Ex Parte Sees

Board of Patent Appeals and Interferences

Jun 14, 2011

11034171 (B.P.A.I. Jun. 14, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BENJAMIN SEES
____________

Appeal 2009-012568
Application 11/034,171
Technology Center 3600
____________

Before WILLIAM F. PATE III, LINDA E. HORNER, and
FRED A. SILVERBERG, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Benjamin Sees (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s decision rejecting claims 1-18. We have jurisdiction under
35 U.S.C. § 6(b). We REVERSE.
THE INVENTION
Appellant’s claimed invention relates to a window jamb liner
mountable in the side jambs of a double hung window for securing window
sash assemblies. Spec. 1:6-8. Claim 1, reproduced below, is representative
of the subject matter on appeal.
1. A double hung window assembly, comprising:
upper and lower sash assemblies each having a sash
height;
opposing side jambs;
a pair of opposing jamb liners comprising a jamb liner
length generally equal to a length of the opposing side jambs,
sash tracks on each of the jamb liners securing the upper and
lower assemblies to the opposing side jambs, and at least one
jamb recess located between the sash tracks on each of the jamb
liners;
a pair of jamb fillers each having a length generally equal
to the jamb liner length and retained in each of the jamb
recesses, each jamb filler having an outer weather stripping
recess and an inner weather stripping recess;
an outer weather stripping having a length generally
equal to the height of the upper sash assembly and attached in
the outer weather stripping recess; and
an inner weather stripping having a length generally
equal to the height of the lower sash assembly and attached in
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the inner weather stripping recess, wherein the jamb filler
comprises a primary exposed surface that is substantially
unobstructed by the inner and outer weather stripping.
THE REJECTIONS
Appellant seeks review of the following rejections:
1. The Examiner rejected claims 1, 2, 5-11, and 14-17 under 35 U.S.C.
§ 103(a) as being unpatentable over Rhode (US 7,228,660 B2 issued
Jun. 12, 2007).
2. The Examiner rejected claims 3, 4, 12, 13, and 18 under 35 U.S.C.
§ 103(a) as being unpatentable over Rhode and Hendrickson (US
6,305,126 B1 issued Oct. 23, 2001).
CONTENTIONS AND ISSUE
The Examiner found that Rhode discloses the window assembly of
claim 1 except that Rhode discloses the weather stripping hooked beneath
the jamb liner instead of attached to a recess in the jamb filler, as claimed.
Ans. 3-4. The Examiner found that “[t]he attachment of the weather
stripping to the jamb filler is functionally equivalent to the attachment to the
liner shown in [Rhode]” and that “[t]his functional equivalency would have
been obvious to one of ordinary skill in the art at the time of invention.”
Ans. 4. In particular, the Examiner found that the proposed modification to
Rhode would entail “a simple removal of an unwanted element
(intermediary member designated at 37 or 114) to remove the barrier
forming separate channels and to connect the weather strip and filler
together rather than to an intermediary.” Ans. 9. The Examiner determined
that one having ordinary skill in the art would have been motivated to attach
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the weather strip of Rhode to the jamb filler as “that attachment would
simplify the jamb filler and thus make manufacture easier and cheaper which
is always desirable in the art.” Ans. 4; see also Ans. 11. The Examiner
relied on the same findings and analysis of Rhode for the conclusion of
obviousness of claims 2, 5-11, and 14-17 based on Rhode and for the
conclusions of obviousness of claims 3, 4, 12, 13, and 18 based on Rhode
and Hendrickson. Ans. 6.
Appellant disputes the Examiner’s finding that the removal of
intermediate member 37 and attachment of Rhode’s weather strip 22 to the
jambliner cover 24 is functionally equivalent to the structure disclosed in
Rhode. App. Br. 8. In particular, Appellant argues that this proposed
modification “would result in the weather strip 22 not being free floating
and/or the jambliner cover 24 and the weather strip 22 being free to flip out
of the jambliner due to the spring force of the weather strip 22, neither of
which are [sic] in accord with the purposes of Rhode.” Id.
The issue presented by this appeal is whether the Examiner has
articulated an adequate reason with rational underpinning to explain why a
person having ordinary skill in the art at the time of the invention would
have modified Rhode to attach the weather strip to a recess in the jambliner
cover.
ANALYSIS
Independent claims 1 and 18 are directed to a window assembly
having a pair of jamb fillers, each jamb filler having an outer weather
stripping recess and an inner weather stripping recess, and inner and outer
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weather stripping attached in the inner and outer weather stripping recesses,
respectively.
Rhode discloses a window jamb assembly 10, including a jambliner
20, weather strips 22, and jambliner covers 24. The jambliner 20 includes
sash assembly recesses 26 and 28 and two weather strip recesses 32 and 34
disposed between the sash assembly recesses 26 and 28 for retaining the
weather strips 22 and the jambliner covers 24. Rhode, col. 2, ll. 25-42;
figs. 1 and 2. Rhode does not disclose weather strips 22 attached in recesses
in the jambliner covers 24. Rather, Rhode discloses that the weather strips
22 are attached via a pair of resilient legs 42 and 44 to shoulders 56 which
are at a forward most position of the weather-strip recess 32 in jambliner 20.
Rhode, col. 3, l. 65 – col. 4, l. 4; fig. 2. In another embodiment, Rhode
discloses that the weather strip 122 has a first leg 126 having an end portion
128 with a hook-like configuration to engage one of the tabs 116 on
jambliner 102 and a second leg 130 having an end portion 132 projecting
toward a common wall 112, which engages the shoulder 114 of the
jambliner 102. Rhode, col. 4, ll. 56-67; fig. 4.
We fail to see why a person having ordinary skill in the art would
have been led by the disclosure in Rhode or by common sense to omit the
portion of the jambliner disclosed in Rhode that lies between the weather
strip and the jambliner cover. We agree with Appellant that elimination of
this portion of the jambliner would result in the weather strip and jambliner
cover being free to flip out of the jambliner due to the spring force acting on
the weather strip. App. Br. 8. See Rhode, col. 3, ll. 57-65; fig. 2 (describing
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a foam block 46 that fits between the resilient legs 42 and 44 of weather strip
22 and provides a spring force to push weather strip 22 up against the
window sash 16 to provide a weather seal) and Rhode, col. 5, ll. 1-9; fig. 4
(describing a spring member 134 attached on the opposite side of leg end
portion 132 of weather strip 122 and comprised of a hinge 136 and a leg
portion 138 to provide a spring force to bias the weather-strip 122 in a
sealing position).
The rationale provided by the Examiner for the proposed
modification, viz, elimination of the portion of the jambliner between the
jambliner cover and the weather strip in Rhode “would simplify the jamb
filler and thus make manufacture easier and cheaper,” (Ans. 4; see also
Ans. 11) is insufficient in light of Appellant’s argument that such a
modification would be disadvantageous to the purpose and design of the
prior art window assembly. Further, we do not agree with the Examiner’s
interpretation that Rhode teaches toward such a modification. Ans. 11.
While Rhode discloses, with reference to the embodiment of Figure 2, that
the chamber 36 disposed between the weather-strip recesses 32 and 34 could
be eliminated (see Rhode, col. 3, ll. 48-53), Rhode does not suggest that the
portion of the jambliner itself located between the recesses 32 and 34 could
likewise be eliminated. Rather, Rhode discloses, in the embodiment of
Figure 4, which omits the chamber 36 of the first embodiment between the
recesses, that a portion of the jambliner (common wall 112) is still present
between the weather-strip recesses. Rhode, col. 4, ll. 44-52; fig. 4.
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CONCLUSION
The Examiner has failed to articulate an adequate reason with rational
underpinning to explain why a person having ordinary skill in the art at the
time of the invention would have modified Rhode to attach the weather strip
to a recess in the jambliner cover.
DECISION
The decision of the Examiner to reject claims 1-18 is REVERSED.

REVERSED

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