29276899 (B.P.A.I. Dec. 19, 2011)

Ex Parte Rosaen

Board of Patent Appeals and InterferencesDec 19, 2011

29276899 (B.P.A.I. Dec. 19, 2011)

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. 29/276,899 02/08/2007 LARS ROSAEN RLA-10617/01 1387 25006 7590 12/20/2011 GIFFORD, KRASS, SPRINKLE,ANDERSON & CITKOWSKI, P.C PO BOX 7021 TROY, MI 48007-7021 EXAMINER RADEMAKER, CHARLES GARTH ART UNIT PAPER NUMBER 2913 MAIL DATE DELIVERY MODE 12/20/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte LARS ROSAEN ________________ Appeal 2010-001119 Application 29/276,899 Technology Center 2900 ________________ Before LINDA E. HORNER, STEVEN D.A. McCARTHY and BIBHU R. MOHANTY, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s 1 final decision rejecting the sole claim on appeal under 35 U.S.C. § 103(a) as 2 being unpatentable over Sarriugarte (US D404,074 S, issued Jan. 12, 1999) 3 and Thomsen (US 2,173,217, issued Sep. 19, 1939). We have jurisdiction 4 under 35 U.S.C. § 6(b). 5 We REVERSE.6 1 The Appellant is the real party in interest. App App 5 as sh6 repro7 top p8 6 15 claim16 stem17 mate18 plan19 of a 20 of th21 shoo22 desig23 17 rigid18 eal 2010-0 lication 29 The App own and d duced bel lan views Figures ed design of a wire- rial. Figu t support to plant exten e conical s ts. The pl n. Sarriuga picture ho 01119 /276,899 ellant clai escribed.” ow, are re depicting 1-3 of the . Figures like mater re 1 also d mount th d upward piral, whe ant, the sta rte disclos lder.” (Sa ms an “orn Drawing spectively the claime application 2 and 3 de ial termina epicts a ho e plant sup ly out of th reby the p ke and the es an “orn rriugarte, 2 amental d Figures 1 perspectiv d design. depict a p pict the pl ting in a c llow stake port abov e ground lant suppo ground fo amental de Claim). S esign for P -3 of the a e, right sid lant supp ant suppor onical spi which rec e the grou and betwe rt provide rm no par sign for a arriugarte LANT SU pplication e elevatio ort embod t as includ ral of the w eives the nd. Multi en the con s support f t of the cla card, plac depicts th PPORT, , nal and ying the ing a shor ire-like stem of th ple shoots volutions or the imed ard or e design in t e App App Figu3 desig4 4 9 Figu10 mate11 mate12 end i13 14 spira15 same16 Figu17 in us18 15 eal 2010-0 lication 29 re 1, which n: Figure 1 re 1 depict rial termin rial. The s n a plane Thomsen lly wound in a subst res 4 and 5 e: 01119 /276,899 is a front of Sarriug s the card ating at a traight len spiral. discloses plant hold antially ho of Thom elevation arte depic holder as lower end gth of the a “plant s er proper rizontal p sen are per 3 al view of ts a card h including a in a conic wire-like m upporting and means osition.” ( spective v a card hol older emb straight l al spiral of aterial te device com for rotata Thomsen iews of th der embod odying the ength of a the wire- rminates a pris[ing] bly mainta , col. 1, ll. e support a ying the design. wire-like like t the uppe a flat, ining 21-24.) lone and r App App 2 10 wire11 Figu12 supp13 plan14 upw15 wher16 l. 5217 11 19 20 21 22 23 24 25 26 (Ans21 spira22 eal 2010-0 lication 29 Figure 4 -like mater re 4 also d ort. Figur t support a ardly out o eby the su – col. 2, l The Exa It in sp m se re fe ap . 3-4 (citat l from Sar 01119 /276,899 of Thoms ial termin epicts a ho e 5 depicts bove the g f the grou pport prov . 17.) miner con would hav the Sarri iral resolv odification condary p ference is atures sh plication o ions omitt riugarte’s en depicts ating in a p llow stake the stake round. M nd and bet ides supp cludes that e been ob ugarte des es, as tau of the ba rior art is so relat own in f those fe ed).) The design. 4 the suppo lane spira 4 which r 4 affixed i ultiple sho ween the c ort for the : vious . . . ign to en ght by T sic refere proper be ed that t one wo atures to th modificat rt as includ l 1 of the eceives th n the grou ots of a pl onvolutio plant 5. (S to modify d shortly homsen . nce in ligh cause the he appear uld sugg e other. ion would ing a stem wire-like m e stem 2 o nd to mou ant 5 exten ns of the s ee Thoms the wire after the . . This t of the applied ance of est the remove th 2 of a aterial. f the nt the d piral 1, en, col. 1, e upper Appeal 2010-001119 Application 29/276,899 5 The Examiner is correct in finding that both a holder embodying 1 Sarriugarte’s design and a structure as described by Thomsen may be 2 described broadly as a “wire-type support article.” (See Ans. 5-6.) 3 Nevertheless, “when the proposed combination of references involves 4 material modifications of the basic form of one article in view of another, 5 the nature of the articles involved is a definite factor in determining whether 6 the proposed change involves invention.” See In re Glavas, 230 F.2d 447, 7 450 (CCPA 1956). 8 Thomsen’s support is intended for a purpose, namely, for supporting 9 plants, different from the purpose for which a card holder embodying 10 Sarriugarte’s design would be intended. Thomsen’s support and a card 11 holder embodying Sarriugarte’s design are not so related that the appearance 12 of Thomsen’s support would have suggested the proposed modification to 13 Sarriugarte’s design. 14 This is particularly true because the modification which the Examiner 15 proposes to Sarriugarte’s design likely would have impaired the capacity of 16 a card holder embodying Sarriugarte’s design to function as a cardholder. 17 As the Appellant points out, the upper spiral of a card holder embodying 18 Sarriugarte’s design necessarily serves as a clip for holding cards. (See App. 19 Br. 4.) This impairment which the proposed modification might have caused 20 to the functioning of a card holder embodying Sarriugarte’s design would 21 have discouraged one of ordinary skill in the art from attempting the 22 proposed modification. We do not sustain the rejection of the claim on 23 appeal under § 103(a) as being unpatentable over Sarriugarte and Thomsen.24 Appeal 2010-001119 Application 29/276,899 6 DECISION 1 We REVERSE the Examiner’s decision rejecting the sole claim on 2 appeal. 3 4 REVERSED 5 6 7 mls 8