Ex Parte De Keyzer

Board of Patent Appeals and Interferences

Dec 7, 2010

11071188 (B.P.A.I. Dec. 7, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte HANS DE KEYZER
____________________

Appeal 2009-009040
Application 11/071,188
Technology Center 3600
____________________

Before: WILLIAM F. PATE III, LINDA E. HORNER, and
KEN B. BARRETT, Administrative Patent Judges.

PATE III, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-009040
Application 11/071,188
2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1
and 3-9. App. Br. 5. We have jurisdiction under 35 U.S.C. § 6(b).

The claims are directed to a table adjustable in height. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A table comprising an up-and-down movable tabletop,
and operating provisions to move the tabletop up and down
wherein the operating provisions comprise an operating ring,
extending along a circumferential line underneath the tabletop
in the vicinity of the edge of the tabletop, said operating
provisions being located in a way that they can be reached by
hand under the tabletop.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Timmermann
Larson
Pfister
US 3,092,048
US 6,182,583 B1
US 6,189,843 B1
Jun. 4, 1963
Feb. 6, 2001
Feb. 20, 2001

REJECTIONS
Claims 1, 3-6, 8, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Pfister and Timmermann. Ans. 3.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pfister, Timmermann, and Larson. Ans. 4.

Appeal 2009-009040
Application 11/071,188
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OPINION
The Examiner’s rejections of claims 1 and 3-9 are reversed.
Appellant persuasively argues that the Examiner erred by reading
Pfister’s actuation assembly 18, including handle 72, as the claimed “ring.”
App. Br. 12-13; Reply Br. 4; see also Ans. 3; Pfister, col. 3, ll. 37-38. Since
handle 72 is not circular, it was unreasonable for the Examiner to read it as
the claimed “ring”. See Pfister, fig. 2. Accordingly we are constrained to
reverse the rejections of independent claims 1 and 7 along with the rejection
of claims 3-6, 8 and 9 because of their dependence from claim 1.
Additionally, Appellant persuasively argues that the Examiner erred
in rejecting claim 4 by interpreting Pfister’s gas spring 24 as providing the
resilient force against which the claimed operating ring is movable. App. Br.
15; see also Ans. 4. Pfister discloses the actuation assembly 18, specifically
the actuation assembly pivot plate 74, is captured between the pivot
mounting plate 52 and mounting plate 22 to pivot about cutout 75. Col. 3, ll.
32-42, fig. 3. Pfister does not mention any resilient force acting on the
actuation assembly which appears to be biased only by gravity.
Further, Appellant persuasively argues that the Examiner erred in
rejecting claim 8 by interpreting Pfister’s lobe (containing hole 76) and area
between race cages 46, 48 as the claimed “protrusion” and “recess”
respectively. App. Br. 16; see also Ans. 4. Claim 8 requires these elements
to be on respective first and second tubes. The structures of Pfister cited by
the Examiner are both on inner tube 16, and thus they do not meet the claim
requirements. See Pfister, col. 3, ll. 57-66, fig. 4.
Appeal 2009-009040
Application 11/071,188
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Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new
ground of rejection for claims 1, 3, 5, 6 and 9 under 35 U.S.C. § 103(a) as
being unpatentable over Pfister and Timmermann. We also enter a new
ground of rejection for claim 7 under 35 U.S.C. § 103(a) as being
unpatentable over Pfister, Timmermann, and Larson.
Appellant recognizes that Pfister discloses an adjustable height table
wherein the height of the tabletop can be adjusted by a handle. Spec. 1:23-
24. A problem that Appellant perceives with Pfister’s device is that a person
out of reach of the handle will have difficulty adjusting the height of the
tabletop. Spec. 1:25-26.
Regarding claim 1, Pfister discloses a table. Figs. 11, 12. Pfister’s
table comprises an up-and-down movable tabletop 140. Col. 6, 46-49. Pfister
provides an actuation assembly 18, corresponding to the claimed “operating
provision,” to move the tabletop up and down. Col. 2, l. 66 - col. 3, l. 3.
Pfister’s actuation assembly is located in a way that it can be reached by
hand under the tabletop. See Figs. 11, 12. Pfister fails to disclose that the
actuation assembly 18 comprises an operating ring extending along a
circumferential line underneath the tabletop in the vicinity of the edge of the
tabletop.
Timmermann teaches a circular rim 22 having spokes 21 of
substantial length to provide a hand wheel of substantial diameter positioned
below the table top 17. This provides for the convenient rotation of lock nut
20 which prevents or allows vertical adjustment of the tabletop. Col. 1, ll.
59-67; figs. 1-4. Thus, Timmermann demonstrates that in the art of
adjustable table tops it was known to make an assembly - located under a
tabletop and intended to be moved by hand - ring shaped with a
Appeal 2009-009040
Application 11/071,188
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circumferential line in the vicinity of the edge of the tabletop in order to
achieve the result of making that assembly conveniently accessible.
Making Pfister’s actuation assembly handle 72 ring shaped with a
circumferential line in the vicinity of the edge of the table top amounts to
applying a known technique demonstrated in Timmermann to Pfister’s
known device in order to achieve the predictable result of making Pfister’s
handle more conveniently accessible and, therefore, would have been
obvious to one having ordinary skill in the art.
Appellant argues that there is no disclosure in the prior art of locating
the operating provisions so that they can be reached by hand under the
tabletop because “the definition of ‘the operating provisions can be reached
by hand from the tabletop’ found in the Specification [requires that] ‘when
the flat of the hand rests on the tabletop, one can touch the operating
provisions with one’s fingertips.’” App. Br. 12. The phrase expressly
defined in the Specification, which includes the phrase “reached by hand
from the tabletop” differs from the phrase recited in the claims which
includes “reached by hand under the tabletop.” Appellant has chosen to use
broader language in the claims than that used in the Specification. It would
be improper to import this language from the Specification into the claims.
See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir.
2004) (“Though understanding the claim language may be aided by the
explanations contained in the written description, it is important not to
import into a claim limitations that are not a part of the claim. For example,
a particular embodiment appearing in the written description may not be
read into a claim when the claim language is broader than the embodiment.”)
Appellant’s arguments regarding claims 3, 5, and 6 merely point out
what is recited and do not establish error in the Examiner’s position. App.
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Application 11/071,188
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Br. 15-16. We therefore adopt as our own the Examiner’s findings regarding
these claims.
Appellant’s argument regarding claim 9 is unpersuasive. Pfister
discloses the actuation assembly 18, read as the claimed “operating
provision,” is captured between the pivot mounting plate 52 and mounting
plate 22 by screws 66, 68, 70, received in holes 76, 78, 80 in inner tube 16.
Col. 3, ll. 32-42, fig. 3. This capturing “connects” the actuation assembly 18
to the inner tube 16, read as the claimed “second part.” Thus, Pfister
demonstrates it was known in the art to use screws to connect an actuating
assembly to the inner tube of an adjustable height table. Using bolts, an
obvious substitute for screws, to connect Pfister’s actuation assembly,
modified to have the form of an “operation ring” as discussed above, to
Pfister’s inner tube, amounts to applying a known technique to yield the
predictable result of securing the actuation assembly to the inner tube and
therefore would have been obvious to one having ordinary skill in the art.
Appellant’s argument regarding claim 7 is that Larson fails to
overcome the alleged deficiencies of Pfister and Timmermann. App. Br. 18.
Appellant does not contest any of the Examiner’s findings or conclusions
specific to Larson and we therefore adopt these as our own. The remaining
limitations of claim 7 are addressed above in the discussion pertaining to
claims 1 and 3.

DECISION
The Examiner’s rejections of claims 1 and 3-9 are reversed.
Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new
ground of rejection for claims 1, 3, 5, 6 and 9 under 35 U.S.C. § 103(a) as
being unpatentable over Pfister and Timmermann.
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Application 11/071,188
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We also enter a new ground of rejection for claim 7 under 35 U.S.C.
§ 103(a) as being unpatentable over Pfister, Timmermann, and Larson.

FINALITY OF DECISION
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b) (2008). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
Examiner, in which event the proceeding will be remanded to
the Examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .
If Appellant elects prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Board of Patent Appeals and Interferences for
final action on the affirmed rejection, including any timely request for
rehearing thereof.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2009).
Appeal 2009-009040
Application 11/071,188
8

REVERSED; 37 C.F.R. § 41.50(b)

nlk

JAMES C. WRAY
1493 CHAIN BRIDGE ROAD
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