13529215 (P.T.A.B. Oct. 27, 2017)

Ex Parte Miller

Patent Trial and Appeal BoardOct 27, 2017

13529215 (P.T.A.B. Oct. 27, 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. 13/529,215 06/21/2012 Anna L. MILLER TP-MILA-GSA1 9346 62439 7590 SINORICA, LLC 20251 Century Blvd. Suite 140 Germantown, MD 20874 EXAMINER STANIS, TIMOTHY A ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 10/31/2017 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): SINORICA@GMAIL.COM sinorica@outlook.com pair @ sinorica.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANNA L. MILLER Appeal 2016-003915 Application 13/529,215 Technology Center 3700 Before: LINDA E. HORNER, PAUL J. KORNICZKY, and BRENT M. DOUGAL, Administrative Patent Judges. DOUGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claim 11 under 35 U.S.C. § 103(a) as being unpatentable over McKay (US 5,558,625, iss. Sept. 24, 1996), Brogan (US 2,037,495, iss. Apr. 14, 1936), andLiptak (US 5,411,470, iss. May 2, 1995). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2016-003915 Application 13/529,215 CLAIMED SUBJECT MATTER The claim is directed to a lavatory massaging foot stool. Claim 11, reproduced below, is the only pending claim.1 11. A lavatory massaging foot stool comprising: an at least one rolling pin; a first rolling pin support; a second rolling pin support; a base; the first rolling pin support and the second rolling pin support each comprises a pin hole; the at least one rolling pin comprises a cylindrical body, a plurality of protrusions, a first pin handle, a second pin handle, a first rolling pin ring, and a second rolling pin ring; the cylindrical body, the first pin handle, the second pin handle, the first rolling pin ring and the second rolling pin ring being positioned collinearly to each other; the first rolling pin support and the second rolling pin support being positioned opposite to each other along the base; the first rolling pin support and the second rolling pin support being positioned normal to the base; the pin hole of the first rolling pin support being positioned on the first rolling pin support opposite to the base; the pin hole of the second rolling pin support being positioned on the second rolling pin support opposite to the base; the at least one rolling pin being rotatably connected in between the first rolling pin support and the second rolling pin support; the at least one rolling pin being rotatably connected to the first rolling pin support via the first pin handle; the at least one rolling pin being rotatably connected to the second rolling pin support via the second pin handle; 1 Amendments to the claims cancelling all claims except claim 11 were entered by the Examiner after the date of the Final Office Action. Adv. Act. 2. 2 Appeal 2016-003915 Application 13/529,215 the first pin handle traversing through the first rolling pin support via the pin hole; the second pin handle traversing through the second rolling pin support via the pin hole; the cylindrical body being laterally encircled by the plurality of protrusions; the first rolling pin ring and the second rolling pin ring being positioned opposite to each other along the cylindrical body; the first pin handle being affixed adjacent to the first rolling pin ring; and the second pin handle being affixed adjacent to the second rolling pin ring. OPINION Appellant argues that the cited references of McKay, Brogan, and Liptak do not teach all of the limitations of claim 11, noting in particular three separate parts of the claim. Br. 3—6. Appellant first argues that the cited art does not teach “[a] lavatory massaging foot stool, comprising . . . the first pin handle being affixed adjacent to the first rolling pin ring; and the second pin handle being affixed adjacent to the second rolling pin ring.” Id. at 3. Appellant discusses how these features are shown in the “present invention” and then repeats that these features are not shown in the cited art including Brogan Figure 3. Id. at 4. However, the Examiner has identified that Brogan Figure 3 shows pins 10, 11 that correspond with the claimed first and second pin handles “that are both affixed adjacent to a respective first rolling pin ring [flange 13] and a respective second rolling pin ring [flange 13]” as required by claim 11. Ans. 6; see also Final Act. 9—10. We agree with the Examiner’s finding that pins 10 and 11 correspond to the claimed first and second pin handles 3 Appeal 2016-003915 Application 13/529,215 and that flanges 13 correspond to the first and second rolling pin rings. Compare Brogan, Fig. 3 (pins 10, 11 and flanges 13) with Appellant’s Figs. 1, 3 (pin handles 4, 5 and rings 6, 7). Further, we agree that the pins are affixed adjacent to a respective flange. Id. Appellant’s argument does 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)( !)(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 finding is supported by the evidence before us, and Appellant has asserted an error unsupported by evidence or explanation, we discern no error in the Examiner’s finding. Appellant then argues that the cited references do not teach “[a] lavatory massaging foot stool, comprising ... the pin hole of the first rolling pin support being positioned on the first rolling pin support opposite to the base; the pin hole of the second rolling pin support being positioned on the second rolling pin support opposite to the base ...[.]” Br. 4. Appellant states that in McKay Figure 4 “there is no pin hole” and further “there is no disclosure or teaching about the pin holes.” Id. at 5. 4 Appeal 2016-003915 Application 13/529,215 The Examiner found that McKay shows holes in Figures 3 and 4 that correspond to the above highlighted claim limitation concerning pin holes. Ans. 6; see also Final Act. 9. This finding is supported by McKay Figures 3—4, which show a pair of “mounting holes” to receive pegs 32. McKay col. 4:8—9, Figs. 3^4. Appellant’s argument does not identify any error in the Examiner’s findings nor does it address why or how McKay’s mounting holes could not be considered “pin holes” as claimed. Thus, we are not informed of error in the Examiner’s rejection. Appellant next argues that the cited references do not teach “[a] lavatory massaging foot stool, comprising ... the first rolling pin support and the second rolling pin support being positioned opposite to each other along the base ... [.]” Br. 5. Appellant explains that in McKay, as shown in its Figure 4, the element 32 is a pair of opposed cylindrical pegs 32 extended axially outwards from its ends. The element is a hollow interior for allowing access to the interior. The element 14 is a bottom wall. Accordingly, there is no teaching of the first rolling pin support and the second rolling pin support. Id. at 6. The Examiner responds that McKay “Figs. 1 and 3 . . . show that the base 12 of the device comprises two side walls 20 (rolling pin supports) and a bottom wall 14 (base), which would meet the Appellant[’]s [claim] limitation.” Ans. 7; see also Final Act. 8—9. We agree. Appellant’s argument does not persuasively identify any structural differences between the claimed rolling pin supports and the side walls 20 of McKay. Thus, we are not informed of error in the Examiner’s rejection. 5 Appeal 2016-003915 Application 13/529,215 DECISION The Examiner’s rejection of claim 11 is affirmed. 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)(l)(iv). AFFIRMED 6