Ex Parte Hammerle

Board of Patent Appeals and Interferences

Jul 29, 2005

09796754 (B.P.A.I. Jul. 29, 2005)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte KURT HAMMERLE

Appeal No. 2005-1768
Application No. 09/796,754

ON BRIEF

Before KIMLIN, TIMM and JEFFREY T. SMITH, Administrative Patent
Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 27-29,
31, 49, 50 and 53-56. Claims 33-46 have been withdrawn from
consideration as being directed to an nonelected species. Also,
claims 30, 32, 47, 48, 51 and 52 have been objected to as being
dependent upon a rejected base claim. Claim 27 is illustrative:
27. A pull-out guide for drawers, comprising:
a pull-out rail to be connected to a drawer frame so as to
support the drawer frame;
Appeal No. 2005-1768
Application No. 09/796,754
1 Even though the statement of the rejection does not
include Lautenschläger, the examiner cites Lautenschläger "as an
evidence reference to show that the use of apertures and screws
to provide adjustability between adjacently secured members in a
drawer guide assembly is old and well known in the art" (page 4
of Answer, last sentence).
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a hook including a holding lug, said hook being mounted at
a rear end of said pull-out rail such that said holding lug
extends in a horizontal direction toward a front end of said
pull-out rail so as to engage a rear end of the drawer frame to
be supported on said pull-out rail; and
a mechanism operable to move said holding lug in a vertical
direction relative to said pull-out rail so as to move the rear
end of the drawer frame in the vertical direction relative to
said pull-out rail to change an angle of inclination of the
drawer frame relative to said pull-out rail.
The examiner relies upon the following references as
evidence of obviousness:
Nock 5,015,047 May 14, 1991
Lautenschläger 5,779,333 Jul. 14, 1998
Appellant's claimed invention is directed to a pull-out
guide for drawers comprising a drawer frame connected to a pull-
out rail and mechanism that allows the rear end of the drawer
frame to move in a vertical direction in order to change the
angle of inclination of the drawer frame.
Appealed claims 27-29, 31, 49, 50 and 53-56 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Nock.1
We have thoroughly reviewed the respective positions
advanced by appellant and the examiner. In so doing, we find
Appeal No. 2005-1768
Application No. 09/796,754
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ourselves in agreement with appellant that the examiner has
failed to establish a prima facie case of obviousness for the
claimed subject matter. Accordingly, we will not sustain the
examiner's rejection for essentially those reasons expressed by
appellant.
The examiner acknowledges that Nock fails to disclose or
teach a mechanism that allows the rear end of the drawer frame to
move in a vertical direction for providing a change in the angle
of inclination of the drawer frame relative to the rail. Indeed,
as stressed by appellant, Nock teaches that the drawer frame is
adjusted to prevent any lifting of the frame from the carrying
plates such that the frame cannot be lifted from the rear
carrying plates because of the shape of the two catch hooks 19.
Hence, we concur with appellant that Nock teaches away from
modifying the drawer frame in any way that allows it to be moved
in the vertical direction. While the examiner cites
Lautenschläger as evidence that it was known in the art to employ
the use of apertures and screws to provide adjustability between
adjacently secured members in a drawer guide assembly, the
examiner's rationale amounts to nothing more than what could be
accomplished by one of ordinary skill in the art if so inclined
with the proper motivation. However, what could have been done
Appeal No. 2005-1768
Application No. 09/796,754
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by one of ordinary skill in the art is not the proper test for
obviousness under § 103. In re Gordon, 733 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984). It is well settled that
the prior art must suggest the desirability of the modification
proposed by the examiner, and the examiner has pointed to no
teaching in the art regarding a mechanism used to move the end of
the drawer frame in a vertical direction. Lacking such a
teaching or suggestion in the prior art, we agree with appellant
that the examiner's rejection is based upon impermissible
hindsight.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is reversed.
REVERSED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
)
CATHERINE TIMM ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
JEFFREY T. SMITH )
Administrative Patent Judge )
ECK:clm
Appeal No. 2005-1768
Application No. 09/796,754
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