Ex Parte Genord et al

Patent Trial and Appeal Board

Dec 15, 2016

12166583 (P.T.A.B. Dec. 15, 2016)

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.
12/166,583 07/02/2008 Daniel S. Genord 60137-512PUS1 3927
82074 7590 12/19/2016
Carlson, Gaskey & Olds/Masco Corporation
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
BAKER, LORI LYNN
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
12/19/2016 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):
ptodocket @ cgolaw. com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL S. GENORD, MICHAEL MILLER,
DOMINIC J. DAUNTER, JULIAN GIGGS, VICTOR HOERNIG,
and CHARLES PATTERSON
Appeal 2015-000425
Application 12/166,583
Technology Center 3700
Before LINDA E. HORNER, JEFFREY A. STEPHENS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants, Daniel S. Genord et al.,1 appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 25—41. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify Alsons Corporation as the real party in interest.
Appeal Br. 1.
Appeal 2015-000425
Application 12/166,583
THE CLAIMED SUBJECT MATTER
The claims are directed to “an arrangement for securing a handheld
shower.” Spec. 12. Claims 25, 31, 33, and 39 are independent. Appeal Br.
11-13 (Claims App.). Claim 25, reproduced below, is illustrative of the
claimed subject matter:
25. A shower assembly comprising:
a fixed base having a first set of apertures for spraying
water upon a user, said base having a cover enclosing a back
portion of said first set of apertures and defining an opening;
a magnet disposed between said cover and said first set of
apertures,
a moveable spray head for docking in said opening said
spray head having a plate defining a second set of apertures that
direct a spray of water from the moveable spray head wherein
said magnet attracts the plate to hold the moveable spray head
relative to the base.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Lin US 6,446,278 B1 Sept. 10, 2002
Lev US 7,900,295 B2 Mar. 8,2011
Gilbert US 2007/0022528 A1 Feb. 1,2007
Spruce GB 2,431,861 B July 16, 2008
REJECTIONS
The Examiner made the following rejections:
1. Claims 33—37 and 39-41 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Gilbert.
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Application 12/166,583
2. Claims 25—27, 30-32, and 38 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Gilbert and Lin.2
3. Claim 28 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gilbert and Spruce.
4. Claim 29 stands rejected under 35 U.S.C § 103(a) as being
unpatentable over Gilbert and Lev.
Appellants seek our review of these rejections.
ANALYSIS
The Rejection of Claims 33—37 and 39—41 As Anticipated By Gilbert
Claims 33—37
The Examiner finds that Gilbert discloses all of the limitations of
claim 33, including the limitation reciting “the handheld shower is free to
move upwardly when the tapered portion contacts the other of the base and
the handheld shower.”3 Final Act. 3—4. The Examiner further finds that
(1) the “handheld shower is free to move upwardly (during removal of the
2 Claims 26, 27, 30-32, and 38 were initially rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Gilbert. Final Act. 4. Appellants
argued that the rejection of claims 26, 27, and 30, which depend from
independent claim 25, based on Gilbert alone is improper because
independent claim 25 has not been rejected based on Gilbert alone. Appeal
Br. 7. In response, the Examiner corrected his typographical error and finds
that claim 26, 27, 30-32, and 38 are rejected under 35 U.S.C. § 103(a) over
Gilbert and Lin. Ans. 6. Thus, the rejections of independent claim 25, and
dependent claims 26, 27, and 30—32, and dependent claim 38, which
depends from independent claim 33, have been combined for this appeal and
decision.
3 Claim 33 contains a typographical error because it recites both a
“tapered section” and a “tapered portion,” which appear to be the same
structural element.
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Application 12/166,583
handheld from the base, see figure 3 or to reposition the tapered section of
the handheld shower in the slot, see figure 5, where the handheld remains in
contact with the base once removed from the slot) when the tapered portion
contacts the other of the base and the handheld shower,” and (2) “[a]s to the
directional movement of the device, Gilbert discloses upward or downward
direction of the handheld (see figure 3) and also limited movement
downward (see figure 5) when the handheld is secured in the base 12.” Ans.
3^4.
In response, Appellants, referring to Figure 5 of Gilbert, correctly
explain that “[t]o remove the hook 36 from the base 12, the handle must be
rotated in a counter-clockwise direction in Figure 5 such that the shower
head is moved out of the base 12. Once the head portion is moved to clear
36 from the base, there is nothing holding the head to the base (see Figure
1).” Reply Br. 4. When Gilbert’s movable shower head 14 is located in
base 12, base 12 covers the top of shower head 14 and prevents upward
movement so that shower head 14 may be removed by rotating it in a
counter-clockwise direction. See generally Gilbert, Fig. 5. Contrary to the
Examiner’s finding, Gilbert’s shower head is not free to move upwardly, as
recited in claim 33. The Examiner’s finding that Figure 3 discloses upward
and downward movement of shower head 14, as recited in claim 33, is also
erroneous because, as Appellants explain, “this [occurs] when the handheld
showerhead has already been removed from the base.” Reply Br. 4. Thus,
the rejection of independent claim 33, and claims 34—37 which depend from
claim 33, cannot be sustained.
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Appeal 2015-000425
Application 12/166,583
Claims 39-41
The Examiner finds that Gilbert discloses all of the limitations of
claim 39, including the limitation reciting “the fixed portion holds
exclusively the neck portion of the handheld shower and the fixed portion is
spaced from other areas of the handheld shower.” Ans. 4—5. Contrary to the
Examiner’s findings, when Gilbert’s shower head 14 is located in the fixed
base 12, base 12 engages and covers the top of shower head 14 and prevents
upward movement of head 14. See generally Gilbert, Fig. 5. Thus, the fixed
portion is not spaced from other areas of the handheld shower, as recited in
claim 39. Thus, the rejection of independent claim 39, and claims 40 and 41
which depend from claim 39, cannot be sustained.
The Rejection of Claims 25—27, 30—32, and 38
As Unpatentable Over Gilbert and Lin
Claim 25
The Examiner finds that Gilbert discloses all of the limitations of
claim 25 including “the use of a magnet.” See Ans. 8 (citing Gilbert 122
(“Although the attachment device 37 of FIGS. 4-5 includes a hook member
36 and a docking aperture 38, other types of attachment devices are also
possible. For example, the attachment device 37 can be magnetic such that
the movable member 14 is docked using a magnetic force.”)); and Final Act.
4—5 (explaining in the rejection of dependent claims 26 that Gilbert discloses
the limitations of claim 25). The Examiner finds that Gilbert discloses “a
magnetic attachment such that [movable member] 14 (containing [movable
spray head] 20) is docked into [fixed base/cover] 12 via a magnetic force.
Both the base [12] and the movable spray head [20] define apertures (16, 15)
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Application 12/166,583
as claimed.” Final Act. 4. The Examiner determines it would have been
obvious “to have included a magnet in the base [12] to generate the magnetic
force. As modified, the magnetic force attracts [movable member] 14 to
[base] 12 and thus the magnet attracts the plate as claimed.” Id.
In response, Appellants argue that Gilbert’s attachment interface 37
“is not between a cover and the first set of apertures as claimed” and
“Gilbert offers no explanation as to where or how a magnet from such an
attachment device would be incorporated into the showerhead.” Reply Br.
8. Contrary to Appellants’ argument, however, Gilbert discloses at least two
locations for the magnetic attachment device 37. Referring to Figure 4 of
Gilbert, the upper arrow of attachment device 37 discloses that one location
for the magnetic device is slot 38 in base 12. Figures 4 and 5 of Gilbert
disclose that slot 3 8 is located between first set of apertures 16 and base
cover 12 (e.g., left and right side of cover 12 in Figure 5, respectively). The
lower arrow of attachment device 37 discloses that a second location is hook
36. Appellants do not show why the Examiner is incorrect in determining
that one of ordinary skill would have included the magnet in base 12 (e.g.,
slot 38) so that the movable member 14 is docked to base 12 using the
magnetic force, as recited in Gilbert. See, e.g., Gilbert 122. Thus, the
rejection of claim 25 is sustained.
Claim 26
Contrary to the Examiner’s finding that Lin discloses magnets that are
“annularly arranged about an axis . . . defined by the base, and each spaced
from the axis and each other,” as recited in claim 26 (Ans. 9), Appellants
correctly explain that “[m]agnet 241 contacts [magnet] 232[,] and these
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Application 12/166,583
magnets 241 and 232 are not annularly arranged about an axis and spaced
from the axis and each other as claimed.” Reply Br. 9. Thus, the rejection
of claim 26 cannot be sustained.
Claims 27 and 30
Correcting the initial typographical error in the Final Action, the
Examiner stated that claims 27 and 30 are unpatentable over the combination
of Gilbert and Lin. Ans. 6. Appellants stated that they would address this
rejection of claims 27 and 30 in Section C of the Reply Brief, but did not do
so. Reply Br. 6. As we find no error in the rejection of claim 25, the
rejection of claims 27 and 30, which depend from claim 25, is summarily
sustained.
Claims 31 and 32
Contrary to the Examiner’s finding that the combination of Gilbert
and Lin teach the combination of a clip and a magnet for holding a movable
spray head as recited in independent claim 31, Appellants correctly explain
that neither Gilbert nor Lin disclose both a clip and a magnet that holds a
movable spray head — Gilbert discloses a magnet holding a spray head and
Lin discloses clip 243 holding a spray head, and magnets 241, 232 holding
holder 24. Reply Br. 9—10. Thus, the rejections of independent claim 31,
and claim 32 which depends from claim 31, cannot be sustained.
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Claim 3 8
Claim 38 depends from independent claim 33. Appellants argue that
claim 38 is “allowable for the same reason claim 33 is allowable.” Reply
Br. 10. Because we reverse the rejection of claim 33, the rejection of claim
38 must also be reversed.
The Rejection of Claim 28 As Unpatentable Over Gilbert and Spruce
Claim 28, which depends from independent claim 25, recites that “the
base defines a recess that accommodates the at least one magnet.” The
Examiner finds that Gilbert does not disclose “a recess in defined in the base
that accommodates the magnet.” Final Act. 7. The Examiner, however,
finds that Spruce discloses this missing limitation, and that it would have
been obvious “to have provided a recess [in view of Spruce] in the base of
Gilbert as claimed to provide a location for a magnet for a magnetic
attachment device.” Id.
In response, Appellants argue that “Spruce is directed to a mounting
bracket for window blinds.” Reply Br. 11. Contrary to Appellants’
argument, Spruce discloses “the breakaway bracket is designed as the holder
for a shower head.” Spruce 3:167—169. Appellants also argue that Gilbert
does not disclose “a showerhead based [sic] with the base defining a recess
that accommodates a magnet.” Reply Br. 11. The Examiner, however, finds
that Spruce, not Gilbert, discloses “a magnetic attachment device for a
showerhead having a recess that accommodated a magnet in a base 5.” Final
Act. 7. Appellants’ argument does not address the rejection as articulated by
the Examiner and, thus, does not show Examiner error. The rejection of
claim 28 is sustained.
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Application 12/166,583
The Rejection of Claim 29 As Unpatentable Over Gilbert and Lev
With respect to the rejection of claim 29, which depe
nds from claim 25, Appellants merely argue that Gilbert “does not
disclose or teach the claimed invention,” and “Lev does not make up for
Gilbert’s deficiencies.” Reply Br. 11. As we find no deficiencies in the
rejection of claim 25, the rejection of claim 29 is sustained.
DECISION
For the above reasons, the Examiner’s rejection of claims 33—37 and
39-41 under 35 U.S.C. § 102(b) as being anticipated by Gilbert is
REVERSED.
The Examiner’s rejection of claims 25, 27, and 30 under 35 U.S.C.
§ 103(a) as being unpatentable over Gilbert and Lin is AFFIRMED.
The Examiner’s rejection of claims 26, 31, 32, and 38 under 35 U.S.C.
§ 103(a) as being unpatentable over Gilbert and Lin is REVERSED.
The Examiner’s rejection of claim 28 under 35 U.S.C. § 103(a) as
being unpatentable over Gilbert and Spruce is AFFIRMED.
The Examiner’s rejection of claim 29 under 35 U.S.C § 103(a) as
being unpatentable over Gilbert and Lev is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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