Ex Parte Saxena et al

Patent Trial and Appeal Board

Jul 6, 2017

11945231 (P.T.A.B. Jul. 6, 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.
11/945,231 11/26/2007 Sunit Saxena 364930-991200 7006
26379 7590
DLA PIPER LLP (US )
2000 UNIVERSITY AVENUE
EAST PALO ALTO, CA 94303-2248
EXAMINER
JUNGE, KRISTINA N S
ART UNIT PAPER NUMBER
3638
NOTIFICATION DATE DELIVERY MODE
07/10/2017 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):
PatentDocketingU S -Palo Alto @ dlapiper. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUNIT SAXENA and SHAN KUMAR
Appeal 2015-007981
Application 11/945,231
Technology Center 3600
Before JENNIFER D. BAHR, JAMES P. CALVE, and
SEAN P. O’HANLON, Administrative Patent Judges.
O’HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Sunit Saxena and Shan Kumar (Appellants)1 appeal under 35 U.S.C.
§134 from the Examiner’s July 9, 2013 final decision (“Final Act.”)
rejecting claims 1—4 and 6—23.2 We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
1 According to Appellants, the real party in interest is Altierre Inc. Br. 1.
2 Claim 5 is canceled. Id. at 9 (Claims App.).
Appeal 2015-007981
Application 11/945,231
SUMMARY OF THE DECISION
We AFFIRM but denominate the affirmed rejections of claims 1—4
and 6-9 as NEW GROUNDS OF REJECTION.
SUMMARY OF THE INVENTION
Appellants’ disclosure is directed to “[a] device and method for
displaying one or more display devices.” Spec. 1:6. Claim 1, reproduced
below from page 9 (Claims Appendix) of the Appeal Brief, is illustrative of
the claimed subject matter:
1. A shelf edge device, comprising:
a shelf edge rail device having a first end and a second
end rotatably mounted at the first end and the second end on a
shelf edge that has an adjustable angular position, the shelf edge
rail device capable of retaining two or more display devices at
an angle based on a height of the shelf relative to a floor of a
store;
the shelf edge rail device further comprising a C-shaped
mounting channel into which the two or more display devices
are snapped and a mounting bracket located at each one end of
the mounting channel that secures the mounting channel to a
shelf, the mounting bracket having a ratcheting mechanism and
a set of teeth wherein the ratcheting mechanism and the set of
teeth cooperate to maintain the shelf edge rail device in a
particular adjustable angular position; and
wherein the shelf edge rail device protects the display
device from damage.
REJECTIONS
Claims 1, 4, 6, 7, 9, 10, 12, 15—18, and 20-23 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Dalton (US 6,000,611, issued
Dec. 14, 1999) and Kump (US 6,119,990, issued Sept. 19, 2000).
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Application 11/945,231
Claims 2, 3, 13, and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dalton, Kump, and Thompson (US 6,935,061 B2,
issued Aug. 30, 2005).
Claims 8, 11, and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dalton, Kump, and Gay (US 6,302,282 Bl, issued Oct.
16, 2001).
ANALYSIS
Rejection Based on Dalton and Kump
Claims 1, 4, 6, 7, and 9
The Examiner finds that Dalton discloses a shelf edge device
substantially as recited in claim 1, including, inter alia, a shelf edge rail
device (electronic price label containment portion 24)3 rotatably mounted on
a shelf edge and including a mounting bracket (shelf coupler 26) having a
ratcheting mechanism and a set of teeth (protrusions 68). Final Act. 2—3
(citing Dalton, 2:22—24, 2:27—29, 3:1—8, Figs. 2, 4. The Examiner explains
that:
In Figure 2 of Dalton, the ends of the shelf edge rail device are
rotatably mounted near the ends at #66 and #64, described at
col. 2, lines 58-61. As one of these rotation mechanisms appear
on each side of the shelf edge rail device, it is considered to be
at each end.
Ans. 2. The Examiner finds that Dalton does not disclose the shelf edge rail
device being capable of retaining multiple display units. Final Act. 3. The
Examiner finds that Kump discloses a shelf edge device with first and
3 Parentheticals refer to the terminology of the cited references.
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Application 11/945,231
second ends mounted at first and second ends of a shelf and being capable of
retaining multiple display devices, and reasons that it would have been
obvious to one of ordinary skill to incorporate these teachings into Dalton’s
device
in order to allow multiple different products stored on a shelf to
have their own display device and to provide one convenient
rail edge for attaching all of the devices . . . and to further
provide as many rotatable mountings/brackets as necessary at
ends and in the middle of the rail in order to provide a secure
connection between the device and the shelf edge.
Id. at 3 (citing Dalton, 1:8—12).
Appellants traverse, arguing that Dalton discloses an electronic price
label (“EPL”) mounting device, but “the mounting device can house a single
EPL and the single EPL is not snapped into the mounting device.” Br. 5.
Appellants also argue that Kump discloses a holder for an electronic
information carrier, but the holder “is not. . . [rotatably mounted] at each
end.” Id. at 6.
Appellants’ arguments fail to apprise us of error. The Examiner relies
on Kump, not Dalton, to teach a shelf edge rail device capable of retaining
multiple electronic displays. Final Act. 3. Similarly, the Examiner relies on
Dalton, not Kump, to disclose a shelf edge rail device that is rotatably
mounted at its ends. Id. at 2; see also Ans. 2. Regarding the recitation that
the display device is snapped into the C-shaped mounting channel, Dalton
discloses that “[hjousing 16 is substantially box-like in shape and includes
pairs of locking tabs 20 and 21 and feet 22 (FIG. 3) for retaining EPL 12
within device 14.” Dalton 2:22—24; see also Final Act. 2—3. Dalton further
discloses that “EPL 12 is inserted within EPL containment portion 24 by
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Application 11/945,231
inserting the bottom edge and feet 22 first, and inserting the lop edge and
locking tabs 20 and 21 last.” Dalton 2:31—33; see also Ans. 2—3 (citing
Dalton, Fig. 2). Thus, Dalton discloses that its EPL is snapped into the
housing.
Appellants also argue that neither Dalton nor Kump discloses a
ratcheting mechanism as recited in claim 1. Br. 6. Regarding Dalton,
Appellants assert that “the EPL24 has a portion of the ratcheting mechanism
or teeth and thus Dalton does not disclose the claimed mounting bracket
with the [ratcheting] mechanism and the set of teeth.” Id.
The Examiner answers that by “looking at Figure 2 of Dalton it can be
clearly seen that the mounting bracket #26 has a ratcheting mechanism and a
set of teeth at #82 and #68, which is not on [EPL containment portion] #24.”
Ans. 3.
Appellants’ arguments fail to apprise us of error. Initially, we note
that Dalton reference 24 refers to the EPL containment portion, not the EPL
itself. See Dalton 2:27. Dalton discloses that “[d]imples 82 work with
protrusions 68 to retain EPL containment portion 24 at a fixed angular
orientation 0 (FIGS. 4 and 5) with respect to shelf coupler 26.” Dalton 3:6—
8; see also id. Figs. 4—5. Dalton further discloses that protrusions 68 are part
of shelf coupler retainers 64, 66, which are part of EPL containment portion
24, and dimples 82 are on shelf coupler 26. Id. at 2:58—3:5, Fig. 2. Both
EPL containment portion 24 and shelf coupler 26 are part of mounting
device 14. Id. at 2:25—26. We disagree with the Examiner’s finding that
Dalton’s protrusions 68 are not part of EPL containment portion 24, but
agree with the Examiner’s conclusion that both the ratcheting mechanism
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(dimples 82) and the set of teeth (protrusions 68) are part of the mounting
bracket rather than the EPL. See Final Act. 8; Ans. 3. We consider Dalton’s
mounting device 14, specifically shelf coupler retainers 64, 66 and shelf
coupler 26, to correspond to the recited mounting bracket. We note that this
is consistent with Appellants’ disclosure that their mounting bracket 22 is
provided in two, relatively rotatable parts. See, e.g., Spec. 6:6—12.
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 1, and its dependent claims 4, 6, 7, and 9, which are not argued
separately, as being unpatentable over Dalton and Kump. Because our
rationale for affirmance differs from that of the Examiner, we designate the
affirmance as a new ground of rejection, pursuant to 37 C.F.R. § 41.50(b), to
provide Appellants an opportunity to respond thereto.
Claims 10, 12, 15—18, and 20
Independent claim 10 recites a shelving system having a shelf edge
rail device substantially the same as that of claim 1. Br. 10 (Claims App.).
The Examiner rejects claim 10 in a similar manner as with respect to the
rejection of claim 1. Final Act. 4—5.
Appellants traverse, arguing that Dalton’s “mounting device can
house a single EPL” and Kump’s holder “is not. . . [rotatably mounted] at
each end.” Br. 6—7. These arguments do not apprise us of error for the
reasons set forth above regarding the rejection of claim 1.
Accordingly, we sustain the rejection of claim 10, and its dependent
claims 12, 15—18, and 20, which are not argued separately, as being
unpatentable over Dalton and Kump.
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Claims 21—23
Independent claim 21 recites a method for shelving items using a shelf
edge rail device substantially the same as that of claim 1. Br. 11—12 (Claims
App.). The Examiner rejects claim 21 in a similar manner as with respect to
the rejection of claim 1. Final Act. 4—5.
Appellants traverse, arguing that Dalton’s “mounting device can
house a single EPL” and Kump’s holder “is not. . . [rotatably mounted] at
each end.” Br. 7.4 These arguments do not apprise us of error for the
reasons set forth above regarding the rejection of claim 1.
Accordingly, we sustain the rejection of claim 21, and its dependent
claims 22 and 23, which are not argued separately, as being unpatentable
over Dalton and Kump.
Rejection Based on Dalton, Kump, and Thompson
With respect to the rejection of claims 2, 3, 13, and 14, Appellants
rely on the arguments presented above in regard to the rejection of claims 1
and 10. Id. at 7—8. Accordingly, for the same reasons as discussed above,
we sustain the rejection of claims 2, 3, 13, and 14 as being unpatentable over
Dalton, Kump, and Thompson. We designate the affirmed rejection of
claims 2 and 3, which depend from claim 1, as a new ground of rejection,
pursuant to 37 C.F.R. § 41.50(b), for the reasons discussed above in
connection with the rejection of claim 1.
4 Although Appellants state that their arguments are in regard to claim 20
(see Br. 7), we understand this to be a typographical error and that
Appellants intended to reference independent claim 21.
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Rejection Based on Dalton, Kump, and Gay
With respect to the rejection of claims 8, 11, and 19, Appellants rely
on the arguments presented above in regard to the rejection of claims 1 and
10. Id. at 8. Accordingly, for the same reasons as discussed above, we
sustain the rejection of claims 8, 11, and 19 as being unpatentable over
Dalton, Kump, and Gay. We designate the affirmed rejection of claim 8,
which depends from claim 1, as a new ground of rejection, pursuant to
37 C.F.R. § 41.50(b), for the reasons discussed above in connection with the
rejection of claim 1.
DECISION
The Examiner’s decision to reject claims 1, 4, 6, 7, 9, 10, 12, 15—18,
and 20—23 as being unpatentable over Dalton and Kump is affirmed, but the
affirmance is designated as a new ground of rejection.
The Examiner’s decision to reject claims 2 and 3 as being
unpatentable over Dalton, Kump, and Thompson is affirmed, but the
affirmance is designated as a new ground of rejection.
The Examiner’s decision to reject claims 13 and 14 as being
unpatentable over Dalton, Kump, and Thompson is affirmed.
The Examiner’s decision to reject claim 8 as being unpatentable over
Dalton, Kump, and Gay is affirmed, but the affirmance is designated as a
new ground of rejection.
The Examiner’s decision to reject claims 11 and 19 as being
unpatentable over Dalton, Kump, and Gay is affirmed, but the affirmance is
designated as a new ground of rejection.
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Application 11/945,231
NEW GROUND
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review.” Section
41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new Evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to
the examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record. . . .
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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: 37 C.F.R, $ 41.50(b)
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