Ex Parte GreenhutDownload PDFPatent Trial and Appeal BoardSep 16, 201312229424 (P.T.A.B. Sep. 16, 2013) Copy Citation 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. 12/229,424 08/22/2008 Bart E. Greenhut 08/102 8935 7590 09/16/2013 LEON D. ROSEN FREILICH, HORNBAKER & ROSEN SUITE 1220 10960 WILSHIRE BOULEVARD LOS ANGELES, CA 90024 EXAMINER KRAMER, DEAN J ART UNIT PAPER NUMBER 3652 MAIL DATE DELIVERY MODE 09/16/2013 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 BART E. GREENHUT ____________________ Appeal 2011-011713 Application 12/229,424 Technology Center 3600 ____________________ Before: WILLIAM V. SAINDON, SCOTT A. DANIELS, and JEREMY M. PLENZLER, Administrative Patent Judges. DANIELS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011713 Application 12/229,424 2 STATEMENT OF CASE Bart E. Greenhut (Appellant) appeals under 35 U.S.C. § 134 from a rejection of claims 1, 6, 7 and 9; claims 1 and 7 are independent. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION The claims are directed to “a disposable scooper for scooping up the feces of a dog into a bag and then closing the bag, which is of low cost so it can be disposed of, and which keeps the hands of the user away from the feces.” Spec. 2. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A disposable feces scooper for scooping feces off the ground, which includes a closing plate, a wire frame with a horizontal bottom wire part and opposite side wire parts having upper ends slidably held in said closing plate, and a flexible bag with an open end having top and bottom bag open end parts connected respectively to said closing plate and to said bottom wire part, including: a plate-shaped pusher carried by said closing plate and detachable from the closing plate to push feces into the bag open end, said pusher being horizontally elongated and having a straight lower surface to prevent feces from moving under said pusher. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Lordi Greenhut Nelson US 4,483,560 US 4,718,707 US 5,186,384 Nov. 20, 1984 Jan. 12, 1988 Feb. 16, 1993 Appeal 2011-011713 Application 12/229,424 3 REJECTION The Examiner made the following rejection: Claims 1, 6, 7 and 9 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Greenhut, Nelson, and Lordi. Ans. 3-4. ANALYSIS The Examiner found that Greenhut (Appellant’s prior patent, U.S. Patent No. 4,718,707) discloses the claimed feces scooper except for “a plate-shaped pusher carried by said closing plate and detachable from the closing plate” as called for in claim 1. Ans. 3. The Examiner turned to Nelson for teaching a disposable feces collector with a crescent shaped elongate pusher 44 extracted from a cut-out portion of the collector, and found that Lordi reveals a generally rectangular shaped pusher for facilitating the pick-up and disposal of waste material such as dog feces. Ans. 3-4. The Examiner reasoned that it would be obvious to provide a generally rectangular pusher similar to Lordi, within a cut-out in Greenhut’s closing plate as taught by Nelson, to more effectively force small piles of waste material into the receptacle. Ans. 4. Appellant argues that because the scoop stick 44 disclosed by Nelson is crescent shaped it does not effectively push feces into Nelson’s receptacle, and that Nelson’s device has a fold line 22 between the handle panel 42 and the receptacle, as well as a closure panel 46 attached along the bottom of the receptacle opening, which make it difficult to get waste material, such as dog feces, into the receptacle. App. Br. 3. Appellant contends that if a user pushes down on Nelson’s handle panel 42, the handle panel 42 will bend at the fold line 22, and with closure panel 46 potentially impeding the scooping Appeal 2011-011713 Application 12/229,424 4 effort and compromising the cleanliness of the operation, the handle panel 42 cannot effectively push down on the receptacle to efficiently and cleanly scoop waste material. App. Br. 4, Reply Br. 1-2. Claim 1 At the outset it is undisputed that Greenhut discloses the claimed invention except for the removable pusher. Ans. 3, see App. Br. 3. Nelson is relied upon for the removable pusher (scoop stick 44) from the handle panel 42, and Lordi discloses a detachable waste pusher 14 that is substantially rectangular, rather than the crescent shape shown in Nelson. Ans. 3-4. Appellant’s initial argument that Nelson has a crescent shaped scoop stick that is not as effective as a rectangular pusher, does not apprise us of Examiner error because the Examiner relies upon Lordi as disclosing a generally rectangular shape of a pusher (scraper 14) having a straight lower surface. App. Br. 3-4; see Lordi figs. 1 and 5; In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references”). Appellant next argues that Nelson “does not suggest using the very efficient flexible bag, wire frame and closing plate of the prior art (Greenhut) to provide a scooper that does not require special shapes to rapidly close it.” App. Br. 4. This also does not apprise us of error because there is no legal requirement that the Examiner’s reasoning or rationale be predicated on “a suggestion” in the references. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007) (“The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and Appeal 2011-011713 Application 12/229,424 5 the explicit content of issued patents.”). Appellant’s additional argument that Nelson does not “leave an opening (52) for closing and carrying the scooper” is not commensurate in scope with the claim. App. Br. 4. Claim 1 recites merely that the pusher is “detachable from the closing plate.” Moreover, Nelson discloses a handle opening (Nelson col. 3, ll. 66-68) to be grasped by a user for carrying the waste receptacle, and the opening receives a tab 48 to close the opening to the receptacle once the waste material has been scooped. See Nelson, figs. 5-6. The Examiner has provided an articulated reasoning with rational underpinnings. Appellant’s arguments do not apprise us of error in this reasoning or in the combination of references. Accordingly, we sustain the rejection of claim 1 as obvious in view of Greenhut, Nelson, and Lordi. Claim 6 Claim 6 depends from claim 1, and recites additional limitations of the pusher having “elongated top and bottom edges and shorter opposite sides, and when said pusher is removed from said slot said slot is horizontally long enough to receive four fingers, other than the thumb, of one hand of a person.” Appellant argues that Nelson’s scoop stick 44 is shaped to facilitate closing the cardboard receptacle, and “leaves a slot that is inconvenient to hold and a scoop stick that is ineffective.” App. Br. 4. Appellant contends that using the bag-wire frame-cardboard scoop of Greenhut with the slot and pusher as recited in claim 6, is more efficient. The Examiner explained that Nelson teaches a removable pusher from a slot, thus forming a handle to carry the receptacle. Ans. 5. While Nelson does not specifically disclose is the length of the slot, for example in Nelson’s Figure 3, the Examiner reasoned that a pusher should obviously accommodate the hand of the user, and pointed out that Lordi’s Figure 4 Appeal 2011-011713 Application 12/229,424 6 indeed shows a pusher in a user’s hand having a length of approximately four finger widths. Ans. 5-6. We agree with the Examiner that given Lordi’s pusher which is long enough to accommodate four fingers of a user as claimed, a slot as taught by Nelson from which the pusher was removed, would be the same approximate four finger width.1 With respect to the issue of the efficiency of the crescent shape of Nelson’s pusher, as discussed supra with respect to claim 1, the Examiner relies upon the rectangular shape of the pusher disclosed by Lordi, and further explained that the pusher “could obviously be shaped to have straight upper and/or lower edges, similar to that shown in the Lordi patent, to allow waste to be more efficiently removed from flat surfaces.” Ans. 5. Appellant’s arguments relative to efficiency of the crescent shape do not apprise us of error in the Examiner’s reasoning. We sustain the rejection of claim 6. Claim 7 Appellant argues that the opening recited in independent claim 7 results “in an effective pusher (50) to push down the closing plate (12)” and that Nelson’s closing panel 44 does not work as effectively to scoop waste because of the fold line 22 about which the closing panel 44 can bend. App. Br. 5. This argument is not commensurate in scope with the claim. With respect to the opening, claim 7 recites merely that : said closing plate forms an opening and including a pusher that occupies said opening and that can be pushed out of said opening… and said opening formed by said closing plate 1 Nelson clearly explains that the handle opening (slot), is intended for a user to carry the receptacle. Nelson col. 3, ll. 66-68. Although there is no specific width disclosed, we find nothing in Nelson’s disclosure which would indicate that four fingers of the user’s hand could not be accommodated in the handle opening. Appeal 2011-011713 Application 12/229,424 7 having a horizontal top edge for receiving fingers of a person's hand to hold the scooper. As explained by the Examiner, Nelson discloses a handle opening from which the pusher (scoop stick 44) is removed, and Lordi discloses a rectangular pusher which would necessitate the top edge of the handle opening being horizontal. See Ans. 5-6. Appellant’s arguments do not apprise us of error in the Examiner’s reasoning, and we sustain the rejection of claim 7. Claim 9 Appellant argues that Nelson does not disclose the centerline of the opening being in the range of less than 3 inches below the top edge of the closing plate as called for in claim 9. The Examiner found it was an obvious matter of mechanical design to size the handle, and opening, to accommodate a user’s hand. Ans. 4. The Examiner supported this reasoning by explaining that since Nelson’s handle opening is similarly intended to be grasped by a user for carrying the receptacle, it would be obvious to place the centerline of the opening “relatively close (i.e. less than three inches) to the top edge of the handle panel.” Ans. 6. Although Nelson does not disclose a specific dimension for the centerline of the handle opening formed in panel 42, Nelson states that the opening is intended to be grasped by a user. Nelson, col. 3, ll. 66-68. In order to be effectively grasped by a user, we agree with the Examiner that Nelson’s opening centerline would have to be relatively close to, or within about 3 inches or less of the top edge. While Appellant argues that Nelson does not teach the specific dimensions claimed, Appellant offers no explanation as to why the claimed device would perform any differently than the device of Nelson. See Gardner v. TEC Systems, Inc., 725 F.2d 1338 Appeal 2011-011713 Application 12/229,424 8 (Fed. Cir. 1984) (where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device). Thus, we are not apprised of error and we sustain the rejection of claim 9 as unpatentable over Greenhut, Nelson, and Lordi. DECISION For the above reasons, the Examiner’s rejection of claims 1, 6, 7 and 9 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)(1)(iv) (2009). AFFIRMED mls Copy with citationCopy as parenthetical citation