Ex Parte Child

Board of Patent Appeals and Interferences

Dec 23, 2002

09455064 (B.P.A.I. Dec. 23, 2002)

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not written for publication and is not binding precedent of the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. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte FRANK CHILD
__________
Appeal No. 2002-1119
Application 09/455,064
___________
ON BRIEF
___________
Before ABRAMS, FRANKFORT, and McQUADE, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's refusal to
allow claims 3 and 4 as amended subsequent to the final rejection
in a paper filed September 13, 2001 (Paper No. 8). Claims 3 and
4 are all of the claims remaining in this application, claims 1
Appeal No. 2002-1119
Application 09/455,064
pane is closed and the keys or other means of releasing the locks
are not available. Independent claim 3 is representative of the
subject matter on appeal and a copy of that claim may be found in
the Appendix to appellant’s brief.
The prior art references relied upon by the examiner in
rejecting the appealed claims are:
Konopacki 3,438,290 Apr. 15, 1969
Fenner 4,706,525 Nov. 17, 1987
Weinraub 4,836,061 Jun. 6, 1989
Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Konopacki in view of Fenner.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Konopacki in view of Fenner and Weinraub.1
Rather than attempt to reiterate the examiner's full
commentary with regard to the above-noted rejections and the
conflicting viewpoints advanced by the examiner and appellant
regarding those rejections, we make reference to the examiner's
answer (Paper No. 15, mailed January 10, 2002) for the reasoning
in support of the rejections, and to appellant’s brief (Paper No.
Appeal No. 2002-1119
Application 09/455,064
14, filed December 27, 2001) and reply brief (Paper No. 18, filed
February 19, 2002) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant’s specification and claims, to
the applied prior art references, and to the respective positions
articulated by appellant and the examiner. As a consequence of
our review, we have made the determinations which follow.
Looking first at the examiner’s rejection of claim 3 under
35 U.S.C. § 103(a) based on the collective teachings of Konopacki
and Fenner, we note that Konopacki discloses an apparatus and
method of gaining entry to a locked automobile when the keys or
other means of releasing the door locks are not available. As
can be readily discerned from Figure 1 of that patent, the form
of automobile in Konopacki is one having a pair of front and back
roll-up windows (6, 7) adjoining each other at vertical edges and
between which a blade or tool (18) like that seen in Figure 3 of
Konopacki may be inserted to pry the windows apart to provide a
Appeal No. 2002-1119
Application 09/455,064
the vehicle, the rod member subsequently being manipulated from
outside the vehicle at handle end (17) to engage and release the
lock button (9) via hook end (16).
Fenner discloses another form of door unlocking device that
can be utilized with a vehicle having a frameless window that
seals directly against a gasket carried by the vehicle roof
support pillar or with a vehicle having a door and window
assembly like that seen in Figures 3 and 4 of Fenner (note col.
5, lines 22-37). The tool or device (10), and more particularly
the insertion tip (50) thereof, is positioned adjacent the
exterior of the vehicle door and window with the flexible wires
(18, 20) retracted so the small loop (66) and eye (68) are
shielded within the insertion tip (50). The insertion tip is
then inserted between either the door frame (84) and resilient
sealing gasket through opening (86) or between the window glass
(82) and its resilient gasket, depending on the style and
configuration of the vehicle. Once the insertion tip and a
portion of guide member (40) have been inserted into the vehicle
Appeal No. 2002-1119
Application 09/455,064
loop is snug about the knob (90). Continued retraction of wires
(18) and (20) via handles (60, 62) will elevate the knob (90) to
unlock the door.
The examiner has determined that the difference between that
which is shown in Konopacki and the subject matter defined in
claim 3 on appeal is that Konopacki does not have the recited
“window frame” configuration, and more specifically that it does
not have the particular door, door seal weatherstrip and window
frame arrangement set forth in claim 3, lines 4-8. To account
for these differences, the examiner has turned to Fenner, urging
(answer, page 4) that it would have been obvious to one of
ordinary skill in the art at the time of appellant’s invention
“to have provided the invention of Konopacki with a door seal
weatherstrip in a door frame engaging the door perimeter when the
door is closed and a window frame surrounding a window pane, in
light of the teachings of Fenner, since it is well known in the
art that cars have the claimed window frames.” The examiner then
urges that one of ordinary skill in the art would have found it
Appeal No. 2002-1119
Application 09/455,064
observing that Konopacki clearly teaches inserting a wedge (18)
and probe (10) between two elements and that Fenner also clearly
teaches inserting a probe between two elements (84) and (88).
After careful consideration, we must agree with appellant’s
argument (brief, pages 4-9 and reply brief) that the references
to Konopacki and Fenner would not have been fairly combinable in
the manner urged by the examiner to render obvious the method
claimed by appellant. Given the disparate nature of the
particular door and window arrangement as seen in Konopacki (Fig.
1) and that disclosed in Fenner (Figs. 3-4), we see no teaching,
suggestion or incentive for modifying the vehicle of Konopacki in
the manner urged by the examiner. The examiner’s reasoning that
such a modification would have been obvious merely because “it is
well known in the art that cars have the claimed window frames”
(answer, page 4), in our view, provides no substantive
evidentiary basis for the proposed modification of the particular
door and window arrangement as shown and taught in Konopacki to
be like that shown in Fenner. As for the examiner’s further
Appeal No. 2002-1119
Application 09/455,064
Like appellant, it is our opinion that there is no basis in
the references themselves which would have been suggestive of the
totally reconstructive combination of their individual features
as proposed by the examiner, and that the only suggestion for the
particular combination urged by the examiner comes from hindsight
derived from appellant’s own disclosure. Accordingly, it is our
determination that the examiner’s rejection of claim 3 under
35 U.S.C. § 103(a) as being unpatentable over Konopacki and
Fenner will not be sustained.
Turning now to the examiner’s rejection of claim 4 under
35 U.S.C. § 103(a) as being unpatentable over Konopacki, Fenner
and Weinraub, we must again agree with appellant (brief, page 9)
that the applied references utilized by the examiner are not
fairly combinable in the manner urged by the examiner. Weinraub
represents yet another apparatus and method of gaining entry to a
locked automobile when the keys or other means of releasing the
door locks are not available. In Weinraub a small wedge (32) is
inserted at the outside of a closed window (34) and slid
Appeal No. 2002-1119
Application 09/455,064
downwardly along the outside of the window, through the entry
space (38), under the bottom edge of the window and ultimately
into the interior of the vehicle, where a short hook portion (22)
is then positioned to engage a door lock switch or lever (50).
The examiner utilizes the Weinraub patent for its teaching
of a plastic wedge (col. 5, lines 35-36), urging that it would
have been obvious to one of ordinary skill in the art “to provide
the invention of Konopacki/Fenner with the prying tool being made
of plastic material” (answer, page 5). Even if we were to accept
such a modification of the metal prying tool involved in the
examiner’s proposed combination of Konopacki and Fenner, we see
nothing in Weinraub which overcomes the above-noted deficiency in
the basic combination of the prior art as applied against claim 3
on appeal. Thus, the examiner’s rejection of dependent claim 4
under 35 U.S.C. § 103(a) as being unpatentable over Konopacki,
Fenner and Weinraub will not be sustained.
Appeal No. 2002-1119
Application 09/455,064
It follows from the foregoing that the decision of the
examiner rejecting claims 3 and 4 of the present application
under 35 U.S.C. § 103(a) is reversed.
REVERSED
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JOHN P. McQUADE )
Administrative Patent Judge )
Appeal No. 2002-1119
Application 09/455,064
Joseph G. Nauman
696 Renolda Woods Ct.
Dayton, OH 45429