Ex Parte Plutsky et al

Patent Trial and Appeal Board

Sep 11, 2017

12405194 (P.T.A.B. Sep. 11, 2017)

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.
12/405,194 03/16/2009 Sheldon PLUTSKY 57210-5028 3123
24574 7590 09/25/2017
JEFFER, MANGELS, BUTLER & MITCHELL, LLP
1900 AVENUE OF THE STARS, 7TH FLOOR
LOS ANGELES, CA 90067
EXAMINER
POON, ROBERT
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
09/25/2017 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):
patentdocket @ j mbm .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHELDON PLUTSKY, TODD PLUTSKY, and
TIFFANY BOXER
Appeal 2015-007678
Application 12/405,194
Technology Center 3700
Before STEFAN STAICOVICI, BRANDON J. WARNER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Sheldon Plutsky et al. (“Appellants”) appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 1—12, 14—16, 18—20, and 22—
25.1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants submit the real party in interest is Pioneer Photo Albums, Inc.
Appeal Br. 6.
Appeal 2015-007678
Application 12/405,194
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A storage card case comprising:
at least first and second individual compartments, wherein
each compartment can fit a media device,
first and second closeable doors to securely lock the media
device in the first and second compartments, wherein the first
and second doors each include a bottom and a top and have the
word “date” and the word “memo” disposed on the top thereof,
wherein the first and second doors each include a date area
adjacent the word date and a memo area adjacent the word memo
thereon onto which identifying information can be placed to
identify the media device in the respective compartment,
a central member disposed between the first and second
compartments, wherein the first and second closeable doors are
hingedly connected to the central member such that they are
opposed to one another,
a plurality of writable devices having a top and a bottom,
wherein the writable devices include adhesive on the bottom
thereof such that they can be adhered directly to the media device
enclosed in each compartment,
wherein the first and second compartments contain first
and second media devices respectively therein, wherein the first
media device has a first writable device adhered thereto that
includes user written identifying information about the first
media device, wherein the second media device has a second
writable device adhered thereto that includes user written
identifying information about the second media device, wherein
the identifying information about the first media device is
different than the identifying information about the second media
device, wherein the memo area of the first door includes user
written identifying information thereon, and wherein the date
area of the first door includes user written date information
thereon, and wherein the identifying information on the memo
area of the first door and the date information on the date area of
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the first door is similar to the identifying information on the first
writable device.
REJECTIONS2
1) Claims 2, 8, 24, and 25 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description
requirement.
2) Claims 1, 4—6, and 10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Rochelo (US 7,306,159 Bl, issued Dec. 11,
2007), Davies (US 6,443,306 Bl, issued Sept. 3, 2002), Priebe (US
7,494,012 Bl, issued Feb. 24, 2009), and Conover (US 3,638,603,
issued Feb. 1, 1972).
3) Claims 2, 7, 22, and 23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Rochelo, Davies, Priebe, Conover, and Dienst
(US 2004/0089581 Al, published May 13, 2004).
4) Claims 3 and 9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Rochelo, Davies, Priebe, Conover, and Liu (US
6,015,064, issued Jan. 18, 2000).
5) Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Rochelo, Davies, Priebe, Conover and Tucker (US 2004/0195255
Al, published Oct. 7, 2004).
6) Claims 11, 12, 15, 16, 18, and 20 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Priebe, Conover, and Tucker.
2 Appellants provide argument to traverse objections to the drawings filed
October 9, 2009. Appeal Br. 13—14; Reply Br. 2; Final Act. 2. The question
of the propriety of drawing objections should be addressed by petition
because it is not an appealable matter and, thus, is not within the jurisdiction
of the Board. See In reMindick, 371 F.2d 892, 894 (CCPA 1967).
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7) Claims 14 and 19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Priebe, Conover, Tucker, and Liu.
8) Claims 24 and 25 are under 35 U.S.C. § 103(a) as unpatentable
over Rochelo, Davies, Priebe, Conover, Dienst, and Tucker.
DISCUSSION
Rejection 1
The Examiner rejects claims 2, 8, 24, and 25 under 35 U.S.C. § 112,
first paragraph, as failing to comply with the written description
requirement. Final Act. 3. The Examiner finds that “[t]he original
disclosure does not describe the date area and memo area not transparent or
silk screened and is thus considered new matter.” Id. Appellants contend
that “the original specification clearly discuses a silk screened area.” Appeal
Br. 14 (citing Spec. 5,11. 21—24). Appellants also contend that Figures 1 and
2 illustrate that portions of the door are transparent and other portions are not
transparent. Id. at 14—15. The Examiner responds that “the claims recite
memo and date area to be silkscreened but the disclosure only states that the
door has a silk screened area (20).” Ans. 16. With respect to the issue of the
transparent and non-transparent areas, the Examiner responds that “the
drawings presented do not show this feature since they are not recognized by
the MPEP as the proper way to signify transparency.” Id.
The Federal Circuit has explained that:
The test for determining compliance with the written description
requirement is whether the disclosure of the application as originally
filed reasonably conveys to the artisan that the inventor had
possession at that time of the later claimed subject matter, rather than
the presence or absence of literal support in the specification for the
claim language. . . . The content of the drawings may also be
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Application 12/405,194
considered in determining compliance with the written description
requirement.
In re Kaslow, 707 F.2d 1366, 1375 (Fed. Cir. 1983) (citations omitted).
Appellants’ Specification indicates that “each door has silk screened
area 20 thereon so that the user may write information thereon such as the
date, content and ID # of the media device contained in that compartment.”
Spec. 5,11. 21—24 (emphasis added). The Specification also provides that
“the doors 14 of each compartment may be clear so that the media device
within each compartment may be viewed.” Id. at 6,11. 2—\. Appellants do
not direct us to any description in the Specification of the “date area” or
“memo area” recited in claims 2, 8, and 24. We note that the Specification
discloses that the door “may be clear,” but Appellants do not direct us to any
portion of the Specification where the door is described as having two non­
transparent areas separated by a transparent area or two silk screened areas.
We also agree with the Examiner that one of ordinary skill in the art would
not discern the claimed features from the Appellants’ drawings. Based on
the foregoing, we agree with the Examiner that one of ordinary skill in the
art would not reasonably understand that Appellants had possession of the
invention claimed in claims 2, 8, 24, and 25. We, therefore, sustain the
rejection of claims 2, 8, 24 and 25 under 35 U.S.C. § 112, first paragraph.
Rejection 2
Appellants argues claims 1, 4—6, and 10 as a group. Appeal Br. 19-
30. We select claim 1 as representative and claims 4—6 and 10 stand or fall
with claim 1. 37 C.F.R. § 41.37 (c)(l)(iv).
Appellants raise two contentions of error. Appeal Br. 19. First,
Appellants contend that two of the cited references, Priebe and Conover, are
non-analogous art. Id. at 26. Second, Appellants contend that the Examiner
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improperly failed to consider a Rule 132 declaration when determining
whether or not the claims are obvious and, if properly considered, the
declaration establishes objective evidence of non-obviousness sufficient to
rebut the Examiner’s prima facie case of obviousness. Id. at 19, 21.
Analogous Art
The Examiner finds that Rochelo discloses a media case and several
of the limitations of claim 1, but fails to disclose writable devices that adhere
to the media device, a second compartment/door, or indicia on the cover of
the door. Final Act. 4—5 (citing Rochelo, Fig. 1). The Examiner finds that
Davies discloses it was known “to adhere writable devices on memory
cards.” Id. at 4 (citing Davies, Abstract). The Examiner further finds that
Priebe discloses, inter alia, a storage case with at least first and second
compartments/doors and a central member disposed between the first and
second compartments with the first and second doors hingedly connected to
the central member. Id. at 4—5 (citing Priebe, Figs. 9—11). The Examiner
also finds that Conover discloses a container with storage compartments and
lids with adhesive labels on the containers. Id.
Appellants contend that Priebe and Conover “are directed to the field
of pill containers” and therefore are “not in the same field as the claimed
inventions which the Applicant expressly defines as the ‘storage of a
plurality of portable media within a case.’” Appeal Br. 26 (citing Spec. 11).
The Examiner responds that Priebe and Conover are in the same field of
endeavor as Appellants’ invention “because both are storage containers that
hold media since both pills and memory card are considered to be media and
all four references are directed to containers] for storing such media.” Ans.
21-22.
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The Federal Circuit has explained that “[t]wo separate tests define the
scope of analogous prior art: (1) whether the art is from the same field of
endeavor, regardless of the problem addressed and, (2) if the reference is not
within the field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the inventor is
involved.” In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011).
Appellants’ invention is directed to a storage device for electronic
storage media such as SD cards, while Priebe and Conover are also directed
to storage devices, albeit for medication. We agree with the Examiner that
Appellants’ claimed invention and Priebe and Conover are in the same field
of endeavor, i.e., storage devices. While we appreciate that Appellants’
claimed invention is directed to solving the problem of storing electronic
media as opposed to the problem of storing medication, that distinction is
based on intended use of the Priebe and Conover containers in storing
medication rather than electronic media and, as such, is irrelevant to the first
test for analogous art. We, thus, are not persuaded that Priebe and Conover
are non-analogous art.
Objective Evidence of Non-Obviousness
Appellants argue that the Examiner did not consider the Declaration
of Sheldon Plutsky filed January 29, 2014 (“Plutsky declaration” or “Plutsky
Deck”). Appeal Br. 19—20. However, the Final Rejection indicates that the
Examiner did consider the declaration and concluded that “when all of the
evidence is considered, the totality of the rebuttal evidence of
nonobviousness fails to outweigh the evidence of obviousness.” Final Act.
15.
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Appellants then argue that the “evidence — ignored by the Examiner —
shows that the claimed inventions have been hugely commercially
successful, satisfied a long felt, but unmet need, and garnered industry and
user praise despite initial skepticism voiced by industry experts.” Appeal
Br. 21 (citing Plutsky Deck 2—3). The Examiner responds that Appellants
have not established a “nexus between what is being claimed and what the
appellant has presented in the declaration.” Ans. 18. The Examiner also
notes that Appellants do not provide market share information for similar
products, but base the commercial success argument on a comparison to the
sales of Appellants’ other products, i.e., photo albums. Id. (citing Plutsky
Deck 13). Appellants reply that a nexus should be presumed where the
marketed product embodies the claimed features. Reply Br. 6—7 (citing
Brown & Williamson Tobacco Corp. v. Phillip Morris, Inc., 229 F. 3d 1120,
1130 (Fed. Cir. 2000)).
Commercial Success
“[Ejvidence of commercial success ... is only significant if there is a
nexus between the claimed invention and the commercial success.” Ormco
Corp. v. Align Tech., Inc., 463 F.3d 1299, 1311—12 (Fed. Cir. 2006). The
success must be attributable to the claimed invention, not something else.
Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 740 (Fed. Cir. 2013).
To establish a nexus, the “[ejvidence of secondary considerations must be
reasonably commensurate with the scope of the claims.” In re Huai-Hung
Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011). Establishing a nexus between
the claimed invention and the commercial success of a product requires
“proof that the sales [of the product] were a direct result of the unique
characteristics of the claimed invention—as opposed to other economic and
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commercial factors unrelated to the quality of the patented subject matter.”
In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996).
The Plutsky Declaration states that Appellants’ commercial product
“incorporates the technology and invention claimed in the above-captioned
patent application.” Plutsky Deck 12. Appellants, however, do not provide
a direct comparison, supported by evidence, between each limitation of any
claim and the features of any commercial embodiment sold. While the
Plutsky Declaration includes a photograph of the front of a packaged
product, Appellants do not provide a claim chart for claim 1, or any other
claim, supported by evidence, such as one or more annotated photographs of
the product, definitively establishing the existence of each claim element in
the commercial embodiment for each claim on appeal.3 We, therefore,
cannot discern from the evidence before us whether the product is covered
by any of the claims on appeal. In the absence of persuasive evidence that
the product falls within the scope of any claim on appeal, Appellants fail to
show that any commercial success is “reasonably commensurate with the
scope of the claims.” Kao, 639 F.3d at 1068. Further, the presumption of
nexus referred to in Brown & Williamson does not apply in the absence of
evidence that the product embodies the features of any claim on appeal.
The Plutsky Declaration provides that Appellants “do not advertise
the Memory Card Organizer. Therefore we attribute the commercial success
of the Memory Card Organizer to the inventive technology.” Plutsky Deck
13. The Plutsky Declaration also provides that Appellants’ product is “sold
3 In the Reply Brief, Appellants submit an additional photograph of “the
marketed product” again without annotations or other evidence establishing
the existence of claim elements in the marketed product. See Reply Br. 6.
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in many well known, national stores and mail order houses, including
Staples, Rite Aid, Walgreens, Long’s Drugs, Amazon, Fry’s Electronics,
Ritz Camera, LTD Commodities, as well as many other distributors.” Id. at
5. Appellants do not submit that none of these entities advertise the product
or provide any indication of how much advertising of the product is done by
these entities. In the absence of such information, we cannot draw a
conclusion that Appellants’ failure to advertise the product indicates that any
alleged commercial success of the product is due to the features of the
claimed invention.
The Plutsky Declaration provides the number of units sold on an
aggregate basis for the period of 2009 to 2013 and the number of units sold
in 2013. Plutsky Deck 12. Sales figures “without evidence of market share
is only weak evidence of commercial success.” In re Applied Materials, 692
F.3d 1289, 1299 (Fed. Cir. 2012), citing In re Huang, 100 F. 3d 135, 140
(Fed. Cir. 1996). Appellants do not provide any market share information
for a relevant market but compare the unit volume of the alleged commercial
embodiment in 2013 to Appellants’ photo album sales. Id. In the absence of
market share, Appellants unit sales volume is at best weak evidence of
commercial success. We are also not persuaded that the comparison of
Appellants’ product to Appellants’ photo albums weighs in favor of a
finding of commercial success.
Long Felt Need
Appellants argue that the “claimed invention also solves a long felt
need of how to conveniently store and organize multiple memory cards
having digital photos thereon.” Appeal Br. 23—24 (citing Plutsky Deck 1 6—
10). In order to establish long felt need, Appellants must establish that
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“such a ‘problem’ objectively existed, as distinguished from its subjective
existence in the minds of the inventors and their patent counsel.” In re
Gershon, 372 F.2d 535, 538 (CCPA 1967). Appellants must also establish
that others unsuccessfully attempted to solve the problem. See Orthopedic
Equipment Co. v. All Orthopedic Appliances, Inc., 708 F.32d 1376, 1382
(Fed. Cir. 1983); Scully Signal Co. v. Electronics Corp. of America, 570
F.2d 355, 361 (1st Cir. 1977) (“[T]he questions ‘how long did the need
exist’ and ‘how many tried to find the way’, appear side by side with the
question of success.”). The Plutsky Declaration provides no evidence that
the problem of how to conveniently store and organize multiple memory
cards “objectively existed” in the field nor how long the problem existed nor
that others unsuccessfully attempted to solve the problem. In the absence of
evidence, we are not persuaded that Appellants have established that the
claimed invention solved a long felt need that others in the field
unsuccessfully attempted to solve.
Praise by Others
Appellants contend that the claimed invention has “been praised by
others.” Appeal Br. 25. In support of this contention, Appellants rely on
Amazon.com customer reviews set forth in Paragraph 11 of the Plutsky
Declaration. Id. The Examiner responds that Appellants have not shown a
nexus between the reviews and the claimed subject matter. Ans. 19. We
agree with the Examiner, for the reasons stated above in connection with
commercial success, that Appellants have not established, with evidence,
that any of the products referred to in the Plutsky Declaration embody the
claimed subject matter. We, thus, are not persuaded that Appellants’
claimed invention has been praised by others.
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Skepticism by Experts
Appellants next contend that experts in the field expressed skepticism
when first shown Appellants’ product. Appeal Br. 25—26. In support of this
contention, Appellants rely on paragraphs 12—16 of the Plutsky Declaration.
Id. The Examiner responds that
the people that the appellant considers “experts” are a buyer, a chain
store, and a salesman. These cannot be considered experts because
they do not specialize in making storage containers. In other words,
they would not be experts in the field to discourage the combination
of the prior art used in the rejection.
Ans. 20.
“Expressions of disbelief by experts constitutes strong evidence of
nonobviousness.” Environmental Designs, Ltd. v. Union Oil Co. of
California, 713 F.2d 693, 697—98 (Fed. Cir. 1983), citing United States v.
Adams, 383 U.S. 39, 52 (1966). In Environmental Designs, “highly
probative evidence of nonobviousness” was found based on the belief of
chemical experts that “the reduction of sulfur compounds to hydrogen
sulfide would not adequately solve the problem.” Id. at 697. The Plutsky
declaration does not provide evidence that experts in storage devices
expressed skepticism that the claimed invention would solve the technical
problem of storing electronic memory cards but rather provides evidence
from retailers skeptical of whether the product would be a good seller. See
Plutsky Deck 12 (“didn’t think it would sell at all”). For the foregoing
reasons, we determine that Appellants do not establish, with evidence, that
experts in the field of storage devices were skeptical of whether the claimed
invention would solve the problem of storing electronic memory cards.
After reviewing all of the evidence before us, including the totality of
Appellants’ evidence, it is our conclusion that, on balance, the evidence of
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obviousness discussed above outweighs the evidence of nonobviousness
submitted by Appellants, and accordingly, we sustain the rejection of claim
1. See also Final Act. 15. Claims 4—6 and 10 fall with claim 1.
Rejection 3
The Examiner relies on Dienst in the rejection of claims 2 and 7 for
disclosure of “a container . . . with transparent doors.” Final Act. 7 (citing
Dienst, Fig. 1). Appellants contend that “Dienst, like Priebe and Conover is
nonanalogous art and directed to a container for holding pills.” Appeal Br.
31.4 We find that Dienst and Appellants’ claimed invention, are directed to
the same field, i.e., storage devices. See Dienst, Abstract. We are not
persuaded by Appellants’ contention that Dienst is non-analogous art
because it is directed to the same field of endeavor as Appellants’ claimed
invention.
Appellants also contend that claims 2, 7, 22, and 23 are patentable due
to the evidence provided in the Plutsky Declaration for the same reasons
argued for claim 1. Appeal Br. 31. We are not persuaded by this contention
for the same reasons discussed above for claim 1. In addition, Appellants
contend that claim 7 is patentable because two customer reviews of
Appellants’ products mention transparent or clear doors as a reason for
satisfaction with the product. Id. (citing Plutsky Deck 1 8). As discussed
above in connection with claim 1, Appellants do not establish with evidence
that the products are covered by any claim on appeal including claim 7. We
are, thus, not persuaded by this contention.
4 Appellants raise the same argument for claims 22 and 23, which depend
from claim 2. Appeal Br. 31, 46 (Claims App.).
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For the foregoing reasons, we sustain the rejection of claims 2, 7, 22,
and 23.
Rejection 4
Appellants contest the rejection of claims 3 and 9, which depend from
claim 1, by arguing that Priebe and Conover are non-analogous art and the
evidence in the Plutsky Declaration renders claims 3 and 9 patentable for the
same reasons argued in connection with claim 1. Appeal Br. 33—34. We
sustain the rejection of claims 3 and 9 for the same reasons discussed above
for claim 1.
Rejection 5
In the rejection of claim 8, the Examiner relies on Tucker for
disclosing “it was well known in the art to apply printed color matter
through silk screen printing.” Final Act. 8—9 (citing Tucker 1136).
Appellants contend that Tucker is non-analogous art because it “is directed
to ‘an inexpensive tight sealing plastic container suited for microwave
cooking, topshelf dishwashing, and freezer use.’” Appeal Br. 35 (citing
Tucker, Abstract). The Examiner responds that Tucker is directed to “a
container and closure which may have portions silk screened thereon in
order to provide colored printed matter to vary the colors of containers.”
Ans. 23. We agree with the Examiner that Tucker is directed to the same
field of endeavor as Appellants’ claimed invention, i.e., storage devices. See
Tucker, Abstract. We, thus, are not persuaded by Appellants’ contention
that Tucker is non-analogous art. Appellants also contend that the evidence
in the Plutsky Declaration renders claim 8 patentable for the same reasons
argued in connection with claim 1. Appeal Br. 35. We sustain the rejection
of claim 8 for the same reasons discussed above for claim 1.
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Rejection 6
Appellants contest the rejection of claims 11, 12, 15, 16, 18, and 20 by
arguing that Priebe, Conover, and Tucker are non-analogous art and the
evidence in the Plutsky Declaration renders claims 11, 12, 15, 16, 18, and 20
patentable for the same reasons argued in connection with claim 1. Appeal
Br. 36—37. We sustain the rejection of claims 11, 12, 15, 16, 18, and 20 for
the same reasons discussed above for claim 1.
Rejection 7
Appellants contest the rejection of claims 14 and 19 by arguing that
Priebe, Conover, and Tucker are non-analogous art and the evidence in the
Plutsky Declaration renders claims 14 and 19 patentable for the same
reasons argued in connection with claim 1. Appeal Br. 38—39.5 We sustain
the rejection of claims 14 and 19 for the same reasons discussed above for
claim 1 and claim 8 regarding Tucker.
Rejection 8
Appellants contest the rejection of claims 24 and 25 by arguing that
Priebe, Conover, Dienst and Tucker are non-analogous art and the evidence
in the Plutsky Declaration renders claims 24 and 25 patentable for the same
reasons argued in connection with claim 1. Appeal Br. 39-40. We sustain
the rejection of claims 24 and 25 for the same reasons discussed above for
claim 1, for claims 2 and 7 regarding Dienst, and claim 8 regarding Tucker.
5 Appellants refer to claims 9 and 14 in the Appeal Brief. Appeal Br. 38.
This appears to be a typographical error as claim 9 is rejected as stated in
Rejection 4 above. We treat Appellants’ arguments regarding claim 9 in
Rejection 7 as being applicable to claim 19.
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DECISION
The Examiner’s decision rejecting claims 1—12, 14—16, 18—20, and
22—25 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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