Ex Parte Natoli

Board of Patent Appeals and Interferences

Mar 31, 2009

11306833 (B.P.A.I. Mar. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte NATOLI ENGINEERING CO., INC.
____________________
Appeal 2008-6149
Application 11/306,833
Technology Center 3700
____________________

Decided1: March 31, 2009
____________________

Before RICHARD E. SCHAFER, JAMESON LEE, and MICHAEL P.
TIERNEY, Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL
A. STATEMENT OF THE CASE
This is a decision on appeal by the real party in interest, Natoli
Engineering Co., Inc. (NEC), under 35 U.S.C. § 134(a) from a final rejection

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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of claims 10-15. NEC requests reversal of the Examiner’s rejection of those
claims. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

References Relied on by the Examiner
Skillern 4,658,455 Apr. 21, 1987
Renna Des. 301,010 May 9, 1989
Schwartz 5,181,439 Jan. 26, 1993
Cleland Des. 344,437 Feb. 22, 1994
Rhoton Des. 387,255 Dec. 9, 1997

The Rejections on Appeal
The Examiner rejected claims 10, 13, and 14 under 35 U.S.C. § 103(a)
as unpatentable over Cleland and Renna.
The Examiner rejected claims 11 and 12 under 35 U.S.C. § 103(a) as
unpatentable over Cleland, Renna, and Schwartz.
The Examiner rejected claim 15 under 35 U.S.C. § 103(a) as
unpatentable over Cleland, Renna, and Rhoton or Skillern.

The Invention
The invention relates to a tool for turning the gas supply on and off to
a gas meter. (Spec. 1, ¶ 2.) Independent claim 10 is reproduced below
(Claims App’x A-1:1-27):
10. A tool for use with a gas meter valve, wherein the gas meter
valve has a movable core operatively connected to a post for actuation
of the core, the tool comprising:

a main body having a handle portion located at a first end of the
main body and a post aperture located at a second end of the main
body;

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the post aperture adapted to receive the post of the gas meter
valve;

an aperture located at the first end of the main body, the
aperture adapted to attach the tool to or near the gas meter valve;

a pair of elongated first depressions located on the top and
bottom of the first end of the main body, the first depressions running
lengthwise from the post aperture to the first end of the tool,
substantially occupying the space defined there between and adapted
to provide a grip for a user; and

a pair of second depressions located on the top and bottom of
the second end of the main body, the second depressions substantially
occupying the space between the post aperture and the second end of
the tool and adapted to provide a grip for a user adjacent the post
aperture, wherein space between the post aperture and sides of the tool
are devoid of depressions;

wherein the tool is of one piece construction; and

wherein the post aperture completely encloses the post of the
gas meter valve.
B. ISSUES
1. Has NEC shown that the Examiner erred in finding that Cleland
satisfies the requirement of depressions that are “adapted to provide a grip
for a user”?
2. Has NEC shown that the Examiner erred in finding that Cleland
satisfies the requirement of second depressions that are “substantially
occupying the space between the post aperture and the second end of the
tool”?
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3. Has NEC shown that the Examiner erred in determining that a
person of ordinary skill in the art would have had adequate motivation to
modify Cleland?
4. Has NEC shown that the Examiner erred in determining that
each of Schwartz and Skillern constitute analogous art to NEC’s invention?
C. FINDINGS OF FACT
NEC’s Specification
1. NEC’s field of endeavor is tools for use with gas meters. (Spec.
1, ¶ 2.)
2. As amended on July 12, 2007, NEC’s specification describes
that a second depression 28 substantially occupies the space between a post
aperture 24 and a tool end. (Spec. 3, between ¶¶ 23 and 24 as amended July
12, 2007.)
3. NEC’s Figure 3 is reproduced below:

Figure 3 shows a prospective view of the gas meter valve tool of the
invention. (Spec. 2, ¶ 17.)
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4. As shown in NEC’s Figures 3 and 4, depression 28 is spaced
from both the post aperture 24 and the tool end.
5. Thus, in the context of NEC’s specification, “substantially
occupying” does not require a depression that completely fills the available
space.
Cleland
6. Cleland discloses a wrench for a gas meter. (Cleland Title.)
7. Cleland’s Figure 1 is reproduced below.

Figure 1 shows an isometric view of a wrench for a gas meter.
(Cleland Description.)
8. As is apparent from Cleland’s Figure 1, the wrench has
rectangular openings at each end with a depression that extends along the
body of the wrench in-between the openings. Second smaller depressions are
also located adjacent the ends of the openings at each end of the wrench.
Schwartz
9. Schwartz’s field of endeavor is “fasteners and tools for
applying or removing them.” (Schwartz 1:9-10.)
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10. As shown and described in Schwartz, the tools include “open-
ended wrenches, box wrenches, sockets o[r] socket wrenches, and Allen
wrenches . . . .” (Schwartz 1:67-2:1; Figure 4.)
11. Schwartz teaches coloring a tool any of a variety of colors.
(Schwartz 2:3-8.)
12. Schwartz teaches that one possible coloring is “white.”
(Schwartz 2:6.)
13. Schwartz also teaches that colors such as “light blue” and “light
green” may be used. (Schwartz 2:66-68.)
14. In Schwartz, the tools are colored to match corresponding
fasteners so as quickly visually communicate to a user the appropriate tool.
(Schwartz 1:46-62.)
Skillern
15. Skillern discloses a tool 10 with a body 12 that includes an
“opening 42 near the end of the tool [that] extends entirely through the
thickness of the body 12 to provide a means by which the tool can be hung
during non[-]use.” (Skillern 3:6-8.)
D. PRINCIPLES OF LAW
During examination, claim terms are given their broadest reasonable
interpretation consistent with the specification. In re Zletz, 893 F.2d 319,
321 (Fed. Cir. 1989).
A basis to combine teachings need not be expressly stated in any prior
art reference. In re Kahn, 441 F.3d 977, 989 (Fed. Cir. 2006). There need
only be an articulated reasoning with rational underpinnings to support a
motivation to combine teachings. Id. at 988.
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A prior art reference must be considered for everything it teaches by
way of technology and is not limited to the particular invention it is
describing and attempting to protect. EWP Corp. v. Reliance Universal Inc.,
755 F.2d 898, 907 (Fed. Cir. 1985). One with ordinary skill in the art is
presumed to have skills apart from what the prior art references explicitly
say. See In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985). A person of
ordinary skill in the art is also a person of ordinary creativity, not an
automaton. KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742 (2007).
A reference is analogous art if it is either in the field of the applicant’s
endeavor or is reasonably pertinent to the particular problem with which the
inventor was concerned. In re Kahn, 441 F.3d at 987; In re Bigio, 381 F.3d
1320, 1325 (Fed. Cir. 2004).
A reference is reasonably pertinent if it “logically would have
commended itself to an inventor’s attention in considering his problem.” In
re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992). “[T]he problem examined is
not the specific problem solved by the invention but the general problem that
confronted the inventor before the invention was made.” In re Kahn, 441
F.3d at 988. (citation omitted.)
E. ANALYSIS
The Examiner rejected NEC’s claims based on three grounds of
rejection. NEC argues each ground separately.
Claims 10, 13, and 14
The Examiner rejected claims 10, 13, and 14 as unpatentable over
Cleland and Renna. NEC argues claims 13 and 14 collectively with
independent claim 10. NEC does not dispute that Cleland shows a first pair
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of depressions and a second pair of depressions. Rather, NEC first disputes
that the combination of Cleland and Renna shows the pair of first
depressions and the pair of second depressions are each “adapted to provide
a grip for a user” as required by claim 10.

Cleland’s Figure 1 is reproduced below.

Figure 1 shows an isometric view of a wrench for a gas meter.
(Cleland Description.)
Cleland’s wrench includes two rectangular post apertures at opposing
ends and a pair of elongated first depressions that extend along the length of
opposing sides of the wrench. Only one elongated first depression can be
seen in Figure 1, but there is another elongated first depression on the other
side of the wrench. Cleland discloses that the front and rear sides of the
wrench are identical but reversed. (Cleland Description of Figure 2). NEC
does not dispute that the two sides of Cleland’s wrench have the same
design. Additional smaller depressions are also located adjacent the
rectangular openings at each end of the wrench. Of those smaller
depressions, the smallest depression at either end of the wrench forms a
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second depression. The second depression together with a corresponding
second depression on the opposite side of the wrench form a pair of second
depressions.
The Examiner determined that each of the first and second pairs of
depressions of Cleland are capable of being gripped and thus are adapted to
provide a grip for a user. (Ans. 6:20-7:10.) NEC challenges that
determination. According to NEC (App. Br. 6:2-8)
Cleland does not teach the use of depressions as a manner to provide
additional grip to a wrench. Specifically one skilled in the art would
recognize that the rounded end of Cleland would make wrapping
one’s finger around the end of the wrench much more difficult than a
rectangular ended wrench that did not contain depressions therein.

NEC additionally contends that “Cleland teaches a depression that is
not large enough for an individual to have an improved grip upon. . . .”
(Reply Br. 3:16-17.)
The arguments are misplaced. Claim 10 does not call for “an
improved grip,” or an “additional grip.” Claim 10 also does not require any
particular degree of gripability. The claim simply requires depressions that
are “adapted to provide a grip for a user.” The term “difficult” as used by
NEC is a relative term. NEC does not assert that the depressions do not act
to provide a grip in any manner for a user. Regardless of whether Cleland’s
rounded wrench end is more or less difficult to grasp than some other type of
wrench, the ends of the wrench as well as the center still function to provide
a grip. The first and second depressions at each of the wrench center and
end, respectively, reasonably provide a grip. We reject the argument that
Cleland’s depressions are not “adapted to provide a grip for a user.”
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Furthermore, NEC does not provide the testimony of any technical
witness to support the assertion that a rounded end with depression is more
difficult to grip than a rectangular end with no depression. The assertion is
mere argument of counsel, which cannot take the place of evidence lacking
in the record. Estee Lauder Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed.
Cir. 1997); Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977).
NEC further contends that Cleland does not satisfy the requirement of
“second depressions substantially occupying the space between the post
aperture and the second end of the tool.” (App. Br. 9:24-10:8; Reply Br.
3:3-9.) In particular, NEC argues that the second depressions “must be
substantially occupying the space such that a person's finger below their
knuckle can fit within the depression.” (App. Br. 9:31-10:5.)
NEC’s argument is misplaced. Claim 10 does not require that any of
the second depressions must be large enough to fit “a person’s finger below
the knuckle.” The claim simply requires that the second depressions be
“substantially occupying the space between the post aperture and the second
end of the tool.”
During examination, claim terms are given their broadest reasonable
interpretation consistent with the specification. In re Zletz, 893 F.2d at 321.
As amended on July 12, 2007, NEC’s specification describes that second
depression 28 substantially occupies the space between post aperture 24 and
the tool end. (Spec. 3: between ¶¶ 23 and 24 as amended July 12, 2007.)

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NEC’s Figure 3 is reproduced below:

Figure 3 shows a prospective view of the gas meter valve tool of the
invention. (Spec. 2: ¶ 17.)
As shown in NEC’s Figure 3, depression 28 is spaced from both the
post aperture 24 and the tool end. Thus, in the context of NEC’s
specification, “substantially occupying” does not require a depression that
completely fills the available space. Absent claim language carrying a
narrow meaning, the PTO should only limit the claim based on the
specification or prosecution history when those sources expressly disclaim
the broader definition. In re Bigio, 381 F.3d at 1325.
As shown in Cleland’s Figure 1, the “second” depression lies in the
space between the illustrated rectangular opening and the wrench end. The
depression is similarly sized and spaced with respect to the opening and
wrench end when compared with NEC’s “substantially occupying”
depression 28 relative to the post aperture 24 and tool end. It is neither
unreasonable nor inconsistent with NEC’s specification that Cleland’s
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second depression satisfies the “substantially occupying” requirement. We
reject NEC’s argument.
NEC additionally argues that the combination of Cleland and Renna
does not satisfy the requirement that “where space between the post aperture
and sides of the tool are devoid of depressions.”
The Examiner found that Cleland does not disclose that limitation. To
remedy the deficiency, the Examiner relied on Renna as disclosing a gas
valve wrench that does not have depressions to the sides of a post aperture.
The Examiner reasoned “[i]t would have been obvious to one having
ordinary skill in the art to form the device of Cleland et al as devoid of
depressions between the post aperture and the sides of the tool to provide a
more solid structure as taught by Renna.” (Ans. 3:15-18.) The Examiner
further explained that a person of ordinary skill in the art would have
recognized a wrench that is solid as being stronger. (Ans. 6:3-4.)
Alternatively, the Examiner concluded that it would have been
obvious to one with ordinary skill in the art to omit the side depressions of
Cleland and their intended function. (Ans. 3:21-22.)
NEC argues that there is inadequate motivation to modify Cleland. In
particular, NEC first contends that there is no teaching that the rectangular
end of Renna’s gas wrench would be stronger than the rounded end of
Cleland’s wrench. (Reply Br. 4:13-20.)
NEC’s argument is misplaced. The Examiner’s position is not based
on a theory that a rectangular wrench end is intrinsically stronger than a
rounded one. Rather, the Examiner proposes that a person of ordinary skill
in art would have recognized that a gas wrench which eliminates depressions
from its ends forms a more solid and stronger structure. That is, the
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elimination of depressions means returning additional material to the wrench
end. The Examiner pointed to Renna as showing a gas wrench without
depressions, and thus with additional material at the wrench end.
A basis to combine teachings need not be expressly stated in any prior
art reference. In re Kahn, 441 F.3d at 989. There need only be an
articulated reasoning with rational underpinnings to support a motivation to
combine teachings. Id. at 988.
The Examiner’s reasoning is rational. One with ordinary skill would
have recognized that a wrench with more material at certain portions of the
wrench will be more solid, and thus stronger, then a wrench with less
material at those portions. NEC does not explain why there is error in the
Examiner’s reasoning. Moreover, Rena shows one with ordinary skill in the
art that depressions between the post aperture and the sides of a wrench are
not necessary for operability of a wrench. One with ordinary skill in the art
has sufficient common sense to know that what is not necessary can be
omitted.
NEC additionally argues that one with ordinary skill in the art would
not modify Cleland based on the teachings or Renna because both Cleland
and Renna are design patents. In particular, NEC argues that “common
sense” dictates away from modifying either Cleland or Renna because those
references are design patent that protect different esthetic appearances of
wrenches. (App. Br. 7:6-8:31; Reply Br. 4:9-5:3.) According to NEC, the
“function” of the side depressions in Cleland is desired because they are part
of the ornamental design protected by the design patent. (App. Br. 8:5-11).
NEC contends that its invention eliminates the side depressions creating “a
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less esthetically pleasing wrench” but “provides a mechanical advantage and
improvement mechanically over the wrenches cited.” (App. Br. 8:11-15.)
NEC’s arguments are not well supported. We reject NEC’s argument
that a person of ordinary skill in the art would have had no motivation to
modify Cleland because it is a design patent. A prior art reference must be
considered for everything it teaches by way of technology and is not limited
to the particular invention it is describing and attempting to protect. EWP
Corp., 755 F.2d at 907. One with ordinary skill in the art is presumed to
have skills apart from what the prior art references explicitly say. See In re
Sovish, 769 F.2d at 743. A person of ordinary skill in the art is also a person
of ordinary creativity, not an automaton. KSR Int’l Co., 127 S.Ct. at 1742.
Here, although both Cleland and Renna are design patents that protect
the ornamental design of gas valve wrench, the teaching value of each patent
is not limited solely to its design. As with a utility patent, a person of
ordinary skill in the art evaluates the entire teachings of a design patent.
Both Cleland and Renna show wrenches for gas meters. Both patents show
rectangular openings that one with ordinary skill would have recognized as
receiving a corresponding rectangular valve portion for controlling a flow of
gas at the gas meter. Evidently, in some cases the wrenches include
depressions adjacent the opening, as in Cleland, and in others depressions
are omitted from the vicinity of the opening, as in Renna.
A person of ordinary skill would have recognized that when
depressions are not desired, they are eliminated. Indeed, in considering the
utility of the wrenches disclosed by Cleland and Renna, one with ordinary
skill would have minimal concern for the ornamental design of those
wrenches. NEC’s limited focus on the esthetic design teachings of Cleland
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and Renna is unduly narrow and does reflect how one with ordinary skill and
creativity would have evaluated the teachings of the references.
We also reject NEC’s assertions that its claimed wrench is “less
esthetically pleasing” but provides an improved “mechanical advantage.”
NEC does not explain why a wrench without side depressions is less
esthetically pleasing. Neither does NEC explain what mechanical advantage
flows from the omission of those depressions. In any event, NEC does not
submit any declaration evidence or expert witness testimony supporting
either of those assertions.
For all the foregoing reasons, NEC has not shown that the Examiner
erred in determining claims 10, 13, and 14 as unpatentable over the
combined teachings of Cleland and Renna.
We sustain the rejection of claims 10, 13, and 14 under 35 U.S.C. §
103(a) as unpatentable over Cleland and Renna.
Claims 11 and 12
Claim 11 is dependent on claim 10 and adds the limitation “wherein
the tool is colored to blend in with the gas meter.” (Claims App’x A-2:1-2.)
Claim 12 is dependent on claim 10 and adds the limitation “wherein the tool
is colored a bright color to indicate its emergency use.” (Claims App’x A-
2:3-4.)
The Examiner rejected claims 11 and 12 as unpatentable over Cleland,
Renna, and Schwartz. The Examiner reasoned that (Ans. 4:12-15)
Schwartz discloses wrenches that are colored in any of a variety
or colors (from a brighter color such as white, yellow or red, to darker
colors such as black or brown). It would have been obvious to one
having ordinary skill in the art to color the wrench of Cleland to
provide a distinctive identification to the user as taught by Schwartz.
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NEC contends that Schwartz is not available a reference because it is
non-analogous art. (App. Br. 11:1-6-8.)
A reference is analogous art if it is either in the field of the applicant’s
endeavor or is reasonably pertinent to the particular problem with which the
inventor was concerned. In re Kahn, 441 F.3d at 987; In re Bigio, 381 F.3d
at 1325.
Here, we need not consider whether Schwartz is in the field of NEC’s
endeavor as Schwartz is reasonably pertinent to the problem faced by the
inventor. A reference is reasonably pertinent if it “logically would have
commended itself to an inventor’s attention in considering his problem.” In
re Clay, 966 F.2d at 659. “[T]he problem examined is not the specific
problem solved by the invention but the general problem that confronted the
inventor before the invention was made.” In re Kahn, 441 F.3d at 988.
In this case, the general problem confronted by NEC with regard to
claims 11 and 12 is coloring its tool for purposes that include blending the
tool in with a gas meter or alternatively, giving the tool a bright color to
indicate its emergency use. (Spec. 3: ¶ 25.) In Schwartz, tools are colored
to match corresponding fasteners so as quickly visually communicate to a
user the appropriate tool. (Schwartz 1:46-62.) A person of ordinary skill in
the art would have recognized Schwartz’s teaching of coloring a tool to
facilitate a user’s quick selection of the tool as reasonably pertinent to the
problem of coloring a tool for such purposes as being readily identified by a
user during an emergency. Therefore, Schwartz is analogous art.
NEC’s claim 11 requires that the tool “is colored to blend in with the
gas meter.” Schwartz teaches a tool having any of a variety of colors.
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(Schwartz 2:3-8.) A person of ordinary skill in the art following the
teachings of Schwartz would have recognized that a tool, such as Cleland’s
gas meter wrench, can be made with any of a variety of colors. One with
ordinary skill in the art has ordinary creativity and is not an automaton, KSR
Int’l Co., 127 S.Ct. at 1742, and thus would have known to consider and
apply all practical and available colors, including the color substantially the
same as the color of the gas meter.
Claim 12 requires that the tool is “colored a bright color to indicate its
emergency use.” That the coloring is “to indicate its emergency use” is
merely a statement of the intended use of the coloring. The intended use of
a structure, here the coloring, does not have patentable weight if the
structure is already known. See In re Schreiber, 128 F.3d 1473, 1477 (Fed.
Cir. 1997). Schwartz teaches that one possible coloring is “white.”
(Schwartz 2:6.) Schwartz also teaches that colors such as “light blue” and
“light green” may be used. (Schwartz 2:66-68.) A person of ordinary skill
in the art would have readily recognized each of those colors as being
“bright.”
NEC has not shown that the Examiner erred in rejecting claims 11 and
12 over the combined teachings of Cleland, Renna, and Schwartz.
For the forgoing reasons, we sustain the claims 11 and 12 under 35
U.S.C. § 103(a) as unpatentable over Cleland, Renna, and Schwartz.
Claim 15
Claim 15 is dependent on claim 10 and adds the limitation “wherein
the aperture located at the first end of the main body is disposed through the
pair of elongated depressions within the main body.” (Claims App’x A-2:9-
11.)
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The Examiner rejected claims 15 as unpatentable over Cleland,
Renna, and either Rhoton or Skillern. In particular, the Examiner explained
(Ans. 4:19-5-2):
Rhoton or Skillern disclose an aperture for hanging the tool
which is located at a first end of a main body and is disposed through
the depression located in the handle. It would have been obvious to
one having ordinary skill in the art to form the device of Cleland et al
with an aperture at a first end of a main body and disposed through the
depression located in the handle to allow for the tool to be hung as
taught by Rhoton or Skillern.

NEC argues that Rhoton and Skillern are non-analogous art. (App.
Br. 13:6-9.)
As we have already noted, a reference is analogous art if it is either in
the field of the applicant’s endeavor or is reasonably pertinent to the
particular problem with which the inventor was concerned. In re Kahn, 441
F.3d at 987; In re Bigio, 381 F.3d at 1325.
With regard to claim 15, the problem with which NEC was concerned
was forming an aperture in the tool for attaching it near the gas meter.
(Spec. 3:¶ 24.) We focus our attention on Skillern. Skillern discloses a tool
10 with a body 12 that includes an “opening 42 near the end of the tool
[that] extends entirely through the thickness of the body 12 to provide a
means by which the tool can be hung during non-use.” (Skillern 3:6-8.) A
person of ordinary skill in the art would have recognized that Skillern’s
teaching of forming a aperture for hanging a tool is reasonably pertinent to
the problem of forming an aperture to hang a tool near a gas meter. We
reject NEC’s argument that Skillern is non-analogous art. We need not
consider whether Rhoton is also analogous art.
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We sustain the rejection of claim 15 under 35 U.S.C. § 103(a) as
unpatentable over Cleland, Renna, and Rhoton or Skillern.
F. CONCLUSION
1. NEC has not shown that the Examiner erred in finding that
Cleland satisfies the requirement of depressions that are “adapted to provide
a grip for a user.”
2. NEC has not shown that the Examiner erred in finding that
Cleland satisfies the requirement of second depressions that are
“substantially occupying the space between the post aperture and the second
end of the tool.”
3. NEC has not shown that the Examiner erred in determining that
a person of ordinary skill in the art would have had adequate motivation to
modify Cleland.
4. NEC has not shown that the Examiner erred in determining
that each of Schwartz and Skillern constitute analogous art.
G. ORDER
The rejection of claims 10, 13, and 14 under 35 U.S.C. § 103(a) as
unpatentable over Cleland and Renna is affirmed.
The rejection of claims 11 and 12 under 35 U.S.C. § 103(a) as
unpatentable over Cleland, Renna, and Schwartz is affirmed.
The rejection of claim 15 under 35 U.S.C. § 103(a) as unpatentable
over Cleland, Renna, and Rhoton or Skillern 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).

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AFFIRMED

rvb

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