Ex parte Mcallister

Board of Patent Appeals and Interferences

Oct 23, 2000

09063446 (B.P.A.I. Oct. 23, 2000)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of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 LARRY N. MCALLISTER

_____________
Appeal No. 2000-0514
Application No. 09/063,446
______________
ON BRIEF
_______________
Before MCCANDLISH, Senior Administrative Patent Judge,
MCQUADE, and GONZALES, Administrative Patent Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Larry N. McAllister originally took this appeal from the
final rejection of claims 3 and 4, all of the claims pending
in the application. Upon reconsideration, the examiner has
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Application No. 09/063,446
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since withdrawn the rejection of dependent claim 4 which now
stands objected to as depending from a rejected base claim
(see page 2 in the examiner's answer, Paper No. 8).
Accordingly, the appeal as to claim 4 is dismissed, leaving
for review the standing rejection of claim 3.
THE INVENTION
The invention relates to "an adjustable shelving
assembly, and more particularly to an assembly that includes
horizontally and/or angularly mounted shelving without the
need for dismantling the overall assembly when additional
shelving is desired" (specification, page 2). Claim 3 reads
as follows:
An adjustable shelving assembly comprising a plurality of
vertically oriented support posts, at least one shelf
retaining collar releasably secured to each post, each collar
having an open front face constructed and arranged for
placement of the collars around the vertical support posts,
each shelf retaining collar having a frusto-conical interior
surface, an interconnecting split sleeve between each collar
and post, the split sleeve having an interior surface
releasably connected to the support post and an exterior
surface having a frusto-conical configuration complementary to
the interior frusto-conical surface of the collar, a pair of
Appeal No. 2000-0514
Application No. 09/063,446
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upwardly extending shelf supporting hooks on each collar
integral with the collar and extending outwardly parallel to
one another from the open front face, and shelving interacting
with the hooks of the collars to thereby connect the shelving
to the support posts.
THE PRIOR ART

The references relied upon by the examiner as evidence of
obviousness are:
Champagne 4,079,678 Mar.
21, 1978
Nicely 4,750,626 Jun. 14,
1988
THE REJECTION
Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nicely in view of Champagne.
Attention is directed to the appellant's brief (Paper No.
7) and to the examiner's answer (Paper No. 8) for the
respective positions of the appellant and the examiner with
regard to the merits of this rejection.
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Application No. 09/063,446
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DISCUSSION
Nicely, the examiner's primary reference, discloses an
adjustable shelving assembly comprising a plurality of
vertical support posts 12, at least one shelf retaining collar
in the form of a strap 16 releasably secured to each post and
having an open front face (see Figure 4), a tapered (i.e.,
frusto-conical) interior surface 34 and a pair of integral
tapered flanges 32 extending outwardly from the open front
face, a split sleeve 18 between each collar and post and
having an interior surface releasably connected to the post
and an exterior surface with a tapered (i.e., frusto-conical)
configuration complementary to the interior frusto-conical
surface of the collar, and shelving 11 interacting with the
tapered collar flanges via tapered slots 45 in corner pieces
17.
As conceded by the examiner (see page 4 in the answer),
Nicely's shelving assembly does not meet the limitation in
claim 3 requiring "a pair of upwardly extending shelf
supporting hooks on each collar integral with the collar and
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Application No. 09/063,446
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extending outwardly parallel to one another from the open
front face," with the shelving interacting with the hooks to
connect the shelving to the support posts. The corresponding
structures in the Nicely assembly, tapered flanges 32, do not
constitute hooks.
Champagne discloses a shelving system composed of corner
posts 3, a shelving unit 5, and a support collar 8 detachably
connected to each post for retaining the shelving unit. Each
collar includes two parallel, upwardly extending hooks in the
form of side arms 15 having notches 17 therein for interacting
with inserts 25 on the shelving unit.
In rejecting claim 3 under 35 U.S.C. § 103(a), the
examiner has concluded that
[i]t would have been obvious and well within the
level of ordinary skill in the art to modify the
structure of Nicely (‘626) to include the
interconnecting structure of Champagne since such
structures are alternative, conventional sleeve and
interconnecting structure, used in the same intended
purpose of providing a quick disconnect, thereby
providing structure as claimed [answer, page 4].
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Application No. 09/063,446
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In order to meet the terms of claim 3, this proposed
modification presumably would involve the reconfiguration of
Nicely's tapered flanges 32 into parallel, upwardly extending
hooks (along with a complementary reconfiguration of Nicely's
tapered corner piece slots 45) and the retention of Nicely's
split sleeve 18. The combined teachings of Nicely and
Champagne, however, would not have suggested this highly
selective change in Nicely's shelf retaining structure.
Although Champagne does indicate that the shelving system
disclosed therein "does not require wedge-shaped inserts"
(column 1, lines 32 and 33), thereby implying some
disadvantage to tapered or frusto-conical wedging surfaces of
the sort disclosed by Nicely, there is nothing in this
reference which would have motivated the artisan to eliminate
the wedging aspect of Nicely's flanges 32 by replacing them
with parallel, upwardly extending hooks, while at the same
time retaining the wedging aspects embodied by Nicely's split
sleeve 18. The only suggestion for picking and choosing from
between Nicely and Champagne as the examiner has stems from
impermissible hindsight knowledge derived from the appellant's
disclosure.
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Application No. 09/063,446
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Thus, the combined teachings of Nicely and Champagne do
not justify a conclusion that the differences between the
subject matter recited in claim 3 and the prior art are such
that the subject matter as a whole would have been obvious at
the time the invention was made to a person having ordinary
skill in the art. Hence, we shall not sustain the standing 35
U.S.C. § 103(a) rejection of claim 3 as being unpatentable
over Nicely in view of Champagne.
SUMMARY
The decision of the examiner to reject claim 3 under
35 U.S.C. § 103(a) is reversed.
REVERSED
HARRISON E. MCCANDLISH )
Appeal No. 2000-0514
Application No. 09/063,446
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Senior Administrative Patent Judge )
)
) BOARD OF PATENT
JOHN P. MCQUADE )
Administrative Patent Judge ) APPEALS
AND
)
) INTERFERENCES
JOHN F. GONZALES )
Administrative Patent Judge )
JPM:lmb
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