Ex Parte CullenDownload PDFPatent Trial and Appeal BoardDec 23, 201613490918 (P.T.A.B. Dec. 23, 2016) Copy Citation 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. 13/490,918 06/07/2012 James M. CULLEN FPP-5563-26 5571 23117 7590 12/28/2016 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER DO, ROWLAND ART UNIT PAPER NUMBER 3677 NOTIFICATION DATE DELIVERY MODE 12/28/2016 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): PTOMAIL@nixonvan.com pair_nixon @ firsttofile. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAMES M. CULLEN Appeal 2015-003251 Application 13/490,918 Technology Center 3600 Before JAMES P. CALVE, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from the final rejection of claims 1—3. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2015-003251 Application 13/490,918 CLAIMED SUBJECT MATTER Claim 1, the sole independent claim, is reproduced below. 1. A flexible and resilient clip for removably connecting an upwardly and outwardly extending outer lip of a gutter guard to the underlying outer end portion of a gutter having an inwardly and downwardly and outwardly extending end lip, the clip being of generally C-shaped configuration with an open outer end portion and comprising: a lower panel with an inwardly folded or enlarged portion at an outer end thereof, a front panel extending upwardly and outwardly from an inner end of the lower panel, the front panel merging with an intermediate panel that extends downwardly and outwardly over the lower panel beyond the folded or enlarged portion thereof in vertically spaced relation thereto, the intermediate panel being folded inwardly at an outer end thereof and merging with an upper panel extending inwardly over the intermediate panel in vertically spaced relation thereto, the upper panel having a depending tab at an inner end thereof that is positioned above the front panel, the clip being positioned on the outer end portion of the gutter so that it is positioned between the lower panel and the intermediate panel to separate them so that an outer end of the gutter end lip is engaged by an inner end of the folded or enlarged portion of the lower panel to removably retain the clip on the gutter, the upwardly and outwardly extending lip of the gutter guard being positioned between the intermediate panel and the upper panel to separate them so that the depending tab of the upper panel extends over and is in engagement with the upwardly extending portion of the gutter guard lip to removably connect the gutter guard to the clip and to the gutter. 2 Appeal 2015-003251 Application 13/490,918 REJECTION Claims 1—3 are rejected under 35 U.S.C. § 103(a) as unpatentable over Wennerstrom (US 3,351,206, iss. Nov. 7, 1967) and Brochu (US 8,316,585 B2, iss. Nov. 27, 2012). ANALYSIS The Examiner found that Wennerstrom discloses a flexible, resilient clip, substantially as recited in claim 1, including clip 10 with upper panel 36 having a depending tab (curl 38) that is positioned above front panel 42, but Wennerstrom lacks a gutter guard with an upwardly, outwardly extending outer lip. Final Act. 2—A. The Examiner found that Brochu teaches a gutter guard with this feature. Id. at 4. The Examiner determined it would have been obvious to modify Wennerstrom to include a gutter guard of Brochu “in order to provide an alternative gutter guard for the clip to connect the gutter to.” Id. The Examiner reasoned that Wennerstrom “teaches a clip comprising a tab 38 of an upper panel 36 for a gutter guard 41” and “is then modified with a secondary reference by Brochu ... in which it teaches the upwardly and outwardly extending lip 16 feature of its gutter guard 10” so that it reads on “the depending tab of the upper panel extends over and is in engagement with the upwardly extending portion of the gutter guard lip to removably connect the gutter guard to the clip and to the gutter.” Ans. 2. Appellant argues that there is no disclosure in Wennerstrom of any type of depending tab on the upper limb 36 of clip 10 for extending over and engaging an upwardly extending portion of a gutter guard lip, as claimed. Appeal Br. 7—8. Appellant also argues that the upwardly curled end 38 of Wennerstrom’s clip does not connect the clip 10 to screen 41 like the claimed depending tab of the invention. Id. at 8. We agree. 3 Appeal 2015-003251 Application 13/490,918 The Examiner has not established that Wennerstrom in combination with Brochu teaches or suggests “the upper panel having a depending tab at an inner end thereof... so that the depending tab of the upper panel extends over and is in engagement with the upwardly extending portion of the gutter guard lip,” as recited in claim 1. Appellant discloses clip 10 having an upper panel 20 that has depending tab 22 positioned above inclined front panel 16 so that depending tab 22 “snaps over and engages the upwardly extending portion of the gutter guard lip 40 to removably connect the gutter guard GG to the clip 10 and to the adjacent end portion of the gutter G.” Spec. 4, Figs. 1—4. Figure 4 of Appellant’s disclosure is reproduced below and illustrates this configuration of depending tab 22 and gutter guard GG. Figure 4 of Appellant’s disclosure shows gutter guard GG connected to gutter G via clip 10 including depending tab 22 extending over and engaging upwardly extending portion 40 of gutter guard GG. 4 Appeal 2015-003251 Application 13/490,918 As is apparent from Figure 4 above and Appellant’s disclosure in the Specification, depending tab 22 hangs downwardly from upper panel 20 so that it is positioned above front panel 16 and engages gutter guard lip 40, as claimed. Therefore, Appellant’s usage of “depending” is consistent with the Specification and an ordinary meaning of “depend,” which includes “to hang down.” See Merriam-Webster.com, http://www.merriam-webster.com/ dictionary/depend (last viewed Dec. 19, 2016). We agree with Appellant that Wennerstrom does not disclose such a depending tab that depends from the upper panel of the clip and extends over and engages with the extending portion of the gutter guard lip, as claimed. Appeal Br. 7—8; Reply Br. 2. Instead, Wennerstrom teaches an upper panel 36 that includes upward curl 38. Wennerstrom, 2:27—35, Fig. 3. Thus, the Examiner’s finding that Wennerstrom teaches a depending tab as element 38 in Figure 3 (Final Act. 3) is not supported by a preponderance of evidence. The Examiner has not explained sufficiently how modifying Wennerstrom with Brochu’s gutter guard that includes a lip (flanges 32, 34) that extends upwardly teaches or suggests the claimed depending tab. Ans. 2-4. Brochu does not engage flanges 32, 34 with a depending tab, as claimed. Instead, Brochu uses hanger 51 to hold flanges 32, 34 of gutter cover 12 in recess 52 of gutter 38. Brochu, 2:59-3:6, Fig. 7. Thus, we do not sustain the rejection of claims 1—3. DECISION We reverse the rejection of claims 1—3. REVERSED 5 Copy with citationCopy as parenthetical citation