surface of the door. (Stahl,
col. 1, l. 27).
We also agree with the Examiner that the door in Stahl has the
claimed “lower weighted portion”, in that the lure housing, as illustrated,
does not extend to the top part of the door. (Stahl, Fig. 3).
We part ways with the Examiner with regard to the finding that the
door in Stahl includes a plurality of apertures that provide an ample supply
of air to a trapped animal. The Examiner reasons that Stahl does not
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Application 11/187,098

6
disclose that a trapped animal will suffocate in the trap, therefore an
adequate air supply reaches the animal, some of which passes through
apertures 36. (Answer 6). This reasoning conflicts with the teachings of
Stahl. Stahl provides apertures 36 on door panel 30 to allow an animal-
attracting odor from the lure to escape outwardly of the trap. (Stahl, col. 1,
ll. 31-34). Stahl further discloses that the lure housing on the inner side of
the door panel is closed on the top, bottom, sides, and back. (Stahl, col. 2, ll.
26-29). This arrangement, according to Stahl, prevents the animal from
getting to the lure, as it is enclosed in the lure housing. (Stahl, col. 1, ll. 38-
40). As such, it appears that none of the apertures 36 are open to the inside
of the trap, and are thus not capable of providing an air supply to an animal
trapped inside.
The rejection of claim 1, and of dependent claims 2-9, which is based
in part on this erroneous finding, will not be sustained.

CONCLUSIONS
Appellant’s application as originally filed evidences that Appellant
was in possession of an invention directed to a humane animal trap that
includes an integral one-way door.
The Stahl patent does not disclose or suggest an animal trap having a
plurality of apertures that are capable of providing an ample supply of air to
a trapped animal.

Appeal 2009-010556
Application 11/187,098

7
DECISION
The decision of the Examiner to reject claims 1-9 is reversed.

REVERSED

mls

PHILIP KOENIG
UNIT 114
7 WAINWRIGHT ROAD
WINCHESTER, MASSACHUSETTS 01890