Ex Parte Greenhut

Patent Trial and Appeal Board

Sep 16, 2013

12229424 (P.T.A.B. Sep. 16, 2013)

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