Ex parte Gusdorf et al.

Board of Patent Appeals and Interferences

Jul 6, 1999

08505465 (B.P.A.I. Jul. 6, 1999)

Application for patent filed July 21, 1995.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No.15
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JOHN GUSDORF, FRED D. OBERHAUS
and MOHAMMAD MASSOUDNIA
_____________
Appeal No. 98-1979
Application 08/505,4651
______________
ON BRIEF
_______________
Before COHEN, ABRAMS and NASE, Administrative Patent Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 17
through 24. These claims constitute all of the claims
remaining in the application.

Appeal No. 98-1979
Application 08/505,465
2
Appellants’ invention pertains to an adjustable shelving
system. An understanding of the invention can be derived from
a reading of exemplary claim 17, a copy of which appears in
the Appendix to the brief (Paper No. 11).
As evidence of obviousness, the examiner has applied the
documents listed below:
Glaberson et al 3,221,893 Dec. 7,
1965
(Glaberson)
Doherty 3,918,670 Nov. 11,
1975
Stroh 3,993,002 Nov. 23,
1976
Zimmerman 4,858,773 Aug.
22, 1989
Brewster 5,039,046 Aug. 13,
1991
The following rejections are before us for review.
Claims 17, 18, and 21 through 23 stand rejected under
35 U.S.C. § 103 as being unpatentable over Stroh in view of
Zimmerman.
Claim 19 stands rejected under 35 U.S.C. § 103 as being
Appeal No. 98-1979
Application 08/505,465
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unpatentable over Stroh in view of Zimmerman, further in view
of Doherty.
Claim 20 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Stroh in view of Zimmerman, further in view
of Glaberson.
Claim 24 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Stroh in view of Zimmerman, further in view
of Brewster.
The full text of the examiner's rejections and response
to the argument presented by appellants appears in the answer
(Paper No. 12), while the complete statement of appellants’
argument can be found in the briefs (Paper No. 11).

OPINION
In reaching our conclusion on the obviousness issue
raised in this appeal, this panel of the board has carefully
Appeal No. 98-1979
Application 08/505,465
In our evaluation of the applied patents, we have considered all of the2
disclosure of each document for what it would have fairly taught one of ordinary skill
in the art. See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the board has taken into account not only the specific
teachings, but also the inferences which one skilled in the art would reasonably have
been expected to draw from the disclosure. See In re Preda 401 F.2d 825, 826, 159 USPQ
342, 344 (CCPA 1968).
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considered appellants’ specification and claims, the applied
patents, and the respective viewpoints of appellants and the2
examiner. As a consequence of our review, we make the
determinations which follow.
The respective rejections of the claims on appeal under
35 U.S.C. § 103 must be reversed since the evidence proffered
by the examiner fails to support a conclusion of obviousness.

Independent claim 17 is drawn to an adjustable shelving
system comprising, inter alia, first and second side brace
elements, a plurality of interchangeable shelves positioned
between the side brace elements, each of the side brace
elements comprising a side wall having formed therein a
plurality of spaced openings having a keyhole configuration,
retention means for the shelves comprising a knob, with the
Appeal No. 98-1979
Application 08/505,465
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respective knobs located within a keyhole opening, the shelves
during installation being bent inwardly to locate their knobs
within the keyhole opening.
We understand claim 17, consistent with the underlying
disclosure, as requiring brace elements with keyhole
configuration openings in a side wall, in contrast with, for
example, openings in a front wall. Claim 17 also sets forth
that the claimed shelves, during installation, bend inwardly
to locate the knobs of the shelves within a keyhole opening.
As to this method recitation in article claim 17, we note that
to the extent that process limitations distinguish products
over the prior art they must be given the same consideration
as traditional product characteristics. See In re Luck, 476
F.2d 650, 653, 177 USPQ 523, 525 (CCPA 1973). With the above
principle in mind, we appreciate from our reading of the noted
method recitation that it simply denotes that the claimed
shelves have the physical characteristic of being capable of
being bent inwardly.
We turn now to the prior art applied in the rejection of
Appeal No. 98-1979
Application 08/505,465
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claim 17.
Among other things, the patent to Stroh teaches (Figs. 3
and 9) openings 21 in the front face of vertical upright
members 14 that receive lugs 55 of brackets 51 clamped to
shelves 40. As to the Zimmerman document, it discloses a
foldable cooling/baking rack wherein shelving elements 20 are
positioned between posts 14 and 18. The shelving is pivoted
to posts 14 (for folding the shelving relative to posts 14)
and detachably connected to posts 18 via enlarged end caps 56
on shelving beam 22 received by openings 58 (large diameter
portion 60 and relatively small diameter portion 62 as seen in
Fig. 3a) in the posts 18.
When we set aside what appellants have disclosed in the
present application, it is at once quite apparent to us that
the combined teachings of Stroh and Zimmerman simply would not
have been suggestive of the particular adjustable shelving
system of claim 17, i.e., a shelving system wherein each of
the side brace elements comprises a side wall having formed
therein a plurality of spaced openings having a keyhole
Appeal No. 98-1979
Application 08/505,465
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configuration, retention means for the shelves comprising a
knob, with the respective knobs located within a keyhole
opening, and wherein the shelves have the physical
characteristic of being capable of being bent inwardly such
that the shelves, during installation, can be bent inwardly to
locate their knobs within the keyhole opening. The patents to
Doherty, Glaberson, and Brewster, while fairly suggestive of
angled hoops, interlocking brace sections, and coated wire,
respectively, nevertheless do not overcome the basic
deficiencies of the Stroh and Zimmerman references, as
specified above. Since the evidence applied by the examiner
would not have
been suggestive of the claimed invention, the respective
rejections of appellants’ claims must be reversed.
In summary, this panel of the board has:
reversed the rejection of claims 17, 18, and 21 through
23 under 35 U.S.C. § 103 as being unpatentable over Stroh in
view of Zimmerman;
Appeal No. 98-1979
Application 08/505,465
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reversed the rejection of claim 19 under 35 U.S.C. § 103
as being unpatentable over Stroh in view of Zimmerman and
Doherty;
reversed the rejection of claim 20 under 35 U.S.C. § 103
as being unpatentable over Stroh in view of Zimmerman and
Glaberson; and
reversed the rejection of claim 24 under 35 U.S.C. § 103
as being unpatentable over Stroh in view of Zimmerman and
Brewster.
The decision of the examiner is reversed.
REVERSED
Appeal No. 98-1979
Application 08/505,465
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)
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
NEAL E. ABRAMS )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JEFFREY V. NASE )
Administrative Patent Judge )
ICC/kis
Paul M. Denk
763 South New Ballas Road
St. Louis, MO 63141
Appeal No. 98-1979
Application 08/505,465
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