Ex Parte Quick et al

Patent Trial and Appeal Board

Jun 25, 2015

11861139 (P.T.A.B. Jun. 25, 2015)

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.
11/861,139 09/25/2007 Eric S. Quick 4189-01100 7857
30652 7590 06/26/2015
CONLEY ROSE, P.C.
5601 GRANITE PARKWAY, SUITE 500
PLANO, TX 75024
EXAMINER
WAGGENSPACK, ADAM J
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
06/26/2015 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 ERIC S. QUICK, YVONNE STEINER, and
JEFFREY SHAMBURGER
____________

Appeal 2012-009866
Application 11/861,1391
Technology Center 3700
____________

Before LINDA E. HORNER, STEFAN STAICOVICI, and
BRANDON J. WARNER, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Eric S. Quick et al. (Appellants) appeal under 35 U.S.C. § 134(a) from
the Examiner’s final decision rejecting under 35 U.S.C. § 102(b) claims
8–13, 21, and 25–27 as anticipated by Latham (US 2006/0011686 A1, pub.
Jan. 19, 2006) and under 35 U.S.C. § 103(a) claims 14–17, 22–24, 28, and
29 as unpatentable over Latham; claim 17 as unpatentable over Latham and
Georgia (US 2007/0131568 A1, pub. June 14, 2007) or Lofaro (US
2003/0160076 A1, pub. Aug. 28, 2003); and claims 22–24 and 28–30 as

1 According to Appellants, the real party in interest is Safeway, Inc.
Appeal Br. 3 (filed Mar. 26, 2012).
Appeal 2012-009866
Application 11/861,139
2

unpatentable over Latham and Moses (US 6,045,019, iss. Apr. 4, 2000) or
Cauchy (US 2003/0184103 A1, pub. Oct. 2, 2003).2 Claim 31 is withdrawn
and claims 1–7 and 18–20 are canceled. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We REVERSE.

INVENTION
Appellants’ invention relates to a method for securing goods during
transportation. Spec. ¶ 5.
Claim 8, the sole independent claim, is representative of the claimed
invention and reads as follows:
8. A method comprising:
using a container to accommodate consumer goods,
wherein the container comprises a single spill retention strap,
wherein the spill retention strap is permanently attached to the
container at only one point and/or is semi-permanently attached
to the container, and wherein, when the semi-permanent
attachment is used, the semi-permanent attachment is
configured for opening and closing prior to securing the
container;
positioning the container in a vehicle;
securing the container in the vehicle using the spill
retention strap, wherein the spill retention strap substantially
maintains the position of the container relative to the vehicle
when the vehicle experiences a substantially sudden movement.

2 The rejection of claims 8–17 and 21–30 under 35 U.S.C. § 112,
second paragraph, as being indefinite, has been withdrawn by the Examiner.
Ans. 3 (dated Apr. 10, 2012); see also Final Act. 2–3 (dated Oct. 27, 2011).
Appeal 2012-009866
Application 11/861,139
3

ANALYSIS
Independent claim 8 requires, inter alia, “a single spill retention
strap.” Appeal Br. 17, Claims App.
The Examiner finds that “either side of one of the straps 48” of
Latham constitutes “a single spill retention strap.” Ans. 5. According to the
Examiner, the use of the term “comprising” encompasses other types of
straps in addition to the claimed “single spill retention strap,” such as a
securement strap (the other side of strap 48) and attachment straps (the lower
set of straps 48). See id. at 12–13; see also Latham, Fig. 12.
The Examiner’s reliance on the use of the term “comprising” in
independent claim 8 to support the position that the claim language is
sufficiently broad to cover a method including additional straps is unavailing
because the other straps of Latham that the Examiner alludes to also
constitute “spill retention straps.” The open-ended term “comprising” does
not free the claim from its own limitations. Kustom Signals, Inc. v. Applied
Concepts, Inc., 264 F.3d 1326, 1332 (Fed. Cir. 2001). Here, Appellants are
correct that Latham’s straps 48 are not distinguishable from each other.
Reply Br. 8. As noted by Appellants, Latham specifically teaches using a
“pair of straps 48” to secure container 10 in a vehicle by looping the straps
around the back of a seat and fastening buckles 54. See id. at 7–8; see also
Latham ¶¶ 35 and 49. In other words, Latham specifically teaches that both
straps 48 are used to retain container 10 in a vehicle, and as such, in contrast
to the Examiner’s interpretation, Latham does not differentiate between
straps 48 or between each side of a strap 48. Accordingly, we agree with
Appellants that one side of Latham’s strap 48 does not constitute the claimed
“single spill retention strap” because “Latham explicitly discloses that its
container comprises at least two, if not four, such straps.” Reply Br. 8–9.
Appeal 2012-009866
Application 11/861,139
4

We further agree with Appellants’ contention that “the Examiner’s
own discussion of Latham explicitly indicates that Latham . . . discloses a
plurality of spill retention straps by stating ‘Latham discloses a single spill
retention strap (either side of either of straps 48 . . . .’” Id. at 9. Hence,
“Latham cannot be understood to disclose claim 8’s ‘single spill retention
strap’ element due to the fact that Latham discloses more than one of the
indicated strap-type elements.” Id. In conclusion, for the foregoing reasons,
we do not sustain the rejection under 35 U.S.C. § 102(b) of claims 8–13, 21,
and 25–27 as anticipated by Latham.
Neither the Examiner’s proposed modifications of Latham, nor the use
of the teachings of Georgia, Lofaro, Moses, and Cauchy, remedy the
deficiencies of Latham, as described supra. See Ans. 7–12. Accordingly,
for the reasons set forth above, we also do not sustain the rejections under 35
U.S.C. § 103(a) of claims 14–17, 22–24, 28, and 29 as unpatentable over
Latham; claim 17 as unpatentable over Latham and Georgia or Lofaro; and
claims 22–24 and 28–30 as unpatentable over Latham and Moses or Cauchy.

SUMMARY
The Examiner’s decision to reject claims 8–17 and 21–30 is reversed.

REVERSED

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