14225890 (P.T.A.B. May. 22, 2017)

Ex Parte Russ

Patent Trial and Appeal BoardMay 22, 2017

14225890 (P.T.A.B. May. 22, 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. 14/225,890 03/26/2014 William RUSS COOLTOPS-OOl-COC 6738 62008 7590 05/24/2017 MAIER & MAIER, PLLC 345 South Patrick Street ALEXANDRIA, VA 22314 EXAMINER PATEL, KIRAN B ART UNIT PAPER NUMBER 3612 NOTIFICATION DATE DELIVERY MODE 05/24/2017 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): patent @ maierandmaier. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILLIAM RUSS Appeal 2016-004947 Application 14/225,890 Technology Center 3600 Before JOSEPH L. DIXON, JOHN A. EVANS, and STEVEN M. AMUNDSON, Administrative Patent Judges. AMUNDSON, Administrative Patent Judge. DECISION ON APPEAL Appellant seeks our review under 35 U.S.C. § 134(a) from a final rejection of claims 1—12, i.e., all pending claims. Claims 13 and 14 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE The Invention According to the Specification, the invention “relates to accessory equipment for riding vehicles and, in particular, to a fan and canopy Appeal 2016-004947 Application 14/225,890 assembly for a riding vehicle.” Spec. 12.1 The Specification explains that “[a] riding vehicle is provided with a downdraft fan assembly mounted on a vehicle roll bar for providing a flow of ambient air over the vehicle operator and a canopy carried by the fan assembly and providing solar and precipitation protection for the operator.” Abstract. Exemplary Claim Independent claim 1 exemplifies the subject matter of the claims under consideration and reads as follows: 1. A canopy assembly for a riding vehicle, comprising: a canopy; an opening in the canopy; and a downdraft fan; wherein at least one of the downdraft fan or canopy is mounted to a riding vehicle and the canopy and downdraft fan are configured to secure together, such that the downdraft fan is accommodated proximate the opening in the canopy. App. Br. 6 (Claims App.). The Rejection on Appeal Claims 1—12 stand rejected under 35 U.S.C. § 102(b) as anticipated by Russ (US 6,202,394 Bl; Mar. 20, 2001). Final Act. 2-3; Ans. 2-3. 1 This decision uses the following abbreviations: “Spec.” for the Specification, filed March 26, 2014; “Final Act.” for the Final Office Action, mailed May 18, 2015; “Br.” for the Appeal Brief, filed October 19, 2015; and “Ans.” for the Examiner’s Answer, mailed February 3, 2016. 2 Appeal 2016-004947 Application 14/225,890 ANALYSIS We have reviewed the rejection of claims 1—12 in light of Appellant’s arguments that the Examiner erred. For the reasons explained below, we disagree with Appellant’s assertions regarding error by the Examiner. We add the following to address and emphasize specific findings and arguments. In this decision, we have considered only those arguments actually made by Appellant. Arguments that Appellant could have made but did not make in the Appeal Brief have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). Second, just as “[i]t is not the function of [the U.S. Court of Appeals for the Federal Circuit] to examine the claims in greater detail than argued by an appellant, looking for nonobvious distinctions over the prior art,” In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991), “it is not the function of this Board to examine claims in greater detail than argued by an appellant, looking for nonobvious distinctions over the prior art.” Ex parte Post, No. 2005-2042, 2006 WF 1665399, at *4 (BPAI. Jan. 1, 2006). Any special meaning assigned to a term “must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention.” Multiform Desiccants Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) (“A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description.”). 3 Appeal 2016-004947 Application 14/225,890 The Rejection of Claims 1—12 Under 35 U.S.C. § 102(b) Based on Appellant’s arguments in the Appeal Brief, we will decide the appeal with respect to representative claim 1 alone. See 37 C.F.R. §41.37(c)(l)(iv). Appellant argues that the Examiner erred in rejecting independent claim 1 because “Russ does not teach or suggest each and every limitation of claim 1.” Br. 3. Appellant does not, however, identify any specific limitation allegedly missing from Russ. Id. at 2—3. As the Examiner notes, “Appellant has failed to provide any specific explanation regarding why they believe the claims to not be anticipated.” Ans. 4. The applicable rules “require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.” In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Appellant admits that “Russ discloses a downdraft fan system attachable to a riding lawnmower and other lawn/farm equipment includes a rotary fan within a supporting frame that is attachable to a roll-bar component of the lawnmower so as to be positioned in a horizontal plane directly above the operator of the lawnmower.” Br. 3; see Spec. 13. Thus, Appellant admits that Russ discloses several features in claim 1. The Examiner finds that Russ discloses a canopy, an opening in the canopy, and a downdraft fan arranged as recited in claim 1. Final Act. 2 (citing Russ Figs. 1—5); Ans. 2, 4 (citing Russ Figs. 1—5). For example, Russ Figure 5 is reproduced below. 4 Appeal 2016-004947 Application 14/225,890 39 Figure 5 depicts a canopy, an opening in the canopy, and a downdraft fan arranged as recited in claim 1. A “canopy” is “a protective covering.”2 Consistent with that definition, claim 2 indicates that a canopy provides “at least some protection” from sunlight or rain. App. Br. 6 (Claims App.). The roof structure in Figure 5 “provides protection for the operator” and serves as a canopy. Russ 4:54—55. In addition, Russ discloses another embodiment of a riding vehicle with a fan and a canopy, i.e., a “Bimini top.” Id. 4:51—54. Based upon our review of the record, we find Appellant has failed to present substantive arguments supported with specific factual evidence of sufficient character and weight to persuade us of error regarding the Examiner’s findings concerning the cited reference. 2 Merriam-Webster.com, https://www.merriam-webster.com/dictionary/ canopy. 5 Appeal 2016-004947 Application 14/225,890 For the reasons discussed above, we are not persuaded that the Examiner erred in rejecting claim 1 as anticipated by Russ. Hence, we sustain the rejection of claim 1. Because Appellant does not make any separate patentability arguments for any of dependent claims 2—12, we sustain the rejection of claims 2—12 for the same reasons as claim 1. See 37C.F.R. §41.37(c)(l)(iv). DECISION We affirm the Examiner’s decision to reject claims 1—12. 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). AFFIRMED 6