Ex Parte Northrop et al

Patent Trial and Appeal Board

Feb 4, 2016

12350285 (P.T.A.B. Feb. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/350,285 01/08/2009
22919 7590 02/08/2016
GLOBAL IP COUNSELORS, LLP
David Tarnoff
1233 20TH STREET, NW, SUITE 700
Suite 700
WASHINGTON, DC 20036-2680
FIRST NAMED INVENTOR
Melaney Northrop
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.
303208-00449 6640
EXAMINER
WILLIAMS, MONICA L
ART UNIT PAPER NUMBER
3644
NOTIFICATION DATE DELIVERY MODE
02/08/2016 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):
mailpto@giplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MELANEY NORTHROP and ALEX LIN
Appeal 2013-007567 1,2
Application 12/350,285
Technology Center 3600
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the rejection of
claims 4--14. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Our decision references Appellants' Specification ("Spec.," filed Jan. 8,
2009) and Appeal Brief ("Br.," filed Dec. 28, 2012), as well as the Final
Office Action ("Final Action," mailed Aug. 2, 2012) and the Examiner's
Answer ("Answer," mailed Feb. 25, 2013).
2 Appellants identify the real party in interest as "Doskocil Manufacturing
Company, Inc." Br. 1.
Appeal2013-007567
Application 12/350,285
According to Appellants, the invention "relates to pet housings, such
as, for example, a pet kennel, and more particularly to a pet housing having
portions interconnected by a zipper and which are nestable for compact
storage, shipping[,] and point of sale display." Spec. i-f 1. Claims 4, 8,
and 11 are the only independent claims on appeal. We reproduce
independent claim 4 below as representative of the appealed claims.
4. A pet housing comprising:
a top portion comprising a handle and having an edge;
a bottom portion having an edge;
a middle portion structured to be disposed between the top
and bottom portions to form an enclosed area, the middle portion
having a top edge and a bottom edge;
a first zipper operable between an open position and a
closed position, the top portion edge and the middle portion top
edge being interconnected in the closed position of the first
zipper and being detached from one another in the open position
of the first zipper; and
a second zipper operable between an open position and a
closed position, the bottom portion edge and the middle portion
bottom edge being interconnected in the closed position of the
second zipper and being detached from one another in the open
position of the second zipper.
Br., Claims App.
REJECTION AND PRIOR ART
Appellants appeal the Examiner's rejection of claims 4--14 under
35 U.S.C. § 102(b) as anticipated by Fidler, Jr. (US 4,569,362, iss. Feb. 11,
1986) ("Fidler"). See Final Action 2-3.
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Application 12/350,285
Claims 4--7
ANALYSIS
Independent claim 4 requires "a handle." Br., Claims App.
Appellants argue that the Examiner relies on an improperly broad
interpretation of the term "handle" in finding that Fidler' s eyelets or
attachment straps disclose the claimed handle. See id. at 4--5; see also Final
Action 2. Appellants argue that "the eyelets or attachment straps of Fidler
are configured to receive an elongated member (56, i.e., a pole) therein and
thus would be incapable of additionally accommodating a hand," and,
therefore, "cannot be read on the plain meaning of 'handle."' Br. 4.
The Examiner responds that "the 'eyelet or attachment strap' is a loop
of material which meets the broad limitation of a handle. The placement of
an elongated member through the 'eyelet or attachment strap' when in use
does not preclude the 'eyelet or attachment strap' from being considered a
handle." Answer 3.
Based on our review of the record, we agree with Appellants that the
Examiner's interpretation of the claim limitation is unreasonably broad. An
ordinary, relevant definition of "handle," which is consistent with
Appellants' Specification and with the broadest reasonable interpretation as
understood by one of ordinary skill in the art, is "a part that is designed
especially to be grasped by the hand." From http://www.meriam-
webster.com/dictionary/handle, last accessed February 1, 2016. Fidler,
which is directed to a flexible tent and frame (see Fidler, Abstract), discloses
that the eyelets or attachment straps are positioned on the tent for engaging
hooks on the frame, or that the attachment straps may encircle the frame
itself (id. at col. 3, 11. 46-54). The Examiner does not point to anything in
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Application 12/350,285
Fidler indicating that the eyelets or attachment straps are designed to be
grasped by the hand. Therefore, we determine that the eyelets or attachment
straps of Fidler do not disclose the claimed handle.
Based on the foregoing, we do not sustain the rejection of independent
claim 4 and claims 5-7 depending therefrom.
Claims 8, 9, 11, and 12
Independent claim 8 recites "the top and bottom portions being of
substantially the same size and shape to accommodate nesting of the top and
bottom portions when the middle portion is detached from the top and
bottom portions." Br., Claims App. Independent claim 11 recites a similar
limitation. Id.
With respect to independent claims 8 and 11, Appellants argue that
Fidler does not disclose two portions that are substantially the same size and
shape to accommodate nesting, because top ring 66 and base ring 12 of
Fidler are frame members that only partially overlap one another, and
otherwise fail to meet the limitations of the recited portions. Br. 7-8.
However, the Examiner does not find that Fidler's top ring 66 and bottom
ring 12 correspond to the claimed top and bottom portions, respectively. See
Final Action 2-3. Rather, the Examiner identifies top ring 66 and fabric 90,
which includes zipper 93, as teaching the claimed top portion, and identifies
bottom ring 12 and fabric 86, which includes zipper 94, as teaching the
claimed bottom portion. See Answer 5. Because Appellants' arguments fail
to address the rejection as articulated by the Examiner, Appellants do not
persuasively establish that the rejection is in error.
Further, Appellants have not identified a definition of "nesting" that
precludes the top and bottom portions of Fidler (as identified by the
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Application 12/350,285
Examiner) from meeting the limitations of the claim. We note that no
definition of "nesting" or "nest" is provided in Appellants' Specification. A
relevant definition of the word "nest" includes "objects made to fit closely
together or within one another." From http://www.merriam-
webster.com/dictionary/nest, last accessed January 19, 2016. This definition
is included in and consistent with the broadest reasonable interpretation in
light of the Specification, as understood by one of ordinary skill in the art.
In Figure 6 of Fidler, top portion 66, 90 appears to be substantially the same
size and shape as bottom portion 12, 86, such that the portions would fit
closely together or within one another. Thus, we determine that the
Examiner's finding that Fidler discloses top and bottom portions of
substantially the same size and shape to accommodate nesting is supported
by a preponderance of evidence.
Based on the foregoing, we sustain the rejection of claims 8 and 11.
Appellants argue the rejection of dependent claims 9 and 12 for the same
reasons as independent claims 8 and 11, respectively. Br. 9. Inasmuch as
we sustain the rejection of claims 8 and 11, we sustain the rejection of
claims 9 and 12.
Claims 10 and 13
Appellants argue that Fidler cannot disclose claim 10' s limitation that
"the middle portion is structured to be nestable between the top and bottom
portions," and a similar limitation in claim 13, because Fidler includes no
disclosure of top and bottom portions accommodating nesting. See Br. 9.
Appellants' argument is unpersuasive at least because a preponderance of
the evidence supports the Examiner's finding that Fidler discloses top and
bottom portions structured to accommodate nesting, as discussed above with
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respect to claims 8 and 11. Further, Appellants do not rebut the Examiner's
finding that the middle portion of Fidler is flexible and therefore capable of
being folded between the top and bottom portions, i.e., nestable between the
top and bottom portions. See Final Action 3, Answer 6. Thus, we sustain
the rejection of claims 10 and 13
Claim 14
Claim 14 requires "a handle," and the Examiner relies on the findings
discussed above with regard to claim 4 to reject claim 14. See Final Action
2. Therefore, we similarly do not sustain the rejection of claim 14.
DECISION
We REVERSE the Examiner's rejection claims 4--7 and 14.
We AFFIRM the Examiner's rejection of claims 8-13.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv) (2015).
AFFIRMED-IN-PART
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