Ex Parte Dykstra

Patent Trial and Appeal Board

Feb 28, 2014

10354067 (P.T.A.B. Feb. 28, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/354,067 01/30/2003 Thomas M. Dykstra 0591.0160001 1433
26111 7590 02/28/2014
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
SOUW, BERNARD E
ART UNIT PAPER NUMBER
2881
MAIL DATE DELIVERY MODE
02/28/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte THOMAS M. DYKSTRA
____________

Appeal 2011-013561
Application 10/354,067
Technology Center 2800
____________

Before TERRY J. OWENS, ROMULO H. DELMENDO, and
KAREN M. HASTINGS, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge

DECISION ON APPEAL

The Appellant1 seeks our review of a rejection of claims 1-4, 52, 54,
56-63, and 65-76. We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a).
We reverse.2

1 The Appellant states that the real party in interest is Technology S.G., LP,
the assignee of record. Appeal Brief filed February 24, 2010 (“App. Br.”) 4.
2 We heard oral arguments from the Appellant’s counsel on February 25,
2014. A written transcript of the arguments will be entered into the record in
due course.
Appeal 2011-013561
Application 10/354,067

2
BACKGROUND

The invention relates to an insect trap, as defined in representative
claim 1, which we reproduce as follows:
1. An insect trap, comprising:
a container including solid walls defining a substantially
closed space, wherein said container has a hole and at least two
parallel walls, wherein said two parallel walls are at least
partially covered with a reflective surface on the inside of said
container, wherein a semiochemical or an odorant is situated in
said container; and
a permeable flap, wherein said hole is covered by said
flap.
App. Br. (Claims App’x 1).
The Examiner rejected the claims as follows:
I. Claims 1-4, 52, 54, 56-63, and 65-76 under 35 U.S.C. § 101 as
lacking a credible utility;
II. Claims 1-4, 52, 54, 56-63, and 65-76 under 35 U.S.C. § 112, ¶
1, as being based on a non-enabling disclosure;
III. Claims 1-3, 52, 54, 75, and 763 under 35 U.S.C. § 103(a) as
unpatentable over Carter,4 Niemeyer,5 and Scherabak;6

3 The Examiner included canceled claims 53 and 55 in the statement of
rejection. Examiner’s Answer entered December 23, 2010 (“Ans.”) 12.
4 U.S. Patent No. 6,546,667 B1 issued April 15, 2003.
5 U.S. Patent No. 4,505,065 issued March 19, 1985.
6 U.S. Patent No. 4,998,376 issued March 12, 1991.
Appeal 2011-013561
Application 10/354,067

3
IV. Claims 56 and 63 under 35 U.S.C. § 103(a) as unpatentable
over Carter, Niemeyer, Scherabak, and Lambert;7
V. Claims 57, 59, 65, 73, and 74 under 35 U.S.C. § 103(a) as
unpatentable over Carter, Niemeyer, Scherabak, and
McLaughlin;8 and
VI. Claims 4, 58, 60-62, and 66-72 under 35 U.S.C. § 103(a) as
unpatentable over Carter, Niemeyer, Scherabak, and
Constantine.9
Ans. 4-45.

DISCUSSION
Issues I & II
The Examiner’s rejections are based on the belief that the Appellant’s
asserted utility is “UNTRUE (i.e., FALSE) based on countervailing evidence
. . . .” Ans. 5, 11.
We find no merit in the Examiner’s rejections for the reasons given by
the Appellant at, e.g., pages 22-33 and 37 of the Appeal Brief. Therefore,
we cannot sustain Rejections I and II.

7 U.S. Patent Application Publication 2001/0042337 A1 published
November 22, 2001.
8 U.S. Patent No. 4,089,132 issued May 16, 1978.
9 U.S. Patent No. 4,669,237 issued June 2, 1987.
Appeal 2011-013561
Application 10/354,067

4
Issues III – VI
The Appellant contends that Rejections III through VI are flawed
because, inter alia, the Examiner misinterpreted the scope of the limitation
“a container including solid walls defining a substantially closed space” in
claim 1.10 App. Br. 38-39. Specifically, the Appellant argues that the
Examiner committed reversible error in construing the disputed claim
limitation to read on Carter’s container constructed of mesh material. Id. at
39. In addition, the Appellant argues that the Examiner’s alternative
position relying on Niemeyer to account for this limitation is also misplaced.
Id.
Again, we agree with the Appellant. Carter describes a “fly trap 10
includ[ing] a screen mesh cylindrical side wall 12, which may be formed in
any suitable shape, such as circular (as illustrated), square, or other
polygonal shapes.” Col. 4, ll. 12-15; Fig. 1. The Examiner, however, failed
to direct us to any enlightenment in the written description that would have
indicated to one skilled in the relevant art that the phrase “solid walls
defining a substantially closed space” reads on walls constructed of a mesh
material. Indeed, as pointed out by the Appellant on page 10 of the Reply
Brief filed February 23, 2011, it would be unreasonable to construe the
disputed limitation to read on a mesh material when the Specification makes
it clear to one skilled in the relevant art that the “[p]resent invention does not

10 See also claim 75 (“solid walls defining a substantially closed spherical
space”), the only other independent claim on appeal. Claims App’x 4.
Appeal 2011-013561
Application 10/354,067

5
use wind currents” but rather passive diffusion of the deposited chemical.
Specification ¶ 37.
Niemeyer is of no help to the Examiner’s proffered claim
construction. As noted by the Appellant, App. Br. 39, Niemeyer discloses
walls with apertures, not “solid walls defining a substantially closed space,”
as recited in claim 1. See, e.g., col. 2, ll. 40-48. While the Examiner argues
that “Niemeyer’s trap walls are made of solid material,” Ans. 43, that fact is
insufficient to provide a motivation or reason to construct a trap having
“solid walls defining a substantially closed [spherical] space,” as required by
the claims.

SUMMARY

Rejections I through VI are reversed.

REVERSED

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