Ex Parte Dwyer

Board of Patent Appeals and Interferences

Nov 26, 2004

10161365 (B.P.A.I. Nov. 26, 2004)

1Appellant submitted an amendment subsequent to the final
rejection but the examiner refused entry of this amendment (see
the amendment dated Dec. 5, 2003, refused entry as per the
Advisory Action dated Jan. 14, 2004; see also the Brief, page 2,
¶(III), and page 3, ¶(IV)).
The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte NEIL J. DWYER
____________
Appeal No. 2004-2384
Application No. 10/161,365
____________
ON BRIEF
____________
Before PAK, WALTZ, and PAWLIKOWSKI, Administrative Patent Judges.
WALTZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the primary examiner’s
final rejection of claims 1 through 19, which are the only claims
pending in this application.1 We have jurisdiction pursuant to
35 U.S.C. § 134.
According to appellant, the invention is directed to an
interchangeable cradle and ottoman assembly where removable
fasteners are used to fasten either the cradle or ottoman cushion
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Application No. 10/161,365
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to a mounting platform (Brief, pages 3-4). Appellant states that
the claims stand or fall together (Brief, page 4). Accordingly, we
select one claim from each group of rejected claims and decide the
grounds of rejection in this appeal on the basis of these claims
alone. See 37 CFR § 1.192(c)(7)(2003); and In re McDaniel, 293
F.3d 1379, 1383, 63 USPQ2d 1462, 1465 (Fed. Cir. 2002).
Representative independent claims 15 and 16 are reproduced below:
15. An articulated support structure adaptable for attachment
of a cradle or ottoman cushion to a mounting platform of the
support structure, and at least one disengageable fastener at an
interface of the cradle or ottoman cushion with the mounting
platform of the articulated support structure.
16. An articulated cradle assembly comprising:
a base having a stationary stand and an articulated support
structure attached to the stand and having a mounting platform
attached to the articulated support structure, the articulated
support structure configured to impart an oscillating motion to
the mounting platform relative to the base, and
a cradle having a planar bottom which is removably attached
to the mounting platform of the support structure.
The examiner relies on Desnoyers et al. (Desnoyers), U.S.
Patent No. 6,092,870, issued Jul. 25, 2000, as the sole evidence of
unpatentability (Answer, page 2, ¶(9)). Claims 10-13 and 15-18
stand rejected under 35 U.S.C. § 102(b) as anticipated by Desnoyers
(Answer, page 2, incorporating the rejection as set forth in the
final Office action dated Nov. 10, 2003). Claims 1-9, 14 and 19
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Application No. 10/161,365
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stand rejected under 35 U.S.C. § 103(a) as unpatentable over
Desnoyers (id. at page 3).
We affirm both rejections on appeal essentially for the
reasons stated in the Answer and those reasons set forth below.
OPINION
A. The Rejection under § 102(b)
The examiner finds that Desnoyers discloses an articulated
support structure (as shown in solid lines in Figures 2a, 2b, and
2c) with a mounting platform 64 (see Figures 3a and 3b) for
attachment of a cradle (see Figure 12) or an ottoman cushion (see
Figure 13) by means of threaded fasteners at an interface of the
cradle or ottoman cushion with the mounting platform (see
Desnoyers, col. 3, ll. 56-58)(Answer, page 3). The examiner has
construed the claim term “disengageable fastener” as including the
threaded fasteners of Desnoyers since these threaded fasteners are
removable, as with a screwdriver, and thus “disengageable” (Answer,
pages 3-4). Since appellant has stated that the claims stand or
fall together as grouped (Brief, page 4), the examiner has selected
claim 15 as the broadest claim, with the remaining claims in this
rejection standing or falling with this claim (Answer, page 3; see
37 CFR § 1.192(c)(7)(2003)). In view of the foregoing findings,
the examiner states that every limitation recited in claim 15 on
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appeal is described by Desnoyers within the meaning of section
102(b)(Answer, page 3). We agree.
Additionally, the examiner finds that the limitations of
claims 10 and 16 have been described by Desnoyers within the
meaning of section 102(b), construing the “removably attached” term
of claims 10 and 16 as reading on the “threaded fasteners” taught
by Desnoyers (Answer, page 4-5).
Appellant argues that Desnoyers only discloses that threaded
fasteners can be used to secure a “seating platform 22" to the
rocking mechanism, with no disclosure or suggestion at all of
adaptation for removal and interchanging of component parts (Brief,
page 5). This argument is not persuasive. First, we note that
appellant is claiming a structure. All that the reference must
show or describe is the claimed structure, and this structure must
be capable of the adaptation, even if the reference does not
disclose or suggest such an adaptation. See In re Schreiber, 128
F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997).
Second, we note that the reference does disclose and suggest such
an adaptation, i.e., Desnoyers teaches that the same rocking
mechanism may be employed for cradles and ottoman cushions, with
both being attached to a mounting platform by easily removable
threaded fasteners (see Figures 12 and 13; col. 3, ll. 49-58).
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Third, we agree with the examiner’s claim construction that the
“disengageable fasteners” (claim 15) or the “attachment removably
attached” (claim 10; see also similar terms in claim 16) are
inclusive of the “threaded fasteners” taught by Desnoyers. During
ex parte prosecution, claim language must be given its broadest
reasonable meaning consistent with the specification as it would
have been understood by one of ordinary skill in the art. See In
re Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir.
1997). One of ordinary skill in this art would have clearly
understood that threaded fasteners may be easily “disengaged” or
removed by reversing the threads, such as by a screwdriver.
Appellant’s specification discloses use of at least one “removable
fastener” (e.g., page 2, ll. 24-25), exemplifying bolts with
wingnuts (page 4, ll. 8-13), but teaches that
The use of nuts and bolts to removably secure the
structures together is only an example, any other
suitable means for fastening the cradle frame 22 and/or
ottoman cushion 24 to the frame 20 can be used, i.e. such
as metal brackets, or wood pegs with corresponding holes
and other types of disengageable fastening devices.
(Page 4, ll. 24-28).
Accordingly, we agree with the examiner’s claim construction that
the threaded fasteners taught by Desnoyers would have been
understood by one of ordinary skill in this art as being a
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“disengageable fastener” or “removable fastener” or would have
caused the attachment to be “removably attached.”
Appellant argues that claims 10 and 16 require the attachment
to have a generally planar mounting surface that is located in a
parallel facing position to the mounting platform while the
mounting plates 64 disclosed by Desnoyers are L-shaped brackets
which are not a planar surface (Brief, page 5). This argument is
not well taken. As correctly noted by the examiner, claim 16 does
not recite or require that the mounting surface be planar or in a
parallel facing position to the mounting platform (Answer, page 5).
As also correctly noted by the examiner, the L-shaped bracket
disclosed by Desnoyers does not correspond to the mounting platform
of the claims on appeal but merely holds the “seating platform 22"
in place (id.). See the mounting platform attached to bracket 64
as shown in the Figures of Desnoyers.
For the foregoing reasons and those stated in the Answer, we
determine that the examiner has prima facie established that every
limitation of claim 15 has been described by Desnoyers within the
meaning of section 102(b). Since appellant’s arguments are not
sufficient to overcome this prima facie case, we affirm the
examiner’s rejection of claim 15, and claims 10-13 and 16-18 which
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stand or fall with claim 15, under 35 U.S.C. § 102(b) over
Desnoyers.
B. The Rejection under § 103(a)
The examiner finds that Desnoyers discloses all limitations of
the claims in this rejection with the exception of the number of
fasteners and the orientation of the cradle (final Office action
dated Nov. 10, 2003, page 3). The examiner concludes that it would
have been obvious to one of ordinary skill in this art at the time
of appellant’s invention to vary the number of fasteners, depending
on the security and safety desired for the structure by the
artisan, as well as the orientation of the cradle, since the
rocking mechanism would function equally well in any orientation
(id.).
We select claim 1 as representative of the claims in this
rejection, and decide this ground of rejection on the basis of this
claim alone (see the Brief, page 4; 37 CFR § 1.192(c)(7)(2003)).
We note that claim 1 only requires “at least one removable
fastener” and does not require any particular orientation of the
cradle (see claims 4 and 9 on appeal).
Appellant argues that Desnoyers only teaches the use of L-
shaped brackets to secure the seating platform to the support
structure and fails to teach or suggest configuring the ottoman
Appeal No. 2004-2384
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cushion and the cradle to be interchangeable (Brief, page 6).
These arguments are not persuasive for reasons discussed above in
regard to the rejection under section 102(b).
Contrary to appellant’s argument that the reference “teaches
away” from the invention by disclosing “a unique, dedicated base to
support each different piece of furniture” (Brief, sentence
bridging pages 6-7), Desnoyer discloses the same rocking mechanism
for each of the cradle and ottoman cushion (see Figures 12 and 13;
also col. 2, ll. 46-48, and col. 5, ll. 40-45). The disclosure of
“variants” by Desnoyers does not “negate” a finding of motivation
(Brief, pages 7-8). Appellant’s “adaptation of a single
embodiment” (Brief, page 7) is the same as taught by Desnoyers,
namely the same base structure (or rocking mechanism) with either a
cradle or an ottoman cushion attached by removable fasteners to the
platform support of the base structure.
We determine that claim 1, as properly construed (see In re
Morris, supra), requires a base having a stationary stand (see
support arrangement 5 in Figures 2a-2c of Desnoyers), an
articulated support structure attached to the stand and having a
mounting platform, configured to impart an oscillating motion (see
the articulated structure set forth in Figures 2a-2c as well as
seating platform 22), the mounting platform configured for
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attachment of a cradle (i.e., capable of being attached by at least
one removable fastener to a cradle; see Figure 12, and col. 3, ll.
55-58), and an ottoman cushion configured for attachment (i.e.,
capable of being attached by at least one removable fastener; see
Figure 13 and col. 3, ll. 55-58). Note that claim 1 only
positively recites an ottoman cushion but does not require a cradle
(only that the mounting platform is “configured” or capable of
attachment to a cradle “whereby” the cradle “can be” attached to
and detached from the mounting platform). See In re Schreiber,
supra.
From the claim construction discussed above, we determine that
each and every limitation of claim 1 on appeal is described by
Desnoyers within the meaning of section 102(b). Since anticipation
or lack of novelty is the epitome or ultimate of obviousness, we
therefore affirm the examiner’s rejection of claim 1, and claims 2-
9, 14 and 19 which stand or fall with claim 1, under section 103(a)
over Desnoyers. See In re Fracalossi, 681 F.2d 792, 794, 215 USPQ
569, 571 (CCPA 1982).
C. Summary
We affirm the examiner’s rejection of claims 10-13 and 15-18
under 35 U.S.C. § 102(b) as anticipated by Desnoyers.
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We affirm the examiner’s rejection of claims 1-9, 14 and 19
under 35 U.S.C. § 103(a) as unpatentable over Desnoyers.
The decision of the examiner is affirmed.
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv)(effective Sep. 13, 2004; 69 Fed. Reg. 49960
(Aug. 12, 2004); 1286 Off. Gaz. Pat. Office 21 (Sep. 7, 2004)).
AFFIRMED
CHUNG K. PAK )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
THOMAS A. WALTZ ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
BEVERLY A. PAWLIKOWSKI )
Administrative Patent Judge )
TAW/jrg
Appeal No. 2004-2384
Application No. 10/161,365
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