Ex Parte Murrer

Board of Patent Appeals and Interferences

Apr 27, 2011

11268346 (B.P.A.I. Apr. 27, 2011)

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.
11/268,346 11/07/2005 Daren Paul Murrer MUDA/02US 3128
26875 7590 04/28/2011
WOOD, HERRON & EVANS, LLP
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
EXAMINER
ROSE, ROBERT A
ART UNIT PAPER NUMBER
3727
MAIL DATE DELIVERY MODE
04/28/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAREN PAUL MURRER
____________

Appeal 2009-011521
Application 11/268,346
Technology Center 3700
____________

Before WILLIAM F. PATE, III, STEVEN D.A. McCARTHY, and
STEFAN STAICOVICI, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-011521
Application 11/268,346

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STATEMENT OF THE CASE
Daren Paul Murrer (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner's decision to finally reject under 35 U.S.C. § 103(a) claims 19
and 20 as unpatentable over Drozdowich (US 5,754,991, issued May 26,
1998) and Riley (US 3,268,994, issued Aug. 30, 1966). Claims 1-18 have
been canceled. We have jurisdiction over this appeal under 35 U.S.C. § 6.

THE INVENTION
Appellant’s invention relates to a method of installing an undermount
sink 120 to a countertop 126, the method including providing an installation
tool 100 having a connecting rod 102, a clamp head 106, and a flip foot 104,
inserting flip foot 104 through drain hole 122, positioning clamping screw
114 into engagement with board 124, and tightening clamping screw 114
such that connecting rod 102 is moved at an acute angle relative to the
vertical. Spec. 11, l. 14 through 12, l. 5 and figs. 7 and 8.
Claim 19, the sole independent claim, is representative of the claimed
invention and reads as follows:
19. A method of installing an undermount sink to a
countertop, comprising:

inserting a second end of an installation tool into a drain
hole of said sink, the installation tool comprising an elongated
connecting rod, a clamp head mounted to a first end of said
connecting rod, and a flip foot mounted to said second end of
said connecting rod, the flip foot being in a first position
substantially parallel to said connecting rod during said
inserting step,

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rotating said flip foot to a second position while said
connecting rod is extending through said drain hole, said
second position substantially nonparallel to said connecting rod,
engaging said flip foot on a bottom surface of a sink
while said connecting rod is extending through a drain hole
thereof, and

clamping said clamp head to said countertop thereby
moving said elongated connecting rod to an acute angle relative
to vertical and drawing said undermount sink to said countertop
by clamping between said clamp head and flip foot.

SUMMARY OF DECISION
We REVERSE.

OPINION
Independent claim 19 recites a method of installing an undermount
sink to a countertop that requires a step of “clamping the clamp head to the
countertop thereby moving said elongated connecting rod to an acute angle
relative to vertical.” Br., Claims Appendix.
The Examiner found that Drozdowich discloses a method of installing
an undermount sink to a countertop including inserting a sink installation
tool 40 having a connecting rod 44 through a sink drain hole 43 and drawing
the sink 32 to the countertop 24 by clamping between a clamp head 48
bearing down on a support 42 and a lower nut 48 engaging the bottom of
sink 32 adjacent to sink drain hole 43. Ans. 3. See also Drozdowich, col. 9,
ll. 32-38 and fig. 5. The Examiner further found that Drozdowich allows for
play in the location of the lower end of connecting rod 44 where it passes
through sink drain hole 43 and that, “[s]uch loose fit would allow the device
to be inserted within a range of angles to the vertical, all of them being acute
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angles, while still allowing the sink to be drawn upward by the clamping
action of the installation tool.” Ans. 4-5. See also Drozdowich fig. 5.
Similarly, the Examiner found that when clamping pressure is applied
to installation tool 18 in Riley, which is pivotally mounted at a location
offset with respect to horizontal bar support 11, connecting rod 23 moves
through a range of acute angles relative to the vertical. Ans. 4. See also
Riley figs. 1 and 3. The Examiner then concluded it would have been
obvious for a person of ordinary skill in the art to replace the board support
42 of Drozdowich with the offset bar support 11 of Riley, such that when
clamping pressure is applied, connecting rod 44 of Drozdowich would pivot
about an offset axis 11 to also draw connecting rod 44 through a range of
acute angles relative to vertical. Ans. 5-6. We disagree with the Examiner’s
position for the following reasons.
At the outset, we note that the Examiner appears to rely on a theory
of inherency to show that during clamping each of connecting rod 44 of
Drozdowich and hanger rod 23 of Riley moves through a range of acute
angles relative to the vertical, as called for by claim 19. In relying upon
the theory of inherency, the Examiner must provide a basis in fact and/or
technical reasoning to reasonably support the determination that the
allegedly inherent characteristic necessarily flows from the teachings of the
applied prior art. Ex parte Levy, 17 USPQ2d 1461, 1464 (Bd. Pat. App. &
Inter. 1990). The question raised is whether during clamping, each of
connecting rod 44 of Drozdowich and hanger rod 23 of Riley, moves
through a range of acute angles relative to the vertical.
In this case, we note that both support board 42 of Drozdowich and
support bar 11 of Riley span the sink opening on opposite sides of the
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opening such that connecting rod 44 and hanger rod 23, respectively, are
vertically positioned so as to raise or lower the sink into the opening. See
Drozdowich, col. 9, ll. 32-38 and fig. 5. See also Riley col. 3, ll. 10-15 and
figs. 1 and 3. We further note that connecting rod 44 of Drozdowich is
vertically fixed between nuts 48 (see Drozdowich, fig. 5) and hanger rod 23
of Riley is vertically constrained by sleeve 22 (see Riley, col. 2, ll. 9-22 and
figs. 1 and 3). Furthermore, we note that the offset distance between hanger
rod 23 (sleeve 22) and support bar 11 in Riley is smaller than the opening
distance between legs 12 of support bar 11. Riley, figs. 2 and 3.
Accordingly, because each of support board 42 of Drozdowich and support
bar 11 of Riley spans the sink opening on opposite sides of the opening;
connecting rod 44 of Drozdowich is vertically fixed; hanger rod 23 of Riley
is vertically constrained, and the offset distance is smaller than the opening
of Riley’s legs 12, we do not see how either connecting rod 44 of
Drozdowich or hanger rod 23 of Riley necessarily moves to an acute angle
relative to the vertical during clamping as the Examiner proposes. Hence,
we disagree that replacing the support board 42 of Drozdowich with the
support bar 11 of Riley would necessarily “draw the connecting rod through
a range of acute angles relative to the vertical,” during clamping, as called
for by claim 19. As such, the Examiner’s legal conclusion of obviousness is
not supported by facts, and thus, cannot stand. See In re Warner, 379 F.2d
1011, 1017 (CCPA 1967) (holding that “[t]he legal conclusion of
obviousness must be supported by facts. Where the legal conclusion is not
supported by facts it cannot stand.") (Footnote omitted).
Finally, although we appreciate that connecting rod 44 of Drozdowich
can be inserted within a range of acute angles relative to the vertical, claim
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19 requires “moving said elongated connecting rod to an acute angle relative
to vertical” upon clamping of the clamping head. As noted above,
connecting rod 44 of Drozdowich is vertically fixed between nuts 48. See
Drozdowich, fig. 5. Hence, we do not see how clamping clamp head 48 of
Drozdowich to countertop 24 of Drozdowich would then move the
connecting rod 44 of Drozdowich to an acute angle relative to vertical, as
required by independent claim 19.
Accordingly, for the foregoing reasons, we are constrained to reverse
the rejection under 35 U.S.C. § 103(a) of independent claim 19, and its
dependent claim 20, as unpatentable over Drozdowich and Riley.

DECISION
The decision of the Examiner to reject claims 19 and 20 is reversed.

REVERSED

JRG