Ex Parte Braxton

Board of Patent Appeals and Interferences

Aug 31, 2011

10034720 (B.P.A.I. Aug. 31, 2011)

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.
10/034,720 12/28/2001 Earl J. Braxton NMC104A US 2117
21133 7590 09/01/2011
VAN OPHEM & VANOPHEM, PC
REMY J VANOPHEM, PC
51543 VAN DYKE
SHELBY TOWNSHIP, MI 48316-4447
EXAMINER
LE, HUYEN D
ART UNIT PAPER NUMBER
3751
MAIL DATE DELIVERY MODE
09/01/2011 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 EARL J. BRAXTON
____________

Appeal 2011-011860
Application 10/034,720
Technology Center 3700
____________

Before DONALD E. ADAMS, ERIC GRIMES, and
RICHARD M. LEBOVITZ, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL

This appeal under 35 U.S.C. § 134 involves claims 1-3, 5, 7, 8, 10, 12,
13, 15, 17, and 21 (App. Br. 3). Claims 4, 9, 14, and 18-20 were “withdrawn
from consideration” (id.). We have jurisdiction under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
The instant application was the subject of an earlier appeal to this
Board (Appeal No. 2007-1421, Application No. 10/034,720, decided March
28, 2007, Request for Rehearing denied April 29, 2008).
Appeal 2011-011860
Application 10/034,720

2
Claim 1 of Appeal No. 2007-1421 and claim 1 before us in this
Appeal are reproduced below (italics is used to emphasize where the two
claims differ):
Claim 1 of Appeal No. 2007-1421:
1. A portable toilet shelter comprising:
a base; and
a loop enclosure circumscribing said base, said loop enclosure
comprising:
opposed planar end walls, each end wall having
longitudinally oriented opposed side edges;
opposed planar side walls between said planar opposed
end walls, each of said planar side walls having longitudinally
oriented opposed side edges; and
means for movably connecting said longitudinally
oriented opposed side edges of said planar side walls to said
longitudinally oriented opposed side edges of said end walls
such that said opposed planar end walls and said opposed
planar side walls complete said loop enclosure;
said portable toilet shelter being in a partially disassembled
folded state when said loop enclosure is collapsed, wherein one
each of said opposed planar end walls is in direct contact with at
least a portion of a respective one of said planar side walls, said
loop enclosure being collapsible to a stackable folded planar state
having a thickness one each of said planar end walls and one each
of said planar side walls for transporting said portable toilet
shelter;
said portable toilet shelter being in a partially erected state
when said planar end walls are in an unfolded position
respectively away from said planar side walls and said loop
enclosure is in an upright and self-supporting position, wherein
said planar side walls are substantially parallel to one another and
said planar end walls are also substantially parallel to one
another, such that said planar side walls are substantially
transverse to said planar end walls.

Claim 1 of the present Appeal:
Appeal 2011-011860
Application 10/034,720

3
1. A portable toilet shelter comprising:
a base; and
a loop enclosure circumscribing said base, said loop enclosure
comprising:
opposed planar end walls, each end wall having
longitudinally oriented opposed side edges;
opposed planar side walls between said planar opposed
end walls, each of said planar side walls having longitudinally
oriented opposed side edges; and
means for movably connecting said longitudinally
oriented opposed side edges of said planar side walls to said
longitudinally oriented opposed side edges of said end walls
such that said opposed planar end walls and said opposed
planar side walls are in an erected, unfolded in-use position
when said planar side walls are substantially parallel to one
another and said planar end walls are also substantially
parallel to one another;
said loop enclosure being in a full disassembled final
state when said loop enclosure is collapsed, wherein one each
of said opposed planar end walls is in direct contact with at
least a portion of a respective one of said planar side walls,
when said loop enclosure is collapsed in a non-use partially
disassembled state to a stackable final folded planar state
having a thickness one each of said planar end walls and one
each of said planar side walls for transporting said portable
toilet shelter.

The prior art rejections presented in this Appeal are the same as those
presented in Appeal No. 2007-1421.
Claims 1, 2, 5, 7, 10, 12, 15, 17, and 21 stand rejected under 35 U.S.C
§ 103(a) as unpatentable over the combination of Dahl
1
and Tegg.
2

1
Dahl, US 2,820,256, issued January 21, 1958.
2
Tegg et al., US 4,744,111, issued May 17, 1988.
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Application 10/034,720

4
Claims 3, 8, and 13 stand rejected under 35 U.S.C § 103(a) as
unpatentable over the combination of Dahl, Tegg and Braxton.
3

We affirm.

ISSUE
Does the preponderance of evidence on this record support a
conclusion of obviousness?
FACTUAL FINDINGS
FF 1. We incorporate the factual findings set forth in Appeal No. 2007-
1421 as set forth in both the Decision entered March 28, 2007 and Decision
on Request for Rehearing entered April 29, 2008.
ANALYSIS
After consideration of the record, which includes Appellant’s Brief,
the Examiner’s Answer, and the prior decisions of this panel in Appeal No.
2007-1421, we are not persuaded that the differences between claim 1 now
before us on Appeal and claim 1 presented in Appeal No. 2007-1421 are
sufficient to support patentability for the reasons set forth in Appeal No.
2007-1421 (FF 1).
CONCLUSION OF LAW
The preponderance of evidence on this record supports a conclusion
of obviousness. The rejection of claim 1 under 35 U.S.C § 103(a) as
unpatentable over the combination of Dahl and Tegg is affirmed. Because
they are not separately argued claims 2, 5, 7, 10, 12, 15, 17, and 21 fall
together with claim 1. 37 C.F.R. § 41.37(c)(1)(vii).

3
Braxton, US 4,380,836, April 26, 1983.
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Application 10/034,720

5
The rejection of claim 3 under 35 U.S.C § 103(a) as unpatentable over
the combination of Dahl, Tegg and Braxton is affirmed. Because they are
not separately argued claims 8 and 13 fall together with claim 3. 37 C.F.R. §
41.37(c)(1)(vii).
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc