12968398 (P.T.A.B. Jun. 14, 2017)

Ex Parte Hall et al

Patent Trial and Appeal BoardJun 14, 2017

12968398 (P.T.A.B. Jun. 14, 2017)

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. 12/968,398 12/15/2010 Russell G. Hall 1-18611 2300 7590 06/15/2017 Attention: Donald A. Schurr MARSHALL & MELHORN, LLC 8th Floor Four SeaGate Toledo, OH 43604 EXAMINER MATHEW, FENN C ART UNIT PAPER NUMBER 3781 MAIL DATE DELIVERY MODE 06/15/2017 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 and JOSEPH J. GRABER ____________ Appeal 2015-005111 Application 12/968,3981 Technology Center 3700 ____________ Before STEFAN STAICOVICI, LEE L. STEPINA, and FREDERICK C. LANEY, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Russel G. Hall and Joseph J. Graber (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1–20 and 33. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. 1 According to Appellants, Packaging Engineering, LLC is the real party in interest. Br. 3 (filed Oct. 31, 2014). Appeal 2015-005111 Application 12/968,398 2 INVENTION Appellants’ invention relates to a “reusable container capable of transporting fragile, yet heavy loads.” Spec. 1, ll. 12–13. Claims 1 and 33 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A reusable container comprising: one or more base member supports; a base member comprising a front base rail, a rear base rail and one or more interior base rails, the front and rear base rails being substantially parallel to one another and separated by a distance corresponding to a length of at least one horizontal load support, and to side locking rails substantially parallel to one another, and separated by a distance corresponding to a length of each of the front and rear base rails, and the one or more interior base rails, wherein the front and rear base rails, the at least one horizontal load support, the one or more base member support and side locking rails are mechanically fastened to one another to form a substantially rectangular shape; at least one vertical member support interlock pocket formed by the intersection of the front base rail or the rear base rail, one of the one or more interior base rails, a side locking rail and one of the at least one horizontal load supports; at least one vertical side member comprising at least one side member brace and at least one vertical side member support with locking notch, mechanically fastened to one another, inserted into a front and rear vertical support interlock pocket, the locking notch lockingly engaging the side locking rail; a vertical front member comprising at least one horizontal front brace member and at least one vertical front member support mechanically fastened to one another and inserted into the vertical support interlock Appeal 2015-005111 Application 12/968,398 3 pocket formed by the front base rail, one of the one or more interior base rails a side locking rail and one of the at least one horizontal load supports; a vertical rear member comprising at least one horizontal rear brace member and at least one vertical rear member support mechanically fastened to one another, inserted into the vertical support interlock pockets formed by the rear base rails, one of the one or more interior base rails a side locking rail and one of the at least one horizontal load supports; a top member comprising at least one horizontal top member and at least one top brace oriented perpendicular to the at least one horizontal top member and mechanically fastened thereto, the top member closingly contacting one or more of the at least one horizontal front brace member, the at least one horizontal rear brace member, and the at least one horizontal side member brace; and a cargo support member contacting and extending substantially vertically from one or more horizontal load supports for a predetermined vertical distance relative to the vertical rear member. REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 1–20 and 33 under 35 U.S.C. § 112, second paragraph, as being indefinite. II. The Examiner rejected claims 1–12, 18, and 33 under 35 U.S.C. § 103(a) as being unpatentable over Hemmerly (US 6,076,690, iss. June 20, 2000), Grigsby Sr. (US 5,622,306, iss. Apr. 22, 1997, hereafter “Grigsby”), and Hall (US 2008/0283583 A1, pub. Nov. 20, 2008). Appeal 2015-005111 Application 12/968,398 4 III. The Examiner rejected claims 13–17 under 35 U.S.C. § 103(a) as being unpatentable over Hemmerly, Grigsby, Hall, and Hansen (US 2,738,058, iss. Mar. 13, 1956). IV. The Examiner rejected claims 19 and 20 under 35 U.S.C. § 103(a) as being unpatentable over Hemmerly, Grigsby, Hall, and Barbarie (FR 2 789 342 B1, pub. Aug. 11, 2000).2 ANALYSIS Rejection I Appellants do not present any arguments with respect to the rejection of claims 1–20 and 33 under 35 U.S.C. § 112, second paragraph, as being indefinite. See Br. 9–14; see also Final Act. 2–3; Ans. 2–3 (mailed Feb. 2, 2015). Therefore, we summarily sustain the indefiniteness rejection of these claims. Rejection II Each of independent claims 1 and 33 requires, inter alia, an “interlock pocket formed by the intersection of the front base rail or the rear base rail, one of the one or more interior base rails, a side locking rail and one of the at least one horizontal load supports.” Br. 16, 21 (Claims App.). The Examiner finds that Hemmerly discloses: [A]t least one vertical member support interlock pocket 36a, 36b, 38a, 38b formed by the intersection of the front base rail 2 We derive our understanding of this reference from the English language translation contained in the image file wrapper of this application. All references to the text of this document are to portions of the translation. Appeal 2015-005111 Application 12/968,398 5 [30] or the rear base rail [30], one of the one or more interior base rails [30], a side locking rail [27] and one of the at least one horizontal load support [27]; (figure 2 shows that the interlock pocket is formed in the intersection of the front base rail, an interior base rail 27, and a side locking rail. The holes 36 are considered to be “interlock pockets” since they are recesses formed in the base member and are designed to interlock with the vertical members of the container). Final Act. 5 (mailed May 21, 2014). Appellants argue that Hemmerly fails to disclose a vertical support interlock pocket, as called for by each of independent claims 1 and 33. See Br. 9. According to Appellants, Hemmerly discloses a container 20 having rails 30 “in which dowel holes [36a, 36b, 38a, 38b] have been formed and posts having a top and bottom dowel projecting therefrom.” Id. at 9 (citing Hemmerly, col. 1, l. 57–col. 2, l. 3); see also Hemmerly, Fig. 1. Although acknowledging, “holes and dowels constitute an alternative means of assembly of components,” Appellants nonetheless argue that they do not constitute “vertical support interlock pockets,” as called for by each of independent claims 1 and 33. Id. at 10. In response, the Examiner “notes that the term ‘formed by’ can be interpreted to mean that the interlock pocket is formed near or close to the intersection” of the claimed “front base rail or the rear base rail, one of the one or more interior base rails, a side locking rail and one of the at least one horizontal load supports.” Ans. 12–13. According to the Examiner, “dowel holes 36a, 38b taught by Hemmerly are considered to be ‘pockets’” because “a pocket is defined to be ‘any pouchlike receptacle, compartment, hollow, or cavity’ by dictionary.com.” Id. at 13. Appeal 2015-005111 Application 12/968,398 6 During examination, “claims . . . are to be given their broadest reasonable interpretation consistent with the specification, [ ] and . . . claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990) (alteration in original) (citing In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983). This means that the words of the claim must be given their plain meaning unless the plain meaning is inconsistent with the specification. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). In this case, in a first instance, we agree with the Examiner that an ordinary and customary meaning of the term “by” is “in proximity to : NEAR.” Merriam Webster’s Collegiate Dictionary (10th ed. 2005). However, the term “by” can also mean “through the agency or instrumentality of < ~ force >.” Id. Such an interpretation is consistent with Appellants’ Specification, which describes inserting vertical front support member 34 (or rear support member 36) and vertical side member support 38 into vertical support interlock pocket 22 to lock into place component members 26, 28, and 30 with base member 12 (front base rail 14, interior base rail 23, horizontal load support 20, and side locking rail 18). See Spec. 5, l. 20–Spec. 6, l. 3, Figs. 7, 8. As vertical support members 34 or 36, and 38, are inserted into vertical support interlock pocket 22, the pocket is not formed near or close by the intersection of front base rail 14, interior base rail 23, horizontal load support 20, and side locking rail 18, as the Examiner construes the phrase “formed by.” Rather, vertical support interlock pocket 22 is formed via the intersection of front base rail 14, interior base rail 23, horizontal load support 20, and side locking rail 18 such Appeal 2015-005111 Application 12/968,398 7 that a cavity is formed to receive vertical support members 34 or 36 and 38 to interlock component members 26, 28, and 30 with base member 12. In contrast, in Hemmerly, dowel holes 36a, 36b, 38a, 38b are formed in rails 30, rather than being formed by the intersection of rails 27, 30. Compare Hemmerly, Fig. 1 with Spec. Fig. 1. Hence, for the foregoing reasons, Hemmerly fails to disclose a vertical support interlock pocket, as called for by each of independent claims 1 and 33. The Examiner’s use of the disclosures of Grigsby and Hall does not remedy the deficiency of Hemmerly discussed supra. See Final Act. 6–9. Accordingly, we do not sustain the rejection under 35 U.S.C. § 103(a) of claims 1–12, 18, and 33 as unpatentable over Hemmerly, Grigsby, and Hall. Rejections III and IV The Examiner’s use of the disclosures of Hansen and Barbarie also does not remedy the deficiency of Hemmerly discussed supra. See Final Act. 9–12. Therefore, for the same reasons as discussed above, we also do not sustain the rejections under 35 U.S.C. § 103(a) of claims 13–17 as unpatentable over Hemmerly, Grigsby, Hall, and Hansen and of claims 19 and 20 as unpatentable over Hemmerly, Grigsby, Hall, and Barbarie. SUMMARY The Examiner’s decision to reject claims 1–20 and 33 under 35 U.S.C. § 112, second paragraph, as being indefinite, is affirmed. The Examiner’s decision to reject claims 1–20 and 33 under 35 U.S.C. § 103(a) is reversed. Appeal 2015-005111 Application 12/968,398 8 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). AFFIRMED