Ex Parte Gretz

Board of Patent Appeals and Interferences

Nov 3, 2011

11089386 (B.P.A.I. Nov. 3, 2011)

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.
11/089,386 03/24/2005 Thomas J. Gretz 1752(Arl) 1846
30010 7590 11/03/2011
The Jackson Patent Group
1500 Forest Avenue, Suite 212
RICHMOND, VA 23229
EXAMINER
DUCKWORTH, BRADLEY
ART UNIT PAPER NUMBER
3632
MAIL DATE DELIVERY MODE
11/03/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte THOMAS J. GRETZ
____________

Appeal 2009-011134
Application 11/089,386
Technology Center 3600
____________

Before JENNIFER D. BAHR, LINDA E. HORNER, and
STEFAN STAICOVICI, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-011134
Application 11/089,386

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STATEMENT OF THE CASE
Thomas J. Gretz (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting under 35 U.S.C. § 103(a) claims 1, 2, 10, 11,
and 13-15 as unpatentable over Kerr (US 5,435,514, issued Jul. 25, 1995),
Dinh (US 6,889,943 B2, issued May 10, 2005), and Korcz (US 6,332,597
B1, issued Dec. 25, 2001). Claims 3-9, and 12 have been canceled. We
have jurisdiction over this appeal under 35 U.S.C. § 6.

THE INVENTION
Appellant’s invention relates to “a load bearing assembly for
supporting a lighting or fan fixture on a drop ceiling having a grid
supporting structure.” Spec. 2, ll. 13-14 and fig. 1.
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows:
1. A load bearing assembly for supporting a lighting or fan fixture
on a drop ceiling comprising:
an elongated one-piece center bracket having a longitudinal
central channel, a top portion, and a bottom portion;
a one-piece elongated tubular bar of rectangular cross section
extending through said central channel, said tubular bar having two
ends;
said bracket extending around the periphery of said tubular bar;
an elongated end bracket at each end of said tubular bar, said
end bracket having two ends and two sides;
widely spaced support legs extending downwards from each of
said ends of said end brackets;
a turnbuckle having an upper and a lower end;
said lower end of said turnbuckle pivotally attached to said
center bracket;
said support legs include lower ends;
notches in said support legs located a first distance above said
support leg lower ends;
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Application 11/089,386

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said notches creating removable end portions on said support
leg lower ends;
stubs of rectangular cross section extending from said sides of
said end brackets, said stubs received within said tubular bar and
slideable with respect to said bar;
a flat bracket back plate enclosed within said tubular bar; and
an electrical box secured to said bottom portion of said center
bracket.

SUMMARY OF DECISION
We REVERSE.

ANALYSIS
Independent claim 1 requires a “flat bracket back plate” enclosed
within a tubular bar having a rectangular cross-section. App. Br., Claims
Appendix. The Examiner acknowledges that Kerr does not disclose “a flat1
back plate received in a slot of the central tubular bar [44] to attach the
center bracket [52] and electrical box [50] to the tubular bar.” Ans. 5.
However, the Examiner found that Korcz discloses a flat bracket back plate
100 received in a slot for affixing an electrical box (junction box 12) to the
central bar. Id. Pointing to Figure 5 of Korcz , Appellant argues that “plate
24 is absolutely not flat as it is bent in several locations.” App. Br. 13. In
response, the Examiner opines that although bent end sections 124 and
curved side portions 112 are attached to plate 24, nonetheless, plate 24 is
flat. Ans. 10. As such, as far as we understand, the Examiner appears to
take the position that because main portion 100 of bracket 24 of Korcz

1 An ordinary and customary meaning of the term “flat” is “having a
continuous horizontal surface.” MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY (10th Ed. 1997).
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Application 11/089,386

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resides entirely within the rectangular channel 40 of bracket 24, main
portion 100 constitutes “a flat bracket back plate,” as called for in claim 1.
See, Korcz, fig. 4.
We do not agree with the Examiner’s position because downturned
sides 112, upward turned sides 128, and inclined strips 124 of plate 24 are
not merely attached2 to main portion 100, as the Examiner appears to opine,
but together form a single, unitary piece. Korcz specifically discloses that
plate 24 is “folded from a single, unitary member,” such as a “flat blank 140
of material.” Korcz, col. 6, ll. 28-31 and figs. 5 and 11. Accordingly, we
find that although plate 24 of Korcz includes a main portion 100, since plate
24 also includes downturned sides 112, upward turned sides 128, and
inclined strips 124, plate 24 does not have a continuous horizontal surface,
i.e., does not constitute a “flat” plate, as called for by claim 1. The addition
of Dinh does not remedy the deficiencies of Kerr and Korcz as discussed
above.
As such, since neither Kerr, Dinh, nor Korcz discloses a “flat bracket
back plate,” as called for by independent claim 1, the Examiner’s rejection
does not have a sufficient factual basis to properly conclude that the
combined teachings of Kerr, Dinh, and Korcz render obvious the subject
matter of independent claim 1. See In re Warner, 379 F.2d 1011, 1017
(CCPA 1967). Therefore, the rejection of independent claim 1, and its
dependent claims 2, 10, 11, and 13-15 under 35 U.S.C. § 103(a) as

2 An ordinary and customary meaning of the term “attach” is “to make
fast (as if by tying or gluing).” MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY (10th Ed. 1997).
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Application 11/089,386

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unpatentable over Kerr, Dinh, and Korcz cannot be sustained. See In re
Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988).

SUMMARY
The decision of the Examiner to reject claims 1, 2, 10, 11, and 13-15
is reversed.

REVERSED

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