Ex Parte HallDownload PDFPatent Trial and Appeal BoardMay 5, 201612961615 (P.T.A.B. May. 5, 2016) 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. 12/961,615 12/07/2010 Russell G. Hall 1-19931 9495 7590 05/06/2016 Attention: Donald A. Schurr MARSHALL & MELHORN, LLC 8th Floor Four SeaGate Toledo, OH 43604 EXAMINER KIRSCH, ANDREW THOMAS ART UNIT PAPER NUMBER 3781 MAIL DATE DELIVERY MODE 05/06/2016 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 RUSSELL G. HALL ____________________ Appeal 2014-004378 Application 12/961,615 Technology Center 3700 ____________________ Before LYNNE H. BROWNE, JILL D. HILL, and GORDON D. KINDER, Administrative Patent Judges. KINDER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2014-004378 Application 12/961,615 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1– 17. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. THE CLAIMED SUBJECT MATTER The claims are directed to a reusable container kit. Claim 1, reproduced below, is illustrative of the claimed subject matter (Figure references omitted): 1. A reusable container comprising: a base member comprising: a front, vertical base member; a rear vertical base member separated from, and substantially parallel to the front vertical base member; the front and rear vertical base members separated by a distance substantially equivalent to the length of first and second vertical side base members; the first and second vertical side base members being substantially parallel to each other, being substantially perpendicular to the front and rear vertical base members and being mechanically fastened to the front and rear vertical base members; a plurality of base reinforcing members mechanically fastened to each of the front, rear, first and second vertical base members; a horizontal sub-base member mechanically attached to the base reinforcing members; a first horizontal support member having a peripheral area thereabout fitting within the area formed by the joined front, rear, first and second vertical side base members; wherein the vertical base members extend a predetermined height above the first horizontal support member and having a plurality of locking tab receiving openings formed in the peripheral area of the first horizontal support member; Appeal 2014-004378 Application 12/961,615 3 a front, a rear, and first side and second side vertical wall members, each vertical wall member having a peripheral area thereabout; one or more locking tabs formed in a bottom portion of the peripheral area of each of the front, rear, and first and second vertical wall member; oriented so as to be insertable into the locking tab receiving openings in the first horizontal support surface of the first horizontal support member; one or more locking device receiving openings also being formed in predetermined locations in each of the vertical wall members; a second horizontal support member having a peripheral area thereabout, disposed over the first horizontal support member, the peripheral area thereof lockingly contacting the one or more locking tabs of one or more of the vertical wall members; a top member having a peripheral area thereabout and a plurality of locking device receiving openings formed therein, capable of closing the container when substantially perpendicularly oriented to the vertical wall members and in closing contact with a top portion of the peripheral area of each of the vertical wall members; and a plurality of locking devices capable of securing the vertical wall members one to another and securing the top member to one or more of the vertical wall members; wherein in a disassembled state, the first horizontal support member, the second horizontal support surface member, the front, rear and first and second side vertical wall members, the top member and the plurality of locking devices are all contained within the area defined by the front, rear and first and second vertical side base members and to a height no greater than the predetermined height of the front, rear and first and second vertical side base members. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Appeal 2014-004378 Application 12/961,615 4 Fielding Verhein Parasin Laarhoven et al. Williams US 2,301,032 US 3,374,915 US 5,597,084 US 5,967,356 US 6,966,449 B2 Nov. 3, 1942 Mar. 26, 1968 Jan. 28, 1997 Oct. 19, 1999 Nov. 22, 2005 REJECTIONS Claims 1, 2, 4, 6, 9, and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Verhein in view of Fielding. Claims 3 and 5 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Verhein in view of Fielding as applied to claim 1 above, and further in view of Laarhoven. Claims 7, 8, 11, and 12 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Verhein in view of Fielding as applied to claim 1 above, and further in view of Parasin. Claims 13–17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Verhein in view of Fielding and Parasin and further in view of Williams. OPINION The Examiner finds that Fielding discloses “a disassemblable container which includes a horizontal support member (25) [a liquid- catching tray] having a peripheral area thereabout, the peripheral area thereof lockingly contacting (preventing inwards movement of) lower portions of sidewalls of the container structure.” Final Act. 6. Appellant argues that Fielding does not teach “a second horizontal support member . . . lockingly contacting the one or more locking tabs of one or more of the vertical wall members” as required by claim 1. Appeal 2014-004378 Application 12/961,615 5 Fielding discloses a wire holder to support a paper trash bag. The wire basket is rectangular with an open top. Fielding describes his holder as follows: [T]he holder B is made up of bottom, rear, front and side walls, the front, rear and side walls each including substantially U- shaped wires 10 having vertical leads 11 joined by a lower lead or bight 12 and spaced parallel vertical intermediate wires 13 attached to the lower connecting lead or bight 12 and extending vertically upward therefrom. The front, rear and side walls are connected together in a rectangular arrangement by horizontally disposed vertically spaced rectangular frame wires 14 arranged in surrounding relation to said walls and disposed exterior thereof, the uppermost frame wire 14 connecting the upper terminals of the U-shaped wires 10 and the upper terminals of the intermediate wires 13. The bottom wall is formed by a plurality of horizontally disposed wires 15 which are connected to and extend forwardly and rearwardly from the front and rear leads of the frame wires 14 at the intersection of the vertical wires 13 therewith. Thus fabricated the holder is designed to rest on the connecting leads or bights 12 with the bottom wall spaced thereabove and provides a receiver of reticulated, foraminated or open work formation, the inside of which holder is provided with vertically extending wire leads which facilitate the vertical sliding movement of the bag when emplacing the same within or removing the same from the holder, thus avoiding any horizontal obstructions to the vertical sliding movement. Fielding, p. 1, right column, ll. 4–35 (emphasis added). A paper refuse bag may rest directly on the bottom wire leads, although the use of a tray in the bottom to catch liquids is preferable. Id. p. 2, left column, ll. 8–13. [T]he PTO applies to the verbiage of the proposed claims 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. Appeal 2014-004378 Application 12/961,615 6 In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). In doing so, the Office may not read the claims in a way that would effectively expunge a term from the claim language. See K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1363 (Fed. Cir. 1999). Here the Examiner has interpreted the phrase “lockingly contacting” in claim 1 as “preventing inwards movement of.” Final Act. 6. The Examiner explained how in his view Fielding disclosed this limitation: The second horizontal support member of Fielding contacts the lower portions of the walls of Fielding and prevents inwards deflection of the walls thereby helping to lock the walls in their upright position, and the walls are therefore considered “lockingly contacted.” Final Act. 15. However, Fielding’s tray (identified by the Examiner as corresponding to the claimed second horizontal support member) does not prevent inward deflection of the walls in the manner asserted by the Examiner. In Fielding the wires forming the walls and bottom are “connected,” Fielding, p. 1, right column, ll. 21–22, and “attached,” id. at 9, to each other. There is no sign in Fielding that the basket is collapsible as the Examiner found, nor that the walls need to be locked in their upright position. Instead, the walls are already rigidly formed and connected to each other, and the use of the removable tray is entirely optional, although preferred. Fielding, p. 2, left column, ll. 8–13. In our view, “lockingly” requires that some members or elements be disengagable in order for the phrase “lockingly contacting” have meaning. Given that Fielding’s removable tray readily slides out and Fielding’s walls are already permanently assembled, the Examiner’s determination that Fielding discloses a second horizontal support member that locking contacts the locking tabs of its walls is based on an Appeal 2014-004378 Application 12/961,615 7 unreasonably broad interpretation of the claim terminology lockingly contacting. See Final Act. 6. For this reason, we do not sustain the rejection of claim 1. Independent claims 11 and 12 are method claims with similar language (“lockingly contacts”). Claims 11 and 12 each include the step: (ix) inserting the second horizontal support member (44) into the base member (12), so that the periphery of the second horizontal support member (44) lockingly contacts each of the vertical wall members (32, 34, 36, 38) so as to prevent movement of the locking tabs (40, 140) in the locking tab receiving openings (30, 130). Br. 26, 28. As discussed in connection with claim 1, Fielding does not show an inserted member whose periphery lockingly contacts the vertical wall members because the wall members of Fielding are already fixed in place and therefore cannot be lockingly contacted. The additional references, Verhein, Parasin, and Williams, relied upon in rejecting these and dependent claims 13–17 do not cure the deficiency of the Fielding reference. For the forgoing reasons we do not sustain the rejections of claims 11–17. DECISION For the above reasons, the Examiner’s rejection of claims 1–17 is reversed. REVERSED Copy with citationCopy as parenthetical citation