Ex Parte Chubb et al

Patent Trial and Appeal Board

Jun 20, 2016

12658225 (P.T.A.B. Jun. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/658,225 02/04/2010
7590 06/20/2016
Francis C. Hand, Esq.
c/o Carella, Byrne, Bain, Gilfillan,
Cecchi, Stewart & Olstein
6 Becker Farm Road
Roseland, NJ 07068
FIRST NAMED INVENTOR
Richard A. Chubb
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.
9744
EXAMINER
KELLY, CATHERINE A
ART UNIT PAPER NUMBER
3634
MAILDATE DELIVERY MODE
06/20/2016 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 RICHARD A. CHUBB and RALPH R. WEARSCH
Appeal2014-005292
Application 12/658,225
Technology Center 3600
Before NEALE. ABRAMS, LYNNE H. BROWNE, and
ERIC C. JESCHKE, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Richard A. Chubb and Ralph R. Wearsch (Appellants) appeal under
35 U.S.C. § 134 from the rejection of claims 1-20. We have jurisdiction
under 35 U.S.C. § 6(b ).
We reverse.
Appeal2014-005292
Application 12/658,225
CLAIMED SUBJECT MATTER
The claims are directed to a sliding door assembly. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A sliding door assembly comprising
a non-metallic frame including a plurality of extrusions
integrally secured together to form a one-piece rectangular frame
with a first extrusion of said plurality of extrusions forming a sill,
a second extrusion of said plurality of extrusions forming a left
jamb, a third extrusion of said plurality of extrusions forming a
right jamb and a fourth extrusion of said plurality of extrusions
forming a header, each said extrusion having a pair of outer walls
of solid cross-section and a floor of solid cross-section defining
a channel-shaped cross-section;
a pair of non-metallic sashes slidably disposed in said frame
to move laterally between a closed position and an open position
relative to said frame.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Grossman US RE 24,508 July 29, 1958
Bruno '654 us 2,911,654 Nov. 10, 1959
Bruno '657 us 3,117,657 Jan. 14, 1964
Eventoff us 3,978,617 Sept. 7, 1976
Cassi ere us 4,432, 163 Feb.21, 1984
Niekrasz us 4,656,781 Apr. 14, 1987
Etesam us 4, 785,485 Nov. 22, 1988
Dallaire us 5,274,955 Jan.4, 1994
Neal us 7 ,555,871 July 7, 2009
REJECTIONS
I. Claims 1, 6, 7, 14, and 15 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Eventoff and Niekrasz.
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Application 12/658,225
IL Claims 2-5, 9, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Eventoff, Niekrasz, and
Grossman. 1
III. Claim 8 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Eventoff, Niekrasz, and Neal.
IV. Claim 10 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Eventoff, Niekrasz, Grossman, and Cassiere. 2
V. Claims 11-13 and 16 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Eventoff, Niekrasz, and Dallaire.
VI. Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Eventoff, Dallaire, and Niekrasz
VII. Claims 1-3, 9, 11, 12, 14, and 15 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Bruno '654 and Etesam.
VIII. Claims 4, 6, 7, 10, and 13 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bruno '654, Etesam, and Bruno
'657.
IX. Claims 5, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bruno '654, Etesam, and Grossman. 3
1 Although the Examiner provides separate statements of the grounds of
rejection for claims 2-5 and 9 and claims 19 and 20, these claims are all
subject to the same ground of rejection (i.e. unpatentable over the combined
teachings of Eventoff, Niekrasz, and Grossman).
2 Claim 10 depends from claim 9, which stands rejected as unpatentable over
Eventoff, Niekrasz, and Grossman. Accordingly, we consider the omission
of Grossman in the statement of this rejection to be a typographical error,
which is corrected in the Answer. Final Act. 7; Ans. 7.
3 Although the Examiner provides separate statements of the grounds of
rejection for claim 5 and claims 19 and 20, these claims are all subject to the
same ground of rejection (i.e. Bruno '654, Etesam, and Grossman).
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Application 12/658,225
X. Claim 8 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Bruno '654, Etesam, Bruno '657, and Neal.
DISCUSSION
Rejection I
The Examiner finds that Eventoff discloses all of the limitations of
independent claim 1 except for "the outer frame walls." Final Act. 3. In
addition, the Examiner finds that Niekrasz discloses "frame members 24
hav[ing] a pair of outer walls 30 of solid cross-section and a floor
(unnumbered but clearly shown in figures 18a and b) of solid cross-section
defining a channel-shaped cross-section." Id. Based on these findings, the
Examiner determines that it would have been obvious "to provide the door
assembly of [EventoffJ with the frame shape of [Niekrasz] because the outer
walls allow for better guiding of the sashes by further definition of the tracks
beyond just a roller track." Id.
Noting that"[ c ]laim 1 requires 'a non-metallic frame including a
plurality of extrusions integrally secured together to form a one-piece
rectangular frame,"' Appellants argue that "Eventoff discloses the frame 12
to be made of four separate frame members that are separately mounted in
the wall opening 26. There is no disclosure or teaching that the four frame
members 18, 20, 22 and 24 are integrally secured together to form a one-
piece rectangular frame." Appeal Br. 7.
Responding to this argument, the Examiner directs our attention to the
following portion of Eventoff (see Ans. 24--25), which states:
Door frame 12 includes upper and lower door frame members,
generally designated 18 and 20 respectively, and left and right
side frame members, generally designated 22 and 24
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Application 12/658,225
respectively. Each of the door frame members are mounted in a
wall opening, generally designated 26, of the refrigeration unit
by any suitable means such as screws, etc.
Eventoff 2:64--3:3.
In addition, the Examiner reasons that:
one of ordinary skill in the art would know by this statement and
what is shown in figure 1 that the frame members are connected
together to form a one-piece frame because the frame members
are connected together by the refrigeration unit and because the
connection together of the frame members is necessary to keep
the frame members from falling apart or becoming unaligned
from each other, which would make it difficult to move the
doors.
Ans. 24--25. The Examiner's reasoning is speculative and not supported by
a preponderance of the evidence. Eventoff states that the frame members are
mounted in a wall opening. Eventoff is silent with respect to the frame
members being "secured together to form a one-piece rectangular frame" as
required by claim 1. Appeal Br., Claims. App. Furthermore, alignment of
the frame members to form the frame shown in Figure 1 does not necessarily
require that the frame members be secured together. Thus, Eventoff fails to
explicitly or inherently disclose this limitation. Accordingly, the Examiner's
finding is in error.
For this reason, we do not sustain the Examiner's decision rejecting
claim 1, and claims 6, 7, 14, and 15, which depend therefrom.
Rejections II-VI
Rejections II-VI rely on the same erroneous finding as Rejection I.
Accordingly, we do not sustain the Examiner's decision rejecting claims 2-
5, 9, 19, and 20 as unpatentable over Eventoff, Niekrasz, and Grossman; the
Examiner's decision rejecting claim 8 as unpatentable over Eventoff,
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Application 12/658,225
N iekrasz, and Neal; the Examiner's decision rejecting claim 10 as
unpatentable over Eventoff, Niekrasz, Grossman, and Cassiere; the
Examiner's decision rejecting claims 11-13 and 16 as unpatentable over
Eventoff, Niekrasz, and Dallaire; and the Examiner's decision rejecting
claims 17 and 18 as unpatentable over Eventoff, Dallaire, and Niekrasz, for
the reasons discussed supra.
Rejection VII
The Examiner finds that Bruno '654 discloses all of the limitations of
independent claim 1, except for "the specific structure of the side jambs" and
non-metallic extrusions. Final Act. 14. The Examiner further finds that
Etesam shows "a frame having sill 34, side jambs 42, and header 50 where
side jambs 42 have solid cross-section outer walls and floor forming a
channel-shaped cross-section" and teaches "non-metallic frame members."
Id. Based on these findings, the Examiner determines that it would have
been obvious
to provide the door assembly of [Bruno '654] with the non-
metallic material and side jamb structure of [Etesam] because
non-metallic materials such as plastics were well known in the
art at the time of invention and could provide benefits such as
low cost and corrosion resistance which would be in keeping
with the goals of [Bruno '654] as taught in column 1 lines 32-37
and because the simple side jamb structure with just floor and
walls is in keeping with the header and sill of [Bruno '654].
Id. at 15.
Noting that "Bruno '654 discloses a lower guide track 17 mounted on
a tub 12, an upper guide track 16 spaced vertically from the lower guide
track 17 by end frame members 18 and 19 which are suitably secured to the
walls 14 and 15 of a shower enclosure" and that "[r]emoving the upper guide
track 17 would leave the end frame members 18 and 19 secured to the walls
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14 and 15 of the shower enclosure," Appellants argue that "[t]his is
evidentiary of the guide tracks 1 7 and 16 and end frame members 18 and 19
being separate from each other and being separately mounted on the tub 12
and walls of the shower enclosure." Appeal Br. 8-9.
Responding to this argument, the Examiner directs our attention to the
following portion of Bruno '654 (see Ans. 36), which states:
The lower guide track 17, which will hereinafter be described in
detail, is mounted on, and extends along, the outer longitudinal
edge or rim of the tub 12, while the upper guide track 16 extends
parallel to the lower track and is spaced vertically from the latter
by end frame members 18 and 19 which are suitably secured to
the walls 14 and 15.
Bruno '654 2:30-36. In addition, the Examiner reasons that:
the frame members are connected together to form a one-piece
frame because the frame members are connected together by the
enclosure and because the connection together of the frame
members is necessary to keep the frame members from falling
apart or becoming unaligned from each other, which would make
it difficult to move the doors.
Ans. 36.
Like the Examiner's reasoning with respect to Eventoff discussed
supra, this reasoning is also speculative and not supported by a
preponderance of the evidence. Bruno '654, like Eventoff, states that the
frame members are secured to the walls and is silent with respect to the
frame members being "secured together to form a one-piece rectangular
frame" as required by claim 1. Appeal Br., Claims. App. Furthermore,
alignment of the frame members to form the frame does not necessarily
require that the frame members be secured together. Thus, Bruno '654 fails
to explicitly or inherently disclose this limitation. Accordingly, the
Examiner's finding is in error.
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For this reason, we do not sustain the Examiner's decision rejecting
independent claim 1, and claims 2, 3, 9, 11, 12, 14, and 15, which depend
therefrom.
Re} ections VIII-X
Rejections VIII-X rely on the same erroneous finding as Rejection
VII. Accordingly, we do not sustain the Examiner's decision rejecting
claims 4, 6, 7, 10 and 13 as unpatentable over Bruno '654, Etesam, and
Bruno '657; the Examiner's decision rejecting claims 5, 19, and 20 as
unpatentable over Bruno '654, Etesam, and Grossman; and the Examiner's
decision rejecting claim 8 as unpatentable over Bruno '654, Etesam, Bruno
'657, and Neal, for the reasons discussed supra.
DECISION
The Examiner's rejections of claims 1-20 are REVERSED.
REVERSED
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