Ex Parte Kaprosy

Patent Trial and Appeal Board

Mar 6, 2015

10414875 (P.T.A.B. Mar. 6, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte CHRISTINE M. KAPROSY
1

__________

Appeal 2012-009110
Application 10/414,875
Technology Center 2100
__________

Before ERIC B. GRIMES, ROBERT A. POLLOCK, and
JACQUELINE T. HARLOW, Administrative Patent Judges.

HARLOW, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to methods
and systems for displaying greeting cards, which have been rejected as
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1
According to Appellant, the Real Party in Interest is American Greetings
Corporation (Br. 3).
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STATEMENT OF THE CASE
“Retail displays of greeting cards have presented different categories
of cards (such as Birthday, Thanks, Concern, Wedding, Congratulations,
Mother’s day, Valentine’s Day, Christmas, etc.) in a standardized
arrangement” (Spec. 1, ll. 21–23). “The standard industry practice is to
place a given category at the top of the display and arrange a series of
subcategories in a snake-like continuous line formation under the first
category, wherein subcategory titles are placed above the first greeting card
in a given subcategory” (id. at 1, ll. 24–26). “This one-dimensional
arrangement scheme can be confusing, making it difficult [f]or consumers to
locate a desired type of greeting card” (id. at 1, ll. 29–30).
The Specification discloses a “greeting card display system” that
“uses a hierarchical organizational scheme that enables a shopper to more
rapidly find the type of greeting card desired, without searching up and
down multiple columns of greeting cards.” (Id. at 2, ll. 21–23.) “Customer
location of category-specific cards is facilitated by arranging cards of a
display in groups identified by headers or locators which span across each of
the stations or slots which hold cards of the identified category, and by
proximately positioning related groups of cards.” (Id. at 2, ll. 27–30.)
“[T]he system and method of the invention organizes and displays the
greeting cards in a grouped two-dimensional hierarchical system.
Subcategories of cards are grouped two-dimensionally within the two-
dimensional space occupied by the parent category.” (Id. at 3, ll. 1–4.)
Claims 5, 6, and 8–41 are on appeal. Claims 5 and 9 are illustrative
and read as follows:
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5. A greeting card display device wherein greeting
cards are displayed according to a hierarchical system, the
greeting card display device comprising:
at least two organizational levels of greeting cards,
including a first level categorical group comprising at least one
categorical group of greeting cards and a second level
categorical group comprising at least one categorical group of
greeting cards;
wherein each of said first level categorical groups
comprises at least one second level categorical group;
wherein said first level categorical group and said
second level categorical group are arranged and displayed two
dimensionally;
wherein each two dimensional second level
categorical group arrangement is displayed within a two
dimensional first level categorical group arrangement;
wherein said first level categorical group and said
second level categorical group represent any two adjacent
vertical levels of a hierarchical system; and
wherein the greeting cards in the first categorical
group and the greeting cards in the second level categorical
group are visible simultaneously.

9. A greeting card display device configured to
display a plurality of greeting cards arranged according to
categories and subcategories of events or occasions or greetings
or intended recipients, the greeting card display device
comprising:
a display structure having a plurality of rows and
columns of greeting card-supporting stations;
a header which extends horizontally across a width
of the display over the columns of stations, the header
identifying a main category to which greeting cards in each of
the stations correspond;
a first level group locator identifying a first
subcategory of greeting cards related to the main category and
located in stations below the header, the first level group locator
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extending horizontally across one or more columns of stations
below the header; and
a second level group locator identifying a second
subcategory of greeting cards related to the main category and
to the first subcategory and located in stations below the
stations of the first level group locator, the second level group
locator extending horizontally across one or more columns of
stations below the header and below the first level group
locator;
wherein the second level group locator is visually
distinguishable from the first level group locator by differing
size, shape, color or font.

The claims stand rejected as follows:
Claims 5, 6, and 8 based on Tackbary,
2
Bushyhead,
3
and Gabig;
4

Claim 5 based on Jacobs 110,
5
Bushyhead, and Gabig;
Claims 9–21 based on Tackbary, Jacobs 110, Bushyhead, Henke,
6
and
Lokuge;
7

Claims 22–32 based on Tackbary, Jacobs 110, Bushyhead, Henke,
Enfield,
8
and Gabig; and
Claims 33–41 based on Tackbary, Jacobs 110, Jacobs 898,
9

Bushyhead, Henke, Enfield, and Gabig.

2
Tackbary et al., US 5,555,496, issued Sept. 10, 1996.
3
Bushyhead et al., US 4,613,047, issued Sept. 23, 1986.
4
Gabig et al., US 6,039,576, issued Mar. 21, 2000.
5
Jacobs, US 5,875,110, issued Feb. 23, 1999.
6
Henke et al., US 5,924,367, issued July 20, 1999.
7
Lokuge, US 6,252,597 B1, issued June 26, 2001.
8
Enfield, US 2002/0099560 A1, published July 25, 2002.
9
Jacobs, US 5,726,898, issued Mar. 10, 1998.
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I.
Issue
The Examiner has rejected claims 5, 6, and 8 under § 103(a) as
obvious based on Tackbary, Bushyhead, and Gabig. The Examiner finds
that Tackbary discloses the hierarchical organization of claim 5, including
the claimed first level and second level categorical groups of greeting cards
(Ans. 4–5), but does not disclose displaying those categorical groups two
dimensionally, such that they represent two adjacent vertical levels of a
hierarchical system and are visible simultaneously (id. at 5–6).
The Examiner finds that Bushyhead discloses a greeting card display
unit for displaying greeting cards two dimensionally (id. at 5), and that
Gabig discloses displaying hierarchical groups on two adjacent vertical
levels of a hierarchical system, such that they are visible simultaneously (id.
at 6). The Examiner concludes that it would be obvious to one skilled in the
field at the time of the invention to combine Gabig with the categorical
system of Tackbary and physical display of Bushyhead.
Appellant contends that there is no evidence the combination of
“Tackbary’s categorization system and Bushyhead’s display unit” would
disclose displaying first and second categorical groups on two adjacent
vertical levels of a hierarchical system (Br. 14). Appellant further contends
that Gabig does not disclose displaying greeting cards such that “the greeting
cards in the first categorical group and the greeting cards in the second level
categorical group are visible simultaneously” (claim 5) because Gabig does
not disclose first level and second level categorical groups (Br. 15).
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The issue presented is whether a preponderance of the evidence
supports the Examiner’s conclusion that the combination of Tackbary,
Bushyhead, and Gabig renders claim 5 obvious, and in particular, whether
this combination makes obvious the “two adjacent vertical levels” and
“visible simultaneously” aspects of claim 5.
Findings of Fact
FF 1. Tackbary discloses in Figure 8 an embodiment of the “card
selection screen” (Tackbary 3:51–53) including “broad categories such as
Christmas 985, birthday 990, get well 955, [and] Valentine’s Day 1000” (id.
at 11:6–7) positioned at the bottom of the center column of the card selection
screen, and “check boxes that filter the card images by criteria such as
humor 965, seriousness 970, or religious denomination 975” positioned in
the left most column of the selection screen (id. at 10:57–64).
FF 2. Tackbary discloses “When the user accesses the card selection
screen 940 from within the card event dialog box 515 of FIG. 5, the cards
are filtered to show only those cards relevant to the card-giving occasion.
The cards may also be filtered based on the year of the selected occasion.”
(Tackbary 10:49–53.) “Automatic filtering may also include filtering cards
depending upon the type of card the recipient is known to prefer. . . . Thus,
the user may click the check boxes that filter the card images by criteria such
as humor 965, seriousness 970, or religious denomination 975.” (Id. at
10:57–64.)
FF 3. Bushyhead discloses “a display assembly for use in displaying
cards, pamphlets, bulletins and the like” (Bushyhead 1:4–6).
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FF 4. Gabig discloses “[a] product display board for display of a
plurality of product lines of memorial products having a plurality of design
features. The product display board includes samples of memorial products
of each product line arranged in rows with related design features arranged
in columns.” (Gabig, Abstract.)
FF 5. Gabig states, in describing Figure 1, “[e]ach of the columns 14,
16, 18, 20 and 22 display one design feature. Each of the columns 14, 16,
18, 20 and 22 includes a heading 25 which identifies the particular design
feature displayed in the samples of product 12 of the columns 14, 16, 18, 20
and 22.” (Id. at 2:57–61.)
FF 6. Gabig further states, in describing Figure 1, “[t]he samples of
product 12 lying in each of rows 4, 6 and 8 represent one product line. Thus,
each of rows 4, 6 and 8 represents a different product line displayed on the
board 2.” (Id. at 2:48–50.)
Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417. “[F]amiliar items may have obvious uses beyond
their primary purposes, and in many cases a person of ordinary skill will be
able to fit the teachings of multiple patents together like pieces of a puzzle.”
Id. at 420.
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Analysis
Tackbary discloses a greeting card display comprising at least two
organizational levels of greeting cards, including a first level categorical
group comprising at least one categorical group of greeting cards and a
second level categorical group comprising at least one categorical group of
greeting cards, wherein each first level categorical group comprises at least
one second level categorical group (FF 1–2). Bushyhead discloses a
greeting card display unit for arranging and displaying cards two
dimensionally (FF 3). Gabig discloses displaying hierarchical groups on two
adjacent vertical levels of a hierarchical system (FF 5–6), and displaying
them such that they are visible simultaneously (FF 4). We agree with the
Examiner that these disclosures would have made it obvious to implement
Tackbary’s categorical greeting card organization system on the physical
display of Bushyhead, with the addition of Gabig’s feature of displaying
groups on adjacent vertical levels such that they are visible simultaneously.
Appellant argues that the combination of Tackbary and Bushyhead
does not disclose the “two adjacent vertical levels” aspect of claim 5, and
therefore claim 5 is not obvious (Br. 14). Appellant contends that “[t]here
are several different ways of arranging subcategories with respect to the
larger category and neither Tackbary nor Bushyhead give any indication or
suggestion that a subcategory should be at an adjacent level with the larger
category” (id.). Appellant further comments that the motivation to have
shoppers find cards more quickly can be accomplished in many different
ways.
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This argument is unpersuasive because it does not address Gabig’s
disclosure of the “two adjacent vertical levels” aspect of claim 5. In
rejecting claim 5, the Examiner observes that “Tackbary and Bushyhead do
not specifically disclose” the “two adjacent vertical levels” aspect of claim
5, but finds that Gabig discloses this aspect (Ans. 6). In particular, Gabig
discloses displaying product design features in columns, and displaying
different product lines for each design feature vertically adjacent to the
relevant design feature (FF 5–6).
Appellant does not dispute that Gabig discloses displaying groups on
two adjacent vertical levels, or that it would have been obvious to combine
this feature of Gabig with the categorization system of Tackbary and the
physical display of Bushyhead. Accordingly, the combination of Tackbary,
Bushyhead, and Gabig renders obvious the claim requirement that “said first
level categorical group and said second level categorical group represent any
two adjacent vertical levels of a hierarchical system,” as recited in claim 5.
Appellant also argues that Gabig does not teach “the greeting cards in
the first categorical group and the greeting cards in the second level
categorical group are visible simultaneously” because Gabig does not
disclose first and second categorical groups (Br. 15). Appellant concludes,
without explanation, “[n]either Tackbary nor Bushyhead cure this
deficiency” (id.).
Appellant’s argument is unpersuasive because it considers Gabig in
isolation, and does not address the combination of Tackbary, Bushyhead,
and Gabig relied on by the Examiner. One cannot show nonobviousness by
attacking references individually where the rejections are based on
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combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA
1981); In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellant does not contest that Tackbary discloses a “categorization
system” (Br. 14), or that Bushyhead discloses a greeting card display unit
(id.). Neither does Appellant contest that Gabig discloses a display with
product groups visible simultaneously (id. at 15), or that it would have been
obvious to combine Tackbary, Bushyhead, and Gabig (id. at 14–15).
Accordingly, we agree with the Examiner that the combination of the
categorization system of Tackbary with the displays of Bushyhead and
Gabig renders obvious the claim requirement that “the greeting cards in the
first categorical group and the greeting cards in the second level categorical
group are visible simultaneously.”
Conclusion of Law
A preponderance of the evidence supports the Examiner’s conclusion
that the “two adjacent vertical levels” and “visible simultaneously” aspects
of claim 5 would have been obvious based on the combination of Tackbary’s
greeting card categorization system, Bushyhead’s display assembly, and the
two adjacent vertical levels and visible simultaneously features of Gabig’s
display.
Claims 6 and 8 have not been argued separately and therefore fall with
claim 5. 37 C.F.R. § 41.37(c)(1)(vii).
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II.
Issue
The Examiner has also rejected claim 5 under § 103(a) as obvious
based on Jacobs 110, Bushyhead, and Gabig. The Examiner finds that
Jacobs 110 discloses the hierarchical organization of claim 5, including the
claimed first level and second level categorical groups of greeting cards
(Ans. 8) but does not disclose displaying those categorical groups two
dimensionally, or such that they represent two adjacent vertical levels of a
hierarchical system and are visible simultaneously (id. at 8–9).
As with the rejection discussed in Part I. above, the Examiner finds
that Bushyhead and Gabig disclose the remaining aspects of claim 5 (id. at
8–9). The Examiner concludes that it would be obvious to one skilled in the
field at the time of the invention to combine Gabig with the categorical
system of Jacobs 110 and physical display of Bushyhead “to enable shoppers
at retail store[s] to locate greeting cards faster” (id. at 9).
Appellant offers similar arguments against the combination of Jacobs
110, Bushyhead, and Gabig as made against the combination discussed
above in Part I. Namely, Appellant asserts that the combination of Jacobs
110 and Bushyhead does not disclose the “two adjacent vertical levels”
aspect of claim 5 (Br. 15), and that Gabig does not disclose the “visible
simultaneously” aspect of that claim (id. at 15–16).
The issue presented is whether a preponderance of the evidence
supports the Examiner’s conclusion that the combination of Jacobs 110,
Bushyhead, and Gabig renders claim 5 obvious, and in particular, whether
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this combination would have made obvious the “two adjacent vertical
levels” and “visible simultaneously” aspects of claim 5.
Findings of Fact
FF 7. Jacobs 110 discloses a “method and system for vending
products which prompt a customer to enter selection criteria relating to the
type of product the customer would like to purchase, use the customer’s
selection criteria to determine which products are potentially suitable for the
customer’s purposes, needs, interests, and tastes, and rank the products
based on their suitability to facilitate the customer’s final selection of a
product.” (Jacobs 110, Abstract.)
FF 8. Jacobs 110 discloses that “some menu screens may be followed
by dependent menu screens based on the response(s) to the previous menu
screen(s). For example, if the customer selected ‘Holiday’ in the
occasion/purpose menu screen (FIG. 10), an additional menu screen might
ask the customer to input a particular holiday for the greeting card, as shown
in FIG. 15. Likewise, if the customer selected ‘Relative’ in the relationship
of recipient menu screen (FIG. 11), an additional menu screen might ask the
customer to input a particular type of relative, as shown in FIG. 16.” (Id. at
10:1–10.)
FF 9. Jacobs states that “[u]sing the exemplary correlation lexicon, if
the customer entered ‘Male Relative,’ the correlation lexicon would translate
the selection criteria into ‘Son or Father or Brother or Grandfather or
Uncle.’” (Id. at 10:51–54.)
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Analysis
Jacobs 110 discloses a greeting card display device comprising at least
two organizational levels of greeting cards, including a first level categorical
group comprising at least one categorical group of greeting cards and a
second level categorical group comprising at least one categorical group of
greeting cards, wherein each first level categorical group comprises at least
one second level categorical group (FF 7–9). Bushyhead discloses a
greeting card display unit for arranging and displaying cards two
dimensionally (FF 3). Gabig discloses displaying hierarchical groups on two
adjacent vertical levels of a hierarchical system (FF 5–6), and displaying
them such that they are visible simultaneously (FF 4). We agree with the
Examiner that these disclosures would have made it obvious to implement
Jacobs 110’s categorical greeting card organization system on the physical
display of Bushyhead, with the addition of Gabig’s features of adjacent
vertical levels and being visible simultaneously.
Appellant argues that the combination of Jacobs 110 and Bushyhead
does not disclose the “two adjacent vertical levels” aspect of claim 5, and
therefore claim 5 is not obvious (Br. 15). Appellant contends that
it cannot automatically be assumed that if Jacobs contains two
categorization levels and Bushyhead discloses a greeting card
display structure that the second level categorical group is
displayed within a two dimensional first level categorical group
arrangement, that the first and second level categorical groups
represent any two adjacent vertical levels of a hierarchical
system.
(Id.) Appellant also comments that there are several different ways to
arrange greeting cards, even in a hierarchical system (id.).
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As discussed above in Part I., this argument is unpersuasive because it
does not address disclosure of the “two adjacent vertical levels” aspect of
claim 5 by Gabig. The Examiner finds, and we agree, that irrespective of
whether Jacobs 110 and Bushyhead disclose the “two adjacent vertical
levels” aspect of claim 5, Gabig discloses that aspect (Ans. 9). In particular,
Gabig discloses displaying product design features in columns, and
displaying different product lines for each design feature vertically adjacent
to the relevant design feature (FF 5–6).
Appellant makes no additional arguments concerning Gabig or the
propriety of combining Gabig with the categorization system of Jacobs 110
and the physical display of Bushyhead, but relies instead on the same
arguments addressed above. Therefore, for the reasons discussed above, we
agree with the Examiner that the combination of Jacobs 110, Bushyhead,
and Gabig renders obvious the claim requirement that “said first level
categorical group and said second level categorical group represent any two
adjacent vertical levels of a hierarchical system.”
With respect to the “visible simultaneously” aspect of claim 5,
Appellant presents no additional argument based on the teachings of Jacobs
110, but instead relies on the same arguments addressed above in Part I. with
regard to Gabig. (Br. 15–16.) For the reasons discussed above, therefore,
we find that the combination of the categorization system of Jacobs 110 with
the displays of Bushyhead and Gabig renders obvious the claim requirement
that “the greeting cards in the first categorical group and the greeting cards
in the second level categorical group are visible simultaneously.”
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Conclusion of Law
A preponderance of the evidence supports the Examiner’s conclusion
that the “two adjacent vertical levels” and “visible simultaneously” aspects
of claim 5 would have been obvious based on the combination of Jacobs
110’s greeting card categorization system, Bushyhead’s display assembly,
and the two adjacent vertical levels and visible simultaneously features of
Gabig’s display.
III.
Issue
The Examiner has rejected claims 9–21 under § 103(a) as obvious
based on Tackbary, Jacobs 110, Bushyhead, Henke, and Lokuge. There are
two independent claims in this grouping, claims 9 and 17; however, the
Examiner and Appellant offer the same analysis pertaining to each claim.
The Examiner finds that Tackbary discloses a header identifying a category
of greeting cards, a first locator identifying a first subcategory of greeting
cards related to the header category and located below the header, and a
second locator identifying a second subcategory of greeting cards related to
the header category and to the first subcategory and located below the
header and the first locator (Ans. 10, 15). The Examiner finds that
Bushyhead supplies the claimed greeting card display structure (id. at 10–11,
16).
The Examiner finds that although Tackbary and Bushyhead do not
teach the aspect of the second level group locator extending horizontally
across one or more columns of stations below the header and below the first
level group locator, Tackbary and Bushyhead in combination with Henke
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disclose this requirement (id. at 11, 16). In particular, the Examiner finds
that “Henke achieves the claimed aspect of megalocators (signs) are
selectively locatable” (id. at 11, 16).
The Examiner finds that Lokuge discloses the final aspect of claim 9,
which requires that the second level group locator is visually distinguishable
from the first level group locator (id. at 12).
Appellant challenges this rejection on two bases. First, Appellant
contends that Tackbary does not disclose either a first level group locator
below the header, or a second level group locator below the header and
below the first level group locator (Br. 16, 17). Second, Appellant argues
that although Henke discloses “sign units that are capable of being used as
headers,” it does not disclose a “hierarchical organization method for
displaying greeting cards” (id. at 16). Appellant therefore asserts that the
cited art does not disclose a header or a first or second level group locator
(id.).
The issue presented is whether a preponderance of the evidence
supports the Examiner’s conclusion that the combination of Tackbary,
Jacobs 110, Bushyhead, Henke, and Lokuge renders claims 9–21 obvious,
and in particular, whether the combination of Tackbary, Bushyhead, and
Henke renders obvious the first locator and second locator aspects of claims
9 and 17.
Findings of Fact
FF 10. Henke discloses “[i]n principle [sic] aspect, the present
invention is a shelf sign system comprising at least a first shelf and a second
shelf, a first mounting bracket attached to the first shelf and attached to the
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second shelf, wherein the first mounting bracket spans the first shelf and the
second shelf. A rotatable sign is engaged with the mounting bracket.”
(Henke 1:66–2:4.)
FF 11. Henke discloses the relationship between a gondola shelf, sign
mounting bracket, and rotatable sign in Figures 1 and 2.
FF 12. Henke discloses a shelving unit with rotatable signs each
extending one shelf width across positioned at the top of the unit in Figure 4.
Analysis
Tackbary discloses a greeting card display device with at least two
organizational levels of greeting cards; however, it does not disclose the
concepts of a first level group locator identifying a first subcategory of
greeting cards related to the main category and located in stations below the
header, or a second level group locator identifying a second subcategory of
greeting cards related to the main category and to the first subcategory and
located below the stations of the first level group locator (FF 1–2). Henke
discloses a shelf sign system, including signs that are selectively locatable,
but does not disclose using signs in a product organization system or method
(FF 10–12).
Appellant argues that Tackbary does not disclose a first level group
locator below the header or a second level group locator below the header
and the first group locator because Tackbary does not depict first and second
level group locators in the claimed configuration (Br. 16).
Appellant’s argument is persuasive. Tackbary does not disclose a first
level group locator below the header or a second level group locator below
the header and first level group locator. Figure 8, relied upon by the
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Examiner, shows the higher order categories such as Christmas 985 that the
Examiner equates to headers positioned at the bottom of the card selection
screen (Tackbary, Fig. 8). No first or second level group locators appear
beneath those headers. Furthermore, the filter for year of occasion discussed
by the Examiner is not depicted or described as appearing below the headers
(see Tackbary, Fig. 8, 10:49–53). Finally, the only additional filters
depicted in Figure 8 or described in Tackbary are shown in a separate
column from the higher order categories on the selection screen, and that
column is positioned to the left of the column containing the headers (id. at
Fig. 8, 10:57–64). Accordingly, we agree with Appellant that the Examiner
has not pointed to evidence or provided sound technical reasoning to show
that Tackbary discloses a first level group locator below the header or a
second level group locator below the header and first level group locator.
Appellant also argues that Henke discloses only signs that are
“capable of being used as headers but does not disclose a hierarchical
organization method for displaying greeting cards” (Br. 16). We find
Appellant’s position persuasive. Henke is directed to a shelf sign system,
“and more specifically to a sign system for use on gondola shelving units”
(Henke 1:5–6).
In principle [sic] aspect, the present invention is a shelf sign
system comprising at least a first shelf and a second shelf, a
first mounting bracket attached to the first shelf and attached to
the second shelf, wherein the first mounting bracket spans the
first shelf and the second shelf. A rotatable sign is engaged
with the mounting bracket.
(Id. at 1:66–2:4.) Nowhere does Henke discuss the concept of using signs to
depict an organization system for greeting cards or other products.
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Likewise, Henke does not disclose the concept of a second level group
locator extending horizontally across and below one or more columns of
stations below the header and below the first level group locator.
The portions of Henke the Examiner relies upon underscore this point.
First, the Examiner references Henke’s disclosure of a “pivot bracket” that
permits the sign to be rotated to an open or closed position (Abstract, 3:62–
4:6). The disclosure of a pivot bracket, however, does not teach the use of
signs in an organization system. Second, the Examiner cites Figures 1, 2,
and 4 of Henke for disclosure of “sign units extending horizontally across
and below one or more column stations” (Ans. 11). But these Figures do not
include such disclosure. Figures 1, 2, and 4 disclose signs attached to the
top of a shelving unit, having lengths coextensive with the length of the
individual shelves in the unit (FF 10–12). These Figures do not disclose a
product organization system, or even the concept of placing signs below
other signs on a shelving structure.
The Examiner’s observations regarding the use of signs in retail
locations likewise do not supply the missing disclosure of a second level
group locator extending horizontally across and below one or more columns
of stations below the header and below the first level group locator. The
Examiner opines that
At various aisle locations and other locations in the store area
there are provided signs with graphic representations of
products, which are typical of products that are located in the
area of that sign. Also, for example there are directory signs,
directions signs, store layout sheets or handouts and more
specific product signs to also assist in orienting the customers
and providing location information.
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(Ans. 11.) This high level discussion of how signs might be used to help
consumers navigate retail locations does not teach the specific use of a
second level group locator extending horizontally across and below one or
more columns of stations below the header and below the first level group
locator required by claim 9.
The Examiner’s finding that Henke discloses signs that are
“selectively locatable” is thus insufficient to support the conclusion of
obviousness. Neither Tackbary nor Bushyhead teaches organizing a
greeting card display such that subcategories are displayed below headers
and parent categories as set forth in claim 9. As discussed above, Tackbary
does not disclose displaying a first level group locator below a header, or
displaying a second level group locator below a header and a first level
group locator. Likewise, Bushyhead does not teach displaying headers or
group locators in any particular organization. The addition of Henke’s
“selectively locatable” signs does not cure this deficiency.
Claims 10 through 16 depend from claim 9. “Dependent claims are
nonobvious under section 103 if the independent claims from which they
depend are nonobvious.” In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988).
Accordingly, because we reverse the Examiner’s rejection of claim 9, the
rejections of claims 10 through 16 also stand reversed, and we do not further
discuss those claims here.
Claim 17 is an independent claim that includes many of the same
limitations as claim 9. Of particular relevance, claim 17 requires “a first
locator positioned below the header and spanning across at least two
columns of greeting card stations of the display,” and “a second locator
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positioned below the header and the first locator and spanning across at least
two greeting card stations of the display.” The Examiner and Appellant
advance the same positions regarding these aspects of claim 17 as offered
pertaining to the first and second level group locator aspects of claim 9. For
the reasons set forth above with respect to claim 9, we find Appellant’s
arguments persuasive and agree that Tackbary, Bushyhead, and Henke do
not disclose the first and second locator aspects of claim 17.
Because they depend from claim 17, the rejection of claims 18–21 is
also reversed. See In re Fine, 837 F.2d at 1076.
Conclusion of Law
A preponderance of the evidence does not support the Examiner’s
conclusion that the combination of Tackbary, Jacobs 110, Bushyhead,
Henke, and Lokuge renders claims 9–21 obvious, because Tackbary,
Bushyhead, and Henke do not disclose the first locator and second locator
aspects of claims 9 and 17.
IV.
Issue
The Examiner has rejected claims 22–32 under § 103(a) as obvious
based on Tackbary, Jacobs 110, Bushyhead, Henke, Enfield, and Gabig.
With respect to claim 22, the Examiner again relies on Tackbary for
the disclosure of a greeting card categorization system including categories
and subcategories (Ans. 19), and finds that Tackbary discloses “the claimed
aspect of [a] header identifying a category to which cards in each of the
stations correspond to a first level group locator identifying a related
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subcategory of cards in stations below the header” (id. at 20). The Examiner
also states that “Applicant should duly note it is obvious that the first level
locator is extending over fewer number of columns of card pockets than the
megalocator because the lower the hierarchy is the less items are covered”
(id. at 21).
The Examiner finds that Bushyhead discloses a greeting card display
structure, including the claimed aspect of card pockets arranged in a
generally rectangular formation with a plurality of rows and plurality of
columns (id. at 19–20).
The Examiner finds that Enfield discloses “the claimed aspect of a
megalocator mounted on the display structure and positioned above a
plurality of rows and columns” (id. at 20). The Examiner adds that Jacobs
110 discloses a megalocator positioned above a card category (id.).
The Examiner finds that Gabig discloses that the cards under the
megalocator and under the first level locator are visible simultaneously (id.).
Finally, the Examiner concludes that it would be obvious to combine the
cited references to enable consumers to locate sought after items more
efficiently (id.).
Appellant contends that Bushyhead does not disclose a plurality of
card pockets arranged in a rectangular formation with a plurality of rows and
a plurality of columns of card pockets because Bushyhead discloses an
undivided display shelf without columns of greeting card pockets (Br. 18).
Appellant acknowledges that Enfield teaches “various category
signs,” but contends that it does not disclose a megalocator mounted to a
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display structure and extending over a plurality of columns of card pockets
(id.).
Appellant further asserts that none of the cited art “discloses a first
level group of card pockets identified by a first level locator positioned
below a megalocator and extending over a fewer number of columns of card
pockets than the megalocator” (id.). Appellant also contends that it is not
obvious that a megalocator should extend over more columns of cards than a
first level locator, and that Figure 1 of the instant application illustrates this
point (id. at 19).
Finally, Appellant asserts that Gabig does not disclose products in a
hierarchical scheme that are visible simultaneously (id. at 18–19).
The issue presented is whether a preponderance of the evidence
supports the Examiner’s conclusion that the combination of Tackbary,
Jacobs 110, Bushyhead, Henke, Enfield, and Gabig renders claims 22–32
obvious, and in particular, whether Bushyhead discloses a plurality of
columns of card pockets, and whether Enfield discloses a megalocator
positioned above a row of card pockets and extending over a plurality of
columns of card pockets.
Findings of Fact
FF 13. Bushyhead discloses,
A horizontally extending, generally U-shaped display
compartment 31 projects outwardly from the upper
portion of the front wall 24 of storage compartment 21 of
the display unit 20. The display compartment 31 is
formed by an angled arm 33 having a base portion 34
which projects outwardly from wall 24 and an upstanding
vertical portion 35.
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(Bushyhead 2:40–46.)
FF 14.. Bushyhead discloses in Figures 2 and 3 an undivided shelf for
displaying greeting cards that extends the entire length of the display unit.
(Id. at Figs. 2, 3.)
FF 15. Enfield discloses “[a] system for a retail store, such as a
grocery store, for guiding and orienting shoppers with regard to product
location. At various aisle locations and other locations in the store area there
are provided signs with graphic representations of products which are typical
of products that are located in the area of that sign.” (Enfield, Abstract.)
FF 16. Enfield discloses in Figure 4 an “aisle sign directory” hanging
above the walkway through an aisle in a store (Enfield, Fig. 4; id. at 8
¶ 114).
FF 17. Jacobs 110 discloses a “product suitability matrix” in Figure 6,
including categories and subcategories, such as the category “age” and the
subcategory “adult” (Jacobs 110, Fig. 6).
Analysis
Bushyhead teaches a greeting card display structure, but does not
disclose a plurality of card pockets arranged in a rectangular formation with
a plurality of rows and a plurality of columns of card pockets (FF 13–14).
Enfield teaches a system for “orienting shoppers with regard to product
location” in a retail store, but does not disclose a megalocator mounted on
the display structure and positioned above one of the plurality of rows of
card pockets of the display, the megalocator extending over a plurality of
columns of card pockets and identifying a category of cards contained in the
card pockets below the megalocator (FF 15–16). Jacobs 110 discloses a
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categorical greeting card organization system, but does not disclose a
megalocator mounted on the display structure and positioned above one of
the plurality of rows of card pockets of the display, the megalocator
extending over a plurality of columns of card pockets and identifying a
category of cards contained in the card pockets below the megalocator (FF
7–9, 17).
Appellant argues that Bushyhead does not disclose a display structure
having a plurality of card pockets arranged in a rectangular formation with a
plurality of rows and a plurality of columns of pockets because the U-shaped
shelf identified by the Examiner does not include individual card pockets.
Appellant further argues that even if the U-shaped shelf of Bushyhead could
be considered a pocket, Bushyhead still would not disclose “a plurality of
columns of pockets,” because Bushyhead at best shows a single column of
pockets, not a plurality of columns of pockets.
Appellant’s argument is persuasive. Bushyhead discloses “[a]
horizontally extending, generally U-shaped display compartment 31” for
displaying greeting cards (Bushyhead 2:40–41). Consistent with the
Specification, the figures relied upon by the Examiner depict this U-shaped
display compartment as an unbroken shelf extending across the length of the
greeting card display (id. at Figs. 2 and 3). There is no disclosure of
columns of card pockets.
Appellant also argues that although “Enfield discloses various
category signs,” it “does not disclose a ‘megalocator’ (or sign) mounted on a
display structure and extending over a plurality of columns of card pockets”
(Br. 18 (emphasis in original)).
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Appellant’s argument is persuasive. Enfield does not disclose a
megalocator mounted on the display structure and positioned above one of
the plurality of rows of card pockets of the display, the megalocator
extending over a plurality of columns of card pockets and identifying a
category of cards contained in the card pockets below the megalocator.
Figure 4 of Enfield shows aisle directory signs hanging over aisle walkways
in a retail store (Enfield, Fig. 4). It does not disclose a sign mounted to a
display, positioned above a row of products and extending across a plurality
of columns of products.
The Examiner references Jacobs 110 as disclosing “a megalocator
positioned above a card category” (Ans. 20), but even if the Examiner is
correct, the disclosure of a megalocator above a card category, rather than
above a row of card pockets and extending across a plurality of columns of
card pockets, does not cure the deficiencies in Enfield’s disclosure.
Claim 28 mirrors claim 22 with respect to the megalocator aspect of
claim 22. Accordingly, for the same reasons set forth with regard to claim
22, we find that the cited art does not disclose the megalocator aspect of
claim 28.
The rejection of claims 23–27, which depend from claim 22, and
claims 29–32, which depend from claim 28, is likewise reversed. See In re
Fine, 837 F.2d at 1076.
Conclusion of Law
A preponderance of the evidence does not support the Examiner’s
conclusion that the combination of Tackbary, Jacobs 110, Bushyhead,
Henke, Enfield, and Gabig renders claims 22–32 obvious, because the cited
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references do not disclose the plurality of columns of card pockets or
megalocator aspects of claims 22 and 28.
V.
The Examiner has rejected claims 33–41 under § 103(a) as obvious
based on Tackbary, Jacobs 110, Jacobs 898, Bushyhead, Henke, Enfield, and
Gabig (Ans. 26–27).
Claims 33 and 39 mirror claims 22 and 28 in requiring a display
structure with a plurality of rows and a plurality of columns of card pockets,
and one or more megalocators positioned above one of the plurality of rows
of card pockets and extending over a plurality of columns of card pockets.
The Examiner relies on the same arguments addressed above with regard to
the disclosure of these claim aspects. Therefore, for the reasons discussed
above, we agree with Appellant that the cited art does not disclose a plurality
of columns of card pockets or megalocators, and reverse the rejection of
claims 33 and 39. Because they depend from claims 33 and 39, respectively,
the rejection of claims 34–38 and 40–41 is also reversed. See In re Fine,
837 F.2d at 1076.
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SUMMARY
We affirm the rejection of claims 5, 6, and 8 under 35 U.S.C. § 103(a)
based on Tackbary, Bushyhead, and Gabig.
We affirm the rejection of claim 5 under 35 U.S.C. § 103(a) based on
Jacobs 110, Bushyhead, and Gabig.
We reverse the rejection of claims 9–21 based on Tackbary, Jacobs
110, Bushyhead, Henke, and Lokuge.
We reverse the rejection of claims 22–32 based on Tackbary, Jacobs
110, Bushyhead, Henke, Enfield, and Gabig.
We reverse the rejection of claims 33–41 based on Tackbary, Jacobs
110, Jacobs 898, Bushyhead, Henke, Enfield, and Gabig.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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