Ex Parte Retzloff et al

Patent Trial and Appeal Board

Jan 19, 2018

14190861 (P.T.A.B. Jan. 19, 2018)

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.
14/190,861 02/26/2014 James G. RETZLOFF 6065-000017-US-DVC 3345
27572 7590 01/23/2018
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
EXAMINER
KIM, CHRISTOPHER S
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
01/23/2018 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES G. RETZLOFF and SCOTT T. FRANSON
Appeal 2016-003125
Application 14/190,8611
Technology Center 3700
Before STEFAN STAICOVICI, GEORGE R. HOSKINS, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
James G. Retzloff and Scott T. Franson (“Appellants”) appeal under
35 U.S.C. § 134(a) from the Examiner’s decision in the Final Action (dated
Mar. 18, 2015, hereinafter “Final Act.”) rejecting under 35 U.S.C. § 102(b)
claims 3 and 4 as being anticipated by Simons et al. (US 4,105,076, issued
Aug. 8, 1978, hereinafter “Simons”).2 We have jurisdiction over this appeal
under 35 U.S.C. § 6(b).
1 The Viking Corporation is the applicant as provided in 37 C.F.R. § 1.46
and is identified as the real party in interest in Appellants’ Appeal Brief
(filed July 31, 2015, hereafter “Appeal Br.”). Appeal Br. 2.
2 Claims 1 and 2 are indicated as allowed. Final Act. 1; Appeal Br. 2.
Appeal 2016-003125
Application 14/190,861
SUMMARY OF DECISION
We REVERSE.
INVENTION
Appellants’ invention relates “to a cover plate for a concealed fire
sprinkler head.” Spec. para. 2.
Claim 3, the sole independent claim, is representative of the claimed
invention and reads as follows:
3. A concealed sprinkler head comprising:
a sprinkler body having a central axis and a central
orifice disposed about said central axis, said central orifice
defining an inlet and an outlet, said sprinkler body configured
for attachment to a fire extinguishing supply line;
a deflector movably mounted to said sprinkler body;
a sealing assembly for sealing said outlet;
a thermally sensitive trigger assembly configured to
releasably urge said sealing assembly into sealing engagement
with said outlet;
a housing attached to said sprinkler body and having a
flange extending beyond said outlet;
a cover plate removably mounted to said flange of said
housing, said cover plate having a periphery extending around
said cover plate, said periphery having an arcuate portion and a
non-arcuate cutout section that is generally planar so as to lie in
a plane that is parallel to a center axis of the arcuate portion and
forming a passageway section configured to enable air to travel
between said cutout section and said flange of said housing and
towards said thermally sensitive trigger assembly.
ANALYSIS
The Examiner finds that Simons discloses a concealed sprinkler head
including, inter alia, “a cover plate 42 having a periphery having an arcuate
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Appeal 2016-003125
Application 14/190,861
portion (circular perimeter of plate 42) and a non-arcuate cutout section
(vertical surface on either side of tab 44).” Final Act. 2—3. According to the
Examiner, as the term “periphery” means “the external boundary of any
surface or area,” then “[t]he horizontal thickness of tabs 44 defines the outer
boundary of cover plate 42.” Advisory Action 2 (filed May 26, 2015,
hereinafter “Adv. Act.”).
Appellants argue that cover plate 42 of Simons is circular, and, hence,
“[the] entire ‘periphery’ ... is circular/arcuate.” Appeal Br. 6. As such,
according to Appellants, Simons fails to disclose a cover plate with a
periphery having both arcuate and non-arcuate portions. Id.
In response, the Examiner provides an annotated drawing of Simons’
cover plate 42 shown below:
cutout WKJisws
that i$ iitesisf
4*4
i
'-Osss;
f~4
f
y i- 41
if ih
ftet bo-dy 45 oicaver
The Examiner’s annotated drawing of Simons’ cover plate 42 shows flat
body 43 and tabs 44.
The Examiner takes the position that an ordinary and customary
meaning of the term “periphery” is “the area that surrounds a place or
thing.” Examiner’s Answer 3 (dated Nov. 25, 2015, hereinafter “Ans.”).
The Examiner explains that “[t]he larger circle defines ‘the area that
surrounds’ flat body 43” and “[t]he smaller circle defines the vertical surface
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Appeal 2016-003125
Application 14/190,861
of tab 44 that defines a non-arcuate cutout section.” Id. Hence, according to
the Examiner, although “the entirety of a space between two tabs 44 can be
argued to be arcuate, a single vertical surface of a single tab 44 is ‘generally
planar’ as can be seen in the smaller circle” and “[t]hat vertical surface is a
non-arcuate cutout section.” Id.
We appreciate the Examiner’s position that as tabs 44 surround
Simons’ cover plate 42 and are part of the outer boundary of cover plate 42,
tabs 44 are part its “periphery.” See Adv. Act. 2; Ans. 3. However, for the
following reasons, we do not agree that tab 44 constitutes a “non-arcuate
cutout section,” as called for by independent claim 3.
During examination, “claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, [ ] and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re Bond, 910 F.2d 831,
833 (Fed. Cir. 1990) (alteration in original) (citing In re Sneed, 710 F.2d
1544, 1548 (Fed. Cir. 1983). In this case, an ordinary and customary
meaning of the term “cutout” is “the space or hole left after cutting.”
Merriam Webster’s Collegiate Dictionary (10th ed. 2005). Such an
interpretation is consistent with Appellants’ Specification where cutout
section 65 represents a section removed (cut) from periphery 62 of cover
plate 60. See Spec. para. 50, Figs. 1,16. As such, because tabs 44 of
Simons’ cover plate 42 are not removed from its periphery, but rather are
part of the periphery, tabs 44 do not constitute “a non-arcuate cutout
section,” as called for by independent claim 3. On the other hand, the space
between tabs 44 constitutes a “cutout” section. However, as tabs 44
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Appeal 2016-003125
Application 14/190,861
surround circular cover plate 42, we agree with Appellants that the space
between tabs 44, i.e., the cutout section, is arcuate as well, rather than being
“non-arcuate,” as called for by claim 3. See Appeal Br. 6; Reply Br. 4.
In conclusion, for the foregoing reasons, we do not sustain the
anticipation rejection of claims 3 and 4.
SUMMARY
The Examiner’s decision to reject claims 3 and 4 is reversed.
REVERSED
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