Ex Parte Michels

Board of Patent Appeals and Interferences

Aug 26, 2004

10003785 (B.P.A.I. Aug. 26, 2004)

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written for publication and is not binding precedent of the Board.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. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte LARRY MICHELS
____________
Appeal No. 2004-1541
Application No. 10/003,785
____________
ON BRIEF
____________
Before FLEMING, RUGGIERO, and GROSS, Administrative Patent
Judges.
FLEMING, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 1, 2, 4, 8, and 21. Claims 3, 5-7, and 9-20 are
withdrawn.
Appeal No. 2004-1541
Application No. 10/003,785
2
Invention
Appellant's invention relates to a shear resistant fastener
assembly 10 for supporting structures 30 from a wall 18 behind
which there are no supporting studs. See Appellant's
specification, page 11, lines 14-16. The wall 18 defines
therethrough an opening 20 having a predetermined size and
configuration and bordered by an interior peripheral surface 22
having the thickness of the wall 18. See Appellant's
specification, page 11, lines 16-19. The assembly 10 includes an
anchor plate 14, 14' having a predetermined length and a
predetermined width and defining at least a flat front surface
16, 16'. See Appellant's specification, page 11, lines 19-22.
The anchor plate 14, 14' is inserted through the opening 20 in
the wall 18 and its flat front 16, 16' is positioned flatly
against the rear surface of the wall 18. See Appellant's
specification, page 11, lines 22-25. The assembly 10 further
includes an insert 12, 12' having a predetermined size and
configuration that is the same as the one of the opening 20 in
the wall 18 and is fitted closely within the opening 20 and into
engagement against the interior peripheral surface 22 of the
opening 20. See Appellant's specification, page 11, line 25
through page 12, line 3. The insert 12, 12' defines a flat
Appeal No. 2004-1541
Application No. 10/003,785
3
front surface 26, 26' and flat rear surface. See Appellant's
specification, page 12, lines 3 and 4. The assembly 10 further
includes a connecting structure 34 for connecting together the
anchor plate 14, 14' and the insert 12, 12' to urge the flat
front surface 16, 16' of the anchor plate 14, 14' toward and
against the flat rear surface of the insert 12, 12' and also
flatly against the rear surface of the wall 18. See Appellant's
specification, page 12, lines 4-9. The anchor plate 14, 14' is
extended along its predetermined length from a center of the
insert 12, 12' and from one side of the insert 12, 12' and also
at a predetermined distance from the center of the insert 12, 12'
and is attached to the wall 18 by at least one fastener structure
36 extending through the wall 18 and into the anchor plate 14,
14' at any location spaced from the insert 12, 12' along the
predetermined length of the anchor plate 14, 14'. See
Appellant's Figs. 1 and 2, and specification, page 23, lines 13-
18.
Claim 1 is representative of the claimed invention and is
reproduced as follows:
1. A shear resistant fastener assembly for supporting
structures from a wall having a predetermined thickness and
behind which there are no supporting studs, the wall defining
therethrough an opening having a predetermined size and a
predetermined configuration and bordered by an interior
Appeal No. 2004-1541
Application No. 10/003,785
4
peripheral surface having said thickness of said wall, said
fastener assembly comprising:

a) an anchor plate means for attachment to said wall and having
a predetermined length, a predetermined width and a predetermined
thickness and defining at least a flat front surface, said anchor
plate means adapted to be inserted through said opening in said
wall and for its flat front surface to be positioned flatly
against the rear surface of said wall;
b) An [sic; an] insert means for connecting to said anchor
plate means and for fitting closely within said opening and into
engagement against said interior peripheral surface of said
opening, said insert means defining a center and having a
predetermined size and a predetermined configuration that are the
same as that of said opening and defining a flat front surface
and a flat rear surface; and
c) means for connecting together said anchor plate means and
said insert means and adapted to urge said anchor plate means and
its flat front surface toward and against the flat rear surface
of said insert means and also flatly against said rear surface of
said wall;
d) said anchor plate means extending along its said
predetermined length a predetermined distance from said center of
said insert means and from one side of said insert means and also
at a predetermined distance from said center of said insert means
and from the other side of said insert means and being adapted to
be attached to said wall by at least one fastener structure
extending through the wall and into said anchor plate means at
any location spaced from said insert means along said
predetermined length of said anchor plate means.

Reference
The reference relied on by Examiner is as follows:

McSherry et al. 5,236,293 Aug. 17, 1993
(McSherry)
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Application No. 10/003,785
5
Rejection at Issue
Claims 1, 2, 4, 8, and 21 stand rejected under 35 U.S.C.
§ 102 as being anticipated by McSherry.
OPINION
With full consideration being given to the subject matter on
appeal, Examiner's rejections and the arguments of Appellant and
Examiner, for the reasons stated infra, we reverse the Examiner's
rejection of claims 1, 2, 4, 8, and 21 under 35 U.S.C. § 102.
We first will address the rejection of claims 1, 2, 4, and 8
under 35 U.S.C. § 102. Appellant argues in the brief and reply
brief that McSherry fails to teach "at least one fastener
structure extending through the wall and into said anchor plate
means at any location spaced from said insert means along said
predetermined length of said anchor plate means" as recited in
claim 1. See pages 8-12 of the brief and pages 2-8 of the reply
brief.
The Examiner responds that "McSherry's assembly comprises
means (18) for connecting together the anchor plate (31) and
insert (20)." See fact finding 11 on page 4 of the answer. The
Examiner further responds:
McSherry's anchor plate (31), when inserted through the
opening (12), is rotatable around the insert (20) to
position the anchor plate to a predetermined position
Appeal No. 2004-1541
Application No. 10/003,785
6
relative to the rear surface (11) of the wall to
receive the fastener structure (18) through the wall at
the location of the predetermined position to which the
anchor plate has been rotated and into the anchor plate
along its length spaced from the insert (20).
(Emphasis added).
See fact finding 18 on page 5 of the answer.
On pages 4 and 5 of the reply brief, Appellant replies:
The purpose of the language in claim 1, as quoted
above, is to structurally set forth, and thus clearly
distinguish from the disclosure in McSherry et al so as
to define that the point of entry for the recited "at
least one fastener structure" is through the wall at
any location along the predetermined length of the
anchor plate means. The any location", as set forth in
claim 1, means being spaced from one side of the insert
means and from the other side of the insert means and
"also" being spaced at a predetermined distance from
the center of the insert means. This would place such
"at any location" entirely away from the center of the
insert means. The "at least one fastener structure,"
therefore does not extend into the center of the insert
means, as alleged by the Examiner and as is the case
with the bolt (18) in the McSherry et al patent. This
is a distinction between the two disclosures that the
Examiner appears not to have recognized because she
alleges in her argument that Appellant's element 40 or
40' is both the "means" (from subparagraph c) of
Appellant's claim 1), and the "at least one fastener
structure" (from subparagraph d) of Appellant's claim
1).
It is axiomatic that anticipation of a claim under § 102
can be found only if the prior art reference discloses every
element of the claim. See In re King, 801 F.2d 1324, 1326,
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Application No. 10/003,785
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231 USPQ 136, 138 (Fed. Cir. 1986) and Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1458,
221 USPQ 481, 485 (Fed. Cir. 1984).
As pointed out by our reviewing court, we must first
determine the scope of the claim. "[T]he name of the game is the
claim." In re Hiniker Co., 150 F.3d 1362, 1369, 47 USPQ2d 1523,
1529 (Fed. Cir. 1998). "In examining a patent claim, the PTO
must apply the broadest reasonable meaning to the claim language,
taking into account any definitions presented in the
specification." In re Bass, 314 F.3d 575, 577, 65 USPQ2d
1156, 1158 (Fed. Cir. 2002) citing In re Yamamoto, 740 F.2d 1569,
1571, 222 USPQ 934, 936 (Fed. Cir. 1984). Words in a claim are
to be given their ordinary and accustomed meanings unless the
inventor chooses to be his own lexicographer in the
specification. In re Bass, 314 F.3d at 577, 65 USPQ2d at 1158,
citing Lantech, Inc. v. Keip Mach. Co., 32 F.3d 542, 547,
31 USPQ2d 1666, 1670 (Fed. Cir. 1994).
We note that Appellant's claim 1 recites:
at least one fastener structure extending through the
wall and into said anchor plate means at any location
spaced from said insert means along said predetermined
length of said anchor plate means. (Emphasis added).
Appeal No. 2004-1541
Application No. 10/003,785
1 See Webster’s II New Riverside University Dictionary, 1984
Edition, page 1113 attached.
8
The ordinary meaning of "spaced," in turn, is defined as "to
organize or arrange with spaces between" or "to separate or keep
apart."1 Thus, we conclude that Appellant's claimed fastener
structure is separated or kept apart from Appellant's insert
means 12 along the length of Appellant's anchor plate 14.
Therefore, Appellant's claimed fastener structure must be offset
from the center of the insert means 12.
Returning to McSherry, we find that McSherry's bolt 18 is
received in the aperture 22 of the insert means 20 as seen in
McSherry's Figs. 11 and 19 and described in column 6, lines 42-
45. We find that McSherry's bolt 18 reads on the means for
connecting together the anchor plate means 31 and the insert
means 20 and adapted to urge the anchor plate means 31 and its
flat front surface toward and against the flat rear surface of
the insert means 20 and also flatly against said rear surface of
the wall 14 as recited in subparagraph c) of Appellant's claim 1.
However, McSherry's bolt 18 is located at the center of
McSherry's insert means 20 as best seen in Figs. 11 and 19.
Therefore, McSherry's bolt 18 is not separated or kept apart from
McSherry's insert means 20 along the length of McSherry's anchor
Appeal No. 2004-1541
Application No. 10/003,785
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plate means 31. Accordingly, McSherry's bolt 18 does not read on
the limitation "at least one fastener structure extending through
the wall and into said anchor plate means at any location spaced
from said insert means along said predetermined length of said
anchor plate means" as recited in Appellant's claim 1.
Therefore, we will not sustain the Examiner's rejection under
35 U.S.C. § 102. Consequently, we also will not sustain the
Examiner's rejection of claims 2, 4, and 8 due to their
dependency upon claim 1.
We now turn to the rejection of the remaining claim 21 under
35 U.S.C. § 102. We note that, in claim 21, the shear resistant
fastener assembly serves to connect together overlapping panel
members instead of a wall. See page 24 of the brief and
Appellant's Fig. 15. We further note that claim 21 recites the
limitation:
said anchor plate means extending along its said
predetermined length a predetermined distance from said
center of said insert means and from one side of said
insert means and also at a predetermined distance from
the center of said insert means and from the other side
of said insert means and being adapted to be attached
to said overlapping panel members by at least one
fastener structure extending through said overlapping
panel members and into said anchor plate means at any
location spaced from said insert means along said
predetermined length of said anchor plate means.
(Emphasis added).
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Application No. 10/003,785
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Appellant argues that McSherry fails to teach the above
limitation as argued in claim 1. See page 24 of the brief.
The Examiner maintains the position that McSherry's bolt 18
reads on the fastener structure extending through the overlapping
panel members 14 and 16 and into the anchor plate means 31 at any
location spaced from the insert means 20 along the predetermined
length of the anchor plate means 31. See last paragraph on page
3 through first paragraph on page 4 of the answer.
Returning to McSherry, we find that McSherry's bolt 18 is
extended through the overlapping panel members 14 and 16 and into
the anchor plate means 30 and 32 as seen in Fig. 11. However,
McSherry's bolt 18 is not separated or kept apart from McSherry's
insert means 20 along the predetermined length of McSherry's
anchor plate means 31. Therefore, McSherry's bolt 18 does not
read on the limitation "at least one fastener structure extending
through said overlapping panel members and into said anchor plate
means at any location spaced from said insert means along said
predetermined length of said anchor plate means" as recited in
Appellant's claim 21. Therefore, we will not sustain the
Examiner's rejection of claim 21 under 35 U.S.C. § 102.

Appeal No. 2004-1541
Application No. 10/003,785
11
For the foregoing reasons, we reverse the Examiner's
rejection of claims 1, 2, 4, 8, and 21 under 35 U.S.C. § 102.
REVERSED
MICHAEL R. FLEMING )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOSEPH F. RUGGIERO ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ANITA PELLMAN GROSS )
Administrative Patent Judge )
MRF/lbg
Appeal No. 2004-1541
Application No. 10/003,785
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MALCOLM G. DUNN
1910 BIRCHFIELD COURT
KINGSPORT, TN 37660