13657806 (P.T.A.B. Nov. 24, 2017)

Ex Parte Meressa

Patent Trial and Appeal BoardNov 24, 2017

13657806 (P.T.A.B. Nov. 24, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/657,806 10/22/2012 Ybirhan Girmay Meressa 8284 63221 7590 11/27/2017 YBIRHAN G. MERESSA 1917 SE 148th Ave. Portland, OR 97233 EXAMINER KLOTZ, WILLIAM R ART UNIT PAPER NUMBER 3754 MAIL DATE DELIVERY MODE 11/27/2017 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte YBIRHAN GIRMAY MERESSA ____________________ Appeal 2016-006752 Application 13/657,806 Technology Center 3700 ____________________ Before LINDA E. HORNER, GORDON D. KINDER, and PAUL J. KORNICZKY, Administrative Patent Judges. KORNICZKY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-006752 Application 13/657,806 2 STATEMENT OF THE CASE Appellant Ybirhan Girmay Meressa1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision, as set forth in the Final Office Action dated July 15, 2015 (“Final Act.”), rejecting claims 1–11 and 18–20.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. THE CLAIMED SUBJECT MATTER The claims are directed to portable half bathroom. Claim 1, the only independent claim on appeal, is reproduced below with disputed limitations italicized for emphasis: 1. A portable half bathroom comprising: a cabinet comprising: a cabinet door; a cabinet back wall; and a plurality of cabinet side walls including a first cabinet side wall and a second cabinet side wall; a plurality of collapsible and foldable bathroom panels comprising: a first set of bathroom wall panels attached to the first cabinet side wall, wherein the first set of bathroom wall panels each have a first ply and a second ply; a second set of bathroom wall panels attached to the second cabinet side wall, wherein the second set of bathroom wall panels each have a first ply and a second ply; a bathroom door panel; and a bathroom back panel attached to the cabinet back wall, wherein the bathroom back panel has a first ply and a second ply; and a plurality of bathroom ceiling panels; and 1 Appellant identifies Ybirhan Girmay Meressa as the real party in interest. Appeal Brief, dated October 9, 2015 (“Br.”), at 2. 2 Claims 12–17 are cancelled. Final Act. 2. Appeal 2016-006752 Application 13/657,806 3 a movable toilet; wherein the portable half bathroom is characterized by: a compact condition in which the plurality of bathroom panels are collapsed and folded; and an expanded condition in which the plurality of bathroom panels are unfolded and expanded; the second plies of the first set of bathroom wall panels, the second plies of the second set of bathroom wall panels, and the second ply of the bathroom back panel are pulled up along a vertical direction; and the plurality of bathroom panels form an enclosure. REFERENCES In rejecting the claims on appeal, the Examiner relied upon the following prior art: Rivera Wood Aper Davies US 200,480 US 1,225,914 US 1,409,330 US 5,379,466 Feb. 19, 1878 May 15, 1917 Mar. 14, 1922 Jan. 10, 1995 Taylor US 2012/0144576 A1 June 14, 2012 REJECTIONS The Examiner made the following rejections: 1. Claims 1, 3, 6, 11, and 18 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Davies. 2. Claims 4, 10, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Davies. 3. Claims 5 and 8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Davies and Wood. 4. Claims 2 and 7 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Davies and Rivera. Appeal 2016-006752 Application 13/657,806 4 5. Claim 9 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Davies and Aper. 6. Claim 20 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Davies and Taylor. Appellant seeks our review of these rejections. DISCUSSION The Rejection of Claims 1, 3, 6, 11, and 18 as Anticipated By Davies Claims 1, 3, and 6 Appellant argues claims 1, 3, and 6 as a group. Br. 3–5. We select independent claim 1 as the representative claim, and dependent claims 3 and 6 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). Appellant contends that the Examiner’s findings that Davies discloses all of the limitations of claim 1 are erroneous for several reasons. First, Appellant contends, without any explanation, that Davies does not disclose a bathroom door panel and a cabinet door, as recited in the claims. Br. 4. Appellant does not address the Examiner’s finding that Davies discloses cabinet door 12 and bathroom door panels 61 (Final Act. 3; Ans. 5). Second, Appellant contends, without any explanation, that Davies does not disclose “the plurality of bathroom panels form an enclosure,” as recited by the claims. Br. 4. Merely restating the limitations in claim 1, Appellant contends that the plurality of bathroom panels comprise: a first set of bathroom wall panels attached to the first cabinet side wall, wherein the first set of bathroom wall panels each have a first ply and a second ply; a second set of bathroom wall panels attached to the second cabinet side wall, wherein the second set of bathroom wall panels each have a first ply and a second ply; a Appeal 2016-006752 Application 13/657,806 5 bathroom door panel; and a bathroom back panel attached to the cabinet back wall, wherein the bathroom back panel has a first ply and a second ply; and a plurality of bathroom ceiling panels. Id. Appellant does not address the Examiner’s finding that Davies discloses a plurality of bathroom panels 5, each having a first ply 7 and a second ply 20, that form an enclosure (Final Act. 3–4). Appellant’s two arguments do not identify flaws in the Examiner’s findings or reasoning. See Ex parte Frye, 94 USPQ 1072 (BPAI 2008) (precedential) (“The ‘prima facie case’ serves as a procedural mechanism that shifts the burden of going forward to the applicant, who must produce evidence and/or argument rebutting the case of unpatentability.”) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) and In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984)); see also 37 C.F.R. § 41.37(c)(1)(iv) (setting forth that the argument section of the brief shall “explain why the examiner erred as to each ground of rejection contested by appellant”). Patentability is then determined “on the totality of the record, by a preponderance of the evidence with due consideration to the persuasiveness of the argument.” Oetiker, 977 F.2d at 1445. In this case, because the Examiner’s findings are supported by the evidence before us (see e.g., Final Act. 3–4, Ans. 5–6), and Appellant has asserted errors unsupported by evidence or explanation, we discern no error in the Examiner’s findings. For the reasons above, the rejection of claim 1 is sustained. Claims 3 and 6 fall with claim 1. Claim 11 In response to the rejection of claim 11 and the Examiner’s finding that Davies discloses all of the limitations of claim 11 (Final Act. 4), Appeal 2016-006752 Application 13/657,806 6 Appellant contends, again without evidence or explanation, that Davies does not disclose “a lever movable between an activated position to hold the plurality of bathroom panels tightly; and a released position to release the plurality of bathroom panels.” Br. 4. Appellant does not address the Examiner’s finding that Davies discloses a lever 47 as called for in claim 11. Final Act. 4. Because the Examiner’s findings are supported by the evidence before us, and Appellant has not supported the assertions of error with evidence or explanation, we discern no error in the Examiner’s findings. Appellant also contends that Davies “teaches away” from holding the plurality of bathroom panels tightly. Br. 4–5. Appellant contends that “Davies fails to teach an activated position to hold the plurality of bathroom panels (both of walls 5) tightly” because Davies states that “[b]ase 3 includes a pair of parallel spaced apart sidewalls 5” (citing Davies 3:18-19), and the “pair of parallel spaced apart sidewalls 5 of Davies have a distance between them and can not be held tightly.” Br. 4–5. In response to Appellant’s argument, the Examiner explains that “the lever (47) of Davies is rotated, raising and lowering the bathroom panels.” Ans. 6 (citing Davies 4:27-33). The Examiner correctly finds that the “activated position [is] when the lock bar (48) is engaged with the hole (4[9]) and the released position [is] when the lock bar (48) is not engaged with the hole (49)” and the “use of the lock bar results in the panels being held tightly.” Id. Davies does not identify any problems tightly holding the panels through the engagement of the lock bar 48 and hole 49. Appellant’s argument is not persuasive. For the reasons above, the rejection of claim 11 is sustained. Appeal 2016-006752 Application 13/657,806 7 Claim 18 Claim 18 requires that “the enclosure is of a cubical shape, a cylindrical shape, a prism shape, or a pyramid shape.” The Examiner finds that Davies’ “bathroom panels form an enclosure” (e.g., Final Act. 4) and the enclosure “has a cubical shape” (e.g., Final Act. 4; Ans. 6 (citing Davies Fig. 2; 3:24-27, 45-50)). In response to the rejection of claim 18 and the Examiner’s finding that Davies discloses all of the limitations of claim 18 (Final Act. 4), Appellant contends that “the pair of parallel spaced apart sidewalls 5 of Fig. 2 of Davies does not form an enclosure.” Br. 5. Neither the Specification, Appellant, nor the Examiner define an enclosure. According to one definition, an “enclosure” is (1) “the act or action of enclosing: the quality or state of being enclosed,” (2) “something that encloses,” and (3) “something enclosed.” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/enclosure, (last visited November 15, 2017). The word “enclose” means (1) “to close in: surround,” and (2) “to hold in.” Id. at https://www.merriam- webster.com/dictionary/encloses. Davies discloses that “[s]idewalls 5, rear wall 10 and front wall 11 form a substantially square-shaped structure having a hollow interior and terminating in upper edges 8. Front wall 11 is formed with a doorway opening 9 which is open[ed] and closed by a door 12.” Davies 3:23–27. Davies also discloses that “top portion 4 . . . includes a pair of parallel spaced-apart sidewalls 20 and a rear wall 21 (FIGS. 1 and 5) normal to sidewalls 20, and has an open bottom and an open front 25, which provide a hollow interior. . . . [and] open front 25 is closed by a flexible curtain 22.” Appeal 2016-006752 Application 13/657,806 8 Davies 3:45–51. Thus, Davies’ walls, doors, and curtains surrounding the hollow interior form an enclosure. Appellant does not identify error by the Examiner. Thus, the rejection of claim 18 is sustained. The Rejection of Claims 4, 10, and 19 as Unpatentable Over Davies Appellant argues claims 4, 10, and 19 as a group. Br. 5–6. We select claim 4 as the representative claim, and claims 10 and 19 stand or fall with claim 4. 37 C.F.R. § 41.37(c)(1)(iv). Claim 4 recites that “the size of the enclosure is adjustable by expanding different numbers of panels of the plurality of bathroom panels.” The Examiner determines that it would have been obvious to “modif[y] the panels of Davies to change the size or number of the panels in order to make the closet larger.” Final Act. 5. According to the Examiner, the “purpose of the privacy closet of Davies is to easily be moved from a lowered to a raised position and to be portable” and, “therefore, the size of the enclosure is adjustable.” Ans. 6–7 (citing Davies 1:65–2:4). The Examiner explains that the “size adjustment by expanding different numbers of bathroom panels is within the ability of one skilled in the art.” Id. Appellant argues that the rejection is erroneous because Davies “teaches away” from the recited limitation as the “number of panels of the plurality of bathroom panels (sidewalls 5) of Davies is fixed (a pair of sidewalls 5).” Br. 6. According to Appellant, “[o]ne skilled in the art will not modify Davies to comprise different numbers of panels of the plurality of bathroom panels.” Id. Appeal 2016-006752 Application 13/657,806 9 Appellant does not offer any technical reason or persuasively explain why Davies’ teachings are “fixed” to “a pair of sidewalls 5,” and a person of ordinary skill in the art cannot use Davies’ teachings to vary the number of walls to vary the size of the enclosure. “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Contrary to Appellant’s suggestion that Davies is fixed to a pair of sidewalls, Fig. 7 of Davies, for example, discloses multiple walls such as sidewalls 5, rear wall 10, two smaller front walls 11, door 12, sidewalls 20, two smaller front walls 60, and two doors 61––each having a different size. See, e.g., Davies Fig. 7, 3:20–30, 45–50, 5:30–35. Davies’ front sides are formed by multiple panels––e.g., two front walls 11 and door 12––which may be varied to vary to the size of the front wall and, ultimately, the size of the enclosure. Thus, Davies does not criticize, discredit, or otherwise discourage the Examiner’s proposal to vary the number of panels to vary the size of the enclosure. DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (A “reference does not teach away, however, if it merely expresses a general preference for an alternative invention but does not ‘criticize, discredit, or otherwise discourage’ investigation into the invention claimed.”) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)). Appellant’s argument is unpersuasive. Appellant also argues that “[c]laims 4, 10, and 19 depend from an allowable base claim (claim 1) . . . , and for at least this reason, claims 4, 10, and 19 are also allowable.” Br. 5. Because the rejection of claim 1 is sustained, Appellant’s argument is unpersuasive. Appeal 2016-006752 Application 13/657,806 10 For the reasons above, the rejection of claim 4 is sustained. Claims 10 and 19 fall with claim 4. The Rejection of Claims 5 and 8 as Unpatentable Over Davies and Wood Appellant argues that “[c]laims 5 and 8 depend from an allowable base claim (claim 1) . . . , and for at least this reason, claims 5 and 8 are also allowable.” Br. 6. Because the rejection of claim 1 is sustained, Appellant’s argument is unpersuasive. The Rejection of Claims 2 and 7 as Unpatentable Over Davies and Rivera Claims 2 and 7 recite that “the top layer of the cabinet is hingedly movable between a closed position in which the tank and the faucet are positioned in the sink; and an opened position in which the tank and the faucet are exposed.” The Examiner finds that Davies does not disclose this limitation but that Rivera discloses a top layer (g) of a cabinet that is hingedly movable between a closed position (Fig. 1) in which the tank and the faucet are positioned in the sink; and an opened position in which the tank and the faucet are exposed (Fig. 2). Final Act. 7. In response, Appellant contends that the top layer “g of Rivera is not hingedly movable between a closed position and an opened position,” and “Rivera states ‘g represents the movable top, that can easily be removed Appeal 2016-006752 Application 13/657,806 11 from the cabinet.’” Br. 7 (emphasis added). We agree. Rivera does not disclose that top layer g is “hingedly” movable.3 Thus, the rejection of claims 2 and 7 is not sustained. The Rejection of Claim 9 as Unpatentable Over Davies and Aper Appellant argues that “[c]laim 9 depends from an allowable base claim (claim 1) . . . , and for at least this reason, claim 9 is also allowable.” Br. 8. Because the rejection of claim 1 is sustained, Appellant’s argument is unpersuasive. The rejection of claim 9 is sustained. The Rejection of Claim 20 as Unpatentable Over Davies and Taylor Appellant argues that “[c]laim 20 depends from an allowable base claim (claim 1) . . . , and for at least this reason, claim 20 is also allowable.” Br. 8. Because the rejection of claim 1 is sustained, Appellant’s argument is unpersuasive. The rejection of claim 20 is sustained. DECISION For the above reasons, the Examiner’s rejections of claims 1, 3–6, 8– 11, and 18–20 are AFFIRMED. The Examiner’s rejection of claims 2 and 7 is REVERSED No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART 3 We note that Figures 1 and 2 of Aper disclose that sink cover/leaf 35 and plates 33 are hingedly attached to each other by a hinge 36. Aper 2:74.