Ex parte McVicker

Board of Patent Appeals and Interferences

Jan 31, 2001

08365710 (B.P.A.I. Jan. 31, 2001)

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publication and is not binding precedent of the Board.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. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte RICHARD E. MCVICKER
_____________
Appeal No. 1998-0860
Application No. 08/365,710
______________
ON BRIEF
_______________
Before HAIRSTON, FLEMING, and LEVY, Administrative Patent
Judges.
HAIRSTON, Administrative Patent Judge.
ON REQUEST FOR REHEARING
Appellant has requested that we reconsider our December
21, 2000 decision wherein we affirmed the obviousness
rejection of claim 9.
In a discussion of the Stern reference, we explained that
“the roll inhibiting device 51 is only in the Figure 6
embodiment,” and that “[s]uch a roll inhibiting device is not
Appeal No. 1998-0860
Application No. 08/365,710
Appellant has correctly argued (Request, page 2) that1
the roll-inhibiting device 51 is in the “species of figures 7-
9.”
2
in the other embodiment disclosed by Stern” (Decision, page[1]
3). Appellant argues (Request, page 1) that “Figure 1 shows
the inhibiting device 51, albeit there is no number on the
drawing (see the heavy lined block below numeral 41).”
Inasmuch as Stern is completely silent as to a description of
the element near numeral 41 in Figure 1, we will not assume
that it is a roll-inhibiting device. When Figures 1 through 6
are discussed together in the description of the invention,
Stern indicates that they are not the same embodiment because
she uses the term “embodiments” (column 4, line 42) to refer
to these figures. In the “BRIEF DESCRIPTION OF THE DRAWINGS,”
for example, Stern indicates (column 2, lines 40 and 41) that
“FIG. 6 illustrates a modification to an end of the spring-
strip depicted in FIGS. 5a and 5b.” Stern clearly explains
(column 4, lines 17 through 35) that the roll-inhibiting
device 51 was added to the Figure 6 embodiment “to ensure that
spring-strip 41 rolls from the top edge 21 of the bag, rather
than from bottom edge 23.”
Appeal No. 1998-0860
Application No. 08/365,710
3
In summary, Stern discloses three distinct embodiments
(i.e., Figures 1 through 5 are a first embodiment, Figure 6 is
a second embodiment, and Figures 7 through 9 are a third
embodiment), and the roll-inhibiting device 51 is only used in
the latter two embodiments. Accordingly, appellant’s request
has
Appeal No. 1998-0860
Application No. 08/365,710
4
been granted to the extent that our decision has been
reconsidered, but such request is denied with respect to
making any modifications to the decision.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 C.F.R.
§ 1.136(a).
REHEARING
DENIED
)
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
STUART S. LEVY )
Administrative Patent Judge )
KWH:hh
Appeal No. 1998-0860
Application No. 08/365,710
5
RICHARD E. MCVICKER
6521 ORVILLE LANE
INDIANAPOLIS, IN 46237