Ex Parte GASSER

Patent Trial and Appeal Board

Aug 22, 2018

14063327 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/063,327 10/25/2013
513 7590 08/24/2018
WENDEROTH, LIND & PONACK, L.L.P.
1030 15th Street, N.W.,
Suite 400 East
Washington, DC 20005-1503
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
IngoGASSER
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.
2013-1604A 8536
EXAMINER
DOYLE, RYAN A
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
08/24/2018 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):
eoa@wenderoth.com
kmiller@wenderoth.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte INGO GASSER1
Appeal2017-005712
Application 14/063,327
Technology Center 3600
Before MICHAEL L. HOELTER, MICHELLE R. OSINSKI, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 8-16 and 18-25, which are all of the pending
claims. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Julius Blum GmbH ("Appellant") is the Applicant as provided in
3 7 C.F .R. § 1.46 and is identified as the real party in interest. Appeal Br. 1.
Appeal2017-005712
Application 14/063,327
THE CLAIMED SUBJECT MATTER
Claim 8, the sole independent claim, is reproduced below and is
representative of the claimed subject matter on appeal.
8. A drawer comprising:
a pair of drawer side walls including a first drawer side
wall and a second drawer side wall; and
a bottom between said first drawer side wall and said
second drawer side wall;
wherein each of said pair of drawer side walls includes:
an inner wall arranged such that said inner wall of
said first drawer side wall faces said inner wall of said
second drawer side wall;
an outer wall connected to said inner wall;
a container rail to be fastened to an extension rail of
a drawer extension guide, a lower region of said inner wall
being directly fixed to said container rail, said container
rail being at least as long as a respective one of said pair
of drawer side walls such that said container rail extends
along an entire length of said respective one of said pair of
drawer side walls, said container rail being arranged below
an upper edge of said bottom; and
a discrete upwardly-projecting front fitment
member having a lower region directly fixed to said
container rail, said front fitment member including an
attachment device for attaching a drawer front panel to
said drawer side wall, an upper region of said inner wall
being directly fixed to an upper region of said front fitment
member.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Grabher
Haemmerle
us 5,478,146
US 8,491,069 B2
2
Dec. 26, 1995
July 23, 2013
Appeal2017-005712
Application 14/063,327
Bohler2 WO 2007/137311 A2 Dec. 6, 2007
THE REJECTIONS
I. Claims 8, 10, 11, 13-16, 18-20, 24, and 25 stand rejected under
35 U.S.C. § 102(b) as anticipated by Bohler. Final Act. 4---6.
II. Claims 8, 10, 14, 15, and 18-25 stand rejected under 35 U.S.C.
§ 102(e) as anticipated by Haemmerle. Id. at 6-8.
III. Claims 9 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bohler and Grabher. Id. at 9.
OPINION
Rejection I
The Examiner finds that Bohler discloses all of the limitations of
independent claim 8, including, inter alia, "a discrete upwardly-projecting
front fitment member (14 or 14, 15) having a lower region (bottom of 14)
directly fixed ([F]ig. 4) to said container rail" and "an upper region ... of
said inner wall being directly fixed ([F]ig. 3) to an upper region (15 region
of 14) of said front fitment member." Final Act. 4--5. More particularly,
with respect to the lower region of the front fitment member being directly
fixed to the container rail, the Examiner states that "[ t ]he Examiner relies
upon a reasonable interpretation of [']fixed,['] such that the bottom portion
of the detent device 14 ... is securely placed (definition provided below)
with direct contact to the container rail of the lateral drawer frame 2." Ans.
7; see also id. at 8 (noting that Merriam-Webster defines "fixed" as
2 Unless otherwise noted, citations to "Bohler" in this opinion will be to the
English translation entered into the record as an attachment to the
Examiner's Answer mailed December 22, 2016.
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Application 14/063,327
"securely placed or fastened"); see also Adv. Act. 2 ("[T]he rejection relies
upon a reasonable interpretation of [']fixed,['] such [that] the bottom portion
of the detent device 14 is up, against and held in place relative to the
container rail of the lateral drawer frame 2.") More particularly, with
respect to the upper region of the front fitment member being directly fixed
to the inner wall of the drawer side wall, the Examiner finds that "receiving
device 15, in conjunction with detent device 14 and rear wall holder 24,
provides support to the upper portion of the wall and lower portion of wall
6." Ans. 9; see also Adv. Act. 2 ("[T]he rejection relies upon a reasonable
interpretation of [']fixed,['] such [that] the inner wall of the lateral drawer
frame 2 is up, against and held in place relative to the mounting element
15.").
Appellant argues that "the ordinary meaning of the term 'fixed'
requires more than simply 'up, against and held in place relative to' (i.e.,
being supported by)." Appeal Br. 4. Appellant argues that a narrower
ordinary meaning is supported by the discussion in the Specification that
"the 'directly fixed' connection allows force applied to the drawer side wall
to be transmitted and dissipated more efficiently." Id.; see also, e.g., Spec.
2: 12-21 ("[I]t has been proven to be particularly advantageous if the front
fitment member ... [is] directly fixedly connected to the container rail,
preferably by welding, riveting, screwing, clinching or wobble clinching.
That gives a stable frame formed from the container rail, the fitment
member[] ... arranged on the container rail and the inner wall to which the
front fitment member ... can be directly and fixedly connected. . . . The
stable frame provides that forces which are applied to that arrangement ...
can be very well absorbed."). That is, Appellant "submits that one
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Application 14/063,327
component simply resting on - but not being fixed to - another component is
not 'fixed' to that other component and therefore would not necessarily
allow for such force transmission and dissipation." Appeal Br. 4. We agree
with Appellant that the Examiner's position is unreasonable because it fails
to account for the front fitment member being "fixed to" another component,
as opposed to simply being "fixed." In other words, although a component
resting on another component may be "fixed" if the resting relationship
results in the component being held in place and remaining stationary, a
resting relationship does not equate to the components being "fixed to" each
other.
Consequently, we agree with Appellant that the Examiner's findings
as to the disclosure of Bohler are predicated on an unreasonably broad
interpretation of one component being "fixed to" another component simply
by being in contact with each other and/or resting on one another. Appellant
explains that "detent device 14 (at best) simply contacts or rests on the lower
U-shaped rail portion of the drawer frame 2, but is not fixed thereto."
Appeal Br. 4 ( emphasis omitted). Appellant also explains that "detent
device 14 and the mounting element 15 of the 'fitment member' are also not
directly fixed to an upper region of an inner wall," but are merely "'arranged
in the drawer frame."' Id. ( emphasis omitted) ( citing Bohler Abst. ). The
Examiner has not established a finding supported by a preponderance of the
evidence that Bohler, as relied upon in the rejection, discloses a front fitment
member directly fixed to both a container rail and an inner wall of a drawer
side wall, as required by this anticipation rejection under review.
For the foregoing reasons, Appellant shows error by the Examiner in
finding that the subject matter of claim 8 is anticipated by Bohler. We do
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Application 14/063,327
not sustain the rejection of claim 8, or claims 10, 11, 13-16, 18-20, 24, and
25 which depend therefrom, under 35 U.S.C. § 102(b) as anticipated by
Bohler.
Rejection II
The Examiner finds that Haemmerle discloses all of the limitations of
independent claim 8, including, inter alia, "a discrete upwardly-projecting
front fitment member (24) having a lower region (12 portion) directly fixed
([F]ig. 16) to said container rail." Final Act. 6-7. More particularly, the
Examiner finds that Haemmerle discloses "that 'the drawer container 8 has a
drawer frame structure 12 by way of which the drawer 1 is fixed to a drawer
rail 5 [i.e., the container rail identified by the Examiner]."' Ans. 16 ( quoting
Haemmerle 5:59---61 and also citing Figs. 16-19).
Appellant argues that even assuming arguendo that drawer frame
structure 12 is considered part of the fitment member 24 in accordance with
the Examiner's stated position, "there is no explanation of the relationship or
connection between the drawer frame structure 12 and the drawer rail 5" so
as to adequately support that the drawer frame structure 12 is directly fixed
to the drawer rail 5. Appeal Br. 7. Appellant submits that "it is possible that
the drawer frame structure is connected to the drawer rail 5 via other
intervening components, or that the drawer frame structure simply rests on
the drawer rails." Id.
An Examiner's factual finding regarding what a reference discloses
must be supported by a preponderance of the evidence. See In re Caveney,
761 F.2d 671, 674 (Fed. Cir. 1985) ("preponderance of the evidence is the
standard that must be met by the PTO in making rejections"). In order to
satisfy this standard, the evidence must demonstrate that it is more likely
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than not that the alleged facts are actually true. See Bosies v. Benedict, 27
F.3d 539, 542 (Fed. Cir. 1994) (the preponderance of the evidence standard
requires the finder of fact to believe that the existence of a fact is more
probable than its non-existence). We are persuaded by Appellant's
argument that the Examiner has not adequately explained why it is more
likely than not that Haemmerle' s drawer frame structure 12 is directly fixed
to drawer rail 5, as opposed to the other possible relationships or connections
between the drawer frame structure 12 and drawer rail 5 posited by
Appellant. Without further explanation or evidence, one of ordinary skill in
the art can only speculate as to the type of construction between drawer
frame structure 12 and drawer rail 5, and such speculation is insufficient to
support the anticipation rejection under review. 3
For the foregoing reasons, Appellant shows error by the Examiner in
finding that the subject matter of claim 8 is anticipated by Haemmerle. We
do not sustain the rejection of claim 8, or claims 10, 14, 15, and 18-25
which depend therefrom, under 35 U.S.C. § 102(e) as anticipated by
Haemmerle.
Rejection III
In rejecting claims 9 and 12 under 35 U.S.C. § 103(a) as unpatentable
over Bohler and Grabher, the Examiner states that "it would have been
obvious to one of ordinary skill in the art ... to modify the ... connection-
type of Bohler to use a ... welded-type connection to provide great
stability." Final Act. 9 ( citing Grabher 1: 13-16). The Examiner, however,
3 We note that any consideration of what one of ordinary skill in the art may
deem obvious regarding the type of construction between a front fitment
member and a container rail is immaterial to the anticipation rejection made
here and before us for review.
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Application 14/063,327
fails to adequately explain what specific connection-types of Bohler are
being modified so as to use a welded-type connection, and thus fails to
remedy the above-identified deficiency of Bohler in failing to disclose a
front fitment member directly fixed to both a container rail and an inner wall
of a drawer side wall. The Examiner does not adequately explain how
Grabher's teachings that a wall can be produced from a metal material and
that welding is an alternative connection type to rivets and flanges (id.
(citing Grabher 1:7-9, 40-44; 2:53-54; Figs. 1-5)) would have led one of
ordinary skill in the art to directly fix Bohler's front fitment member to both
a container rail and an inner wall of a drawer side wall.
Accordingly, we do not sustain the rejection of claims 9 and 12 under
35 U.S.C. § 103(a) as unpatentable over Bohler and Grabher.
DECISION
The Examiner's decision to reject claims 8, 10, 11, 13-16, 18-20, 24,
and 25 under 35 U.S.C. § 102(b) as anticipated by Bohler is reversed.
The Examiner's decision to reject claims 8, 10, 14, 15, and 18-25
under 35 U.S.C. § 102(e) as anticipated by Haemmerle is reversed.
The Examiner's decision to reject claims 9 and 12 under 35 U.S.C.
§ 103(a) as unpatentable over Bohler and Grabher is reversed.
REVERSED
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