Ex Parte Mayer

Patent Trial and Appeal Board

Mar 28, 2018

13410494 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/410,494 03/02/2012 William T. Mayer
23403 7590 03/30/2018
SHERRILL LAW OFFICES
4756 BANNING A VE
SUITE 212
WHITE BEAR LAKE, MN 55110-3205
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.
PELCN038USPT01 1039
EXAMINER
GRANO, ERNESTO ARTURIO
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
michaels@sherrilllaw.com
izag@sherrilllaw.com
docketing@sherrilllaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM T. MA YER
Appeal2017-000849
Application 13/410,494
Technology Center 3700
Before MICHAEL L. HOELTER, JILL D. HILL, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-000849
Application 13/410,494
STATEMENT OF THE CASE
Appellant William T. Mayer 1 appeals under 35 U.S.C. § 134(a) from
the Examiner's decision, as set forth in the Final Office Action dated June 5,
2015 ("Final Act."), rejecting claims 1-14. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The claims are directed to a passive thermally regulated knockdown
shipping container. Claims 1 and 8 are the independent claims on appeal.
Claim 1, reproduced below with disputed limitations italicized for emphasis,
is illustrative of the claimed subject matter:
1. A sidewall component suitable for use in construction of a
passive thermally regulated knockdown shipping container,
comprising at least two hingedly interconnected rigid structural
panels configured and arranged for pivoting of the structural
panels relative to one another as between a planar stowage
position and an orthogonal assembly position, each panel
carrying a detachable separate and independent panel of fragile
thermal insulation.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Van Iperen
David
Merritt-Munson
Mitchell
us 4,923,077
us 5,129,519
us 5,361,603
us 6,223,551
May 8, 1990
July 14, 1992
Nov. 8, 1994
May 1, 2001
Appellant identifies Pelican BioThermal LLC as the real party in
interest. Appeal Brief, dated November 10, 2015 ("Appeal Br."), at 2.
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Application 13/410,494
Sawaki
Romero
Williams
us 8,348,087
US 2002/0134962 Al
US 2009/0039088 Al
REJECTIONS
The Examiner made the following rejections:
Jan. 8,2013
Sept. 26, 2002
Feb. 12,2009
1. Claims 1--4 and 7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mitchell and David.
2. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mitchell and Romero.
3. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mitchell and Merritt-Munson.
4. Claims 8-12 and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Williams and Van Iperen.
5. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Williams, Van Iperen, and Sawaki.
Appellant seeks our review of these rejections.
DISCUSSION
The Rejection of Claims 1-4 and 7
as Unpatentable Over Mitchell and David
Appellant argues claims 1--4 and 7 as a group. Appeal Br. 8-9. We
select claim 1 as the representative claim, and claims 2--4 and 7 stand or fall
with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Mitchell discloses all of the limitations of
claim 1 except for two hingedly interconnected rigid structural panels, which
the Examiner finds is taught by David. Final Act. 3--4. The Examiner
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Application 13/410,494
specifically finds that Mitchell discloses two detachable panels of thermal
insulation.
Appellant asserts that the Examiner's rejection is erroneous for
several reasons. First, Appellant contends that the Examiner's construction
of the term "thermal insulation" is erroneous. The Examiner determines that
a "thermal insulated panel" is "a panel that reduces heat loss in any amount
from an item being stored." Final Act. 9. The Examiner, relying on the
plain meaning found in a dictionary, states that the well-known definitions
of "thermal insulation" are "1 ): the process of insulating against
transmission of heat; 2): material of relatively low heat conductivity used to
shield a volume against loss or entrance of heat by radiation, convection or
conduction." Ans. 7 (citing the Merriam-Webster Dictionary). The
Examiner also explains that "there are three modes of heat transfer: radiation
is transmission of electromagnetic rays space, convection is transport of heat
within a gas or liquid, and conduction is direct heat flow through matter."
Id. at 7.
Appellant argues that "[t]hermal insulation is defined as and
recognized by persons of routine skill in the art to be a material of low
thermal conductivity that provide a high resistance to heat flow." Appeal
Br. 6. Appellant also quotes the Specification, which states that the "panels
of thermal insulation 30 may be constructed of any material having good
thermal insulating qualities, (i.e., having a high thermal resistance "R"), such
as Styrofoam, vacuum insulated panels, or the like." Id. (quoting Spec.
ii 30).
The Examiner's and Appellant's proposed definitions and the
dictionary definitions are consistent with the usage of "thermal insulation" in
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Application 13/410,494
the Specification. However, because the plain meaning in the dictionary is
more complete than Examiner's and Appellant's definitions, we believe that,
in light of the Specification, the broadest reasonable interpretation of
"thermal insulation" is a "material of relatively low heat conductivity used to
shield a volume against loss or entrance of heat by radiation, convection or
conduction."
Second, Appellant contends that the Examiner erroneously finds that
the panels of phase change materials (PCM) disclosed in Mitchell and other
prior art are not thermal insulation panels. Appeal Br. 7. According to
Appellant, "[ t ]hermal insulation panels and PCM panels have completely
different functionalities and are used by those of skill in the art for
completely different purposes." Id. Appellant argues that "[t]hermal
insulation panels are panels of low thermal conductivity that provide a high
resistance to heat flow, used to slow heating or cooling of a particular
environment," whereas "PCM panels [] are latent heat storage units, used to
store and release large amounts of energy." Id.
In response to Appellant's argument, the Examiner correctly finds that
It is well known that PCM materials are used in a number of
ways, such as thermal energy storage whereby heat or coolness
can be stored from one process or period in time, and used at a
later date or different location and very useful in providing
thermal barriers or insulation, for example in temperature
controlled transport.
Ans. 8 (citing http://www.pcmproducts.net/). We agree with the Examiner
that PCM panels have multiple uses, and commonly are used as thermal
insulation barriers in a temperature-controlled transport. See, e.g.,
http://www.pcmproducts.net/; Mitchell 1 :27-55; Romero, Abstract; Merrit-
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Munson 1 :60-65; Williams, Abstract. Thus, Appellant's argument is not
persuasive.
Third, Appellant argues that "the structural panels of the Mitchell
envelope are flexible, not rigid." Appeal Br. 9. However, Appellant is
attacking the teachings of Mitchell individually. Nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner finds that David,
not Mitchell, discloses a rigid structural panel. Final Act. 4; Ans. 9.
Appellant does not address the rejection as articulated by the Examiner, and,
thus, does not identify error by the Examiner.
Fourth, Appellant argues that Mitchell's thermal insulation (i.e.,
bubble wrap) is a "single common and continuous layer of thermal
insulation," not a "separate and independent panel of thermal insulation" as
recited in claim 1. Appeal Br. 9. Appellant also argues that Mitchell's
thermal insulation (i.e., bubble wrap) is not "detachable" from the structural
panel. Id. However, the Examiner finds that the thermal insulation panels
are the PCM panels, not the bubble wrap. Final Act. 4; Ans. 10. We are not
aware of any legal support permitting Appellant to rewrite the present
rejection. Appellant does not address the rejection as articulated by the
Examiner, and, thus, does not identify error by the Examiner.
For the reasons above, the rejection of claim is sustained. Claims 2--4
and 7 fall with claim 1.
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The Rejection of Claim 5
as Unpatentable Over Mitchell and Romero
Appellant argues that the Examiner's rejection of claim 5 is erroneous
for several reasons. First, Appellant repeats the arguments presented with
respect to claim 1 that Mitchell's PCM panel: ( 1) is not a thermal insulating
panel, and (2) is not a "detachable" and "rigid" structural panel. Appeal Br.
10. For the reasons discussed above, Appellant's arguments are not
persuasive.
Second, Appellant argues that a person of routine skill in the art
would not be motivated to substitute Romero's "rigid" vacuum insulated
panels for Mitchell's "flexible" thermal insulating layer (i.e., bubble wrap)
because the proposed modification would be unsatisfactory for its intended
purpose. Appeal Br. 10. As the Examiner correctly explains, the rejection
finds that Mitchell's PCM panel, not the bubble wrap, is the thermal
insulating panel. Ans. 10. We also note that Mitchell's "longitudinal
divisions 4" and "lateral divisions 5 and 6" permit a rigid panel to flexibly
accommodate materials inside the package. See, e.g., Mitchell 4:45-56. We
are not aware of any legal support permitting Appellant to rewrite the
present rejection. Appellant does not address the rejection as articulated by
the Examiner, and, thus, does not identify error by the Examiner.
For the reasons above, the rejection of claim 5 is sustained.
The Rejection of Claim 6
as Unpatentable Over Mitchell and Merritt-Munson
Appellant argues that the Examiner's rejection of claim 6 is erroneous
for several reasons. First, repeating the arguments presented with respect to
claim 1, Appellant argues that Merritt-Munson's PCM panel 11 is not a
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thermal insulating panel. Appeal Br. 11. For the reasons discussed above,
Appellant's argument that a PCM panel cannot be a thermal insulating panel
is not persuasive.
Second, Appellant argues that Merritt-Munson does not remedy the
deficiencies in Mitchell presented with respect to claim 1. Appeal Br. 11-
12. Because the rejection of claim 1 over Mitchell is sustained, Appellant's
argument is not persuasive.
For the reasons above, the rejection of claim 6 is sustained.
The Rejection of Claims 8-12 and 14
as Unpatentable Over Williams and Van Iperen
Appellant argues claims 8-12 and 14 as a group. Appeal Br. 8-9. We
select claim 8 as the representative claim, and claims 9-12 and 14 stand or
fall with claim 8. 37 C.F.R. § 41.37(c)(l)(iv).
Appellant argues that the Examiner's rejection of claim 8 is erroneous
for several reasons. First, repeating the arguments presented with respect to
claim 1, Appellant argues that Williams' PCM panel 18 is not a thermal
insulating panel. Appeal Br. 13. For the reasons discussed above with
respect to claim 1, Appellant's argument that a PCM panel cannot be a
thermal insulating panel is not persuasive.
Second, Appellant argues that "the structural panels of Williams (i.e.,
the sidewalls of the cardboard box) are not configured and arranged for
pivoting relative to one another as between a planar stowage position and an
orthogonal assembly position." Appeal Br. 13. Appellant also argues that
the sidewalls of the cardboard box do not carry thermal insulation panels.
Id. Finally, Appellant argues that
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The combination of Williams and Van Iperen et al. proposed by
the Examiner creates an inner layer of hingedly interconnected
PCM panels, surrounded by an outer layer of thermal insulation
panels, both enclosed within a structural shell (i.e. a cardboard
box). This resultant combination would not have hingedly
interconnected structural panels, nor would the structural panels
detachably carry a panel of thermal insulation.
Appeal Br. 13.
As the Examiner correctly explains, the rejection finds that Williams'
panels 16, not the sidewalls of the cardboard box, are the structural panels
recited in claim 8. Ans. 11. According to the rejection, Williams' closed
cardboard box holds the structural panels 16 and the thermal insulation
panels 18. Id. The rejection proposes modifying two side-by-side structural
panels 16 of Williams with Van Iperen's living hinge 13 to create two
attached structural panels 16. Id. We are not aware of any legal support
permitting Appellant to rewrite the present rejection. Appellant does not
address the rejection as articulated by the Examiner, and, thus, does not
identify error by the Examiner.
For the reasons above, the rejection of claim 8 is sustained. Claims 9--
12 and 14 fall with claim 8
The Rejection of Claim 13
as Unpatentable Over Williams, Van Iperen, and Sawaki
Appellant argues that the Examiner's rejection of claim 13, which
depends from claim 8, is erroneous for several reasons. First, Appellant
argues that the combination of Williams, Van lperen, and Sawaki do not
disclose, teach or suggest all of the claim limitations in claim 8. Appeal Br.
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14. Because the rejection of claim 8 is sustained, Appellant's argument is not
persuasive.
Second, Appellant argues that "[u]se of hook and loop tape to attach
thermal insulation panels to the inside of the Williams cardboard box would
result in an undesired permanent attach[ ment] of the thermal insulation
panels to the box" because "hook and loop tape cannot, absent application of
extreme force, be separated by sliding one layer past the other (i.e., applying
a shear force)." Appeal Br. 14--15. According to Appellant, the thermal
insulation panels of Williams et al. could only be detached from the
cardboard box by pulling the panels upward and out through the open top of
the box. Id. at 15.
Appellant's argument is not persuasive. We agree with the Examiner
the hook and loop fasteners are well-known detachable and releasable
fasteners, and using hook and loop fasteners does not create a permanent
attachment. Ans. 12. We also agree with the Examiner that, contrary to
Appellant's argument, Williams does not disclose, much less require, that
the panels must be slid into and out of the box, such that releasable hook and
loop fasteners cannot be used to releasibly attach the panels to each other.
Id. (citing Williams Fig. 1 ).
Thus, the rejection of claim 13 is sustained.
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DECISION
For the above reasons, the Examiner's rejections of claims 1-14 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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