11379215 (B.P.A.I. Sep. 16, 2010)

Ex Parte Heim et al

Board of Patent Appeals and InterferencesSep 16, 2010

11379215 (B.P.A.I. Sep. 16, 2010)

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. 11/379,215 04/18/2006 James R. Heim SR. 2098-001 9451 84685 7590 09/16/2010 Currie Kendall PLC 6024 Eastman Ave Midland, MI 48640-2518 EXAMINER MILLER, SAMANTHA A ART UNIT PAPER NUMBER 3749 MAIL DATE DELIVERY MODE 09/16/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte JAMES R. HEIM SR., THOMAS KENNY, and ROBERT GILLING ____________________ Appeal 2009-008266 Application 11/379,215 Technology Center 3700 ____________________ Before: WILLIAM F. PATE III, MICHAEL W. O’NEILL, and STEFAN STAICOVICI, Administrative Patent Judges. PATE III, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-008266 Application 11/379,215 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 18. Appellants’ Notice of Appeal is silent as to the claims appealed. In Appellants’ Brief, Appellants elected to appeal the rejection of only claims 2, 3, and 5-18. Br. 3. The remaining claims, 1 and 4, should have been cancelled before the appeal. See Ex parte Ghuman, No. 2008-1175, 2008 WL 2109842, 88 USPQ2d 1478, 1480 (BPAI 2008) (precedential) (rejected claims that are not appealed are considered withdrawn and subject to cancellation by the Examiner). We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to a flexible service cart. Claim 2, reproduced below, is illustrative of the claimed subject matter: 2. A service cart according to Claim 1, further comprising: an electrical outlet box inside the cabinet, the outlet box being electrically connected to an electrical power cord external to the cabinet; and at least one drawer having an electrical outlet positioned inside the drawer and electrically connected to the electrical box. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Marconet US 5,399,007 Mar. 21, 1995 Williams US 2003/0124971 A1 Jul. 3, 2003 Appeal 2009-008266 Application 11/379,215 3 REJECTIONS Claims 2-3, 6, 7, 10, 12, 15, and 162 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Marconet. Ans. 3. Claims 5, 8, 9, 11, 13, and 183 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Marconet, and Williams. Ans. 5. Claims 14, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over being an optimal value. Ans. 6. OPINION We have carefully reviewed the rejections on appeal in light of the arguments of the Appellants and the Examiner. As a result of this review, we have determined that the applied prior art does not establish the lack of novelty of claims 2, 3, 6, 7, 10, 12, 15, and 16, nor does it establish the prima facie obviousness of claims 5, 8, 9, 11, 13, 14, 17, and 18. Therefore, all rejections on appeal are reversed. Our reasons follow. Turning first to the rejection under 35 U.S.C. § 102 of claim 2, we are in agreement with the Appellants that Marconet does not disclose at least one drawer having an electrical outlet positioned inside the drawer. We agree with Appellants that giving the claim term “outlet” its reasonable and customary meaning, the term applies to an ordinary receptacle which can accept electrical plugs. See Br. 6. The Examiner points to instrument control box 61 and electrical control box or power box 66 of Marconet. Ans. 3; see col. 4, ll. 32-39. Although the control panel 50 on the outside of the door is 2 Appellants elected not to appeal the rejection of claim 1. Br. 3. 3 Appellants state that they are not appealing the rejection of claim 4. Br. 3. However, they include this claim in their statement of Grounds of Rejection to be Reviewed on Appeal. Br. 5. Appeal 2009-008266 Application 11/379,215 4 described as including connectors, we do not find any disclosure of an outlet inside top drawer 11 as Appellants have argued. Accordingly, claims directed to this outlet feature, namely, claims 2, 6, and 13, do not lack novelty over the applied prior art. These independent claims, along with dependent claims 3, 5, 7-9, and 13-18, thus are not anticipated or prima facie obvious from the applied prior art. Claims 3, 7, and 10-18 are directed to a feature in which slots are provided in the top of the cabinet for holding mounting brackets. The Examiner points to the drawer mounting hardware on the inside side panels of the cabinet which mount the drawers for sliding movement in and out of the cabinet. Ans. 7. We are in agreement with the Appellants that these mounting slides are not slots in the top of the cabinet. Br. 6-7. Giving the claim term “top” its broadest reasonable interpretation, leads us to the conclusion that the top of the cabinet is the horizontal surface which closes off the upper aspect of the interior of the cabinet. Appellants claim that the slots are in the top. The Examiner has not provided evidence of any cabinet that has slots in this surface. Therefore, the rejection of the claims that are directed toward this slot feature cannot be sustained. DECISION The Examiner’s rejection of claims 2, 3, 6, 7, 10, 12, 15 and 16 under 35 U.S.C. § 102 is reversed. The Examiner’s rejections of claims 5, 8, 9, 11, 13, 14, 17, and 18 under 35 U.S.C. § 103 are reversed. REVERSED Appeal 2009-008266 Application 11/379,215 5 nlk Currie Kendall PLC 6024 Eastman Ave Midland MI 48640-2518