Ex Parte Hall

Board of Patent Appeals and Interferences

Nov 17, 2009

11113626 (B.P.A.I. Nov. 17, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte GLADE EVERETT HALL, JR.
__________

Appeal 2010-000199
Application 11/113,626
Technology Center 3600
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Decided: November 17, 2009
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Before TONI R. SCHEINER, ERIC GRIMES, and LORA M. GREEN,
Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-8, 10, and 11.1 We have jurisdiction
under 35 U.S.C. § 6(b).

1 Appellant states that claims 1-8, 10, 11, and 13 are pending (Supp. App.
Br. 3), but the Examiner notes that claim 13 was cancelled (Ans. 2).
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STATEMENT OF THE CASE
Claims 1 and 10 are representative of the claims on appeal and read as
follows:
1. An insect trap comprising:
a cap;
a container removeably coupled to the cap;
an aperture located on the cap forming a passage way from outside the
container to the interior of the container; the aperture comprising an exterior-
side and a container-side;
and
a supple sleeve located adjacent to the container-side of the aperture,
the supple sleeve comprising:
a generally round opening located adjacent to the container-side of the
aperture,
a generally smaller elliptical opening located on an opposite end of
the supple sleeve from the generally round opening; and
wherein the generally smaller elliptical opening is configured to tend
to close when an insect attempts to crawl on the supple sleeve.

10. A supple sleeve configured to be attached to at least one aperture wall
forming an aperture in an insect trap, the supple sleeve comprising:
a generally round opening located adjacent to the aperture wall;
a generally smaller elliptical opening located on an opposite end of
the supple sleeve from the generally round opening; and
wherein the generally smaller elliptical opening is configured to tend
to close when an insect attempts to crawl on the supple sleeve.

The Examiner relies on the following evidence:
Campbell US 6,112,452 Sep. 5, 2000
Chrestman US 2003/0014904 A1 Jan. 23, 2003
We reverse.

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ISSUE
The Examiner finds that claim 10 is anticipated by Chrestman, and
concludes that claims 1-8 are rendered obvious by the combination of
Campbell and Chrestman, and that claim 11 is rendered obvious by
Chrestman.
Appellant argues that Chrestman does not teach a supple sleeve as
required by independent claims 1 and 10.
Thus, the issue on appeal is: Has Appellant demonstrated that the
Examiner erred in finding that Chrestman teaches a supple sleeve as required
by independent claims 1 and 10?

FINDINGS OF FACT
FF1 According to the Specification, the “invention relates to an insect trap,
and more particularly, to a trap for flying insects.” (Spec. ¶1.)
FF2 Figure 2 of the instant disclosure is reproduced below.
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Figure 2 shows a cross-sectional view of an embodiment of the insect trap
taught by the Specification (id. at ¶13).
FF3 As seen in the Figure, sleeves 46 are coupled to aperture walls 24 (id.
at ¶ 19).
FF4 Specifically, the Specification teaches:
The sleeves 46 are configured to be supple and pliable such that
it allows an insect to crawl down the sleeve from the outside of
the container 18 into the container 18, generally following the
path designated by the arrow 42. However, since the sleeves
are supple and pliable, it will be very difficult, if not
impossible, for the insects to exit the container 18 via the
sleeves 46. The sleeves may be made from any supple material,
including but not limited to latex, rubber, nylon, plastic, vinyl,
paper, cloth and foil. The sleeve 46 may be tapered at its
downward end 50. The sleeve shape tapers from a generally
round opening 47 near the aperture walls 24 to a generally
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smaller elliptical opening 49 near its downward end 50. The
generally smaller elliptical opening 49 allows scent from the
bait 38 to enter and exit through the generally round opening,
thereby attracting insects to the trap. Additionally, the
generally smaller elliptical opening 49 may allow light to enter
the sleeve 46 and exit through the generally round opening 47,
which also may attract insects. The round to elliptical taper of
the sleeve 46 may be obtained by lightly creasing and flattening
a tapered piece of light, flexible and subtle material. When an
insect attempts to crawl down the sleeve 46, the weight of the
insect tends to close the generally smaller elliptical opening 49,
and interferes with the insects attempt to exit the sleeve through
the generally round opening 47.

(Id.)
FF5 The Examiner rejects claim 10 under 35 U.S.C. § 102(b) as being
anticipated by Chrestman (Ans.2 3).
FF6 The Examiner finds that Chrestman teaches “an insect trap having a
supple sleeve 15 configured to be attached to at least one aperture wall
forming an aperture in an insect trap.” (Id.)
FF7 The Examiner notes that “‘supple[’] is a relative term which given[ ]
its broadest reasonable interpretation means readily bent, pliable, or
compliant.” (Id. at 5.)
FF8 The Examiner finds:
The sleeve of Chrestman is clearly readily bent since it has a
round shape at the lower end and an oblong or elliptical top
opening which means that the material is pliable to have two
different shapes. When an insect puts weight on the sleeve it
will tend to deform. Both in the present invention and

2 All references to the Examiner’s Answer are to the Supplemental Answer
dated July 24, 2009.
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Chrestman, it is difficult to tell what it will take to deform the
sleeve since what the sleeve is made from, its thickness and
design and the weight of the insect are all variables that
determine the bending of the sleeve.

(Id.)
FF9 Moreover, according to the Examiner, since the sleeve of Chrestman
is made from a wire screen material, “only a small force would be required
to bend the sleeve beyond the strength of the mesh required to hold its
shape,” and thus “can be considered supple.” (Id. at 6.)
FF10 Chrestman is drawn to a trap for catching insects, and in particular,
flies and yellow jackets (Chrestman, ¶3).
FF11 Figure 1 of Chrestman is reproduced below.

Figure 1 shows a side view of the insect trap of Chrestman (id. at ¶12).
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FF12 The trap 10 includes an interior sidewall 15 (which the Examiner
equates to the claimed supple sleeve) that extends up from the bottom wall
14 into the main body 11 (id. at ¶20). Chrestman teaches that the top end 20
of the interior wall 15 has an inlet 27 that leads into the hollow interior 21
formed by the side wall 23 (id.).
FF13 Chrestman teaches further:
The interior wall or entrance wall 15 has a truncated, semi-
conical configuration. That is, the bottom end 25 of wall 15
extends continuously along and surrounds the opening 16 with
the top 20 of wall 15 extending around and tracing an oblong
slit or inlet 27. Wall 15 is produced from screen material
thereby allowing light to pass into the interior of passage 26
formed by wall 15.

(Id. at ¶22.)
FF14 Chrestman teaches that “the interior screen wall 15 extends into
chamber 21 approximately one-third the distance from the top 12 to the
bottom 13, thereby adding to the difficulty and length of walls upon which
the insect must traverse.” (Id. at ¶25.)
FF15 Chrestman teaches that “the shape of interior side wall 15 is
particularly critical to achieving a high rate of trapping insects.” (Id. at ¶28.)
FF16 The Examiner rejects claims 1-8 under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Campbell and Chrestman (Ans. 4).
FF17 The Examiner rejects claim 11 under 35 U.S.C. § 103(a) as being
rendered obvious by Chrestman (Ans. 5).
FF18 The Examiner relies on Chrestman in both of the above obviousness
rejections as set forth above with respect to the anticipation rejection (id. at
4-5).
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PRINCIPLES OF LAW
We recognize that during examination the PTO must interpret terms in
a claim using “the broadest reasonable meaning of the words in their
ordinary usage as they would be understood by one of ordinary skill in the
art, taking into account whatever enlightenment by way of definitions or
otherwise that may be afforded by the written description contained in the
applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). Accordingly, “[c]laims are not to be read in a vacuum[;] while it is
true they are to be given the broadest reasonable interpretation during
prosecution, their terms still have to be given the meaning called for by the
specification of which they form a part.” In re Royka, 490 F.2d 981, 984
(CCPA 1974).
As to anticipation, every element and limitation of the claimed
invention must be found in a single prior art reference, arranged as in the
claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383
(Fed. Cir. 2001).

ANALYSIS
Appellant argues that Chrestman does not disclose a supple sleeve
(App. Br.3 7). Appellant asserts that sleeve 15 of Chrestman “must be stiff
and non-supple enough such that the ‘wall 15 extends upwardly from bottom
wall into main body 11 of the trap with the wall 15 defining an opening 16

3 All references to the Appeal Brief (App. Br.) are to the Supplemental
Appeal Brief dated June 29, 2007.
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extending through bottom wall 14.’” (Id. (quoting Chrestman ¶20).) Thus,
Appellant argues, “if the sleeve or wall 15 in Chrestman was supple and
pliable, as the sleeve in the instant patent application, the Chrestman sleeve
would not [be] useful for its intended purpose of extending upwardly from
the bottom wall into the main body of the trap, and to form and hold a
conical shape with an elliptical or oblong opening 27, but rather the sleeve
15 would crumple over and not maintain its shape.” (App. Br. 8.)
In contrast, Appellant asserts that as “supple” is defined by the instant
disclosure, an insect can crawl down the sleeve 46 into the container, but it
is “nearly impossible for the insect to crawl out of the sleeve.” (Id.)
The Examiner is interpreting “supple” as “readily bent, pliable, or
compliant.” (FF7.) However, while “supple” is to be given its broadest
reasonable interpretation, that interpretation needs to be made in light of the
teachings of the Specification. The Specification teaches that the sleeve is
“supple” such that when an insect crawls on it, it has a tendency to close the
opening. The sleeve or sidewall 15 of Chrestman, on the other hand, is
made of a wire screen material, wherein the shape of the sidewall 15 is
critical to the operation of the trap, which suggests that it would not be
deformed when crawled on by an insect. In addition, Chrestman discusses
the possibility of an insect crawling on the sidewall, but does not suggest the
wire screen from which it is made deforms under the weight of the insect.
Finally, the sidewall 15 is on the bottom of the trap of Chrestman, thus if it
were to deform as an insect crawls up it sides, the insect would not be able to
enter the interior of the trap through the top, elliptical opening 27 at the top
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of the sidewall 15. Thus, we find that the Examiner has not established that
Chrestman teaches a “supple sleeve” as required by claim 10.
As to the obviousness rejections, Appellant reiterates that Chrestman
does not disclose a supple sleeve (App. Br. 9-10). We find Appellant’s
arguments convincing for the reasons set forth above with respect to the
anticipation rejection.
CONCLUSION OF LAW
We find that Appellant has demonstrated that the Examiner erred in
finding that Chrestman teaches a supple sleeve as require by independent
claims 1 and 10.
We thus reverse the rejections of:
Claim 10 under 35 U.S.C. § 102(b) as being anticipated by
Chrestman;
Claims 1-8 under 35 U.S.C. § 103(a) as being rendered obvious by the
combination of Campbell and Chrestman; and
Claim 11 under 35 U.S.C. § 103(a) as being rendered obvious by
Chrestman.
REVERSED

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