12476076 (P.T.A.B. Dec. 29, 2016)

Ex Parte Oeltjen et al

Patent Trial and Appeal BoardDec 29, 2016

12476076 (P.T.A.B. Dec. 29, 2016)

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. 12/476,076 06/01/2009 JARRET C. OELTJEN OEL80001 4736 62047 7590 01/03/2017 PATENTS ON DEMAND, P.A.-General 4581 WESTON ROAD SUITE 345 WESTON, EL 33331 EXAMINER ALKER, KATHLEEN IWASAKI ART UNIT PAPER NUMBER 3643 NOTIFICATION DATE DELIVERY MODE 01/03/2017 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): docketingl @patentsondemand.com docketing2 @patentsondemand. com brian.buchheit@patentsondemand.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JARRET C. OELTJEN and JAMES MONTGOMERY Appeal 2015-001175 Application 12/476,076 Technology Center 3600 Before ANTON W. FETTING, MICHAEL C. ASTORINO, and ROBERT J. SILVERMAN, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL The Appellants appeal under 35U.S.C. § 134 from the Examiner’s decision rejecting claims 1—17 and 21. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. STATEMENT OF THE CASE Claimed Subject Matter Claims 1,11, and 21 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal. Appeal 2015-001175 Application 12/476,076 1. A pet enclosure kit comprising: a plurality of discrete, flat panels, each panel consisting of exactly four straight segments of PVC pipe and four comer segments of PVC pipe, wherein each of the four straight segments of PVC pipe is orthogonally connected to another of the straight segment of PVC pipe via one of the comer segments, wherein each comer segment connects exactly two of the four straight segments of PVC pipe, wherein the four straight segments of PVC pipe and four comer segments of PVC pipe are joined to each other to form a rigid perimeter of the panel, wherein an area bound by said perimeter comprises a mesh, wherein a weave of the mesh is sufficiently tight to restrain a pet for which a pet enclosure is constmcted from said pet enclosure kit; and a plurality of panel connectors, each panel connector couples two adjacent panels together by connecting to an edge segment of each of the adjacent panels, wherein each of said panels are coupled using only the panel connectors to other ones of said panels at either approximately one hundred and eighty degree angle or approximately ninety degree angle relative to an adjacent panel, and wherein said plurality of panels and said panel connectors constmct a plurality of different configurations of pet enclosures, each configuration having a different height, width, or depth from other ones of the different configurations, wherein each configuration uses at least five different ones of said plurality of discrete, flat panels to form sides of one of the pet enclosures and an additional at least one of the discrete, flat panels to form a top of one of the pet enclosures, wherein each of the different configurations of the pet enclosures provide a continuous volume through which an enclosed pet is able to roam through the continuous volume of that specific pet enclosure, wherein for each of the different configurations, at least one of the plurality of discrete flat panels is joined to another of the discrete flat panels on a single side by the approximately a one hundred and eighty degree angle. 2 Appeal 2015-001175 Application 12/476,076 Rejections Claims 13 and 14 are rejected under 35U.S.C. § 112, second paragraph, as indefinite. Claims 1, 2, 4—11, 13—17, and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Lichvar (US 4,819,582, iss. Apr. 11, 1989), Allen (US 5,967,089, iss. Oct. 19, 1999) and Heidemann (DE 3842638 Cl, pub. July 19, 1990). Claims 3 and 12 are rejected under 35 U.S.C. § 103(a) as unpatentable over Lichvar, Allen, Heidemann, and Hays (US 2003/0145799 Al, pub. Aug. 7, 2003). ANALYSIS Indefiniteness Although the Appellants acknowledge the rejection of claims 13 and 14 under 35 U.S.C. § 112, second paragraph, as indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention (Br. 5), the Appellants do not advance an argument asserting error in the rejection. Thus, we summarily affirm the Examiner’s rejection of claims 13 and 14. Obviousness based on Lichvar, Allen, and Heidemann The Appellants argue that the reasoning to combine the teachings of Lichvar and Allen is based on an unsupported assumption. See Br. 24—25. The Appellants argument focuses on the Examiner’s reasoning that the omission of Lichvar’s cross members 8 and T-connectors 12 of panels 2, 16, and 18 in view of Allen’s teachings of panels, which lack cross members 3 Appeal 2015-001175 Application 12/476,076 and T-connectors, would have been obvious to one of ordinary skill in the art. See id. The reasoning that the Examiner provides for the omission of Lichvar’s cross members 8 and T-connectors 12 is that “since it has been held that omission of an element and its function in a combination where the remaining elements perform the same functions as before involves only routine skill in the art. In re Karlson, [311 F.2d 581 (CCPA 1963)].” Final Act. 5. The Examiner supports that reasoning by finding that cross members 8 and T-connectors 12 “are unnecessary and could be omitted while still allowing the panels to form the walls of the enclosure.” Id. As such, the Examiner finds that “[rjemoval of support member 8 and T- connectors 12, 12 of Lichvar would not cause the structure to collapse.” Ans. 14. Additionally, the Examiner finds that “Lichvar’s disclosure of T[- Jconnectors on the panels may indicate a desire to further support the enclosure for safety purposes, for example, for containing a large, strong animal; however, such use in and of itself does not indicate that such support is necessary.” Ans. 12 (emphasis added). However, we agree with the Appellants that the Examiner’s reasoning is based on an unsupported assumption that cross members 8 and T- connectors 12 are not needed. See Br. 24—25. Notably, Lichvar’s disclosure particular to cross members 8 and T-connectors 12 of panels 2, 16, and 18 is such that it cannot be determined that their use is unnecessary or based on the relative size of an animal. As such, it appears that the Examiner’s reasoning is based on speculation. Moreover, for similar reasons, we do not agree with the Examiner that the omission of cross members 8 and T- connectors 12 and their functions would result in the remaining elements 4 Appeal 2015-001175 Application 12/476,076 performing the same functions as those prior to the omission. Additionally, we note that the Examiner’s rejection of independent claims 1,11, and 21, and their dependent claims rely on this errant reasoning. Thus, the Examiner’s rejection of claims 1,2, 4—11, 13—17, and 21 as unpatentable over Lichvar, Allen, and Heidemann is not sustained. Obviousness based on Lichvar, Allen, Heidemann, and Hays The remaining rejection based on Lichvar, Allen, and Heidemann in combination with Hays relies on the same errant reasoning as discussed above. As such, we do not sustain the rejection of claims 3 and 12 as unpatentable over Lichvar, Allen, Heidemann, and Hays. DECISION We SUMMARILY AFFIRM the Examiner’s decision rejecting claims 13 and 14 under 35U.S.C. § 112, second paragraph, as indefinite. We REVERSE the Examiner’s decision rejecting claims 1—17 and 21 under 35 U.S.C. § 103(a). 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-IN-PART 5