Ex Parte Sacks

Board of Patent Appeals and Interferences

Jan 15, 2008

10615967 (B.P.A.I. Jan. 15, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte RAEL SACKS
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Appeal 2007-3083
Application 10/615,967
Technology Center 3600
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DECIDED: January 15, 2008
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Before TONI R. SCHEINER, LORA M. GREEN, and RICHARD M.
LEBOVITZ, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-18, 21, and 22, all the claims remaining in the application. The
claims stand rejected as obvious over the prior art. We have jurisdiction
under 35 U.S.C. § 6(b). We reverse.

Appeal 2007-3083
Application 10/615,967

STATEMENT OF THE CASE
“The landscape edging strips of the present invention are made by co-
extruding two or more materials together to form an edging strip having one
or more interior longitudinally disposed channels that are adapt[ed] for
receiving a connector so as to connect . . . adjacent strip[s] to form a
somewhat continuous strip of landscape edging” (Spec. 8: 3-7). The
“connector comprises a sleeve portion having an internal body member with
one or more extending portions that are configured to be received in the
channels at the ends of two adjoining edging strips, which are received in the
sleeve portion” (Spec. 9: 2-5).
Claim 1 is representative, and reads as follows:
1. A landscape edging system, comprising:
an edging strip having a top surface, a bottom surface, a first
end and a second end, said edging strip having a relatively thin shell
layer disposed around a core layer, said core layer having one or more
longitudinal channels disposed therein, each of said channels having a
channel wall; and
a connector having a channel-shaped sleeve portion with an
open first end and an open second end, said open first end and said
open second end configured to receive said first end of said edging
strip or said second end of said edging strip in said sleeve portion, said
sleeve portion having an internal body member disposed therein, said
internal body member having one or more extending portions thereon,
each of said one or more extending portions configured to be received
in one of said channels of said edging strip.

The Examiner relies on the following references:
Lemelson US 3,933,311 Jan. 20, 1976
Walsh US 4,820,469 Apr. 11, 1989
Beladakis US 5,715,628 Feb. 10, 1998
Danna US 6,108,969 Aug. 29, 2000
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Appeal 2007-3083
Application 10/615,967

Wüster US 6,389,742 B1 May 21, 2002
Gruber DE 30 39 971 A1 May 27, 1982

The claims stand rejected as follows:
1. Claims 1, 6, 8, 9, 12, and 17 under 35 U.S.C. § 103(a) as unpatentable
over Lemelson and Beladakis.

2. Claims 2 and 21 under 35 U.S.C. § 103(a) as unpatentable over
Lemelson, Beladakis, and Gruber.

3. Claims 3-5 and 13-15 under 35 U.S.C. § 103(a) as unpatentable over
Lemelson, Beladakis, and Walsh.

4. Claims 7 and 16 under 35 U.S.C. § 103(a) as unpatentable over
Lemelson, Beladakis, and Wüster.

5. Claims 10, 11, and 18 under 35 U.S.C. § 103(a) as unpatentable over
Lemelson, Beladakis, and Danna.

All of the claims on appeal are directed to a landscape edging system
comprising an edging strip with one or more longitudinal channels, and a
connector that cooperates with the edging strip, wherein the connector has a
sleeve portion with open first and second ends, configured to receive the end
of the edging strip, and wherein the sleeve portion has an internal body
member with one or more extending portions thereon, configured to be
received in one or more of the channels of the edging strip.
All five of the rejections depend, at least in part, on Lemelson’s
disclosure of a coupling member (i.e., a connector) for fencing segments, so
we will address the rejections collectively.

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Appeal 2007-3083
Application 10/615,967

Figure 1 of Lemelson is reproduced immediately below:

Figure 1 depicts “an isometric view of sections of fencing . . . and a
coupling member for two sections thereof” (Lemelson, col. 1, ll. 54-56).
According to the Examiner, Lemelson discloses a landscape edging
system which includes edging strips with longitudinal channels 15B and
17B, and
a connector (20 of Figs. 1 and 4) having a channel shaped
sleeve portion (25, 26, 22, 27, 28 of Fig. 1; sleeve portion is
channel shaped in that [it] fits into channels 15B and 17B) with
an internal body member (22 of Figs. 1 and 4) with open first
and second ends (in that ends around 28B and 26A of Fig. 1 are
open) configured to receive the ends of the edging strip (in that
they join with edging strip), the sleeve having several extending
portions ((26A, 26B, 28A, and [2]8B of Figs. 1 and 2) thereon,
each of the extending portions configured to be received in one
of the channels of the edging strip.

(Answer 3.)
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Appeal 2007-3083
Application 10/615,967

The Examiner’s interpretation of the configuration of Lemelson’s
coupling member is incorrect. Lemelson’s “tubular formation 26 contain[s]
portions 26A and 26B which protrude outwardly from opposite sides of the
shank 22 and a portion 27 joining shank 22 to said tapered lower portion 23
and also defin[es] a second tubular formation 28” (Lemelson, col. 2, l. 68 to
col. 3, l. 4). These “tubular formations” do not constitute a “sleeve portion,”
as protrusions 26A, 26B, 28A, and 28B do not receive the ends of the
fencing strips, rather, they are received by, and fit into channels 15B and
17B on the fencing strips. Moreover, even if central shank 21, 22 of
Lemelson’s coupling member 20 can be said to have a sleeve portion that
receives the ends of edging or fencing strips, extending portions 26A, 26B,
28A, and 28B of Lemelson’s coupling member (which fit into tubular
formations 15 and 17) are clearly not internal to the sleeve portion.
As all of the rejected claims require a connector with a sleeve portion
configured to receive the end of an edging strip, wherein the sleeve portion
has an internal body member with projections configured to be received in
the channels of the edging strip, and Lemelson does not teach or suggest a
coupling member that meets this limitation, and none of the additional
references relied on by the Examiner cure this deficiency, we find that the
Examiner has not established an adequate factual basis for rejecting the
claims as unpatentable over the prior art.

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Appeal 2007-3083
Application 10/615,967

Accordingly, all of the rejections 1-5 under 35 U.S.C. § 103(a) are
reversed.

REVERSED

Ssc:

RICHARD A. RYAN
ATTORNEY AT LAW
8497 N. MILLBROOK AVENUE
SUITE 101
FRESNO, CA 93720
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