Ex Parte McLuckie et al

Patent Trial and Appeal Board

Oct 31, 2013

11593422 (P.T.A.B. Oct. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CAROL J. McLUCKIE, PATRICIA M. MARUSZAK, GARY A.
MARCUS, and GLEN ALAN CARTER
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Appeal 2011-012286
Application 11/593,422
Technology Center 3600
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Before WILLIAM V. SAINDON, NEIL T. POWELL, and JILL D. HILL,
Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-012286
Application 11/593,422

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STATEMENT OF THE CASE
Carol J. McLuckie et al. (Appellants) appeal under 35 U.S.C. § 134
from a final rejection of claims 22-28 and 30. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claimed subject matter relates to “a safety cabinet for flammable,
combustible, or other hazardous materials.” See Spec., para. [0002]. Claim
22 represents the subject matter on appeal and is reproduced below with the
key disputed limitation emphasized.
22. A safety cabinet for storing hazardous
material in a facility, the safety cabinet
comprising:
a cabinet enclosure defining an opening and
a cavity for storing the hazardous material, the
enclosure including an external surface;
a door rotatably attached to the cabinet
enclosure, the door movable between an open
position and a closed position, the door configured
to selectively cover at least part of the opening of
the enclosure when in the closed position; and
a reflective hazard indicator disposed on the
external surface of the cabinet enclosure, the
indicator including indicia adapted to convey
information about the flammable nature of the
hazardous material stored in the enclosure, and
the indicia comprises a retroreflective material
adapted such that at least a portion of incident
light striking the material is redirected toward its
originating source.
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Application 11/593,422

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EVIDENCE
The Examiner relies on the following evidence:

Joyner U.S. 2,592,289 Apr. 8, 1952
Schmid U.S. 4,106,229 Aug. 15, 1978
Gillispie U.S. 5,944,399 Aug. 31, 1999
Northey U.S. 6,470,610 B1 Oct. 29, 2002

REJECTIONS
Claims 22-28 and 30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gillispie, Schmid, and Northey. Ans. 3.
Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gillispie, Joyner, and Northey. Ans. 5.
ANALYSIS
Rejection over Gillispie, Schmid, and Northey
Appellants argue claims 22-28 and 30 as a group. App. Br. 8-9. We
select claim 22 as representative, and claims 23-28 and 30 stand or fall with
claim 22. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner finds that Gillispie teaches a safety cabinet including
all of the limitations set forth in claim 22, except for a hazard indicator
comprising a reflective material and indicia to convey information about the
nature of the hazardous material stored in the cabinet. Ans. 3-4.
The Examiner finds that Schmid, however, teaches a hazard indicator
disposed on an external surface of a cabinet that includes indicia 15, 16 to
convey information about the nature of the hazardous material stored in the
cabinet, and that Northey teaches an indicator 52 having a retroreflective
material 58 adapted such that at least a portion of incident light striking the
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material is redirected toward its originating source. Ans. 4. The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to include Schmid’s indicator on an external surface of Gillispie’s cabinet to
improve user safety, and that it would have been obvious to make at least a
portion of the indicator reflective, as taught by Northey, to improve the
visibility thereof. Id.
Appellants argue that Gillispie fails to disclose a reflective hazard
indicator disposed on an external surface of the cabinet, and “the secondary
references” fail to make up for the deficiencies in Gillispie and do not
provide an appropriate reason to combine elements from their disclosures to
arrive at a safety cabinet for storing hazardous material in a facility as
recited in claim 22. App. Br. 6.
Appellants argue that Schmid is solely concerned with devising a sign
holder for a truck to “securely retain the placard on a truck without covering
the mandatory border area and blocking it from view,” and provides no
reason to use its concepts on anything other than a truck. App. Br. 6-7.
Appellants also argue that Schmid does not teach the indicator including a
retroreflective material as claimed. App. Br. 7.
Appellants also argue that Northey is concerned with constructing a
prefabricated retroreflective sign that is resistant to moisture and dirt, and
therefore fails to disclose or suggest a hazard indicator for use on a safety
cabinet. Id.
In response to Appellants’ arguments that Northey fails to disclose or
suggest a hazard indicator for use on a safety cabinet, and that Schmid
makes no reference to its placard 13 including a reflective portion, the
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Examiner responds that Appellants cannot show non-obviousness by
attacking references individually where the rejections are based on
combinations of references. Ans. 9. We agree with the Examiner. We are
not persuaded by Appellants’ attacks on individual references given that the
rejection is based on a combination of references.
Appellants also argue that the Examiner fails to provide a credible
reason for one skilled in the art to modify Schmid’s truck sign holder to
include a reflective hazard indicator as claimed, and then to modify
Gillispie’s safety cabinet to include Schmid’s modified sign holder. Id.
According to Appellants, Northey fails to mention any advantage that might
be attained by using a retroreflective material in an application other than on
an outdoor sign that may be struck by light from vehicle headlamps (App.
Br. 7-8) and neither Schmid nor Northey teach or suggest modifying
Gillispie’s safety cabinet by adding a hazard indicator including a
retroreflective material (App. Br. 8).
The Examiner responds that Schmid is viewed, broadly, as teaching a
hazard indicator for a hazardous material container to provide advance
warning to persons opening the container, and that one of ordinary skill
would understand that hazardous material is found in a variety of containers,
including the truck of Schmid and the cabinet of Gillispie, and that providing
persons with advance warning regarding the hazardous nature of the
materials in a container would increase user safety. Ans. 7. The Examiner
states that, moreover, one of ordinary skill would recognize that Schmid's
hazard indicator is usable on containers other than a truck to achieve the
predictable result of increasing user safety by providing users with advance
warning regarding the hazardous nature of the container's contents. Id.
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In response to Appellants’ argument that Northey does not provide a
reason to use its retroreflective material for an indoor sign, the Examiner
notes that motivation to combine the teachings of the prior art need not be
found in the applied references, but rather can be found in the knowledge
generally available to one of ordinary skill in the art. Ans. 7 (citing In re
Fine, 837 F.2d 1071 (Fed. Cir. 1988)). The Examiner concludes that one of
ordinary skill would understand that increasing the visibility of Schmid's
hazard indicator is desirable, and that adding known retroreflective material
to a hazard indicator would “yield the predictable result of making said
hazard indicator more visible to users employing artificial light sources (e.g.,
flashlights)” even when the container is indoors and despite the existence of
typical overhead indoor lighting. Ans. 8-9.
Appellants argue that the Examiner’s reason for combining Gillispie,
Schmid, and Northey impermissibly used hindsight. App. Br. 5 and 8. The
Examiner responds that any judgment on obviousness is in a sense
necessarily a reconstruction based upon hindsight reasoning; but so long as it
takes into account only knowledge which was within the level of ordinary
skill at the time the claimed invention was made, and does not include
knowledge gleaned only from Appellants’ disclosure, such a reconstruction
is proper. Ans. 9 (citing In re McLaughlin, 443 F.2d 1392 (CCPA 1971)).
In the Reply Brief, Appellants again argue that the applied references
fail to establish that one of ordinary skill in the art at the time of Appellants’
invention would have found it obvious to use a retroreflective hazard
indicator in a safety cabinet for storing hazardous material in a facility as
described in claim 22, and that it is only through the use of improper
hindsight knowledge of the present invention, and its attendant benefits, that
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the applied references would be combined at all. Reply Br. 3. Because
reason to combine the teachings of the prior art need not be found in the
applied references, but rather can be found in the knowledge generally
available to one of ordinary skill in the art, we are not persuaded by this
argument.
Appellants do not persuasively argue that the Examiner’s above-stated
reasons for combining Gillispie, Schmid, and Northey lack a rational basis.
We are not persuaded that the Examiner’s reasoning impermissibly used
hindsight or lacked credibility.
For the reasons set forth above, we sustain the rejection of claims 22-
28 and 30 as unpatentable over Gillispie, Schmid, and Northey.
Rejection over Gillispie, Joyner, and Northey
Appellants make essentially the same arguments regarding Gillispie,
Joyner, and Northey, and the combination thereof, that were made with
respect to Gillispie, Schmid, and Northey. For the reasons set forth above
with respect to the rejection over Gillispie, Schmid, and Northey, we sustain
the rejection of claims 22 and 23.
DECISION
We AFFIRM the rejection of claims 22-28 and 30 under 35 U.S.C. §
103(a) as unpatentable over Gillispie, Schmid, and Northey.
We AFFIRM the rejection of claims 22 and 23 under 35 U.S.C. §
103(a) as unpatentable over Gillispie, Joyner, and Northey.

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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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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