Ex Parte Manga et al

Patent Trial and Appeal Board

Sep 6, 2016

12759193 (P.T.A.B. Sep. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121759, 193 04/13/2010
82074 7590 09/08/2016
Carlson, Gaskey & Olds/Masco Corporation
400 West Maple Road
Suite 350
Birmingham, MI 48009
FIRST NAMED INVENTOR
Iosif Ovidiu Manga
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.
330-3074-U;60137-643PUS1 6504
EXAMINER
LOEPPKE, JANIE MEREDITH
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
09/08/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IOSIF OVIDIU MANGA and KEVIN WELKER
Appeal2014-005512
Application 12/759,193 1
Technology Center 3700
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.
WIEDER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner's rejection of claims 1-5, 7, and 9. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellants' invention "is directed to a shaped shower curtain rod and
more particularly to an apparatus for mounting a shaped shower rod to a
shower wall." (Spec. i-f 1.)
1 According to Appellants, the real party in interest is Brasstech Inc.
(Appeal Br. 1.)
Appeal2014-005512
Application 12/759, 193
Claim 1 is the sole independent claim on appeal. Claim 1 is
reproduced below:
1. A shower curtain mounting apparatus, said shower curtain
mounting apparatus comprising:
a bracket having;
a plate for attaching to a surface, and
a post having a first shaped indentation in an outer
surface thereof;
an escutcheon covering said plate and having a tube
projecting therefrom, said tube encircling said post and
maintaining said tube a distance from said post; and
a shower rod having an end portion having a second
shaped indentation that mates with said first shaped indentation
whereby said shower rod is disposed around said post within said
distance between said tube and said post.
REJECTIONS2
Claims 1, 5, 7, and 9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Winter (US 5,894,610, iss. Apr. 20, 1999) and Chen
(US 5,822,810, iss. Oct. 20, 1998).
Claims 2 and 3 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Winter, Chen, and Baskas (US 5,102,083, iss. Apr. 7, 1992).
Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Winter, Chen, and Hankins (US 5,791,609, iss. Aug. 11, 1998).
2 The rejection of claim 8 under 35 U.S.C. § 112, first paragraph, was
withdrawn in view of the cancellation of the claim. (See Advisory Action
mailed Aug. 12, 2013.) Further in view of the cancellation of claim 8, we
treat the rejection of claim 8 under 35 U.S.C. § 103(a) in view of Winter and
Chen as moot. (See Final Action 4.)
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Appeal2014-005512
Application 12/759, 193
ANALYSIS
Claims 1-3, 5, and 9
The Examiner finds that Winter discloses all of the limitations of
claim 1 except that Winter "fails to show the hollow tube projecting from the
escutcheon." (Final Action 4.) Specifically, the Examiner finds that Winter
discloses a bracket 20 having a post 32 and that a hollow tube 30 encircles
the post. (Id.) The Examiner also finds that an escutcheon 22 covers the
plate. (Id.) The Examiner further finds that
(Id.)
one of ordinary skill in the art would arrange the hollow tube in
any reasonable position within the mounting apparatus.
Therefore, it would have been obvious to one having ordinary
skill in the art at the time the invention was made to have the
hollow tube project from the escutcheon since the functionality
of the hollow tube for securing the rod around the post would not
be altered and thus is considered a configurable design choice
not patentably distinguishable over the prior art of record (In re
Japikse, 181F.2d1019, 86 USPQ 70 (CCPA 1950)).
Appellants disagree and argue that
[i]f the escutcheon 22 was modified to include the tube 30 and
the post 32, the shower rod 12 would not engage the bracket 20
and would not be secured to the wall. That is, if the escutcheon
22 was frictionally attached to the shower rod 12, the shower rod
12 would not attach to the bracket 20 and would not be able to
be secured to a wall.
(Reply Br. 1.)
In Winter, inner tubular flange/post 32, which is part of the mounting
bracket, supports the shower rod, i.e., the shower rod engages post 32.
(Winter, col. 2, 11. 38--46, 61---62, Fig. 1.) Outer tubular flange/tube 30 can
provide "frictional engagement" of the rod. (Id. at col. 2, 11. 64---67.) The
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Appeal2014-005512
Application 12/759, 193
Examiner's proposed modification would have the "hollow tube project
from the escutcheon" but, contrary to Appellants' argument, would not
modify the position of the post. Thus, the escutcheon would not include the
post and the shower rod would continue to engage the post on the bracket
which is secured to the wall. Therefore, we are not persuaded that "the
shower rod 12 would not engage the bracket 20 and would not be secured to
the wall." (See Reply Br. 1.) Thus, we are not persuaded that the Examiner
erred in rejecting claim 1.
Claims 5 and 9 are argued with claim 1. Therefore, claims 5 and 9
fall with claim 1.
Appellants argue that claims 2 and 3 depend from claim 1 "and are
allowable for the reasons set forth" with regard to claim 1. (Appeal Br. 3.)
For the reasons discussed above with regard to claim 1, we are not
persuaded that the Examiner erred in rejecting claims 2 and 3.
Claim 7
Claim 7 recites: "The shower curtain mounting apparatus of claim 1
wherein the first shaped indentation of the post is a v-shaped groove, and the
second shaped indentation of the shower rod is a v-shaped indentation."
The Examiner finds that "Chen ... teaches including a first v-shaped
groove (21) that mates with a second v-shaped indentation (24) to prevent
rotation of a curtain rod (col. 2, lines 21 - 25) (fig. 1 ). " (Final Action 5.)
Appellants argue that the Winter rod "is wedged and frictionally
engaged between the tubes 30 and 32" and that "[t]here is no reason to
provide an anti-rotation feature as this feature would not provide an
additional benefit to the straight shower rod 12 of Winter." (Appeal Br. 3.)
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Appeal2014-005512
Application 12/759, 193
The Examiner explains that
Chen was relied upon as a teaching of a straight, tubular rod
having an anti-rotation mechanism (Chen, col. 2, lines 21-25)
and thus provides a motivation for the inclusion of anti-rotation
in straight curtain rods. Therefore, if one of ordinary skill in the
art wanted to maintain a straight, tubular rod in a locked or
singular position, Chen provides an ample teaching of doing so.
(Answer 3.)
We agree with the Examiner. Additionally, "[u]nder the correct
[obviousness] analysis, any need or problem known in the field of endeavor
at the time of invention and addressed by the patent can provide a reason for
combining the elements in the manner claimed." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 420 (2007). Here, the known need was to prevent
rotation of a shower rod. And here, the claimed invention simply arranges
old elements to perform the function they were known to perform. For this
reason also, we agree with the Examiner's conclusion that the recited
combination \'l/ould have been obvious to a person of ordinaf'J skill in the art.
See id. at 417 ("when a patent 'simply arranges old elements with each
performing the same function it had been known to perform' and yields no
more than one would expect from such an arrangement, the combination is
obvious" (citing Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282 (1976))).
In view of the above, we are not persuaded that the Examiner erred in
rejecting claim 7.
Claim 4
Claim 4 recites: "The shower curtain mounting apparatus of claim 1
wherein said post further comprises a chamfered surface for receiving said
shower rod."
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Appeal2014-005512
Application 12/759, 193
The Examiner finds that Hankins
shows including a chamfered surface on a member (302) for
receiving another member (301) (fig. 3). It would have been
obvious to one having ordinary skill in the art at the time the
invention was made to include a chamfered surface on the post
to provide a better fit and easier installation as is well known in
the art and evidenced by the teachings of Hankins.
(Final Action 7.)
Appellants argue that "[ d]ue to the ability of the tubes 30 and 32 to
bias apart, there is no reason to add a chambered [sic] surface as the biasing
already allow easier installation." (Appeal Br. 4.) But Appellants do not
dispute the Examiner's finding that adding a chamfered surface would
"provide a better fit and [even] easier installation." (See Final Action 3.)
Because "any need or problem known in the field of endeavor at the
time of invention and addressed by the patent can provide a reason for
combining the elements in the manner claimed," KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. at 420, \Ve are not persuaded that the Examiner erred in
determining that it would have been obvious to include the chamfered
surface.
DECISION
The Examiner's rejections of claims 1-5, 7, and 9 under 35 U.S.C.
§ 103(a) are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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