Ex parte Shapiro

Board of Patent Appeals and Interferences

Sep 25, 1997

08181075 (B.P.A.I. Sep. 25, 1997)

Application for patent filed January 14, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is not
binding precedent of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte HAROLD L. SHAPIRO

_____________
Appeal No. 96-1996
Application 08/181,0751
______________
ON BRIEF
_______________
Before MEISTER, ABRAMS and STAAB, Administrative Patent Judges.
ABRAMS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 96-1996
Application 08/181,075
2
This is an appeal from the decision of the examiner finally
rejecting claims 12 through 27, which constitute all of the
claims remaining of record in the application.
The appellant's invention is directed to a member for
blocking the closing of a sliding door, and to a method for doing
so. The subject matter before us on appeal is illustrated by
reference to claim 15, which reads as follows:
15. In a sliding closure assembly including a frame and a
sliding closure member which is slidable in said frame between an
open position and a closed position, the improvement comprising a
child safety device which includes:
a blocking member having two parallel opposed sides; and
an attachment member comprising a strap having a width and
opposed ends, said attachment member being attached to said
blocking member at one of said opposed ends, the other of said
opposed ends of said attachment member being attached to said
frame, whereby as said sliding member is moved from said closed
position to an open position, said blocking member is urged into
an operable position between said sliding member and said frame
so as to prevent said sliding member from being slid into said
closed position.
THE REFERENCES
The references relied upon by the examiner to support the
final rejection are:
Hoopes, Jr. (Hoopes) 1,664,174 Mar. 27, 1928
Salerno 4,165,553 Aug. 28, 1979
Salvador et al. (Salvador) 5,369,840 Dec. 6, 1994
Appeal No. 96-1996
Application 08/181,075
PTO translation enclosed.2
These are new rejections made for the first time in the3
Examiner's Answer.
3
Matti 152,184 Apr. 1, 19322
(Swiss reference)
THE REJECTIONS
Claims 12 through 20 and 23 through 27 stand rejected under
35 U.S.C § 103 as being unpatentable over the Swiss reference.
Claims 21 and 22 stand rejected under 35 U.S.C. § 103 as
being unpatentable over the Swiss reference in view of Hoopes.
Claims 12 through 19 and 21 through 27 also stand rejected
under 35 U.S.C. § 103 as being unpatentable over the Swiss
reference in view of Salerno.3
Claim 20 also stands rejected under 35 U.S.C. § 103 as being
unpatentable over the Swiss reference in view of Salerno and
Salvador.3
The rejections are explained in the several Answers.
The opposing viewpoints of the appellant are set forth in
the several Briefs.
OPINION
The appellant's invention is directed to a method for
blocking a sliding door from closing (claims 12 and 13), and to a
blocking member which is suspended from the frame of a sliding
Appeal No. 96-1996
Application 08/181,075
4
door by an attaching member in such a fashion as to allow it to
move by means of gravity into a position interposed between the
door and the frame so that the door is blocked from closing
(claims 15 through 27).
All of the rejections are under 35 U.S.C. § 103. In making
such a rejection, the examiner bears the initial burden of
presenting a prima facie case of obviousness (see In re
Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993) and In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992)), which is established when the teachings
of the prior art itself would appear to have suggested the
claimed subject matter to one of ordinary skill in the art (see
In re Bell, 991 F.2d 781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir.
1993) and In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147
(CCPA 1976)).
In the first rejection of independent claims 12 and 15, the
examiner has taken the position that the subject matter would
have been obvious in view of the teachings of the Swiss
reference. It is the examiner's view that one of ordinary skill
in the art
would have recognized the teachings of the Swiss
reference, used in a swinging door, and would have
found it obvious to apply those teachings to a sliding
Appeal No. 96-1996
Application 08/181,075
5
door environment, as is claimed by applicant, since
both are providing a means to prevent a door from
completely closing (Answer, page 4).
The examiner's position is undermined out the outset by the
fact that the Swiss reference does not disclose a device for
preventing a door from closing, but for absorbing some of the
force of closing in order to prevent the door from slamming
noisily or being damaged (translation, page 2). The fact that
the door is not prevented from closing is clear from by the last
sentence on page 2 of the translation, which states that the door
is shown in its closed position in bold lines in Figure 5. The
Swiss device comprises a pad 5 mounted on a spring 1. The spring
is attached to a door frame of a swinging door perpendicular to
the door and such that the front face of the pad can intercept
the closing door. As the door swings closed, it engages the
front of pad 5 and its closing force is absorbed by the action of
the spring.
Insofar as the appellant's claims are concerned, this
reference has three basic deficiencies. First, its purpose is
not to block a door from closing, but merely to slow its closing.
Second, there is no teaching in the reference of using it with a
sliding glass door. Third, in order to install the device in
such a fashion as to intercept a closing sliding door with the
Appeal No. 96-1996
Application 08/181,075
6
front of pad 5, which is the manner of use disclosed, the spring
would have to be attached within the track of the sliding door,
thereby rendering the door unclosable.
The device disclosed in the Swiss reference is not intended
to be utilized to block a door from closing, much less to block a
sliding door from closing. From our perspective, the only way
this device could possibly be made to work with a sliding door is
to intercept the door with the side of pad 5 rather than the
front, a mode of operation not contemplated in the reference.
However, we fail to perceive any teaching, suggestion or
incentive which would have led one of ordinary skill in the art
to do so. It therefore is our view that the Swiss reference
would not have suggested to one of ordinary skill in the art the
method of preventing a sliding glass door from being completely
closed which is recited in independent claim 12, and thus it
fails to establish a prima facie case of obviousness with regard
to independent claim 12 or to claim 13, which depends therefrom.
The rejection of method claims 12 and 13 as being
unpatentable over the Swiss reference is not sustained.
Independent claim 15 is directed to an improvement in a
sliding closure assembly including a frame and a closure member,
and comprises a blocking member having two parallel opposed
Appeal No. 96-1996
Application 08/181,075
7
sides, and an attachment member attached to the blocking member.
The attachment member is in turn attached to the closure frame in
such a fashion that when the sliding closure is moved from the
closed to the open position, the blocking member is urged into an
operable position to block the closing of the sliding closure.
The Swiss reference does not disclose a frame and a sliding
closure. Member 5, which contacts the door, is of rounded
construction, and thus fails to have the "two parallel opposed
sides" which are required by claim 15. These factors, taken with
the shortcomings pointed out above with regard to method claim
12, cause us to conclude that the teachings of this reference
fail to establish a prima facie case of obviousness with regard
to the subject matter of claim 15.
Therefore, we will not sustain the rejection of independent
claim 15 or, it follows, of dependent claims 16 through 19 and 21
through 27, which depend therefrom, as being unpatentable over
the Swiss reference.
Claims 21 and 22 stand rejected on the basis of the Swiss
reference plus Hoopes, the latter being cited for its teaching of
providing "a door blocking member having a square cross section"
(Answer, page 5), which in the examiner's view would have been
obvious to install in the Swiss device "in order to provide a
Appeal No. 96-1996
Application 08/181,075
8
more efficient door blocking member" (Answer, page 6). The
examiner's position here is undermined by the fact that the
blocks in the Hoopes door retaining system do not contact the
door, but support a spring which does so (Figure 2; page 1,
column 2). From our perspective, there would have been no
suggestion to one of ordinary skill in the art to substitute them
for pad 5 of the Swiss reference. In the final analysis, the
teachings of Hoopes do not overcome the deficiencies in the Swiss
reference, and therefore this rejection of claims 21 and 22 is
not sustained.
Both of the independent claims also stand rejected as being
unpatentable over the Swiss reference taken in view of Salerno,
which discloses a device for blocking a sliding door from
closing. Unlike the Swiss reference, the Salerno device is
gravity biased into position rather than being spring biased. As
shown in Figure 1, Salerno mounts a weighted ball 6 upon a rod 7
which, in turn, is attached to the door frame. The ball rests
against the surface of the sliding door, and when the door is
moved from its closed position, ball 7 falls into a position in
the path of the door to block it from closing.
It is the examiner's position that it would have been
obvious
Appeal No. 96-1996
Application 08/181,075
9
to have adapted the door blocking member of Swiss to an
installation in a sliding door environment, as taught
by Salerno so as to provide blocking . . . as well as
lessen the sound of closing the door" (Answer, page 7).
However, this would require utilizing the Swiss pad in a manner
not taught by the reference, that is, as a blocking device rather
than an absorber, and with the side rather than the front of pad
5 in contact with the door. From our perspective, the only
suggestion for doing so is found in the luxury of the hindsight
accorded one who first viewed the appellant's disclosure which,
of course, is impermissible. See In re Fritch, 972 F.2d 1260,
1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992).
Thus, a prima facie case of obviousness is not established,
and we will not sustain this rejection of claims 12 through 19
and 21 through 17.
Nor will we sustain the rejection of claim 20, which depends
from claim 15, as being unpatentable over the Swiss reference and
Salerno, taken further with Salvador. While Salvador discloses
attaching a door stop to the door frame with hook-and-loop
fasteners, it does not cure the deficiencies in the combination
of the two basic references, which were discussed above.
None of the rejections are sustained.
The decision of the examiner is reversed.
Appeal No. 96-1996
Application 08/181,075
10
REVERSED
)
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
NEAL E. ABRAMS )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
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