Ex Parte Lundahl

Board of Patent Appeals and Interferences

Oct 27, 2006

09326405 (B.P.A.I. Oct. 27, 2006)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte DAVE B. LUNDAHL
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Appeal 2006-1417
Application 09/326,405
Technology Center 3600
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Decided: October 27, 2006
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Before KIMLN, GARRIS, and WARREN, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 11-33. Claim 11 is
illustrative:
11. An operable window system with a removable screen comprising:
a fixed frame;
a moving sash connected to said fixed frame and operable to
substantially swing about an axis with respect to said fixed frame from an
open position to a closed position; and
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a removable screen without a substantially rigid peripheral
frame removably connected to said fixed frame with hook and loop
fasteners, said removable screen mounted between said fixed frame and said
moving sash.
The Examiner relies upon the following references as evidence of
obviousness:
Kehne US 2,713,896 Jul. 26, 1955
Lazarek US 3,753,458 Aug. 21, 1973
Jones US 5,365,707 Nov. 22, 1994
Appellant’s claimed invention is directed to an operable window
system comprising a fixed frame, a moving sash connected to the frame and
operable to swing from an open position to a closed position, and a
removable screen that is mounted between the fixed frame and the moving
sash. The screen is without a substantially rigid peripheral frame and is
connected to the fixed frame with hook and loop fasteners.
Appealed claims 11-13, 15-18, 20-23, 25-28, and 30-33 stand rejected
under 35 U.S.C. § 103 as being unpatentable over Kehne in view of Lazarek.
Claims 14, 19, 24, and 29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the stated combination of references further in view of
Jones.
Appellant provides separate arguments for claims 20 and 25, as a
group. Accordingly, claims 11-13, 15-18, 21-23, 26-28, and 30-33 stand or
fall together as a group, as do separately rejected claims 14, 19, 24, and 29.
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We have thoroughly reviewed each of Appellant’s arguments for
patentability, as well as the declaration evidence relied upon in support
thereof. However, we are in complete agreement with the Examiner that the
claimed subject matter would have been obvious to one of ordinary skill in
the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejections for the reasons set
forth in the Answer, which we incorporate herein, and we add the following
primarily for emphasis.
Appellant does not contest the Examiner’s factual determination that
Kehne, like Appellant, discloses an operable window system comprising a
fixed frame, a moving sash operable to substantially swing about an axis
with respect to the fixed frame from an open position to a closed position,
and a screen that is mounted between the fixed frame and the moving sash.
As recognized by the Examiner, Kehne does not disclose that the screen is
connected to the fixed frame with hook and loop fasteners. However, as
explained by the Examiner, Lazarek discloses a removable window screen
that is attached to the window’s fixed frame with hook and loop fasteners
which provide easy and quick mounting and dismounting of the screen.
Accordingly, based on the collective teachings of Kehne and Lazarek, we
concur with the Examiner that it would have been obvious for one of
ordinary skill in the art to employ the hook and loop fasteners of Lazarek in
the window system of Kehne to provide the described advantage of enabling
the screen to be readily mounted and dismounted. We also find that one of
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ordinary skill in the art would have appreciated any savings in cost
associated with replacing an aluminum frame with a periphery of hook and
loop fasteners.
Appellant contends that the references are not combinable because
Kehne mounts the screen on the exterior portion of the window whereas
Lazarek mounts the screen to the interior portion of the window. However,
it is well settled that it is not necessary for a finding of obviousness under
§ 103 that all the features of one reference be incorporated with the features
of another reference. In re Griver, 354 F.2d 377, 381, 148 USPQ 197, 200
(CCPA 1966); In re Billingsley, 279 F.2d 689, 691, 126 USPQ 370, 372
(CCPA 1960). The relevant question is what would the collective teachings
of the references have suggested to one of ordinary skill in the art. In re
Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981). In the present
case, we are satisfied that the collective teachings of Kehne and Lazarek
would have suggested the use of hook and loop fasteners for removably
connecting the screen of Kehne to the fixed frame. While Appellant
maintains that Kehne teaches a permanently mounted screen, we agree with
the Examiner that Kehne’s disclosure of supporting a screen “in a more or
less permanent manner” would have suggested a screen that is ultimately
removable (see col. 1, ll. 60-62). Furthermore, we agree with the Examiner
that it was notoriously well known in the art to provide removable screens in
the fixed frame of a window.
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Appellant also maintains that Lazarek “clearly does not suggest any
method for ‘mounting the screen in a permanent manner’ as set forth in
Appellant’s claims” (principal Br. 7, second paragraph). This argument is
not germane to the claimed subject matter since the quoted recitation is not
found in the appealed claims. Indeed, rather than calling for mounting the
screen in a permanent manner, the claims recite a removable screen.
Appellant also makes the argument that:
Claims 20 and 25 recite an additional limitation in which
the removable screen is mounted between the fixed frame and
the moving sash such that the moving sash is in contact with the
removable screen when the moving sash is in the closed
position such that the hook and loop fastener is engaged.
(principal Br. 8, second paragraph). However, as accurately noted by the
Examiner, Figure 3 of Kehne “shows the sash touching the screen when the
sash is in the closed position” (Supp. Answer 8, last paragraph).
As for the separately argued claims directed to the window system
being non-rectangular, we concur with the Examiner that Jones evidences
the obviousness of making windows of various shapes.
Appellant relies upon the Helzer and Thompson Declarations under
37 C.F.R. § 1.132 as evidence of commercial success. However, we find
that the Examiner has lodged valid criticisms regarding the weight of the
Declaration evidence. For instance, the Declaration of Helzer, the Vice
President for Marketing and Sales for the present assignee, states in
paragraph 15 that Point Five Windows, the exclusive licensee of a window
system in accordance with the appealed claims, “has sold over $6,300,000 in
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15 major orders of window systems that include the Frameless Velcro
Screen System” (emphasis added). As pointed out by the Examiner, there is
no indication what proportion of the reported figure represents the sale of
window systems in accordance with the appealed claims. Similarly,
paragraph 18 of the Declaration reports a contract in excess of $720,000 for
unspecified windows and doors, while paragraph 21 of the Declaration refers
to a contract in excess of $580,000 for “casement type windows” that is “due
in part to the aesthetic value of the Frameless Velcro Screen System”
(emphasis added). Also, while paragraph 22 of the Declaration states that
the $580,000 contract was specifically entered “because the screen was
mounted between the fixed frame and moving sash for a casement window,”
the Examiner correctly points out that the window system of Kehne has the
screen mounted between the fixed frame and the moving sash. In addition,
although paragraph 11 of the Declaration states that “conventional screen
frames with spans in excess of five feet require support members,” the
appealed claims do not recite any particular size for the screen.
The Declaration of Michael Thompson, an architect who supported a
contract in excess of $580,000 to the present assignee, is similarly flawed.
Paragraph 2 of the Declaration vaguely refers to the contract “for numerous
windows for a residence project.” Furthermore, in paragraph 7, the
Declarant states that the contract was awarded “due in part” to the window
system of the present invention. Manifestly, the Thompson Declaration, as
well as the Helzer Declaration, falls short of convincingly demonstrating the
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requisite nexus between the asserted commercial success and window
systems within the scope of the appealed claims. Ex parte Remark,
15 USPQ2d 1498, 1502 (Bd. Pat. App. & Int. 1990).
Furthermore, we agree with the Examiner that the Declaration
evidence fails to establish that any commercial success was due to the merits
of the claimed invention rather than other activities on the part of the present
assignee, e.g., advertising, sales campaigns, and associations with
established customers. See Cable Elec. Prod. Inc. v. Genmark, Inc.,
770 F.2d 1015, 1026-27, 226 USPQ 881, 888 (Fed. Cir. 1985).
Accordingly, it is our judgment that Appellant’s evidence of
nonobviousness, including the Declaration evidence of commercial success,
does not outweigh the evidence of obviousness presented by the Examiner.
In re Rynkiewicz, 390 F.2d 742, 746, 156 USPQ 462, 465 (CCPA 1968).
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims is
affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2004).
AFFIRMED

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