Ex Parte DesJardins

Patent Trial and Appeal Board

Feb 24, 2016

13292149 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/292,149 11/09/2011
25006 7590 02/26/2016
DINSMORE & SHOHL LLP
POBOX7021
TROY, MI 48007-7021
FIRST NAMED INVENTOR
Dale DesJardins JR.
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.
AAI-10002/15 1052
EXAMINER
DEMUREN, BABAJIDE A
ART UNIT PAPER NUMBER
3633
NOTIFICATION DATE DELIVERY MODE
02/26/2016 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):
docket@patlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DALE DESJARDINS, JR.
Appeal2014-000666
Application 13/292,149
Technology Center 3600
Before JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA,
Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Dale DesJardins, Jr. (Appellant) appeals under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1, 2, 5, and 6. 1 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claimed invention "relates generally to a patio extrusion assembly
for supporting a screen." Spec. i-f 2.
1 Claims 3, 4, and 7-15 have been cancelled. Br. 2 (filed June 21, 2013).
Appeal2014-000666
Application 13/292, 149
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows:
Br. 8.
1. A beam cap for covering an exposed end face of a patio
extn1sion member, the extn1sion member including a pair of
forward projecting walls extending in a height-wise direction
along opposite edges of the end face, inside comer locations of
said projecting walls each exhibiting a notched recess, said
beam cap comprising:
an elongated body exhibiting, in cross section, a width
extending middle portion terminating at opposite ends in
engaging tabs;
said engaging tabs further including a first pair of inner
tabs each exhibiting an outwardly angled detent exhibiting a
pointed edge, said inner tabs adapted to being deflected
inwardly and said pointed edges seating in resistive snap-fit
fashion within the inside comer locations of the projecting
walls; and
said engaging tabs further including a second pair of
outer tabs adapted to overlaying exterior comer edges of the
forward end projecting walls concurrent with said body adapted
to being affixed to an exposed end profile associated with a
component of the extrusion assembly.
REFERENCES RELIED ON BY THE EXAMINER
Green
Stilling
us 4,899,797
us 5,242,004
REJECTION ON APPEAL
Feb. 13, 1990
Sept. 7, 1993
Claims 1, 2, 5, and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Green and Stilling.
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Appeal2014-000666
Application 13/292, 149
ANALYSIS
The Examiner finds that Green discloses most of the limitations of
claim 1 including beam cap 16 having an elongated body 44 and engaging
tabs 46, 48, the engaging tabs each having a first pair of inner tabs 50, 52;
and a second pair of outer tabs 46, 48. See Final Act. 2-3 (citing Green,
Figs. 1 and 2). The Examiner relies on Stilling to teach "a beam cap ( 60)
[having] a first pair of inner tabs ( 64) with outwardly [ ] angled detent
exhibiting [a] pointed edge." Id. at 3. The Examiner's position is that it
would have been "an obvious matter of design choice to make the different
portions of the edges pointed for easier insertion of the tabs of the beam cap
to the extrusion member," because "[a] change in form or shape is generally
recognized as being within the level of ordinary skill in the art, absent any
showing of unexpected results." Id.
Appellant argues that "Green does not disclose a beam cap for
covering an end face of a patio extrusion member." Br. 5. Appellant also
argues that neither Green nor Stilling "teach or suggest the construction of
the inner tabs, in particular which include an outwardly facing or pointed
detent," as recited in claim 1, and "as specifically depicted at 22/24 in Figs.
2-3." Id. Appellant further argues that the references do not disclose that
"the inner and outer pairs of engaging tabs as recited in claim 1 ... are
adapted to engage projecting walls associated with the patio extrusion
member." Id. at 6.
We do not find Appellant's arguments persuasive because Appellant
does not adequately explain why the corresponding elements in the
references do not meet the claimed limitations. See In re Lovin, 652 F.3d
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Appeal2014-000666
Application 13/292,149
1349, 1357 (Fed. Cir. 2011) ("[T]he Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art.").
We reproduce below Figure 2 of Green and Appellant's Figure 1.
Figure 2 of Green is an exploded cross sectional view of a retainer strip
assembly.
12
'·:I',
18
FIG. 1 !
10
16 20
22 24
Appellant's Figure 1 is a cross section cutaway of a beam cap.
As to the recited beam cap, Green discloses "universal retainer strips
for removably fastening screens and the like to framing such as is used for
porches" that are "preferably an extruded all-weather, resilient plastic."
Green, col. 1, 11. 8-10 and col. 2, 11. 15-16. Green's strips include base strip
14 and cap strip 16 and, "[c]ap strip 16 ... serves to cover base strip 14."
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Appeal2014-000666
Application 13/292, 149
Id. at col. 3, 11. 29-30; Fig. 1. As such, Green discloses a cap that covers an
end face of an extruded member. Appellant does not persuasively explain
why this structure does not correspond to a beam cap for covering an end
face of a patio extrusion member.
On pages 5 and 6 of the Brief, Appellant argues that Green does not
disclose an outwardly angled detent exhibiting a pointed edge. However,
Appellant's argument does not address the rejection as it relates to the
pointed edge of Stilling. Specifically, the Examiner relies on "the teaching
of Stilling for a pointed or edged profile (see 64, Fig. 4 of Stilling)," and
proposes "to modify the tab 50/52 of Green to include the chamfered/edged
profile of Stilling for the obvious reasoning of easier insertion." Ans. 4.
Appellant does not explain why the combined teachings of Green and
Stilling do not meet the claimed structure. Accordingly, we do not find
Appellant's argument on this point persuasive.
As to whether Green;s tabs engage projecting walls, Appellant
appears to admit as much in that Appellant states that "outer sides 46/48 and
inner spaced catches 50/52 in Green are configured for engaging the walls
32/34 of the base strip 16." Br. 6. Nevertheless, claim 1 does not require
that the inner and outer pairs of tabs engage the projecting walls. Rather,
claim 1 recites "said inner tabs adapted to being deflected inwardly and said
pointed edges seating in resistive snap-fit fashion within the inside comer
locations of the projecting walls," and "a second pair of outer tabs adapted to
overlaying exterior comer edges of the forward end projecting walls." Br. 8.
Green discloses that "(inner) catches 50, 52 hook onto the protruding lips 40,
42 of left and right walls 32, 34, respectively." Green, col. 3, 11. 35-36; Figs.
1 and 2. Appellant does not explain why Green's arrangement of catches 50,
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Appeal2014-000666
Application 13/292, 149
52 that are within the inside comers of lips 40, 42 of walls 32, 34 does not
correspond to "a first pair of inner tabs that seat in resistive snap-fit fashion
within the inside comer locations of the projecting walls," as recited in claim
1. Green also discloses "left side (exterior tab) 46 and a right side (exterior
tab) 48 substantially covering base strip 14." Id. at col. 3, 11. 31-32; Figs. 1
and 2. Appellant also fails to explain why tabs 46, 48 that cover walls 32, 34
of base strip 14 are not "overlaying exterior comer edges of the forward end
projecting walls," as recited in claim 1.
We have considered all of Appellant's arguments for the patentability
of claim 1, but we are not apprised of Examiner error. Accordingly, we
sustain the Examiner's rejection of claim 1. Appellant does not make
separate arguments for any of dependent claims 2, 5, and 6. Br. 7.
Accordingly, for the same reasons discussed supra, these claims fall with
independent claim 1.
DECISION
The decision of the Examiner to reject claims 1, 2, 5, and 6 under 35
U.S.C. §103(a) as being unpatentable over Green and Stilling is affirmed.
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).
AFFIRMED
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