Ex Parte Brown et al

Patent Trial and Appeal Board

Sep 6, 2016

12351610 (P.T.A.B. Sep. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/351,610 0110912009
7590
Kelly, Holt & Christenson
113 West Main Street
Waconia, MN 55387
09/07/2016
FIRST NAMED INVENTOR
Jack Brown
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
A04.12-0016 9139
EXAMINER
HESS, DANIEL A
ART UNIT PAPER NUMBER
2876
MAILDATE DELIVERY MODE
09/07/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte JACK BROWN, MARK STULZ, and DAN ADAIR
Appeal2015-004581
Application 12/351,610
Technology Center 2800
Before BEYERL YA. FRANKLIN, A VEL YN M. ROSS, and
MICHAEL G. MCMANUS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1, 3-16, and 21-25. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
1 In our Decision below, we refer to the Specification filed March 30, 2009
(Spec.), the Final Office Action appealed from mailed July 11, 2014 (Final
Act.), the Appeal Brief filed November 14, 2014 (Appeal Br.), the
Examiner's Answer mailed February 23, 2015 (Ans.), and the Reply Brief
mailed March 9, 2015 (Reply Br.).
2 Appellants identify the real party in interest as APG Cash Drawer LLC, the
assignee of the instant application. Appeal Br. 3.
Appeal2015-004581
Application 12/351,610
STATEMENT OF CASE
The claims are directed to short depth cash drawer with downstream
checkout placement. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A checkout stand comprising:
a scanner:
a short depth cash drawer, wherein the short depth cash
drawer is located downstream from the scanner in relation to a
direction of movement of items through the checkout stand,
wherein the short depth cash drawer has an inner drawer that is
moveable between an opened and a closed position, and wherein
the inner drawer intersects the direction of movement of items
through the checkout stand when it is in the opened position;
a customer area of the checkout stand:
a cashier area of the checkout stand:
a raised ledge that is at least approximately parallel to the
direction of movement of items through the checkout stand, the
raised ledge at least partially separating the customer area of the
checkout stand from the cashier area of the checkout stand; and
wherein the scanner and the short depth cash drawer are
located such that the raised ledge is between the cash drawer and
the customer area of the checkout stand.
Claims Appendix at Appeal Br. 14.
REJECTIONS
The Examiner rejects claims 1, 3-16, and 21-25, under 35 U.S.C.
§ 103 (a), as being unpatentable over Daugs. 3
Appellants seek our review of the Examiner's rejection of claims 1, 3-
16, and 21-25 as obvious over Daugs. Appeal Br. 5.
3 Daugs et al., US 2003/0155418 Al, published August 21, 2003 (hereinafter
"Daugs").
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Application 12/351,610
OPINION
The Examiner rejects claims 1, 3-16, and 21-25, under 35 U.S.C.
§ 103(a), as being unpatentable over Daugs. Final Act. 3. Specifically, the
Examiner finds that Daugs teaches each element of claim 1, as well as
claims 10 and 22. Id. 3--4, 7, and 8. According to the Examiner (and
relevant to arguments raised below), Daugs teaches that "[t]he outer drawer
in figure 4a is seen to be biased partially to the left of the scanner ... and the
inner cash drawer within that drawer is located on the left side within the
drawer (see figure 1 b ). " Id. at 3. The Examiner also finds that the check
writing stand of Daugs satisfies the "raised ledge" limitation of claim 1. Id.
The Examiner acknowledges that a drawer that is partially downstream may
not be viewed as properly downstream because of overlap, but the Examiner
concludes that it would have been "clearly obvious to move [the drawer]
even further to the left of the podium of Daugs et al. is seen to be too
crowded or congested. This is a mere rearrangement with no new technical
functionality needed." Id. at 3--4.
Claim 1
Appellants argue that missing from the teachings of Daugs are at least
two limitations required by claim 1 (and dependent claims): ( 1) a "short
depth cash drawer ... located downstream from the scanner" and (2) a
"raised ledge at least partially separating the customer area ... from the
cashier area." Appeal Br. 7 and 10. Relevant to the location of the cash
drawer, Appellants urge that "Daugs does not show the inner cash drawer is
located on the left side within the drawer ... the entirety of the cash drawer
assembly 10 is located within, and substantially comprises the entirety of
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Application 12/351,610
cash drawer 464." Appeal Br. 8. Further, Appellants contend, that the "cash
drawer of Daugs is positioned on top of the scanner and, thus even if it is
slightly biased to the left, is not located downstream from the scanner" nor is
the cash drawer located downstream from the scanner "in relation to a
direction of movement of items through the checkout stand." Id. Appellants
reject the Examiner's assertion that a simple rearrangement of the
components of Daugs would have been obvious to avoid congestion as
congestion would not have been alleviated nor would rearrangement have
solved the problems of conventional drawers. Id. at 9. Appellants explain
that their claimed arrangement has numerous advantages over the art
including avoiding interference with customer communications and
lessening of cashier fatigue and strain from bending over and twisting. Id. at
8-9.
The Examiner reiterates his finding that the short depth cash drawer is
at least partially downstream from the scanner. Ans. 8. And, according to
the Examiner, if a location partially downstream is insufficient, then only a
simple rearrangement of the elements present in Daugs is necessary to
achieve claim 1. Id. 8-9. The Examiner's rationale for making this
modification is that Daugs is "too crowded or congested." Id. at 9.
Specifically, the Examiner explains that
[a]s figure 4A shows, the Point-of-Sale station in Daugs et al.
packs all of the elements into one small portion of the checkout
area. Spreading these elements out such as by moving the cash
drawer to the cashier's left would relieve some of this congestion.
This would be especially helpful for short cashiers, whose view
might be obstructing by Daugs et al.' s vertical stack of Point-of-
Sale elements.
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Application 12/351,610
Id. And, the Examiner finds that "[t]here is nothing functionally different in
Daug et al.' s arrangement if the cash drawer is moved slightly to the
cashier's left." Id.
We agree with Appellants that the cash drawer of Daugs is not askew
and therefore downstream from the scanner. Rather, we find, and Daugs
makes clear, that its cash drawer is located at a position above and in line
with the scanner. Daugs i-f 14 ("opening the cash drawer over the scanner"),
i-f57 (the "[c]ash drawer 464 opens into the space over the scanner 442"), and
Fig. 4B.
We next consider the Examiner's argument (Final Act. 3--4) that a
mere rearrangement of the components of Daugs would yield the
Appellants' invention. Again we must disagree.
The principle of "rearrangement of the parts" finds its roots in In re
Japikse, 181F.2d1019, 1023 (CCPA 1950). There, claims were held
unpatentable because rearranging the position of a starting switch would not
have modified the operation of the device. Id. But, Japikse does not stand
for a per se rule of obviousness simply through rearrangement of individual
parts nor does it displace the requirement of an articulated reason to support
the proposed modification. See In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir.
1992); Ex Parte Chicago Rawhide Mfg. Co., 223 USPQ 351 (Pat. & Tr.
Office Bd. App.), 1984 WL 63568 at *3.
The mere fact that the prior art may be modified in the manner
suggested by the Examiner does not make the modification
obvious unless the prior art suggested the desirability of the
modification.
Fritch, 972 F.2d at 1266.
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Application 12/351,610
Here, the Examiner reasons that the rationale or motivation to
rearrange the Daugs' design comes from Daugs "being 'too crowded or
congested."' Ans. 9. However, the Examiner has made no showing and
cited no evidence that the skilled artisan would have found a need to
alleviate any supposed congestion or crowding. Furthermore, even
assuming arguendo such motivation to avoid congestion existed, the
Examiner has failed to articulate any reason for the skilled artisan to choose
move the cash drawer to the cashier's left, much less, the particular
arrangement of claim 1-i.e., where
the short depth cash drawer is located downstream from the
scanner in relation to a direction of movement of items through
the checkout stand ... and wherein the inner drawer intersects
the direction of movement of items through the checkout stand
when it is in the opened position.
Claims Appendix at Appeal Br. 14.
Thus, we determine that the Examiner has not provided sufficient
underlying reasoning or analysis to support a conclusion that it would have
been obvious to modify the prior art in the manner proposed in the rejection.
Accordingly, we do not sustain the rejection of claim 1 and its dependent
claims.
Claim 10
Claim 10, in relevant part, requires "a stationary work surface that has
a fixed height and that extends between the short depth cash drawer and the
cashier area such that the customer area and the cashier area are at least
partially separated along the length of the stationary work surface." Claims
Appendix at Appeal Br. 16 (emphasis added). The Examiner, in rejecting
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Application 12/351,610
claim 10, makes no additional findings other than those discussed for claims
1 through 9. Final Act. 7. Nowhere in the Examiner's rejection of claims 1
through 9 does the Examiner make a finding regarding the stationary work
surface being "a fixed height" or "extend[ing] between the short depth cash
drawer and the cashier area such that the customer area and the cashier area
are at least partially separated along the length of the stationary work
surface," as required by claim 10. As a result, the Examiner failed to
establish a prima facie case of obviousness. To satisfy its initial burden of
production, the Examiner must "notify the applicant ... [by] stating the
reasons for such rejection, or objection or requirement, together with such
information and references as may be useful in judging the propriety of
continuing the prosecution of his application." 35 U.S.C. § 312; see also In
re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (same). Thus, on this record,
we cannot sustain the Examiner's rejection of claim 10, and its dependent
claims.
Claim 22
Claim 22, in relevant part, requires
A raised ledge that is at least approximately parallel to the
direction of movement of items through the checkout stand, the
raised ledge at least partially separating the customer area of the
checkout stand from the cashier area of the checkout stand and
wherein the raised ledge also separates the short depth cash
drawer from the customer area of the checkout stand.
Claims Appendix at Appeal Br. 17 (emphasis added). Similar to claim 10,
discussed above, the Examiner makes no specific findings with respect to
the additional limiting language of claim 22. Final Act. 8. Furthermore, the
Examiner's discussion of claims 1 through 21 neglects to make the requisite
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findings that "the raised ledge also separates the short depth cash drawer
from the customer area of the checkout stand," as recited in claim 22.
Accordingly, the Examiner has not satisfied the initial notice requirement of
§ 132 and we will not sustain the Examiner's rejection of claim 22 and
claims depending therefrom.
CONCLUSION
The Examiner erred in rejecting claims 1, 3-16, and 21-25 as obvious
in view of Daugs.
DECISION
For the above reasons, the Examiner's rejection of claims 1, 3-16, and
21-25 is reversed.
REVERSED
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