12709994 - (D) (P.T.A.B. Mar. 27, 2014)

Ex Parte Smith

Patent Trials and Appeals BoardMar 27, 2014

12709994 - (D) (P.T.A.B. Mar. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte FORREST SMITH ____________________ Appeal 2012-004018 Application 12/709,994 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, EDWARD A. BROWN, and LYNNE H. BROWNE, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-004018 Application 12/709,994 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1 and 3-361. App. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A product cushioning structure for supporting a shock sensitive product in an outer packaging container having a plurality of container walls, said cushioning structure comprising: at least two interconnected outer container-contacting panels for supporting and stabilizing the cushioning structure within the outer packaging container in at least two mutually perpendicular directions; an inwardly facing hollow crushable box cell provided on each of said outer-container contacting panels to provide shock absorption support to said product during shock loading conditions, each said crushable box cell comprising: an inner product-supporting panel for supporting the shock sensitive product within the cushioning structure, and intermediate wall panels extending between said inner product supporting panel and a unitary planar component formed by one of said outer container-contacting panels providing an outer wall of said crushable box cell, and wherein at least one opposing pair of said intermediate wall panels are inclined such that said crushable box cell has a trapezoidal shape in cross section; wherein said unitary planar component is bonded to said open crushable box cell at the periphery thereof to inhibit splaying of said inclined intermediate wall panels in the 1 Claim 2 has been canceled by Appellant. Appeal 2012-004018 Application 12/709,994 3 presence of a shock loading in a direction normal to said inner product-supporting panels; and wherein said outer container-contacting panels and said inner product-supporting panels are made of a stiff paper-board material; and wherein said interconnected outer container-contacting said panels are arranged in or foldable into a mutually angled configuration so that said cushioning structure provides shock absorption support to said product during shock loading conditions in at least two mutually perpendicular directions. Evidence The Examiner relied on the following evidence in rejecting the claims on appeal: Warych Yamamoto US 4,874,095 US 6,199,700 B1 Oct. 17, 1989 Mar. 13, 2001 Rejections The following rejections are before us for review: Claims 1, 5-19, and 23-36 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Yamamoto. Claims 3, 4, and 20- 22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Yamamoto and Warych. OPINION Claim 1 requires, in relevant part, “an inner product-supporting panel” and “intermediate wall panels extending between said inner product supporting panel and a unitary planar component . . . wherein at least one opposing pair of said intermediate wall panels are inclined . . . wherein said unitary planar component is bonded to said open crushable box cell at the Appeal 2012-004018 Application 12/709,994 4 periphery thereof to inhibit splaying of said inclined intermediate wall panels.” Claim 19 contains similar limitations. Claim 36 recites, in relevant part, “at least one outer container contacting wall” and “a hollow box cell comprising an inner product supporting panel and inclined wall panels formed from a single sheet . . . wherein said outer container contacting wall and said single sheet are bonded, glued, welded, or otherwise joined together . . . wherein [said] outer container contacting wall is adapted to inhibit splaying apart of the wall panels.” The Examiner finds the above limitations in claims 1, 19, and 36 to be met by Yamamoto, stating that the “at least one opposing pair of said intermediate wall panels are inclined (16 are inclined), [and] . . . said unitary planar component is bonded (bonding disclosed, such as in col. 7: 35-53; col. 8: 36-47; col. 9: 1-9; col. 11: 27-37; col. 13: 28-41) to said open crushable box cell at the periphery thereof to inhibit, splaying of said inclined intermediate wall panels.” Ans. 6. The Examiner asserts that “a joint is comprised of an end, surface, or edge, all of which are walls.” Id. at 10. The Examiner then finds: Figure 10 shows this joint structure (which as defined above is an end, surface or edge) has a surface with a thickness and along that thickness is a wall. The feature at 16 is occurring at the middle place, is an upright structure of other material serving to divide, and is a distinct part of a surface and is therefore an intermediate wall panel. Id. at 10. The Examiner, citing “Merriam Webster,” relies upon the definition of “wall” as an “upright structure of masonry, wood, plaster, or other building material serving to enclose, divide or protect [an] area and something resembling a wall in appearance, function, or construction, as the exterior surface of a body organ or part.” Id. The Examiner, again citing Appeal 2012-004018 Application 12/709,994 5 “Merriam Webster,” also relies upon the definition of “panel” as “a separate or distinct part of a surface.” Id. Appellant argues that Yamamoto fails to disclose inclined intermediate wall panels because elements 16 of Yamamoto identified by the Examiner as intermediate inclined wall panels are actually joint structures or chamfered right-angled joints. App. Br. 15-16, 18. We agree with Appellant that the Examiner fails to show that Yamamoto discloses intermediate inclined wall panels. The Examiner’s position is that the mitered (i.e., “angle cut”) end faces 16 of sheet portions 11, 12, 13, 14, and 15 in Yamamoto constitute inclined intermediate wall panels. This position is not reasonable when the terminology “wall panel” is read in light of Appellant’s Specification and within the context of the claims as a whole. Appellant’s Specification clearly uses the terms “wall” (i.e., “wall sections”) and “panel” to describe discrete sheets or discrete sheet portions that can be folded relative to one another. See Spec. 8, paragraphs [0037]-[0038]; Fig. 3. Further, each of Appellant’s independent claims 1, 19, and 36 includes a functional recitation directed to inhibiting “splaying” or “splaying apart” of said inclined “wall panels.” The concept of splaying or spreading apart is not applicable to an edge or end face of a sheet portion. Thus, when claims 1, 19, and 36 are read in their entirety, in light of Appellant’s Specification and taking into account the functional recitation directed to “splaying” or “splaying apart” of said inclined “wall panels,” it is quite clear that the claimed inclined “wall panels” cannot reasonably be construed as mere edges of sheets or sheet portions. We are mindful of the dictionary definitions of “wall” and “panel” relied upon by the Examiner in construing the claims. However, we also note other Appeal 2012-004018 Application 12/709,994 6 definitions of the term “panel,” such as “any distinct section or component of something formed from a sheet of material, especially of a car body, the spine of a book, etc.”2 or “a comparatively thin, flat piece of wood or the like, as a large piece of plywood”3 that are more in keeping with the terminology “wall panels” in the context of Appellant’s disclosed and claimed invention. Accordingly, we reverse the Examiner’s rejection of claims 1, 5-19, and 23-36 under 35 U.S.C. § 102(b) as anticipated by Yamamoto. The Examiner’s application of the teachings of Warych in rejecting the remaining claims depending from independent claims 1 and 19 does not make up for the deficiency in the rejection of these independent claims. Thus, we also reverse the rejection of claims 3, 4, and 20-22 under 35 U.S.C. § 103(a) as unpatentable over Yamamoto and Warych. DECISION The Examiner’s decision rejecting claims 1 and 3-36 is reversed. REVERSED hh 2 panel. (2000). In Collins English Dictionary. Retrieved March 25, 2014, from http://search.credoreference.com/content/entry/hcengdict/panel/0. 3 panel. (n.d.). Dictionary.com Unabridged. Retrieved March 25, 2014, from http://dictionary.reference.com/browse/panel.