Ex Parte Oberhaus et al

Patent Trial and Appeal Board

Sep 23, 2013

11325971 (P.T.A.B. Sep. 23, 2013)

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.
11/325,971 01/04/2006 Fred D. Oberhaus 7599 1285
7590 09/23/2013
Paul M. Denk
Ste. 170
763 S. New Ballas Road
St. Louis, MO 63141
EXAMINER
CHEN, JOSE V
ART UNIT PAPER NUMBER
3637
MAIL DATE DELIVERY MODE
09/23/2013 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte FRED D. OBERHAUS and MICHAEL L. GUSDORF
____________________

Appeal 2011-011751
Application 11/325,971
Technology Center 3600
____________________

Before JAMES P. CALVE, WILLIAM A. CAPP, and
BEVERLY M. BUNTING, Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/325,971

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 4,
6, 8, 10 and 11. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to a componentry assembled free standing
wire shelving and organizer. Independent Claim 11, reproduced below, is
illustrative of the claimed subject matter:
11. A componentry assembled free standing wire shelving and
an organizer for resting upon the ground and including a series
of shelves, comprising:
at least a pair of sectionalized shelving, each
sectionalized shelving including a pair of end frames, each end
frame formed from a pair of spaced apart vertical rods and cross
rods, said vertical rods being spaced apart a distance slightly
less than the width of the shelving to provide for a compressive
fitting of the shelving therein between the said vertical rods;
a pair of said sectionalized shelving having intermediate
shelving provided therebetween, wherein one or more separate
shelves are pressure fitted for accommodation onto said cross
rods of said end frames provided at each side of a pair of said
sectionalized shelving and below their top shelf, the top
shelving of the intermediate shelving being below each end top
shelf of the pair of said sectionalized shelving; said cross-rods
being mutually parallel and spaced apart, perpendicular to said
vertical rods, and at the same elevation on said end frames,
wherein said intermediate shelving, when applied, having a
generally horizontal orientation;
end frame bracing, including at least one rod disposed at
an angle to the horizontal intermediate said sectionalized
shelving and generally connecting to said end frames to
stabilize the erection of the free standing wire shelving upon the
ground; and
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whereby said componentry of sectionalized shelving and
intermediate shelving furnishing a fully structured, inherently
stable organizer for fitting into a space and for support upon the
ground for storage or display purposes.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Levitin
Price
Oberhaus
US 2,805,776
US 5,913,270
US 6,286,691 B1
Sep. 10, 1957
Jun. 22, 1999
Sep. 11, 2001

REJECTIONS1
The Examiner made the following rejections:
Claims 6, 10, and 11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Price and Oberhaus. Ans. 5.
Claims 4, and 8 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Price, Oberhaus, and Levitin. Ans. 8.

ANALYSIS
Obviousness Rejection Claims 6, 10, and 11: Price, Oberhaus
Appellant argues claims 6, 10, and 11 as a group. App. Br. 12-14. We
select independent claim 11 as representative, treating claims 6, and 10 as
standing or falling with representative claim 11. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
The Examiner finds Price discloses the required elements of claim 1,
except for the distance of the shelving and vertical rods, and the use of a

1 We note that the obvious type-double patenting rejections were withdrawn
by the Examiner. Ans. 3.
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compressive fitting to attach the shelves. Ans. 5. Relying on Oberhaus, the
Examiner finds Oberhaus teaches how to achieve a compressive fit of the
shelf to the rods via differences in width of the shelving and post spacing.
Ans. 5. Thus, the Examiner reasons it would have been obvious to modify
the structure of Price to include the compressive fit relationship of Oberhaus,
“since such structures are conventional alternative structures used in the
same intended purpose, would perform equally as well, and would have been
reasonably predictable, thereby providing structure as claimed.” Ans. 5-6,
citing Oberhaus, col. 2, ll. 47-50; col. 6, ll. 1-33; figs. 7-9. Noting that Price
discloses the use of angled bracing, the Examiner suggests that providing
“such bracing at particular locations for the same intended purpose of
providing strength would have been obvious and well within the level of
ordinary skill in the art.” Id. at 6.
Appellant presents several arguments alleging Examiner error. App.
Br. 12-14. Appellant contends that Price does not disclose the structural
relationship of components to provide free standing wire shelving having
shelves that compressibly fit between vertical rods as recited in the claims.
App. Br. 13. This argument is not persuasive, since the Examiner’s findings
acknowledge that Price does not disclose the structure of a compressive fit
between the shelves and the rods, and relies on Oberhaus for this disclosure.
Ans. 9. Appellant does not point out or explain why the Examiner’s explicit
fact finding, that Price teaches free standing wire shelving that includes
sectionalized shelving, intermediate shelving positioned therebetween a pair
of sectionalized shelving, with separate shelves fitted for accommodation
onto cross rods located between vertical rods, and end frame bracing having
at least one rod disposed at an angle, is in error. We note that Appellant
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does not challenge the Examiner’s findings regarding the compressive fit of
the shelves onto the cross rods as disclosed by Oberhaus.
Admitting that the modular field kitchen of Price is a type of shelving,
Appellant contends that the shelving of Price is not permanent and does not
function in the same way as Appellant’s invention since the side grate tables
214, 216 “rest upon or are held by plastic clips 160 to their associated u-
shaped ends.” App. Br. 13. According to Appellant, the pressure fit between
the shelf and rods and cross bracing of the present invention provides greater
stability than Price, using fewer structural components. App. Br. 13. These
arguments are not persuasive for the reasons discussed supra in that Price is
not relied upon to disclose a compression fitting, and Appellant’s argument
amounts to an individual attack on the references where the Examiner has
relied upon the combined teachings of Price and Oberhaus. The test for
obviousness is not whether references can be combined physically, but
whether a claimed invention is rendered obvious by the teachings of the
prior art as a whole.
Appellant also challenges the modification of Price using Oberhaus,
contending that the shelving of Oberhaus achieves “its greatest stability by
suspending from the rafters” and not as a free standing organizer. App. Br.
13. According to Appellant, the shelving of Price is “not constructed in any
manner that will accommodate the type of pressure fitting as shown in
Oberhaus, much less for use for a free standing organizer.” Id. at 13-14.
The Examiner correctly notes that Figure 4 of Price teaches a pressure fitting
160, and reasonably concludes that modifying a similar connection using the
pressure fit of Oberhaus “would have been obvious and well within the level
of ordinary skill in the art since such structures are conventional alternative
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structures used in the same intended purpose and environment.” 2 Ans. 9,
citing Price, fig. 4. Appellant’s argument regarding Oberhaus’ purported
purpose is not persuasive, since it is not necessary for the prior art to serve
the same purpose as that disclosed in Appellant’s Specification in order to
support the conclusion that the claimed subject matter would have been
obvious or that references are physically combinable.3 Appellant does not
point to any feature of the separate shelves of claim 11 that is structurally
distinguishable from Oberhaus, or inform us that the separate shelves of
Oberhaus are not capable of performing the function of being “pressure-
fitted for accommodation onto said cross rods of said end frames.”
Based on the record before us, Appellants’ arguments do not persuade
or apprise us of error in the Examiner's findings that Price as modified by
Oberhaus discloses all of the limitations of claim 11. The Examiner’s reason
to combine the teachings of Price and Oberhaus is expressly articulated and
is supported by a rational underpinning.4 As such, we sustain the rejection
of claim 1, and claims 6 and 10 which depend therefrom, under 35 U.S.C.
§ 103(a).

2 See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“when a
patent claims a structure already known in the prior art that is altered by the
mere substitution of one element for another known in the field, the
combination must do more than yield a predictable result”).
3 See In re Linter, 458 F.2d 1013, 1016 (CCPA 1972). See also In re
Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012), citing KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418-421 (2007) (“A reference may be read for
all that it teaches, including uses beyond its primary purpose.”).
4 See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in
KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007).
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Obviousness Rejection Claims 4, and 8: Price, Oberhaus, and Levitin
Claim 4 and 8 depend from claim 11. The Examiner repeats the
findings provided with respect to claim 11, further noting that Price does not
disclose the limitation that the bottom rod has an increased length for
increased stability. Ans. 8. The Examiner relies on Levitin to disclose the
use of a bottom foot brace to provide stability, and reasons that it would
have been obvious for a skilled artisan “to modify the structure of Price to
include a bottom foot brace, as taught by Levitin since such structure are
conventional alternative structures used in the same intended purpose.”
Ans. 8.
Appellant refers to the previous arguments regarding Price and
Oberhaus and further argues that the bottom rods 190 and 204 of Price do
not function as a support since they are elevated from the base. App. Br. 14.
In reply, the Examiner correctly notes that although Price’s bottom rods do
not engage a supporting surface, the rods “are located at the bottom and
improve the stability of the structures as claimed.” Ans. 9-10. Appellant’s
contention that that the bottom rod of Price does not provide a support
function since it is elevated, is unsupported attorney argument, and does not
apprise us of how the Examiner’s specific finding, that Levitin discloses a
bottom foot brace, is in error.
Next, Appellant argues that Levitin, even if modified into the structure
of Price and Oberhaus, does not meet the structural limitations of claims 4
and 8. App. Br. 14. As discussed supra with respect to claim 11, Appellants
do not apprise us of error in the Examiner’s findings with regards to Price
and Oberhaus. Appellant’s further argument regarding the lack of a bottom
rod in Oberhaus is not persuasive, since the Examiner relied on Levitin for
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such teaching and not Oberhaus. The Examiner reasonably recognizes the
teachings of Levitin regarding the use of a bottom rod as having a greater
width to provide better stability in engaging a supporting surface, and
reasons such a modification would have been obvious to a skilled artisan,
“since such structures are alternative conventional footing, such structure
used in the same intended purpose and environment.” Ans. 10.
As such, the Examiner’s reason to combine the teachings of Price,
Oberhaus and Levitin is expressly articulated and supported by rational
underpinnings. Appellants do not persuasively apprise us of error in the
Examiner’s additional finding that Levitin discloses a bottom rod having
greater width to provide stability.

DECISION
The Examiner’s rejection of claims 4, 6, 8, 10 and 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)(1)(iv) (2011).

AFFIRMED

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