Ex Parte Rothweil

Patent Trial and Appeal Board

Jul 31, 2017

13958119 (P.T.A.B. Jul. 31, 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.
13/958,119 08/02/2013 Daniel A. ROTHWEIL 93093UAY 9346
20529 7590 08/02/2017
NATH, GOLDBERG & MEYER
Joshua Goldberg
112 South West Street
Alexandria, VA 22314
EXAMINER
HAWK, NOAH CHANDLER
ART UNIT PAPER NUMBER
3636
NOTIFICATION DATE DELIVERY MODE
08/02/2017 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):
USPTO@nathlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL A. ROTHWEIL
Appeal 2016-001489
Application 13/958,1191
Technology Center 3600
Before MICHAEL J. STRAUSS, MICHAEL M. BARRY, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
16—30, which are all pending claims. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellant’s Brief (“Br.”) identifies the real party in interest as THE FAIR
GUYS, INC. Br. 3.
Appeal 2016-001489
Application 13/958,119
CLAIMED SUBJECT MATTER
The claims are directed to a collapsible food protective enclosure.
Claim 16, reproduced below, is illustrative of the claimed subject matter:
16. A collapsible food protective enclosure,
comprising:
a flexible cover with an outer surface, the cover
comprising a base, a beam retainer, at least first and second beam
pockets, and at least one side wall with an opening;
a flexible flap to cover the opening attached to the outer
surface of the cover directly above the opening in the at least one
side wall, the flap having a tree-hanging bottom edge with a
ballast sleeve containing a ballast, wherein the ballast is
contained only in the ballast sleeve along the tree-hanging
bottom edge; and
a flexible structural beam retained in the beam retainer
with a first end anchored in the first beam pocket and a second
end anchored in the second beam pocket, the flexible structural
beam holding the cover in an upright position;
wherein the flap is longer and wider than the opening and
the ballast forces the free-hanging bottom edge of the flap to rest
against the at least one side wall to close the opening.
Br. 19 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Gidge US 4,313,485 Feb. 2, 1982
Bishop US 5,078,096 Jan. 7, 1992
Varley US 7,131,481 B2 Nov. 7, 2006
Tomason US 2003/0024560 A1 Feb. 6, 2003
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Appeal 2016-001489
Application 13/958,119
REJECTIONS
Claims 16, 17, 21—24, 26—28, and 30 stand rejected under 35 U.S.C. §
103(a) as unpatentable over Bishop and Gidge. Final Act. 2.
Claims 18-20 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Bishop, Gidge, and Varley. Final Act. 5.
Claims 25 and 29 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bishop, Gidge, and Tomason. Final Act. 6.
ISSUES
(1) In rejecting the claims as obvious, has the Examiner improperly
combined Bishop and Gidge?
(2) Has the Examiner erred in finding Bishop and Gidge teach or
suggest a “flap having a free-hanging bottom edge with a ballast sleeve
containing a ballast, wherein the ballast is contained only in the ballast
sleeve along the free-hanging bottom edge,” as recited in independent claim
16 and commensurately recited in independent claim 22?
(3) Has the Examiner erred in finding Bishop and Gidge teach or
suggest “the ballast forces the free-hanging bottom edge of the flap to rest
against the at least one side wall to close the opening,” as recited in the
independent claims 16 and 22?
(4) Has the Examiner erred in finding Bishop and Gidge teach or
suggest “wherein the flap can be bunched up and rolled about the ballast, to
be positioned at the top of the opening,” as recited in claim 22?
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Appeal 2016-001489
Application 13/958,119
ANALYSIS
First Issue
In rejecting claim 16 as obvious over Bishop and Gidge, the Examiner
finds Bishop teaches all of the recited elements except for the use of a ballast
as recited in the independent claims. Final Act. 3. The Examiner finds
Gidge teaches a food protective enclosure with a flap that includes a ballast
sleeve containing a ballast wherein the ballast is contained only in the sleeve
along a free-hanging bottom edge. Id. The Examiner finds a person of
ordinary skill in the art at the time the invention was made would have
combined the relevant teachings of Bishop and Gidge. Id. More
specifically, the Examiner finds an ordinarily skilled artisan would have
modified the device taught by Bishop to include a ballast in a sleeve as
taught by Gidge “in order to, as Gidge teaches, ‘improve the hang of the’
flap.” Id. (quoting Gidge col. 3,1. 55).
Appellant contends the proposed combination is improper because
Bishop teaches away from the combination proposed by the Examiner.
Br. 11. Appellant offers several reasons for why a person of ordinary skill
would not have modified Bishop in the manner proposed. First, Appellant
argues the Bishop enclosure shown in Figure 1 already includes fabric hooks
(35) and fasteners (36) which are used to retain the flap (34) against the
enclosure. Br. 12. According to Appellant, the presence of the hooks and
fasteners teaches away from using a ballast to retain the flap against the
enclosure, as Bishop obviates the need for a ballast by providing an
alternative capability for retaining the flap. Id. Appellant also argues
Bishop’s container, which is intended for use as tent for a pet, is
significantly larger than Appellant’s claimed protective food enclosure. Id.
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Application 13/958,119
According to Appellant, “[t]he use of a ballast with the flaps of Bishop . . .
constitutes a danger to a user in that, should the flap be raised and then
released, it would be possible to hit the user on the head.” Id. at 13. In view
of this potential danger, Appellant reasons that a person of ordinary skill
would not include a ballast in Bishop “for fear of injuring a user.” Id.
We are not persuaded the Examiner erred in combining Bishop and
Gidge. We agree with the Examiner’s explanation, as set forth in the
Answer (Ans. 2—3), that the desire for improved alignment of the flap, and
not retention of the flap, would be the primary motivation for added Gidge’s
ballast to the Bishop enclosure. Id. (citing Gidge col. 3,11. 54—58). As such,
we agree with the Examiner that the fact that Bishop uses hooks and
fasteners to secure the flap (34) against the enclosure would not discourage a
skilled artisan from incorporating the ballast from Gidge in order to ensure
flap hangs correctly in a closed position. We also agree with the Examiner’s
explanation of why Appellant’s reliance on the purported size of Bishop’s
enclosure would not lead an ordinarily skilled artisan away from the
combination. The Examiner finds, and we agree, Bishop’s tent is not
necessarily a “full-size tent” as Appellant contends. Ans. 3^4. As explained
by the Examiner, Bishop teaches the enclosure “may be used for housing,
containment, and carriage of pets.” Id. (citing Bishop col. 1,11. 2—22). We
further note Bishop expressly teaches the “invention relates generally to
containers for housing and carriage of small domestic pets.” Bishop col. 1,
11. 1—2 (emphasis added). Because the Bishop enclosure is intended for use
with small domestic pets, we are not persuaded a potential risk of head
injury caused by falling ballast would dissuade a skilled artisan from making
the proposed modification.
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Appeal 2016-001489
Application 13/958,119
Second Issue
Appellant also contends the independent claims are not obvious over
Bishop and Gidge because they teach or suggest “a flap having a free-
hanging bottom edge with a ballast sleeve containing a ballast, wherein the
ballast is contained only in the ballast sleeve along the free-hanging bottom
edge.” Br. 13. Appellant argues Gidge is deficient because it uses “two or
more lengths of rods 42” as ballast, while Appellant’s claims recite “a
flexible flap having a free-hanging bottom edge with a ballast sleeve
containing ballast.” Br. 14. According to Appellant, in the invention recited
in the independent claims, “[t]he ballast in the ballast sleeve is a single
elongate rod inserted into a sleeve along the free-hanging bottom edge of the
flap,” citing the Specification at paragraph 6. Id.
We are not persuaded by this argument. Nothing in the language of
the claim indicates the claim is limited to a ballast which is only a single
elongate rod inserted in the sleeve. The claim recites “a ballast sleeve
containing a ballast.” Our reviewing court has made clear that unless a more
limited construction is indicated by the specification, the indefinite article
“a” is construed in a claim to mean “one or more.” KCJ Corp. v. Kinetic
Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000). The portion of the
specification cited by Appellant is merely an example of what ballast “may
be,” and we note it also indicates “ballast may be granular material such as
sand or metal pellets stuffed inside the sleeve of the flap.” Spec. 1 6.
Because the meaning of ballast encompasses the use of multiple rods as
disclosed in Gidge, we find no error in the Examiner’s finding with respect
to the recited “ballast.”
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Appeal 2016-001489
Application 13/958,119
Third Issue
Appellant also contends Gidge does not “teach that the ballast forces
the free-hanging bottom edge of the flap to rest against at least one side wall
to close the opening, as recited in claims 16 and 22.” Br. 13. Appellant
asserts “Gidge teaches that the sleeve and ballast are located on the inside of
the cover so that any condensation on the outside of the curtain will run off
the bottom of the curtain.” Br. 14. According to Appellant, “[i]n the [sic]
this configuration, the bottom edge of the cover does not rest against the side
wall to close the opening, but rather, the ballast rests against the side wall
leaving the opening substantially uncovered.” Br. 14.
We are not persuaded by this argument for two reasons. First, Figures
2, 7, and 8 of Gidge are each contrary to the characterization of Gidge
offered by Appellant. In each of these examples, the bottom edge of the
cover is shown to be in complete contact with the sidewall, and the cover is
shown completely shielding the opening in the sidewall, with the ballast (42
in Fig. 2, and 70 in Fig. 7) resting against the wall to close the opening.
Second, even if the Gidge ballast left a small gap to allow dripping
condensation to escape, Bishop’s hanging flap unambiguously shows its
bottom edge resting against sidewall to close the opening. See, e.g., Bishop
Figs. 1—3.
Fourth Issue
Appellant also presents an argument specific to claim 22, arguing the
cited combination does not disclose “wherein the flap can be bunched up
and rolled about the ballast, to be positioned at the top of the opening,” as
recited. Br. 15. More specifically, Appellant argues the flexible, transparent
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Application 13/958,119
curtain described by Gidge would be difficult and impractical to roll and
bunch up because it has slits 28A and 28B in it. Br. 16.
We are not persuaded by this argument because the Examiner does
not rely on Gidge alone to show this limitation. We agree with, and adopt as
our own, the Examiner’s explanation for why this argument is not
persuasive:
The examiner proposes only modifying Bishop with the addition
of the ballast sleeve and ballast, not by changing the size of the
device or incorporating the slits of the Gidge flap. Additionally,
as can be clearly seen in Bishop, Fig. 2, Bishop already teaches
that the flap is reliable and positioned at the top of the opening.
Having a relatively stiff rod at the bottom would only serve to
increase the ease with which the user may roll the flap, not
increase the difficulty as appellant asserts.
Br. 5.
Remaining Claims
We are not persuaded by Appellant’s arguments that the Examiner has
erred in rejecting independent claims 16 and 22 under 35 U.S.C. § 103.
Appellant presents no separate arguments for patentability regarding any of
the dependent claims. As such, we also sustain the rejections of dependent
claims 17—21 and 23—30.
DECISION
The Examiner’s rejections of claims 16—30 are 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).
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Appeal 2016-001489
Application 13/958,119
AFFIRMED
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