Ex parte Herman et al.

Board of Patent Appeals and Interferences

Jan 7, 2002

09205079 (B.P.A.I. Jan. 7, 2002)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of
the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte COREY HERMAN,
ZACHARY HERMAN and MARC HERMAN
__________
Appeal No. 2001-2185
Application 09/205,079
___________
ON BRIEF
___________
Before FRANKFORT, MCQUADE, and BAHR, Administrative Patent
Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Corey Herman et al. appeal from the final rejection of
claims 2 through 5, 7, 9 and 17 through 20. Claims 6, 8 and
10 through 12, the only other claims pending in the
application, stand withdrawn from consideration pursuant to 37
CFR § 1.142(b).
THE INVENTION
Appeal No. 2001-2185
Application 09/205,079
2
The subject matter on appeal relates to “a beverage
holder used in passenger vehicles, particularly to a beverage
holder
with anti-spill protection” (specification, page 1).
Representative claim 2 reads as follows:
2. A beverage holder comprising
a tray with top and bottom sides;
at least one drink well housed in said tray;
a beverage guard; and
a pivot member mounted on said top side of said tray
connecting said beverage guard to said tray, allowing said
beverage guard to move around said pivot member and positioned
to permit said beverage guard to move and completely cover
said drink well.
THE PRIOR ART
The references relied on by the examiner to support the
final rejection are:
Pasmore 2,532,244 Nov. 28, 1950
Stern et al. (Stern) 4,795,211 Jan. 3, 1989
Young et al. (Young) 4,863,134 Sep. 5, 1989
Montgomery et al. (Montgomery) 4,972,781 Nov. 27, 1990
Lorence et al. (Lorence) 5,060,899 Oct. 29, 1991
THE REJECTIONS
Appeal No. 2001-2185
Application 09/205,079
3
Claims 2 through 4 and 7 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Montgomery in view of
Pasmore.
Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Montgomery in view of Pasmore and Stern.
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Montgomery in view of Pasmore and Lorence.
Claims 17 through 20 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Montgomery in view of
Pasmore and Young.
Attention is directed to the appellants’ brief (Paper No.
10) and to the examiner’s answer (Paper No. 13) for the
respective positions of the appellants and the examiner with
regard to the merits of these rejections.
DISCUSSION
Montgomery, the examiner’s primary reference, discloses a
foldable tray table designed to stably support articles such
as beverage cans, tumblers and books in an outdoor (e.g.,
beach) setting. The table includes a top 10 having openings
16, 18 and 26 for receiving the articles, and leg assemblies
Appeal No. 2001-2185
Application 09/205,079
4
12 and 14 pivotally connected to the underside of the top.
Each leg assembly consists of a pair of legs 40 and 42 and a
cross bar 44. In the operative “unfolded” positions of the
leg assemblies, the cross bars lie beneath the openings to
provide bottom support for articles placed therein. Two of
the openings 16 and 18 have circular configurations for
accommodating beverage cans and tumblers.
As acknowledged by the examiner (see pages 4 and 7 in the
answer), Montgomery does not respond to the limitations in
independent claims 2 and 17 requiring the claimed beverage
holder to include (1) a “beverage guard” and (2) a “pivot
member” movably connecting the beverage guard to the tray so
as to allow it to completely cover a drink well in the tray.
The examiner’s reliance on Pasmore to overcome these
deficiencies is not well founded.
Pasmore discloses a holding and perforating device for
evaporated milk cans or the like. The device comprises a base
1 for supporting the bottom of a can 2, a frame 4 upstanding
from the base, a resilient clip 16 extending from the frame
for gripping the can, a metal cover 12 pivotally mounted on
Appeal No. 2001-2185
Application 09/205,079
5
the frame by a pivot pin 10, and penetrating spurs 13 carried
by the cover. In use,
when a can is engaged in the frame and rests on the
base 1 it will be gripped by clip 16 and held firmly
. . . , whereupon the cover can swing downwardly,
until the spurs 13 rest on the can top. When it is
desired to puncture the can top, pressure is exerted
on the cover 12 in order to form the necessary
openings therein. By puncturing two openings in the
can top one may be used for pouring the contents and
the other as a vent.
After each pouring operation the cover is left
in its lowered position so that the spurs will close
the openings to prevent deterioration of the can
contents [page 1, column 1, line 57, through page 1,
column 2, line 8].
In proposing to combine Montgomery and Pasmore to reject
claims 2 and 17, the examiner concludes that it would have
been obvious to a person of ordinary skill in the art “to
implement a beverage guard (12) moveable with the assistance
of a pivot pin (10) and mounted by a support frame (4) as
taught by Pasmore onto the tray of Montgomery et al’s
invention to retain a beverage drink in position and prevent
accidental spillage” (answer, pages 4 and 7).
The combined teachings of these references, however, do
not indicate that the prevention of accidental spillage is of
any real concern to Montgomery. Indeed, the Montgomery tray
Appeal No. 2001-2185
Application 09/205,079
6
table is specifically constructed to deal with accidental
spillage in a manner befitting its intended use in an outdoor
setting (see column 1, lines 16 through 19; and column 3,
lines 33 through 36). The reality here is that Montgomery’s
tray table and Pasmore’s can handling device have little in
common in terms of either structure or function, and the
rather specialized can puncturing and plugging characteristics
of Pasmore’s cover 12 have little, if any, relevance to the
beverage cans and/or tumblers intended to be supported on
Montgomery’s tray table.
In this light, it is evident that the examiner has engaged in
an impermissible hindsight reconstruction of the appellants’
invention by using the appealed claims as a blueprint to
selectively piece together isolated features in the prior art.
Furthermore, this flaw in the basic Montgomery-Pasmore
combination finds no cure in the examiner’s additional
application of Stern, Lorence or Young.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejections of independent claim 2 and dependent
claims 3, 4 and 7 as being unpatentable over Montgomery in
view of Pasmore, dependent claim 5 as being unpatentable over
Appeal No. 2001-2185
Application 09/205,079
7
Montgomery in view of Pasmore and Stern, dependent claim 9 as
being unpatentable over Montgomery in view of Pasmore and
Lorence, and independent claim 17 and dependent claims 18
through 20 as being unpatentable over Montgomery in view of
Pasmore and Young.
SUMMARY
The decision of the examiner to reject claims 2 through
5, 7, 9 and 17 through 20 is reversed.
REVERSED
Appeal No. 2001-2185
Application 09/205,079
8
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
) BOARD OF PATENT
)
) APPEALS AND
JOHN P. MCQUADE )
Administrative Patent Judge ) INTERFERENCES
)
)
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
JPM/kis
MARC E. HANKIN
PRETTY, SCHROEDER & POPLAWASKI
444 SOUTH FLOWER
9TH FLOOR
LOS ANGELES, CA 90071