Ex Parte Foser et al

Patent Trial and Appeal Board

May 30, 2017

11698680 (P.T.A.B. May. 30, 2017)

United States Patent and Trademark Office
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.
208,002 5147
EXAMINER
WOOD, KIMBERLY T
ART UNIT PAPER NUMBER
3631
MAIL DATE DELIVERY MODE
11/698,680 01/25/2007
38137 7590 05/31/2017
ABELMAN, FRAYNE & SCHWAB
666 THIRD AVENUE, 10TH FLOOR
NEW YORK, NY 10017
Thomas Foser
05/31/2017 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 FOSER and MARKUS DURIG
Appeal 2015-005848
Application 11/698,680
Technology Center 3600
Before JENNIFER D. BAHR, WILLIAM A. CAPP, and JILL D. HILL,
Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Thomas Foser and Markus Durig (Appellants) appeal under 35 U.S.C.
§ 134 from the Examiner’s decision finally rejecting claims 2, 3, 5, and 9—
16. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Claims 9, 15, and 16 are independent. Claim 9 illustrates the subject
matter on appeal and is reproduced below, with certain disputed limitations
emphasized.
Appeal 2015-005848
Application 11/698,680
9. A holding element for securing a grating (50) having a
plurality of separate struts to a support (40), comprising
a leg-shaped first engagement part (11) attachable to the
support (40) and spaceable from the grating;
a second engagement part (12) for holding a grating strut
and spaced from the first engagement part (11);
screw means (30) for moving the first and second
engagement parts (11, 12) toward each other along a clamping
axis (A), which in turn generates a clamping force along the
clamping axis (A) for securing a strut of a grating (50) between
the first and second engagement parts (11, 12), wherein the
clamping axis (A) is equal to an axis defined by the screw
means (30),
both the first and second engagement (11, 12) having,
respectively, an opening (25, 15) through which the screw
means (30) is extendable;
an elongate guide element (13) for retaining the first and
second engagement parts (11, 12) in a predetermined spaced
relationship to each other dependent on a grating height and for
retaining the second engagement part (12) in a spaced
relationship to the support (40) in a mounted condition of the
holding element, the elongate guide element (13) being spaced
from the clamping axis (A) and extending substantially parallel
thereto and securable to one of the first and second engagement
parts (11, 12),
another of the first and second engagement parts (11, 12)
having an opening (20) in which the elongate guide element
(13) is displaceable to provide for retaining the first and second
engagement parts (11, 12) in the predetermined spaced
relationship corresponding to the height of the grating securable
to the support,
wherein the opening (25) through which the screw means
(30) is extendable in the another of the first and second
engagement parts (11, 12) has a counter-thread (24) for a thread
of the screw means (30).
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Appeal 2015-005848
Application 11/698,680
REJECTIONS
I. Claims 2 and 9-16 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Langslow (US 934,676; iss. Sept. 21, 1909). Final Act. 2.
II. Claims 3 and 5 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Langslow. Final Act. 2-A.
ANALYSIS
Rejection I—Anticipation of Claims 2 and 9—16
Each of independent claims 9, 15, and 16 recite, inter alia,
screw means (30) for moving the first and second
engagement parts (11, 12) toward each other along a clamping
axis (A), which in turn generates a clamping force along the
clamping axis (A) for securing a strut of a grating (50) between
the first and second engagement parts (11, 12), wherein the
clamping axis (A) is equal to an axis defined by the screw
means (30).
Claims 2 and 14 depend therefrom.
The Examiner finds that Langslow discloses, inter alia, “screw means
(10) for moving the first and second engagement parts toward each other
along a clamping axis,” the screw means generating “a clamping force along
the clamping axis for securing a strut of a grating between the first and
second engagement parts, the clamping axis [being] equal to an axis defined
by the screw means.” Final Act. 2.
The clamping axis of Appellants’ device runs along the longitudinal
axis of its screw means 30, which moves “the first and second engagement
parts (11, 12) toward each other ‘along a clamping axis A.’” Appeal Br. 14
(citing Spec. Figs. 1—3; p. 9,1. 12 — p. 10,1. 3). Appellants contend that
Langslow’s clamping axis similarly runs along a longitudinal axis of its
screw 10. Id. at 16. This identification of Langslow’s clamping axis as
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Appeal 2015-005848
Application 11/698,680
corresponding with a longitudinal axis of its screw 10 is consistent with
Appellants’ Specification and meets the claim recitation of the clamping axis
(A) being “equal to an axis defined by the screw means (30).” The
Examiner does not explicitly disagree with this identification of the
clamping axis. Final Act. 2—3. We therefore accept this identification of
Langslow’s clamping axis as corresponding with a longitudinal axis of its
screw 10.
Appellants argue that Langslow’s screw 10 is only threaded into a
lower plate 9, and is not threaded in a support plate 1. Appeal Br. 14.
Rather, Appellants contend, an end portion of Langslow’s screw 10 includes
a circular bearing member that bears against a surface of the upper plate 1.
Id. Thus, Langslow’s screw 10 can be completely disengaged from plate 1
and cannot move the plates 1, 9 toward each other along a clamping axis
“that is equal to an axis defined by the screw, as required by present claims
9, 15, and 16.” Id. at 14—15 (emphasis omitted).
The issue, therefore, is whether Langslow’s screw 10 moves the first
and second engagement parts 1, 9 toward each other along the clamping
axis. The Examiner finds that Langslow’s screw performs this function.
Final Act. 2. However, Langslow instead discloses that the screw 10 moves
the first and second engagement parts 1, 9 away from each other along the
clamping axis, such that plate 9 pivots about fulcrum plate 13 (or fulcrum
plate 21) to bring plate 9 toward plate 1 to clamp the table top therebetween
along an axis parallel to — but different than or displaced from — the
clamping axis. See Langslow 2:74—93, 2:109—112.
We therefore agree with Appellants that Langslow’s screw 10,
identified by the Examiner as the claimed “screw means,” does not and
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Appeal 2015-005848
Application 11/698,680
cannot perform the function of moving Langslow’s first and second
engagement parts 1, 9 toward each other along a clamping axis defined by
the screws longitudinal axis. The Examiner’s findings are in error, and we
do not sustain the rejection of independent claims 9, 15, and 16 as
anticipated by Langslow. Claims 2 and 10-14 depend directly or indirectly
from claim 9, and we do not sustain the rejection thereof for the same
reason.
Rejection II— Obviousness of Claims 3 and 5
Claims 3 and 5 depend directly or indirectly from claim 9. The
Examiner does not conclude that it would have been obvious to one skilled
in the art for Langslow’s screw 10 to move Langslow’s first and second
engagement parts 1, 9 toward each other along a clamping axis defined by
the screws longitudinal axis. We therefore do not sustain the rejection of
claims 3 and 5 as unpatentable over Langslow.
DECISION
We REVERSE the rejection of claims 2 and 9-16 under 35 U.S.C.
102(b) as anticipated by Langslow.
We REVERSE the rejection of claims 3 and 5 under 35 U.S.C. §
103(a) as unpatentable over Langslow.
REVERSED
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