Ex Parte OrgeldingerDownload PDFPatent Trial and Appeal BoardSep 23, 201310560487 (P.T.A.B. Sep. 23, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte WOLFGANG ORGELDINGER ____________ Appeal 2011-011706 Application 10/560,487 Technology Center 3700 ____________ Before JAMES P. CALVE, JILL D. HILL, and JEREMY M. PLENZLER, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the rejection of claims 12-14, 16, and 17. App. Br. 5. Claims 1-11 and 15 are cancelled and claims 18-23 are withdrawn. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2011-011706 Application 10/560,487 2 CLAIMED SUBJECT MATTER Claim 12, the sole independent claim on appeal, is reproduced below: 12. Transport container system, comprising: a non-foldable or foldable crate, the crate comprising a rectangular bottom and four rigid lateral wall adjoining the bottom and defining a rectangular opening in a plane parallel to the bottom, a unitary top for augmenting height of the lateral walls of the crate and thereby providing a transport container of a increased volumetric capacity, the top being constituted of a natural material and comprising four rigid lateral walls of sufficient strength to permit transport container stacking and defining a rectangular opening conforming to the rectangular opening of the crate, and fasteners for attaching the top when unfolded, to the crate at the opening thereof so that the lateral walls of the top augment height of the lateral walls of the crate, wherein the lateral walls of the crate are structured to define a lattice, and wherein said fasteners are attached to the top and are releasably engageable with the lattice structured lateral walls of the crate. REJECTIONS Claims 12 and 14 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Heymann (US 4,527,707; iss. Jul. 9, 1985) and Sluiter (US 2002/0033392 A1; pub. Mar. 21, 2002). Claims 12-14 and 17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Almelo1 (NL 9300986; pub. Jan. 2, 1995) and Sluiter. Claims 12-14 and 17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Almelo, Sluiter, and Heymann. 1 The Answer refers to Almelo as NL ‘986 and the Appeal Brief refers to Almelo as Dutch. Ans. 5-6; App. Br. 16. Appeal 2011-011706 Application 10/560,487 3 Claims 12, 14, and 16 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Kuhns (US 4,460,214; iss. Jul. 17, 1984) and Sluiter. Claim 17 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Almelo, Sluiter, and Sterett (US 5,361,906; iss. Nov. 8, 1994). ANALYSIS Claims 12 and 14 as unpatentable over Heymann and Sluiter Appellant argues claims 12 and 14 as a group. App. Br. 9-16. We select claim 12 as representative. 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claim 14 stands or falls with claim 12. The Examiner found that Heymann discloses a transport container system as claimed except for a top made of a natural material but that Sluiter discloses this feature. Ans. 4. The Examiner found that the lateral walls of Heymann define a lattice insofar as Appellant’s drawings disclose only one recess provided in the lateral walls of the crate. Ans. 5. Appellant argues that the term “lattice” has a well-defined meaning as a framework or structure of cross strips of material that clearly defines the structure of the sidewall of the claimed crate, and the Specification refers to the lateral sidewalls as formed of a lattice. App. Br. 10. Appellant argues that the Examiner’s interpretation of a lattice as being formed of a single hole is unreasonable because a single hole in a wall does not make the entire wall a lattice. Id.; Reply Br. 5 Appellant also argues that the prior art does not teach lateral walls of the crate that are structured to define a lattice of crossed wooden or metal strips arranged to form a diagonal pattern of open spaces between the strips. App. Br. 13. The Examiner’s interpretation of “lattice” to mean a single hole in a lateral wall is unreasonably broad and inconsistent with an ordinary and Appeal 2011-011706 Application 10/560,487 4 customary meaning of “lattice” and Appellant’s Specification. We do not find in Appellant’s Specification a lexicographic definition of “lattice” or intent to give “lattice” a meaning different than its ordinary, customary meaning as a structure of crossed wooden or metal strips usually arranged to form a diagonal pattern of open spaces between the strips. See App. Br. 13- 14; see also In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (an inventor is free to define specific terms but must do so with reasonable clarity, deliberateness, and precision to give a skilled artisan notice of the change). Alternatively, the Examiner found that Heymann discloses a lattice structure as a wire rack 58 in Figure 9 and fasteners (clips 56) releasably attach the lateral walls of the wire rack to a bottom member 44. Ans. 5. The Examiner determined that it would have been obvious to replace the crate and fastener shown in Figures 1-4 with the wire rack 58 and fastener 56 of Figure 9 to provide a crate that is lighter, stronger, and ventilated. Ans. 5. Appellant argues that the Examiner’s combination of the teachings of Figures 1 and 5 with Figure 9 of Heymann is not justified and is a hindsight reconstruction. Reply Br. 5-6. Appellant asserts that Heymann discloses a debris holding tray 12 to which the lattice structure of Figure 9 is attached to make a lattice structure but it is not desirable to make the debris holding tray 12 in a lattice structure as it could not hold the debris anymore. Reply Br. 6. This argument is not persuasive because the Examiner does not propose to modify the tray 12 as a lattice structure but instead proposes to attach the wire rack 58 to the tray 12 instead of solid sidewall 8 of Figure 1. Ans. 5. Nor does this argument persuade us of error in the Examiner’s reason for this modification to provide a lighter, stronger, ventilated crate. Ans. 5. We sustain the rejection of claims 12 and 14. Appeal 2011-011706 Application 10/560,487 5 Claims 12-14 and 17 as unpatentable over Almelo and Sluiter The Examiner found that Almelo discloses a transport container system as claimed except for a top made of a natural material but Sluiter teaches a wood material top. Ans. 5. The Examiner also found that Almelo discloses a crate with a lattice as disclosed by Appellant’s drawings, which show a wall with only one recess to engage a fastening means. Ans. 6. Appellant argues that the prior art does not teach or suggest a lattice for the reasons discussed supra for the rejection of claims 12 and 14 based on Heymann and Sluiter. App. Br. 9-10, 13-16. We agree. The Examiner’s interpretation of the term “lattice” to encompass a lateral wall with only one recess as disclosed in Almelo is unreasonably broad and inconsistent with an ordinary, customary meaning of lattice and Appellant’s Specification for the reasons discussed supra for the rejection of claim 12 based on Heymann and Sluiter. We do not sustain the rejection of claims 12-14 and 17. Claims 12-14 and 17 as unpatentable over Almelo, Sluiter, and Heymann Appellant argues claims 12-14 and 17 as a group. App. Br. 16. We select claim 12 as representative of the group. Claims 13, 14, and 17 stand or fall with claim 12. The Examiner relied on Almelo and Sluiter to disclose the claimed transport container system except for a lateral wall structured to define a lattice, but explains that Figure 9 of Heymann discloses this feature. Ans. 6. Appellant argues that none of the prior art teaches or suggests the claimed lattice for the reasons discussed supra. App. Br. 16. This argument is not persuasive for the reasons discussed supra for the rejection of claim 12 as unpatentable over Heymann and Sluiter. We sustain the rejection of claims 12-14 and 17. Appeal 2011-011706 Application 10/560,487 6 Claims 12, 14, and 16 as unpatentable over Kuhns and Sluiter Appellant argues claims 12, 14, and 16 as a group. We select claim 12 as representative. Claims 14 and 16 stand or fall with claim 12. The Examiner found that Kuhns discloses a transport container system including a lattice structure (ladder) at the front of the wagon. Ans. 6-7 (citing fig. 1). Appellant argues that the prior art does not disclose a lattice for the reasons discussed supra. App. Br. 16-17. This argument is not persuasive of error in the Examiner’s finding that Kuhns discloses a lattice structure as a ladder at the front of the wagon. We sustain the rejection of claims 12, 14, and 16. Claim 17 as unpatentable over Almelo, Sluiter, and Sterett The Examiner relied on Sterett to disclose irregular lower edges. Ans. 7. Appellant argues that none of the prior art teaches or suggests the claimed lattice and thus the Examiner has failed to establish a prima facie showing of obviousness. App. Br. 17. We agree for the reasons discussed supra for the rejection of claim 12 as unpatentable over Almelo and Sluiter. We do not sustain the rejection of claim 17. DECISION We AFFIRM the rejection of claims 12 and 14 under 35 U.S.C. § 103(a) as being unpatentable over Heymann and Sluiter. We REVERSE the rejection of claims 12-14 and 17 under 35 U.S.C. § 103(a) as being unpatentable over Almelo and Sluiter. We AFFIRM the rejection of claims 12-14 and 17 under 35 U.S.C. § 103(a) as being unpatentable over Almelo, Sluiter, and Heymann. Appeal 2011-011706 Application 10/560,487 7 We AFFIRM the rejection of claims 12, 14, and 16 under 35 U.S.C. § 103(a) as being unpatentable over Kuhns and Sluiter. We REVERSE the rejection of claim 17 under 35 U.S.C. § 103(a) as being unpatentable over Almelo, Sluiter, and Sterett. 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). AFFIRMED mls Copy with citationCopy as parenthetical citation