Ex parte LETERSKY

Board of Patent Appeals and Interferences

Sep 16, 1997

08149844 (B.P.A.I. Sep. 16, 1997)

Application for patent filed November 9, 1993.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 9
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte CAROLYN LETERSKY

_____________
Appeal No. 96-2100
Application 08/149,8441
______________
ON BRIEF
_______________
Before STONER, Chief Administrative Patent Judge, and STAAB and
NASE, Administrative Patent Judges.
STONER, Chief Administrative Patent Judge.
DECISION ON APPEAL
Carolyn Letersky (“appellant”) appeals from the final
rejection of claims 1, 3, 4 and 6, all of the claims pending in
Appeal No. 96-2100
Application 08/149,844
A rejection of claim 6 under 35 U.S.C. § 112, second paragraph, found in the final Office2
action has not been repeated in the examiner’s answer. Apparently the examiner considers this
rejection to have been overcome by the “amendment” included in the copy of claim 6 as
reproduced in the appendix to the brief. We note that the record does not show that this
amendment has been formally presented or entered. Nevertheless, because the examiner has
indicated that the correct reading of the claims is that which is found in the appendix to the brief,
we shall treat the reading of claim 6 in the brief as being the correct one for purposes of deciding
this appeal.
2
this application, under 35 U.S.C. § 103 as obvious over the prior
art. We affirm-in-part.2
The claimed invention relates to a shelving construction for
use in a student’s school locker, as well as to a method of
placing a shelf in a locker. Claims 1 and 4 define these two
aspects of the invention as follows:
1. A method of placing a shelf in a storage compartment,
comprising the steps of:
providing a locker-style of storage compartment having
interior sidewalls;
selecting a pair of shelf members having opposed ends, the
distance between the opposed ends being substantially equal to
the distance between the interior sidewalls of the storage
compartment;
selecting a pair of support members having opposed ends, the
distance between the opposed ends corresponding to a desired
shelf height;
pivotally connecting adjacent opposed ends of the shelf
members and the support members to form a laterally unstable
collapsible parallelogram frame, [sic, ;]
Appeal No. 96-2100
Application 08/149,844
3
positioning a brace member intermediate the support members,
the brace member having a first end engaging one of the shelf
members and a second end engaging the other of the shelf members,
thereby enhancing the weight bearing capacity of the shelf
members;
collapsing the parallelogram frame to permit insertion into
the storage compartment; and
bringing the support members into engagement with the
interior sidewalls of the storage compartment thereby orienting
the shelf members perpendicular to the support members with the
opposed ends of the shelf members engaging the interior sidewalls
of the storage compartment to provide lateral support to the
parallelogram frame.
4. In combination:
a locker-style storage compartment having interior
sidewalls; and
a shelf unit for a storage compartment, comprising:
a. a pair of shelf members, each of the shelf members being
of equal length and having opposed ends; and
b. a pair of support members, each of the support members
being of equal length and having opposed ends, adjacent opposed
ends of the shelf members and the support members being pivotally
connected thereby forming a laterally unstable collapsible
parallelogram frame, a brace member being positioned intermediate
the support members, the brace member having a first end engaging
one of the shelf members and a second end engaging the other of
the shelf members, thereby enhancing the weight bearing capacity
of the shelf members;
the shelf unit being collapsible for insertion into the
locker-style storage compartment, with the support members and
the opposed ends of the shelf members engaging the interior
sidewalls to provide lateral stability to the parallelogram
frame.
Appeal No. 96-2100
Application 08/149,844
4
Claims 1, 3 and 4 stand rejected under 35 U.S.C. § 103 as
unpatentable over Silver (U.S. Pat. 3,872,975, granted Mar. 25,
1975) in view of Hill (U.S. Pat. 2,132,785, granted Oct. 11,
1938) “taken with or without” Weldon-Ming (U.S. Pat. 4,519,318,
granted May 28, 1985). Claim 6 stands similarly rejected, the
examiner additionally relying upon Sheffer (U.S. Pat. 4,651,651,
granted Mar. 24, 1987). So far as claims 1, 3 and 4 are
concerned, the examiner is of the view that Silver’s disclosed
structure differs from that claimed by the appellant only in that
Silver lacks a brace member and a specific teaching of being
placed in a compartment, assuming that such placement is a
requirement of these claims. Finding in Hill a teaching of such
a brace member and in Weldon-Ming a suggestion to place shelving
within a compartment, the examiner concludes that the appellant’s
claimed subject matter recited in claims 1, 3 and 4 would have
been obvious to one having ordinary skill in the art. Regarding
claim 6, the examiner finds in Sheffer a teaching that connective
structures using tongue and groove structures are “old and well
known” making the modification of Silver’s structure to produce
the claimed invention obvious to the worker having ordinary skill
Appeal No. 96-2100
Application 08/149,844
5
in the art. Rather than reiterate the examiner’s statement of
these rejections, we direct attention to pages 4 and 5 of the
answer.
In response to the examiner’s section 103 rejections, the
appellant makes only the following two arguments. First, the
appellant argues that:
the steps recite positioning the brace and then
collapsing the parallelogram frame to position it
within the storage compartment. This is an unusual
sequencing of method steps, normally when bracing has
been added it precludes a structure from being
collapsed. . . . It is respectfully submitted that the
Hill reference does not render obvious the unique
sequence of the method steps recited in Claim 1 [brief,
pages 5-6; emphasis in the original].
Second, the appellant argues,
The particular structure of brace member 48 disclosed
in the present application that permits parallelogram
frame 38 to be collapsed for insertion into the student
locker is claimed in combination claim 6. This
includes “T” shaped slotted openings 54 in shelf
members 14 and 16 along with “I” shaped cross-members
58 at each of first end 50 and second end 52 of brace
member 48. . . .
* * *
It is to be noted that the claim in question, claim 6,
recites a structure that permits the parallelogram
frame to be partially collapsed. This is unusual for
as a rule the purpose of bracing is, as stated by
Sheffer, to add “rigidity to the overall structure”
[brief, pages 6-7].
Appeal No. 96-2100
Application 08/149,844
6
Appeal No. 96-2100
Application 08/149,844
7
We shall sustain the examiner’s rejection of claims 1, 3 and
4, but not the rejection of claim 6. The appellant’s argument
notwithstanding, nothing in method claims 1 and 3, much less in
the structure defined in claim 4, requires that the brace member
be positioned in advance of the collapse of the frame. That is,
the “unique sequence” upon which the appellant predicates
patentability is not a requirement of the claims. Moreover, the
open “comprising” language of claim 1 would not preclude
additional steps, including steps of removing and reinstalling
the brace member.
By contrast, claim 6 specifically requires that the slotted
openings in the shelf members be slightly larger than the cross-
members at the ends of the brace member so as to permit the
parallelogram frame of the shelf unit to be partially collapsed.
Nothing in the references relied upon by the examiner teaches or
suggests such a relationship of a slot and cross members, much
less one so dimensioned as to permit partial collapse.
In summary, the rejection of claims 1, 3 and 4 is affirmed,
while the rejection of claim 6 is reversed. Accordingly, the
decision of the examiner is affirmed-in-part.
Appeal No. 96-2100
Application 08/149,844
8
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
)
BRUCE H. STONER, JR., Chief )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 96-2100
Application 08/149,844
9
Anthony R. Lambert
c/o Thompson Lambert
#204, 10328 - 81 Avenue
Edmonton, Alberta, Canada T6E 1X2