Ex Parte Kushner

Patent Trial and Appeal Board

Feb 24, 2016

11514562 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111514,562 0910112006
7590 02/24/2016
STUART A WHITTINGTON
3142N.82NDWAY
MESA, AZ 85207
FIRST NAMED INVENTOR
Robert Gerald Kushner
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
PCI-06-003 6028
EXAMINER
ELKINS, GARY E
ART UNIT PAPER NUMBER
3782
MAILDATE DELIVERY MODE
02/24/2016 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 ROBERT GERALD KUSHNER
Appeal2014-001024
Application 11/514,562 1
Technology Center 3700
Before MICHAEL L. HOELTER, THOMAS F. SMEGAL, and
LISA M. GUIJT, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert Gerald Kushner (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner's final rejection of claims 19-29, as set forth in the
Final Action mailed June 1, 2012.2 We have jurisdiction under 35 U.S.C. §
6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is the inventor. Br. 1.
2 Claims 1-18 were canceled. Br. 2.
Appeal2014-001024
Application 11/514,562
CLAIMED SUBJECT MATTER
Claims 19, 23, and 26 are independent claims. Claim 19 is
reproduced below and illustrates the claimed subject matter. 3
19. A delivery box container support comprising:
a plastic support structure having a top box supporting
surface and three or more legs extending substantially
perpendicular to the top box supporting surface, the three or
more legs having respective ends configured to form a bottom
box supporting surface, wherein the plastic support structure is
dimensioned to fit within a separately provided pizza delivery
box and configured to prevent damage to a pizza disposed
within the pizza delivery box; and
at least one round cutting blade rotatably attached to the
plastic support structure disposed in between and substantially
parallel to, the top box supporting surface and the bottom box
supporting surface.
REJECTIONS ON APPEAL
The following Examiner's rejections are before us for review. 4
3 The claims appended at pages 16-18 of the Appeal Brief are not the claims
pending in this appeal. The pending claims are found at pages 2--4 of the
Amendment filed April 22, 2011, from which claim 19 is reproduced. See
also Ans. 2.
4 Appellant's Appeal Brief identifies the grounds of rejection to be reviewed
on appeal as those in a Final Action mailed November 25, 2009. See Br. 5-
6. However, after Appellant filed an Appeal Brief on April 26, 2010, that
Final Action was withdrawn by the Examiner and replaced by a Non-Final
Action mailed July 29, 2010. Appellant filed an Amendment dated April 22,
2011 along with a petition to revive an unintentionally abandoned
application, which was granted. On June 1, 2012, the Examiner mailed the
Final Action from which Appellant has taken the present Appeal. See Br. 1;
see also Ans. 2.
2
Appeal2014-001024
Application 11/514,562
1. Claims 19 and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mitchell (US 1,589,208, iss. June 15, 1926) and DeCoster
(GB 2,056,359 A, pub. Mar. 18, 1981).
2. Claims 19-22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Giovannini (US Des. 207,336, iss. Apr. 4, 1967) and
Decoster.
3. Claims 19-29 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Coyle (US 895,969, iss. Aug. 11, 1908) and DeCoster.
4. Claims 19-25 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gruber (US Des. 149 ,551, iss. May 11, 1948) and
Decoster.
ANALYSIS
Obviousness of claims 19 and 20 over Mitchell and DeCoster; of
claims 19-22 over Giovannini and DeCoster; of claims 19-29 over Coyle
and DeCoster; and of claims 19-25 over Gruber and DeCoster
Appellant does not present any arguments contesting these rejections
in the Appeal Brief. See generally Br. 6-15. Instead, Appellant addresses
rejections previously presented by the Examiner (see Final Rejection mailed
November 25, 2009), but no longer relied upon (see Non-Final Rejection
mailed July 29, 2010 and Final Rejection mailed June 1, 2012). Lacking any
argument directed to the present rejections before us, we summarily sustain
the Examiner's rejections of claims 19-29.5
DECISION
5 In an appeal under 35 U.S.C. § 134(a), it is the Examiner's final rejection
that we review. See In re Webb, 916 F.2d 1553, 1556 (Fed. Cir. 1990).
3
Appeal2014-001024
Application 11/514,562
We AFFIRM the Examiner's rejections.
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
4