14545092 (P.T.A.B. Jan. 18, 2018)

Ex Parte Chromey et al

Patent Trial and Appeal BoardJan 18, 2018

14545092 (P.T.A.B. Jan. 18, 2018)

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. 14/545,092 03/24/2015 Steven Chromey 260416/JRS16/406356 8762 7590 Honigman Miller Schwartz and Cohn LLP ENS 350 East Michigan Avenue Suite 300 KALAMAZOO, MI 49007-3800 EXAMINER MAYO-PINNOCK, TARA LEIGH ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 01/22/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): patent @ honigman. com esosenko@honigman.com arhoades @ honigman. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEVEN CHROMEY, MARIO L. STAN, and DONALD E. PRIESTER Appeal 2017-001418 Application 14/545,092 Technology Center 3600 Before ANTON W. FETTING, PHILIP J. HOFFMANN, and ROBERT J. SILVERMAN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1—3, 5, 7—10, 12, and 13. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 According to Appellants, the real party in interest is “Jay R. Smith Manufacturing Company.” Br. 3. Appeal 2017-001418 Application 14/545,092 According to Appellants, the disclosure relates to floor trench drains. Spec. 12. Claims 1 and 7 are the only independent claims on appeal. Below, we reproduce claim 1 as illustrative of the appealed claims.2 1. A generally U-shaped trench drain channel with two walls and a bottom comprising an appliance rib on each side of the channel located between the top of each side and the bottom, the appliance ribs extending substantially the length of the channel, the appliance ribs capable of retaining appliances at any site along their lengths. REJECTION AND PRIOR ART3 The Examiner rejects claims 1—3, 5, 7—10, 12, and 13 under 35 U.S.C. § 102(a)(1) as anticipated by Gunter (US 5,522,675, iss. June 4, 1996). ANALYSIS Regarding independent claim 1, Appellants argue that Examiner’s anticipation rejection is in error because [the] claim for a trench drain channel includes the limitation that the appliance rib [is] “located between the top of each side and the bottom.” In response to [Appellants’] argument on this limitation, [in the Final Office Action] the Examiner stated “Figure 5 off Gunter clearly shows the ribs above the bottom of the channel.” Figure 5 of Gunter shows a bottom wall 14 of the channel (col. 5, line 62). This bottom is clearly above the ribs shown in Fig. 5. The ribs are below the bottom of the channel of Gunter. The location of the appliance rib of the present application is not disclosed in Gunter. 2 We correct an obvious typographical error, changing “applicance” to “appliance” in the fourth line of the claim. 3 In the Answer, the Examiner withdraws obviousness rejections from the Final Office Action. See Answer 2; see Final Action 5—6. 2 Appeal 2017-001418 Application 14/545,092 Br. 7. Appellants do not persuade us of error, however. Rather, we agree with the Examiner that “the claim recites a trench drain channel with two walls and a bottom[, but the claims] fails to limit the bottom of the channel to . . . [the bottom of the] interior [of the channel],” and that Gunter’s Figures 1 and 5 show that “the channel (12) comprises an appliance rib (50) on each side of the channel between the top of each side and the bottom”— i.e., between the top and the bottom of channel 12, the bottom being the portion of channel 12 below rib 50 as shown in Figures 1 and 5, for example. Answer 3. Restated, although we agree with Appellants that Gunter does not show appliance ribs located between the top and the interior of the bottom of the channel, Gunter does show appliance ribs located between the top and the exterior bottom of the channel, and claim 1 does not recite that the ribs are between the top and the interior of the channel bottom. Appellants further argue that claim 1 ’s rejection is in error because “[t]here is no disclosure in Gunter of ribs capable of retaining appliances along the length of the ribs.” Br. 7. Noting that claim 1 recites the appliance ribs “extending substantially the length of the channel” (Br., Claims App.) (emphasis added), we agree with the Examiner that “[i]n no view does Gunter show a channel without an appliance rib, thus the [E]xaminer finds the appliance ribs extend ‘substantially the length of the channel,’” and that no structure is shown [in Gunter] . . . which would preclude the retention of appliances along the lengths of appliance ribs (50)[,] and Appellants do not provide any persuasive argument or evidence explaining why appliances could not be retained at any site along the lengths of [Gunter’s] appliance ribs. Answer 3. 3 Appeal 2017-001418 Application 14/545,092 Thus, based on the foregoing, Appellants do not demonstrate error in the Examiner’s anticipation rejection of claim 1. Therefore, we sustain the rejection. Claim 2 depends from claim 1, and Appellants do not argue separately against the Examiner’s anticipation rejection of claim 2. Thus, we also sustain claim 2’s rejection. Regarding claim 3 that depends from claim 1, Appellants argue that “Gunter does not disclose an outlet hub adaptor attached to the appliance ribs.” Br. 8. However, the Examiner finds that Gunter’s alignment key 30 teaches the claimed adaptor (see, e.g., Final Action 3), and Appellants do not argue that the Examiner’s specific finding regarding Gunter’s key 30 is erroneous. Thus, we sustain claim 3’s rejection. Regarding claim 5 that depends from claim 1, Appellants argue that “Gunter does not disclose a male connector trough.” Br. 8. However, the Examiner finds that Gunter’s male portion 36 of trough 12 teaches the claimed male connector trough (see, e.g., Final Action 3), and Appellants do not argue that the Examiner’s specific finding regarding Gunter’s male portion 36 is erroneous. Thus, we sustain claim 5’s rejection. Appellants’ arguments against the Examiner’s anticipation rejection of independent claim 7 based on Gunter are substantially the same as their arguments regarding claim 1. See Br. 8. Thus, we sustain claim 7’s rejection for the same reasons we sustain claim 1 ’s rejection. Claims 8 and 9 depend from claim 7, and Appellants do not argue separately against the Examiner’s anticipation rejection of these claims. Thus, we also sustain this rejection. 4 Appeal 2017-001418 Application 14/545,092 Regarding claim 10 that depends from claim 7, Appellants argue that the Examiner’s anticipation rejection is in error for the same reasons as claim 3. Thus, we sustain claim 10’s rejection for the same reasons that we sustain claim 3’s rejection. Regarding claim 12 that depends from claim 7, Appellants argue that the Examiner’s anticipation rejection is in error because “Gunter does not disclose any reinforcing ribs with a groove in the middle.” Br. 9. Although the Examiner responds by stating “Gunter shows a groove in the middle of reinforcing ribs (60)” (Answer 6), based on our review of Gunter’s figure, it is not apparent that Gunter’s vertical lip 60 includes a groove. Thus, we do not sustain claim 12’s rejection. Regarding claim 13 that depends from claim 7, Appellants argue that the Examiner’s anticipation rejection is in error for the same reasons as claim 7. Thus, we sustain claim 13’s rejection for the same reasons that we sustain claim 7’s rejection. DECISION We AFFIRM the anticipation rejection of claims 1—3, 5, 7—10, and 13. We REVERSE the anticipation rejection of claim 12. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED-IN-PART 5