Ex Parte Riaby et al

Patent Trial and Appeal Board

Sep 25, 2017

14622245 (P.T.A.B. Sep. 25, 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.
14/622,245 02/13/2015 Jafary H. Riaby 047177-9580-US01 9062
23409 7590 09/27/2017
MICHAEL BEST & FRIEDRICH LLP (Mke)
100 E WISCONSIN AVENUE
Suite 3300
MILWAUKEE, WI 53202
EXAMINER
ROERSMA, ANDREW MARK
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
09/27/2017 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAFARY H. RIABY, MICHAEL GILLETT, and
MOISSES NAVARRO
Appeal 2017-003282
Application 14/622,245
Technology Center 3600
Before: JOSEPH L. DIXON, THU A. DANG, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-003282
Application 14/622,245
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 2, 5—9, 11—16, and 21—24. Claims 3, 10, and 17—20 have been canceled.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to a leveler mechanism for a merchandiser.
Claim 1, reproduced below, is representative of the claimed subject matter:
1. A merchandiser comprising:
a case defining a product display area and including a base
and a frame coupled to the base;
case structure coupled to the frame and including a
canopy; and
a leveler mechanism coupled to and extending between the
canopy and the frame, the leveler mechanism including a
connector rod and a coupler attached adjacent an end of the
connector rod, the leveler mechanism having a length defined by
the connector rod and the coupler, wherein the connector rod is
rotatable relative to the coupler such that the leveler mechanism
is configured to raise or lower the canopy based on the direction
of rotation.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
REFERENCES
Davis
Niekrasz
Fevig et al.
Stelmasik US 8,292,376 B1
US 1,102,480
US 4,416,086
US 5,022,720
July 7, 1914
Nov. 22, 1983
June 11, 1991
Oct. 23,2012
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Application 14/622,245
REJECTIONS
The Examiner made the following rejections:
Claims 22 and 24 stand rejected under 35 U.S.C. § 112(a), as failing
to comply with the written description requirement. The claim(s) contains
subject matter which was not described in the Specification in such a way as
to reasonably convey to one skilled in the relevant art that the inventor or a
joint inventor, or for pre-AIA the inventor(s), at the time the application was
filed, had possession of the claimed invention.1
Claims 1—7, 9—16, and 21—24 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Stelmasik2. (Final Act. 4).
Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Stelmasik as applied to claim 1 above, and further in view of Fevig.
(Final Act. 8).
Claims 1—7, 9—16, and 21—24 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Stelmasik in view of Niekrasz.3 (Final Act. 8).
Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Stelmasik in view of Niekrasz as applied to claim 1 above, and further
in view of Fevig. (Final Act. 13).
1 The Examiner withdrew the written description rejection of claims 21 and
23 in the Examiner's Answer. (Ans. 2).
2 We note that the Examiner additionally discusses dependent claims 21—24
in the body of the obviousness rejection. (App. Br. 8). Additionally, claims
3 and 10 have previously been canceled.
3 We note that the Examiner additionally discusses dependent claims 21—24
in the body of the obviousness rejection. (App. Br. 12—13).
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Application 14/622,245
Claims 1—7, 9—16, and 21—24 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Stelmasik in view of Niekrasz and Davis.4 (Final
Act. 13).
Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Stelmasik in view of Niekrasz and Davis as applied to claim 1 above,
and further in view of Fevig. (Final Act. 16).
ANALYSIS
35 U.S.C. § 112(a), Written Description Requirement
Appellants contend that the Examiner has failed to provide a proper
analysis for the written description rejection. (App. Br. 5—7). Appellants
specifically contend:
With regard to claims 22 and 24, the term “panel” can be, for
example, the viewing panels 30 that are explicitly described in
the specification at paragraph 17 and illustrated in FIGS. 1 and
3. As would be understood by one of ordinary skill in the art
when considering Appellant's specification and drawings as a
whole, the viewing panels are attached to the canopy, so it
follows that adjustment of one or both of the first and second
leveler mechanisms alters alignment of the panel relative to the
base. Accordingly, explicit and inherent support for the subject
matter of claims 22 and 24 is provided by the specification as
originally filed.
(App. Br. 7).
The Examiner finds that Appellants have identified paragraph 17 of
the Specification for written description support regarding the “panels” and
4 We note that the Examiner additionally discusses dependent claims 21—24
in the body of the obviousness rejection. (Final Act. 15—16).
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Application 14/622,245
that the Specification is drafted with no specific indication of the location of
the panels. (Ans. 2—3). We agree with the Examiner that the Specification
is broad, but we find Figure 1 in combination with paragraph 17 of the
Specification clearly evidences that panels 30 are on the front of the
merchandiser, and are attached to the canopy 26, which supports Appellants’
contention of written description support in the originally filed disclosure.
Consequently, we cannot sustain the Examiner’s lack of written description
support of the claimed subject matter of dependent claims 22 and 24.
35U.S.C. § 103
With respect to claims 1, 2, 5—8, and 21, Appellants contend the
claimed invention would not have been obvious in view of the “cited
documents.” (App. Br. 7). Appellants argue the claims together. (App. Br.
7). As a result, we select independent claim 1 as the representative claim for
the group and address Appellants’ arguments thereto.
With respect to representative independent claim 1, Appellants
generally address the first two rejections of independent claim 1 based upon
the Stelmasik and Niekrasz references, with little discussion of the Davis
reference. We find the Davis reference to generally teach the well-known
use of two screws with a connector element for adjusting members from out
of plumb and out of level. (See Davis figures 2 and 3).
We agree with Appellants that individually the Stelmasik and
Niekrasz references do have individual deficiencies, but the Examiner has
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Application 14/622,245
relied upon the combined teachings of the three references.5 We note that
the Davis reference teaches the basic well-known structure of two screws
and a connector to adjust relative to plumb and level. While we agree with
Appellants that the Stelmasik and Niekrasz references have a different
orientations for the use of the screws and connector, and different labels for
the door relative to a “canopy,” we find the Stelmasik and Niekrasz
references evidence the well-known use thereof for adjustment and
alignment of elements within a merchandiser.
As a result, we do not reach the first two rejections of independent
claim 1, and we address the rejection with respect to the combination of the
Stelmasik, Niekrasz, and Davis references.
We find the Examiner has set forth an independent rejection of the
claims based upon the combination of the Stelmasik and Niekrasz references
with the additional teachings of the Davis reference. (Ans. 13—16).
With respect to independent claim 1, Appellants and the Examiner
argue the definition of “canopy” with respect to the Stelmasik reference. We
find that Appellants have not identified a specific definition in the
Specification and the Specification discusses “canopy” in the alternative
with a shelf. (Spec. Tflf 2, 19, 25, 26, original claim 10). We find that the
Davis reference clearly evidences the well-known use of two screws
(threaded rod) and coupling nut for leveling a “canopy or shelf.” (Davis Fig.
2).
The Examiner maintains:
5 We address the combination of the three references (Davis, Stelmasik, and
Niekrasz) rather than the obviousness rejection based upon the Stelmasik
reference alone or the combination of the Stelmasik and Niekrasz references.
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The Appellant argues that even if element 13 is a canopy, one
would only apply the bracket of Davis to Stelmasik’s door 11,
not to part 13. However, providing the bracket of Davis between
the frame and the canopy of Stelmasik also provides adjustment
of door 11. Applying the bracket of Davis between the canopy
and frame provides leveling of the canopy, similarly to the
leveling of Davis’ shelf. Putting Davis’ bracket between the
canopy and the frame would allow the adjustment of links
22/22A to remain unchanged. The proposed combination
involves simply bolting on a known adjustment mechanism
(Davis') to parts of Stelmasik’s invention to achieve the
predictable result of adjustability with a reasonable expectation
of success.
(Ans. 10).
Appellants contend that the tertiary rejection also fails to establish a
prima facie case of obviousness. (App. Br. 12—13). Appellants contend that
the Examiner identifies element 13 as the canopy, but the Stelmasik
reference indicates element 13 as a pivot assist mechanism. We find the
Examiner is referring to the housing with which the pivot assist mechanism
would be found at the top panel of the merchandiser, which does not have its
own element number. Appellants further contend that “[t]he Examiner also
does not explain how or why this combination of elements would be
achieved. Merely stating that the elements were known is not sufficient to
establish a prima facie case of obviousness.” Appellants further argue that
the Examiner has not provided an articulated reasoning to support the
conclusion. (App. Br. 12).
The Examiner provides a more detailed discussion of the combination
in the response to arguments at pages 10—11 of the Examiner’s Answer. The
Examiner further maintains that Appellants are arguing the references
individually rather than the combination.
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In the Reply Brief, Appellants provide a conclusory paragraph stating
The Examiner argues that, apparently motivated to align a
door based on what is taught by Niekrasz, one of ordinary skill
in the art would turn to Davis's shelf bracket to attach the bracket
to the top wall of Stelmasik. (Answer pgs. 10-11). This logic
ignores the fact that if Niekrasz provides motivation to align a
door, it also teaches how a door could be aligned. There is no
reason for one of ordinary skill in the art to search for another
solution to the problem, especially to search for a solution in the
unrelated field of shelf brackets. Stelmasik’s top wall is not a
shelf or used to support an object, so it would not initially be
viewed by one of ordinary skill in the art as needing leveling. If
Stelmasik’s door needed adjusting, Niekrasz teaches that
adjustable hinges are suitable for this purpose. Niekrasz’s hinges
would not require a redesign of the case structure. Accordingly,
there is no reason provided in the cited references for one of
ordinary skill in the art to somehow adjust the door by using the
device taught in Davis. Incorporating the device of Davis would
require an additional reason that is not disclosed in the cited
documents or provided in the Examiner’s arguments. This gap
in the logic could only be filled by improper hindsight to meet
the claimed limitations.
(Reply Br. 6-1).6 We disagree with Appellants’ contention that Stelmasik’s
top wall is not a shelf or not used to support an object. We find that the
Stelmasik reference discloses “[t]he present system may have an adjustable
pivot assist mechanism for a door, sheet, panel or cover of a refrigerated,
heated, or temperature or non-temperature controlled enclosure which may
be used for merchandise display or storage or other purposes.” (Stelmasik
col. 1,11. 13—17). We note that this type of display case was well-known to
be used in the deli department of grocery stores to display and sell meats,
6 We the note there is no pagination in the Reply Brief, and we start our
numbering from the cover page.
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Application 14/622,245
cheeses, and other prepared foods where the scale and other display items
were generally on the top shelf or canopy, which would be desirable to be
leveled. Consequently, we find Appellants’ proffered distinction to be
unavailing. We agree with the Examiner that the claimed invention is
directed to well-known use and predictable use of the leveling mechanism of
the Davis reference to the display case of Stelmasik with additional variation
in doors as taught and suggested by the Niekrasz reference. We find
Appellants’ general arguments to the individual references of the
combination do not show error in the Examiner’s factual findings or the
conclusion of obviousness of representative independent claim 1.
With respect to claims 9, 11—16, and 22—24, Appellants rely upon the
arguments advanced with respect to independent claim 1 which we found
unpersuasive of error. (App. Br. 13—14).
Because Appellants have not set forth separate arguments for
patentability of claims 2, 5—9, 11—16, and 21—24, we group these claims as
falling with representative independent claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
With respect to the Declaration of Michael Gillett, Declarant Gillett
provides a general discussion of each of the references (Declaration || 5—7),
and then provides a general discussion of the application (Declaration | 8).
Declarant Gillett next generally describes “existing merchandisers” with
canopies (which are not of record, nor relied on in the rejection) and
describes how they are leveled (Declaration || 10-11). Declarant Gillett
finally concludes without any persuasive analysis stated to support the
contention that:
Based on my review of Stelmasik, Roberts, and Davis, and
considering the differences regarding the claimed invention
relative to what is taught by these references, it would not have
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been obvious to arrive at the merchandiser recited in claim 1 or
claim 9.
(Declaration 112). We find the declaration unavailing to show error in the
Examiner’s factual findings or combination of the Stelmasik, Niekrasz, and
Davis references teaching or suggesting the invention as recited in
independent claim 1.
CONCLUSIONS
The Examiner erred in rejecting claims 22 and 24 based upon a lack
of written description support under 35 U.S.C. § 112(a), but the Examiner
did not err in rejecting claims 1, 2, 5—9, 11—16, and 21—24 as obvious under
35 U.S.C. § 103 over the combination of the Stelmasik, Niekrasz, and Davis
references (and the Fevig reference which has not been separately argued).
DECISION
For the above reasons, we reverse the Examiner’s written description
rejection of claims 22 and 24, but we sustain the Examiner’s obviousness
rejection of claims 1, 2, 5—9, 11—16, and 21—24 over the combination of
Stelmasik, Niekrasz, and Davis.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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