Ex Parte Fitz

Board of Patent Appeals and Interferences

May 26, 2009

10829240 (B.P.A.I. May. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte HELMUT FITZ
____________

Appeal 2009-0034
Application 10/829,240
Technology Center 3600
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Decided:1 May 26, 2009
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Before: JENNIFER D. BAHR, STEVEN D.A. McCARTHY, and STEFAN
STAICOVICI, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
Helmut Fitz (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner's decision rejecting claims 10-18. Claims 1-9 have been canceled.
We have jurisdiction over this appeal under 35 U.S.C. § 6 (2002).

The Invention
Appellant's claimed invention is directed to an extension guide fitting
for drawers. An extension rail 4 is attached to a drawer; a carrier rail 2 is
attached to the inside of a furniture body; and a middle rail 3 is disposed in
between. Specification 3:8-10, fig. 2. Carriages 5 have running rollers that
transmit the load between rails 2, 3, and 4. Specification 3:11-14, fig. 2.
Stationary rollers 8 are mounted in a rocker member 14, the rollers 8 being
arranged at the front of the carrier rail 2 such that extension rail 4 rests on
rollers 8 when the drawer is in the closed position. Specification 3:18-21,
30-32, figs. 7, 8.
Claim 10, reproduced below, is illustrative of the claimed invention.
10. An extension guide fitting for a drawer,
comprising:
an extension rail to be attached to a drawer;
a carrier rail to be attached to a furniture
body;
a middle rail arranged to run between said
extension rail and said carrier rail;
carriages each having running rollers
mounted therein for transmitting a load between
said extension rail, said middle rail, and said
carrier rail;
a rocker member mounted at a front portion
of said carrier rail; and
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stationary support rollers mounted in said
rocker member, said rocker member and said
stationary support rollers being arranged so that
said extension rail runs on said stationary support
rollers and is supported by said stationary support
rollers at least when said extension rail is in a
closed position.

The Rejections
Appellant seeks review of the Examiner's rejection under 35 U.S.C.
§ 103(a) of claims 10-18 as being unpatentable over Julius Blum GmbH.2
(AT 004518 U1, published Aug. 27, 2001, hereinafter “Julius Blum”) in
view of Fleisch (US 5,895,102, issued Apr. 20, 1999).

SUMMARY OF DECISION
We REVERSE.

ISSUE
Appellant argues that the Examiner has not shown that the subject
matter of claims 10-18 is unpatentable under 35 U.S.C. § 103(a) in view of
Julius Blum and Fleisch. Appellant argues claims 10-18 as a group.
The issue presented in this appeal is whether the Appellant has
demonstrated that the Examiner failed to articulate reasoning with rational
underpinning to support the conclusion that the combination of the drawer
guide described in Julius Blum with the supporting member described in

2 Both the Examiner and Appellant refer to this reference as "Vorarlberg."
The assignee of this patent is Julius Blum GmbH, located in the Austrian
state of Vorarlberg. We will refer to this reference by the assignee of the
Austrian patent, shortened to Julius Blum.
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Fleisch renders obvious the claimed rocker member mounted in a front
portion of a carrier rail of a drawer guide. Br. 5, Ans. 6.

FACTS PERTINENT TO THE ISSUES
FF1 Julius Blum describes a drawer guide. The drawer guide is made up
of a support rail 1 or 2 ("carrier rail") that is mounted to the side wall
of a furniture body; a pull-out rail 4 ("extension rail") attached to a
drawer 10; and a center rail 3 ("middle rail") between the two. Julius
Blum 4:8-11, fig. 1. Carriages 5, 6, and 7 are disposed between the
rails 2, 3, and 4, and contain rollers that bear the weight between the
rails. Id. 4:12-19, fig. 1.
FF2 The Examiner finds that Julius Blum describes a fixed block 12 with a
single roller 8 located at the front of support rail 2. Ans. 3. This fixed
block 12 and roller 8 serves to support the front end of pull-out rail 4.
Julius Blum 4:20-22, 5:1-4, figs. 1, 3, 4.
FF3 The Examiner finds that Julius Blum does not disclose a rocker with
stationary rollers. Ans. 4; cf. FF2 (noting a similar function achieved
with a fixed block and single roller).
FF4 Fleisch describes a supporting member for a drawer guide. The
supporting member is made of end piece 10, supporting lever 13, and
rollers 11, 18, and 25. Col. 4, ll. 57-60, col. 5, ll. 2-7, 40-45. The
supporting member is attached via end piece 10 to the rear of drawer 5
such that it moves with drawer 5. Figs. 1-3.
FF5 The supporting lever 13 of Fleisch is pivotally attached at pivot 14 to
end piece 10. Col. 4, ll. 58-60. As shown in fig. 3, when the drawer 5
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is extended, the supporting lever 13 is in a lowered position, with
roller 11 sharing the weight of drawer 5 with roller 7 (not shown).
Col. 5, ll. 2-10. If the weight of the drawer as it is opened causes an
upward moment on roller 11, supporting roller 18 engages upper web
19 to prevent drawer 5 from tilting. Col. 5, ll. 10-23. When the
drawer is pushed in, supporting lever 13 is pivoted upward by the
pulling force of spring 17, causing supporting lever 13 to rotate
upwards as shown in figs. 1 and 2 along guide surface 22 using roller
25. Col. 5, ll. 31-45, 49-54.
FF6 In the closed position, the supporting member of Fleisch supports
drawer rail 8 with rollers 11 and 25. Roller 11 supports the weight of
drawer rail 8. FF5. When the drawer is closed, roller 25 rests against
end stop 26 to limit the lateral movement of drawer rail 8. See col. 5,
ll. 57-60, fig. 1.

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103(a), the examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). See also In re Piasecki, 745
F.2d 1468, 1472 (Fed. Cir. 1984). It is incumbent upon the examiner to
establish a factual basis to support the legal conclusion of obviousness. See
In re Fine, 837 F.2d, 1071, 1073 (Fed. Cir. 1988). In so doing, the examiner
is expected to make the factual determinations set forth in Graham v. John
Deere Co., 383 U.S. 1, 17 (1966), viz., (1) the scope and content of the prior
art; (2) the differences between the prior art and the claims at issue; and (3)
the level of ordinary skill in the art. In addition to these factual
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determinations, the examiner must also provide “some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with
approval in KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). Only
if this initial burden is met does the burden of coming forward with evidence
or argument shift to the appellant. See Oetiker, 977 F.2d at 1445. See also
Piasecki, 745 F.2d at 1472. Obviousness is then determined on the basis of
the evidence as a whole and the relative persuasiveness of the arguments.
See Oetiker, 977 F.2d at 1445; Piasecki, 745 F.2d at 1472.

ANALYSIS
The Examiner found that Julius Blum describes each element of
independent claim 10 (see FF1, Ans. 3) except for the rocker member with
stationary rollers element used to support the drawer (FF3). Julius Blum
does, however, show a single stationary roller and a non-rocking block
mounted at the front of a support rail used to support the drawer. FF2. The
Examiner then determines that "[t]he use of rocker members in drawer
guides is known in the art however, as shown by Fleisch." Ans. 4. Fleisch
describes a support member (FF4) that is pivotally attached to the back end
of a drawer to provide support for the drawer (FF5, FF6). See also Ans. 4.
Given these references, the Examiner reasons that it would have been
obvious to modify the single, fixed roller in Julius Blum with the multi-
roller rocker in Fleisch because the combination "would allow for better
support of the drawer as well as better accommodating any slide member
irregularities." Id.
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Appellant argues that because the rocker member of Fleisch is not
mounted in a front portion of a carrier rail, a person of ordinary skill in the
art would not have had a reason to locate the supporting member of Fleisch
at the front portion of a carrier rail, as called for in independent claims 10
and 18 (Br. 5 and 7). According to Appellant, combining Julius Blum and
Fleisch in such a manner would change the principle of operation of Fleisch,
and thus could not have been made (Br. 6-8).
Appellant's argument regarding the rationale for combining Julius
Blum and Fleisch is persuasive. The Examiner has not provided reasoning
with rational underpinning sufficient to explain why Fleisch’s teachings
concerning Fleisch’s non-stationary, rear-mounted support member (see
FF4) would have provided one of ordinary skill in the art reason to modify
the stationary, front-mounted support member of Julius Blum (see FF2).
The Examiner's purported reasons, allowing for "better support of the
drawer" and "accommodating any slide member irregularities," do not
provide a rational underpinning for the combination.
Regarding the "better support" line of reasoning, it is not clear how
the support member of Fleisch provides better support than the rollers
already found in Julius Blum. See FF2. The support member of Fleisch is
located in the rear of drawer 5. FF4. When drawer 5 is opened past a
certain point, the rotational forces caused by the weight of the drawer along
the track lift roller 11 off the track bottom and engage roller 18 at the track
top. FF5. Fleisch's rear-mounted support member thereby counteracts the
rotational forces with roller 18.
Mounting Fleisch's support member at the front of Julius Blum's
carrier rail would not appear to assist in supporting rotational forces on a
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drawer that has extended past a certain point. Further, the Examiner does
not address the fact that Fleisch's support member is a moving support
(FF4), and how this moving support would be combined with the fixed
support of Julius Blum (FF2).
Regarding the "accommodating irregularities" line of reasoning, it is
not clear how Fleisch addresses this problem. As mentioned above, Fleisch
describes a supporting member for the weight of the drawer and for any
rotational moment that arises when the drawer extends past a certain point.
FF5, 6. The Examiner provides no articulated reasoning that demonstrates
how Fleisch would "accommodate irregularities," or why one of ordinary
skill in the art would combine Fleisch with Julius Blum to provide this
benefit.
For the above reasons, the Examiner has failed to establish a prima
facie case that the subject matter of claims 10, and of claims 11-17, which
depend from claim 10, would have been obvious in view of Julius Blum and
Fleisch.
Claim 18 requires a rocker member with stationary support rollers
mounted on each carrier rail. The inherency finding with which the
Examiner seeks to support the rejection of claim 18 (Ans. 5) adds nothing
that would make up for the deficiency in the combination of Julius Blum and
Fleisch discussed above. Therefore, the rejection of claim 18 is likewise not
sustained.
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CONCLUSION
Appellant's arguments persuade us that the Examiner erred in
rejecting claims 10-18 as unpatentable under 35 U.S.C. § 103(a) by not
providing a reason with rational underpinning to support the conclusion that
the combination of the drawer guide described in Julius Blum with the
supporting member described in Fleisch renders obvious the claimed rocker
member mounted in a front portion of a carrier rail of a drawer guide.

DECISION
The Examiner's decision is reversed as to claims 10-18.

REVERSED

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Application 10/829,240

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LV:

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