Ex Parte Michnik et al

Patent Trial and Appeal Board

Oct 13, 2017

12214908 (P.T.A.B. Oct. 13, 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.
12/214,908 06/24/2008 Alisa Michnik 3950
72333 7590 10/17/2017
ALISA DUBE AKA ALISA MICHNIK DUBE
YEFIM MICHNIK
23 CLEMSON RD.
CHERRY HILL, NJ 08034
EXAMINER
STRIMBU, GREGORY J
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
10/17/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
AlisaUMD @ hotmail.com
pmichnik @ gmail. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALISA MICHNIK and YEFIM MICHNIK
Appeal 2015-007676
Application 12/214,908
Technology Center 3600
Before EDWARD A. BROWN, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Alisa Michnik and Yefim Michnik (“Appellants”) appeal under 35
U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1 and 3—16.
We have jurisdiction under 35 U.S.C. § 6(b).
We REMAND PURSUANT TO 37 C.F.R. §41.50(a)(1).
Appeal 2015-007676
Application 12/214,908
THE CLAIMED SUBJECT MATTER
Appellants’ invention “is a straight trajectory sliding shutter apparatus
which can be used ... for sealing sliding doors and windows” such as “a car
sliding door.” Spec. 14. Claim 1, reproduced below with italics added, is
illustrative of the claimed subject matter.
1: A straight trajectory sliding shutter apparatus comprising:
a) an object comprising at least one opening surrounded by a
predetermined exterior area defined as an object sealing area;
b) a shutter comprising an exterior area defined as a shutter
sealing area, said shutter sealing area is complementary to
said object sealing area such that each point of said object
sealing area corresponds to only one point of said shutter
sealing area and vice versa, wherein a pair of the
corresponding sealing area points is defined as a sealing pair;
c) a guiding means for guiding said shutter between a fully
opened position and a closed position for sealing said at least
one opening in said closed position and for providing
maximum accessibility to said at least one opening in said
fully opened position,
a distance from any point of said object sealing area to any
other point of said object sealing area remains unchanged
when said shutter is moved between said fully opened
position and said closed position, any point of the straight
trajectory sliding shutter apparatus other than points of the
object sealing area belongs to said object if a distance from
said any point of the straight trajectory sliding shutter
apparatus other than points of the object sealing area to any
point of said object sealing area remains unchanged when said
shutter is moved between said fully opened position and said
closed position, thereby a shape of said object remains
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Application 12/214,908
unchanged when said shutter is moved between said fully
opened position and said closed position,
a distance from any point of said shutter sealing area to any
other point of said shutter sealing area remains unchanged
when said shutter is moved between said fully opened
position and said closed position, any point of the straight
trajectory sliding shutter apparatus other than points of the
shutter sealing area belongs to said shutter if a distance from
said any point of the straight trajectory sliding shutter
apparatus other than points of the shutter sealing area to any
point of said shutter sealing area remains unchanged when
said shutter is moved between said fully opened position and
said closed position, thereby a shape of said shutter remains
unchanged when said shutter is moved between said fully
opened position and said closed position,
each point of said shutter sealing area is moved along a
trajectory line when said shutter is moved between said fully
opened position and said closed position, wherein the
trajectory lines are straight and parallel to each other,
thereby an orientation of said shutter sealing area with respect
to said object sealing area remains unchanged when said
shutter is moved between said fully opened position and said
closed position,
distances between the two points of each of the sealing pairs
are equal in any one position of said shutter, said at least one
opening is sealed by the sealing pairs in said closed position
where a distance between the two points of each of the sealing
pairs is equal to zero, wherein said closed position is a
position of said shutter where said object sealing area is
initially contacted by said shutter sealing area when said
shutter is moved from said fully opened position toward said
closed position,
a triangular area of a plane is defined by any three points of
said object sealing area not residing on a same straight line,
wherein the trajectory lines are not perpendicular to at least
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Application 12/214,908
one of the triangular areas and none of the trajectory lines
resides on any plane defined by the triangular areas, whereby
said shutter sealing area is guided slidably with respect to said
object sealing area by said guiding means,
said shutter and said object are configured such that, except
points of the sealing pairs, any point of said shutter is distant
from any point of said object in any position of said shutter,
thereby said shutter sealing area is guided slidably with
respect to said object sealing area regardless of shapes of
portions of said shutter and said object formed by points other
than points of the sealing pairs.
REJECTIONS
1) Claims 7—16 are rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite.1
2) Claims 1, 3, 5—8, 10, and 11 are rejected under 35 U.S.C. § 102(b)
as anticipated by Olinger (US 3,921,100, issued Nov. 18, 1975).
3) Claims 4, 9, and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Olinger and Hapke (US 5,520,424, issued May
28, 1996).
4) Claims 12, 13, 15, and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Olinger.
1 In the Examiner’s Answer, the Examiner withdrew a rejection of claims 1
and 3—6 under 35 U.S.C. § 112, second paragraph. Ans. 12; Final Act. 3.
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Application 12/214,908
DISCUSSION
In the rejection of claim 1 under 35 U.S.C. § 102(b), the Examiner
finds that Olinger discloses “each point of said shutter area is moved along a
trajectory line when said shutter 44 is moved between said fully opened
position and said closed position, where the trajectory lines are straight and
parallel to each other.” Final Act. 8 (emphasis added)(mailed May 21,
2014)2. However, as indicated in an Interview Summary for a subsequent
telephone interview between the Examiner and Appellants, “the examiner
came to the realization that the relative movement of the shutter with respect
to the seal of Olinger et al. after the initial contact with the seal would
prevent one of the two points of the sealing pair ofpoints from moving along
the straight trajectory line.” Applicant —Initiated Interview Summary 3
(mailed Sept. 22, 2014)(hereafter “the Interview Summary”). But, in the
subsequent Examiner’s Answer, the Examiner again states that Olinger
discloses “the trajectory lines are straight and parallel.” Ans. 5 (mailed July
1,2015).
In this case, the evidentiary record includes the Interview Summary.
See 37 C.F.R. § 41.30 (“Record means the items listed in the content listing
of the Image File Wrapper.”). The statement by the Examiner in the
Interview Summary that “contact with the seal would prevent one of the two
points of the sealing pair of points from moving along the straight trajectory
line” appears to contradict the Examiner’s finding that Olinger does disclose
2 Independent claims 7 and 12 contain similar limitations as claim 1. See
Appeal Br. 11,14 (Claims App.). The Examiner makes similar findings
based on Olinger for claims 7 and 12. Final Act. 11, 14.
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“the trajectory lines are straight and parallel to each other.” Compare Final
Act. 8, with Interview Summary 3.
Appellants do not address any of Rejections 2-4 in the Appeal Brief.
See App. Br. passim. In the Answer, the Examiner notes that Appellants do
not address these rejections. Ans. 12—13. In the Reply Brief, Appellants
argue, for the first time, that Olinger does not anticipate and/or render the
claims unpatentable because Olinger does not disclose trajectory lines that
are straight and parallel as claimed. Reply Br. 6—8. In support of this
argument, Appellants refer to the Examiner’s statement in the Interview
Summary as well as description at column 3, lines 10-22 of Olinger. Id.
An argument presented for the first time in the Reply Brief “will not
be considered for purposes of the present appeal, unless good cause is
shown.” 37 C.F.R. § 41.47 (b)(2). In light of Appellants’ pro se status and
the apparent inconsistency between the Examiner’s finding in the Final
Rejection (as repeated in the Examiner’s Answer) that Olinger does disclose
trajectory lines that are straight and parallel and the Examiner’s statement in
the Interview Summary, we determine that good cause exists to consider
Appellants’ argument in the Reply Brief that Olinger does not anticipate
and/or render unpatentable the claims on Appeal. We remand this Appeal to
the Examiner pursuant to 37 C.F.R. § 41.50(a)(1) for further consideration,
because the Examiner did not, in the Answer, mention the statement in the
Interview Summary, but, restated the finding that Olinger discloses
trajectory lines that are straight and parallel without explanation. In order to
clarity the record so that the Board can properly consider the rejections, the
Examiner shall provide a substitute Examiner’s Answer pursuant to 37
C.F.R. § 41.50(a)(2) addressing the statement in the Interview Summary that
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Olinger does not disclose trajectory lines that are straight and, also, in light
of this statement, the reasons why the original rejection was repeated in the
Answer.3
37 C.F.R. § 41.50(a)(2) provides the following guidance for
Appellants in this case (emphasis added):
(2) If a substitute examiner’s answer is written in response
to a remand by the Board for further consideration of a rejection
pursuant to paragraph (a)(1) of this section, the appellant must
within two months from the date of the substitute examiner’s
answer exercise one of the following two options to avoid sua
sponte dismissal of the appeal as to the claims subject to the
rejection for which the Board has remanded the proceeding'.
(i) Reopen Prosecution. Request that prosecution be
reopened before the examiner by filing a reply under § 1.111 of
this title with or without amendment of submission of affidavits
(§§ 1.130, 1.131 or 1.132 of this title) or other Evidence. Any
amendment or submission of affidavits or other Evidence must
be relevant to the issues set forth in the remand or raised in the
substitute examiner’s answer. A request that complies with this
paragraph (a) will be entered and the application or the patent
under ex parte reexamination will be reconsidered by the
examiner under the provision of § 1.112 of this title. Any request
that prosecution be reopened under this paragraph will be treated
as a request to withdraw the appeal.
(ii) Maintain Appeal. Request that the appeal be
maintained by filing a reply brief as provided in § 41.41. If such
a reply brief is accompanied by any amendment, affidavit, or
other Evidence, its shall be treated as a request that prosecution
be reopened before the examiner under paragraph (a)(2)(i) of this
section.
3 In light of this disposition, we do not reach Rejection 1 at this time.
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DECISION
The Examiner’s decision rejecting claims 1 and 3—16 is remanded to
the Examiner for further consideration of the rejections.
REMANDED; 37 C.F.R, $ 41.50000)
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