Ex Parte Cruz

Board of Patent Appeals and Interferences

Oct 28, 2004

09435507 (B.P.A.I. Oct. 28, 2004)

1 Filed June 30, 2003.
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for publication and is not binding precedent of the Board.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. 24
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ANTHONY V. CRUZ
____________
Appeal No. 2003-0240
Application No. 09/435,507
____________
ON BRIEF
____________
Before COHEN, McQUADE, and NASE, Administrative Patent Judges.
NASE, Administrative Patent Judge.
ON REQUEST FOR REHEARING
This is in response to the appellant's request for rehearing1 of our decision mailed
April 30, 2003, wherein we affirmed the examiner's rejection of claims 1, 8, 15 and 16
under 35 U.S.C. § 102(b), affirmed the examiner's rejection of claims 6 and 13 under
35 U.S.C. § 103, reversed the examiner's rejection of claims 2 to 5 and 9 to 12 under
Appeal No. 2003-0240
Application No. 09/435,507
Page 2
35 U.S.C. § 102(b) and reversed the examiner's rejection of claims 7 and 14 under
35 U.S.C. § 103.
We have carefully considered the argument raised by the appellant in their request
for rehearing, however, that argument does not persuade us that our decision was in error
in any respect.
The sole argument (pp. 2-3) raised by the appellant is that claim 1, the only
independent claim in this application, specifies that the front face of the wall mount has "a
switch-engaging surface portion adapted to engage said switch operating member to open
said switch as said appliance is assembled onto said wall mount . . ." and that such a
construction is not shown by Andis. The appellant contends that the holder 17 of Andis
has faces (e.g., laterally spaced walls or surfaces 95 and 97) which are neither front faces
nor rear faces but are faces located on planes perpendicular to wall 13. The appellant
points out that the hair dryer of Andis must be turned sideways so that its off/on switch 21
engages the wall 95 which is in contrast to the appellant's construction.
In our view, the claimed limitation that the front face of the wall mount has "a switch-
engaging surface portion adapted to engage said switch operating member to open said
Appeal No. 2003-0240
Application No. 09/435,507
Page 3
2 The inquiry as to whether a reference anticipates a claim must focus on what subject matter is
encompassed by the claim and what subject matter is described by the reference. As set forth by the
court in Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert.
denied, 465 U.S. 1026 (1984), it is only necessary for the claims to "'read on' something disclosed in the
reference, i.e., all limitations of the claim are found in the reference, or 'fully met' by it."
switch as said appliance is assembled onto said wall mount . . ." is readable on2 Andis as
set forth on pages 4-5 of our decision mailed April 30, 2003. In that regard, the claimed
wall mount is readable on Andis' holder 17 which a front face (the face appearing in
Figures 1 and 2) and a rear face (the face not shown in Figures 1 and 2, which face
confronts the wall 13), wherein the front face of Andis' holder 17 has a switch-engaging
surface 95 adapted to engage the switch member 45 to open the switch 21 as the hair
dryer is assembled onto the holder 17 in the event an attempt is made to assemble the
hair dryer on the holder when the switch 21 is closed and the hair dryer is, therefore,
energized.
While the holder 17 of Andis has laterally spaced walls or surfaces 95 and 97 on the
front thereof, it is our opinion that such surfaces are part of the front face of the holder 17.
In addition, while it is true that the hair dryer of Andis must be turned sideways so that its
off/on switch 21 engages the wall 95 (which contrasts to the appellant's disclosed
construction), we see nothing in claim 1 which distinguishes claim 1 from Andis. It is
axiomatic that, in proceedings before the USPTO, claims in an application are to be given
Appeal No. 2003-0240
Application No. 09/435,507
Page 4
3 See In re Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Sneed,
710 F.2d 1544, 1548, 218 USPQ 385, 388 (Fed. Cir. 1983).
4 See In re Van Geuns, 988 F.2d 1181, 1184, 26 USPQ2d 1057, 1059 (Fed. Cir. 1993) citing In re
Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
their broadest reasonable interpretation3 and limitations are not to be read into the claims
from the specification.4
In view of the above, the appellant's argument that the anticipation rejection is
improper is unconvincing.
In light of the foregoing, the appellant's request for rehearing is granted to the extent
of reconsidering our decision, but is denied with respect to making any change thereto.
Appeal No. 2003-0240
Application No. 09/435,507
Page 5
No period for taking any subsequent action in connection with this appeal may be
extended under 37 CFR § 1.136(a).
REQUEST FOR REHEARING - DENIED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. McQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 2003-0240
Application No. 09/435,507
Page 6
ROGER S. DYBVIG
22 GREEN STREET
DAYTON, OH 45402
JVN/jg