Ex Parte MillerDownload PDFPatent Trial and Appeal BoardAug 22, 201814224720 (P.T.A.B. Aug. 22, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/224,720 03/25/2014 24267 7590 08/24/2018 CESARI AND MCKENNA, LLP ONE LIBERTY SQUARE SUITE 310 BOSTON, MA 02109 FIRST NAMED INVENTOR Tonia Walstad Miller 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 107086-0002D 1 5694 EXAMINER BRINDLEY, TIMOTHY J ART UNIT PAPER NUMBER 3636 NOTIFICATION DATE DELIVERY MODE 08/24/2018 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): docket@c-m.com USPTOMail@c-m.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte TONIA WALSTAD MILLER Appeal2017-010871 Application 14/224, 720 Technology Center 3600 Before: STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Tonia Walstad Miller ("Appellant") appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 8-11. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. Appeal2017-010871 Application 14/224, 720 THE CLAIMED SUBJECT MATTER Appellant's invention relates to "furniture which is capable of storing water or other material within its structure." Spec. 1: 12. Sole independent claim 8 is reproduced below: 8. A piece of indoor household furniture in the form of a table having integrated storage capacity comprising: a removable tabletop; and an emergency water store, wherein said emergency water store includes a substantially hollow liquid-tight base which supports said removable tabletop, said emergency water store providing integrated storage capacity for storing a supply of water that is intended for human consumption, said base including a port for filling and drawing; and wherein said piece of indoor household furniture has a decorative outer surface. REJECTION Claims 8-11 are rejected under 35 U.S.C. § I03(a) as unpatentable over each of McDonough (US 4,164,853, issued Aug. 21, 1979), Louis (US 5,979,793, issued Nov. 9, 1999), or Holub (US 6,364,329 Bl, issued Apr. 2, 2002). DISCUSSION Appellant argues the rejection of claims 8-11 as a group. Appeal Br. 9-15. We select claim 8 as representative and claims 9-11 stand or fall with claim 8. 37 C.F.R. §4I.37(c)(l)(iv). Claim 8 recites, in part, "[a] piece of indoor household furniture in the form of a table." Appeal Br. 17 (Claims App.). 2 Appeal2017-010871 Application 14/224, 720 Appellant argues that none of the references disclose "a piece of indoor household furniture or a piece of furniture in the form of a table." See Appeal Br. 10. According to Appellant, the Examiner's position that an item that supports objects so as to function as a table is insufficient to meet the claim because none of the items in the references are indoor household furniture. Id. at 11. Appellant asserts that one of ordinary skill in the art would not recognize "a portable beer cooler, a misting device, or a picnic cooler" as taught by McDonough, Louis, and Holub, respectively, to be "a piece of indoor household furniture in the form of a table." Id. at 11-12. The Examiner responds that "labeling an item 'indoor household furniture' is considered highly subjective and the specification does not provide any definition or limitation on what the bounds of this description may be" and, furthermore, the term is "used as a descriptor for the apparatus within the preamble and does not provide any defined structural limitations." Ans. 2. The Examiner notes that Louis' misting device "may be used for cooling individuals inside greenhouses, atriums or other similar spaces within a household." Id. Appellant replies that the Examiner's assertions are conclusory and are unsupported by any evidence, and are contrary to the disclosure of Louis which discloses outdoor use. Reply Br. 2-3. Appellant's arguments are not persuasive because Appellant does not explain adequately why the articles in the references are not indoor furniture or capable of being used indoors as the Examiner finds, nor does Appellant provide persuasive argument that the term "indoor household furniture" in the preamble imparts structural limitations in claim 1. An ordinary and customary definition of the term "furniture" is defined as "movable articles 3 Appeal2017-010871 Application 14/224, 720 used in readying an area ( such as a room or patio) for occupancy or use." 1 Here, although we appreciate that Louis discloses using the article at various outdoor areas, Louis discloses a movable article that can be moved to different locations. Louis, 2:45--49. Because the article of Louis is a movable article that readies an area for use (see id. 2:25-31 ), Appellant does not provide a persuasive technical reason why Louis' misting device does not constitute an item of furniture and, even if we were persuaded that the use of the term "indoor" in the preamble is limiting, why Louis' article could not be used in an indoor location such as a greenhouse or atrium as the Examiner finds. See Ans. 2. Appellant's argument that the references do not disclose a piece of furniture in the form of a table is also unavailing. See Appeal Br. 10-11. Louis explicitly uses the term "table" (Louis, 1 :37--40) and discloses "[t]able platform 187, showed in phantom lines, may be mounted onto a top surface 103 of base housing 102." Id. at 4:41--42, Fig. 5. Thus, a preponderance of the evidences supports the Examiner's finding on this point. Appellant does not provide persuasive evidence or argument as to why the misting device of Louis that includes a table platform mounted on a base is not a table, as the Examiner finds. Appellant also argues that the references do not specifically refer to a removable tabletop. Appeal Br. 10. Appellant asserts that there is a difference between the top of the references and a tabletop. Id. at 12. According to Appellant, the term "tabletop" means "the top of a table," and because the references do not disclose a table, they do "not disclose or 1 https://www.merriam-webster.com/dictionary/furniture (last accessed Aug. 21, 2018). 4 Appeal2017-010871 Application 14/224, 720 suggest the claimed tabletop."' Id. (citing Merriam-Webster's Collegiate Dictionary, 10th Ed. 1999). The Examiner responds, and we agree, that because "Louis expressly discloses" a table platform on top of a base, the table platform of Louis is a tabletop. See Ans. 3. Specifically, Louis discloses that "[t]able platform 187 shown in phantom lines may be mounted onto a top surface 103 of base housing 102." Louis, 4:41--42, Fig. 5 (emphasis added). As the tabletop is shown in phantom lines in Figure 5, the Examiner's finding that Louis' tabletop can be dismounted, and thus, is a removable tabletop as claimed, is supported by a preponderance of the evidence. See Ans. 3. Although Appellant argues that there is "no reference to a removable tabletop" in Louis (Appeal Br. 10), Appellant does not provide persuasive evidence or argument to support the contention that the tabletop of Louis is not removable. Appellant's arguments that the articles of the references are not used to store water for cases of an emergency are also unavailing. See Appeal Br. 10 and 12-13. We agree with the Examiner that the recited use of the water in an emergency does not impart any structure upon the claimed apparatus, and the liquids (water) in the references are "capable of being used in an emergency situation." Ans. 3. Appellant's Specification discloses that "an emergency" renders a normal water supply unusable, and that an emergency supply of water is stored in a container to be readily accessible in an emergency. Spec. 1: 16-2:5. Louis discloses a container 120 of water 122 that may be dispensed when needed. Louis, 4:7-9, Fig. 2; see also Ans. 3. Because Louis discloses a store of water that is separate from the (normal) municipal supply, we are not persuaded by Appellant's argument that the 5 Appeal2017-010871 Application 14/224, 720 recited intended use of the water, i.e., in an emergency, differentiates the structure of the water store recited in claim 8 from Louis. See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) ("It is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable.") ( citations omitted). Appellant also argues that that the Specification describes specific pieces of furniture and that based on this disclosure "interpreting a 'piece of household furniture' as merely an 'article' is not reasonable." Appeal Br. 14. According to Appellant, the word "furniture" is limited to "chairs, tables, beds, etc. that you put in a room or house so that you can live in it." Id. at 15 ( citing MacMillan Dictionary.com). The Examiner responds that Appellant's list of furniture are examples, not an exhaustive list, and that the furniture disclosed by the references is capable of functioning "in a household setting." Ans. 2. Appellant replies that the Examiner's interpretation "cannot be divorced from the specification," and that the Examiner "has failed to point to any dictionary definition or other evidence that supports" the Examiner's position. Reply Br. 2-3. Appellant asserts that the Examiner's interpretation is contrary to "the explicit teachings of the references" and that the Examiner has not provided the broadest reasonable interpretation that is "( 1) reasonable in light of the specification and record evidence; and (2) supported by evidence instead of merely conclusory statements." Reply Br. 4. Appellant's arguments are not persuasive because Appellant does not point to any portion of the Specification that requires "furniture" to be limited to chairs, tables, beds, etc. Appellant's Specification provides 6 Appeal2017-010871 Application 14/224, 720 examples of furniture pieces that "include tables and chairs" and "a lamp." Spec. 2:8-17. We note, however, that although claims are interpreted in light of the Specification, limitations from the Specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Appellant's attorney arguments, unsupported by factual evidence in the record, do not persuade us that the articles in Louis are not furniture in the form of a table, consistent with the Specification. As set forth above, an ordinary definition of the term furniture is any movable article that is used to ready a room for use. This ordinary definition is consistent with Appellant' Specification, which discloses specific items including a table, chair, and lamp that are brought into a room to ready the room for use. Here, Louis explicitly discloses a table, i.e., table platform 187. Louis, 4:41--42. Appellant does not persuasively explain why Louis' table platform mounted on a support is not furniture in general, and specifically a table, as the Examiner finds, based on the broadest reasonable interpretation of furniture consistent with the Specification. We have considered all of Appellant's arguments and are not apprised of error in the rejection of claim 8 as unpatentable over Louis. We thus, sustain the rejection of claim 8, and claims 9-11, which fall with claim 8. In light of this disposition, we do not reach the alternate rejections of claims 8- 11 as unpatentable over McDonough or Holub. 37 C.F.R. § 4I.50(a)(l). DECISION The Examiner's decision rejecting claims 8-11 under 35 U.S.C. § 103 is affirmed. 7 Appeal2017-010871 Application 14/224, 720 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 8 Copy with citationCopy as parenthetical citation