Ex Parte Stewart

Patent Trial and Appeal Board

Aug 26, 2013

11067743 (P.T.A.B. Aug. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte KENNETH G. STEWART, III
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Appeal 2011-009414
Application 11/067,743
Technology Center 3600
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Before: JOHN C. KERINS, SCOTT A. DANIELS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

DANIELS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-009414
Application 11/067,743
2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
4, 14, 15, 18, 20 and 25-28. Claims 1, 14, and 18 are independent. Claims
5-13, 16, 17 and 19 are canceled. Claims 21 and 24 are withdrawn, and
claims 22 and 23 are objected to as being dependent upon a rejected base
claim. Final Off. Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

The claims are directed to a device for implement storage, specifically
“[a] support which includes the shape of a hook is disclosed which can
function as a hanger or as a support.” Spec. 2, para. [0002]. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A device for facilitating storage of an implement
comprising,
an implement,
a member having two arms extending in a generally
parallel direction with a first end of each arm joined by a
spanning section and with each arm having a portion shaped to
prevent removal from a holding portion,
a base forming a monolithic portion of the implement,
the base having a channel holding portion for retaining the
joined arms on the base and
the base and member being adapted for slidable
movement of the member along the length of the arms, with
respect to the base, between a storage position and a use
position wherein the member is exposed for supporting the
implement.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:

Appeal 2011-009414
Application 11/067,743
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Seng
Duban-Hu
US 828,519
US 6,923,325 B2
Aug. 14, 1906
Aug. 2, 2005

REJECTIONS
The Examiner made the following rejections:
Claims 1, 2, 18, 20, 25, 26, and 28 stand rejected under 35 U.S.C. §
102(b) as being anticipated by Duban-Hu. Ans. 4.
Claims 3, 4, 14, 15, and 27 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Duban-Hu and Seng. Ans. 5.

ANALYSIS
Claims 1, 2, 18, 25, 26, and 28 as anticipated by Duban-Hu
Claims 1 and 18
The Examiner found that Duban-Hu discloses each of the elements of
independent claims 1 and 18 including an implement, a base housing 24 with
channel portions 126, and handle or hook members 32, 34, having two
parallel arms connected by a spanning section where the free ends of the
arms have a retaining portion 120 shaped to prevent removal of the arms
from the channel portions 126. Ans. 4. The Examiner further found that
Duban-Hu discloses that the base and channel portions 126 can be integrally
formed as a one-piece configuration and are thus a “monolithic” element,
retaining the handle or hook members 32, 34 for slidable movement
between a storage position and a use position as called for in claims 1 and
18. Ans. 4-5.
Appellant argues that Duban-Hu fails to disclose the base and
channels 126 forming a “monolithic portion of the implement” as recited in
both claims 1 and 18. App. Br. 3-4. Appellant asserts that Duban-Hu
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Application 11/067,743
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separately attaches the channel (or bracket) portions 126 to the base and
argues that “welded or attached parts are not ‘monolithic’ because when they
are joined they do not form a solid uniform mass.” App. Br. 4. Appellant
contends that Duban-Hu’s disclosure of an “integrally molded” channel or
bracket is still a separately attached element to the base, and therefore not
monolithic. Id.
Appellant’s Specification provides no definition of “monolithic” aside
from stating that “[t]he connector 3 may be formed monolithically with the
base bracket 4.”1 Spec. 4, para. [00021]. A common definition of
“monolithic” is “constituting a single unit.” THE PENGUIN ENGLISH
DICTIONARY (2003) (retrieved from
http://www.credoreference.com/entry/penguineng/monolithic) (last accessed
Aug. 14, 2013). The term “integral” does not exclude a unitary construction.
See In re Van Ormer, 255 F.2d 947, 948 n.3 (CCPA 1958) (interpreting
“monolithic” as synonymous with “integral” in connection with a recited
monolithic rim structure). In the context of Duban-Hu’s disclosure
explaining that all the components can be injection molded (Duban-Hu col.
4. ll. 34-36) and describing alternative constructions of the base housing 24
and brackets 126 as “welded or integrally molded thereon or otherwise
attached” (Duban-Hu col. 3. ll. 30-31) (emphasis added), the preponderance
of the evidence before us suggests that “integrally molded” is understood as
a one-piece, unitary construction of the housing 24 and brackets 126. We

1 Appellant suggests that “‘monolithic’ means a solid uniform mass,” but no
supporting reference is provided and nowhere does the Specification state or
suggest that the material of the device should be uniform throughout its
interior. App. Br. 4. The Specification explains only that “[t]he connector 3
may be formed monolithically with the base bracket 4[,] or formed
separately.” Spec. 4, para. [00021].
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are therefore not apprised of error in the Examiner’s interpretation that
integrally molded parts result in a one-piece, monolithic configuration of
Duban-Hu’s housing 24 and brackets 126. Accordingly, we sustain the
Examiner’s rejection of independent claims 1 and 18 as anticipated by
Duban-Hu.
Claim 2
Appellant argues that claim 2 is not anticipated for the same reason as
claim 1. App. Br. 5. Inasmuch as we sustain the Examiner’s rejection of
claim 1 and Appellant has failed to identify any facts or articulate any
technical reasoning that distinguish claim 2 from the cited prior art, we
sustain the Examiner’s rejection of claim 2 for the same reasons as stated
herein with respect to claim 1.
Claims 25 and 26
Claim 25 depends directly from claim 1, and additionally recites that
“the member includes a wider portion that forms an interference fit with the
channel in the storage position.” The Examiner’s position is that the detents
120 disclosed by Duban-Hu form an interference fit with the channel
(brackets 126) in the use position. Ans. 4-5.
Appellant argues that the detents 120 are not a press fit or interference
fit as understood in the art, but are actually “stops” which do not provide
frictional holding force as required in an interference fit, and merely abut
against the channel to “arrest upward movement of the handle.” App. Br. 5.
We agree. A common dictionary definition of “interference fit” is “[a]
match between the size and shape of two parts, such that force is required for
assembly as one part is slightly larger than the other.” COLLINS ENGLISH
DICTIONARY (2000) (retrieved from
http://www.credoreference.com/entry/hcengdict/interference_fit) (last
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Application 11/067,743
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accessed Aug. 14, 2013). The Examiner’s finding that the definition of an
interference fit broadly encompasses the abutment of Duban-Hu’s detent 120
on the edge of the bracket 126 is not supported by any evidence or technical
rationale. Ans. 6. The finding does not explain how the detent, or stop on
the handle, which merely abuts against an edge of the bracket 126 to prevent
further relative movement, provides a matching shape between the two
components with one component being slightly larger than the other, or that
they are forced together to achieve the use (or the storage) position. The
Examiner has not established by a preponderance of the evidence that
Duban-Hu discloses an interference fit between the handle 32, 34, the detent
120 and bracket 126 and therefore we do not sustain the Examiner’s
rejection of claim 25. Claim 26 is dependent directly upon claim 25 and we
also do not sustain the rejection of claim 26.
Claim 28
Claim 28 depends from claim 18 and recites “wherein the member
and base form an interference fit in one of the storage position and the use
position.” As discussed above with respect to claim 25, Duban-Hu does not
disclose an interference fit between the detent and bracket components and
for the same reasons as set forth above, we do not sustain the anticipation
rejection of claim 28.
Claims 3, 4, 14, 15, and 27 as unpatentable over Duban-Hu and Seng and
claim 20 as anticipated by Duban-Hu
Claims 3 and 4
Claims 3 and 4 both depend from claim 2, which in turn depends from
claim 1. Appellant relies on the unpersuasive arguments discussed above
regarding claim 1 for the patentability of claims 3 and 4. We are not

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apprised of Examiner error by this argument and accordingly sustain the
Examiner’s rejection of claims 3 and 4 as unpatentable over Duban-Hu and
Seng.
Claims 14, 15, and 27
Independent claim 14 includes the limitation “a second enlarged
retaining portion on the elongated member located to hold the member in an
interference fit in one of the following a) the use position… b) the storage
position.” As discussed above with respect to claims 25 and 28, Duban-Hu
does not disclose an interference fit between any components, either in a use
position or a storage position. Seng does not cure this deficiency, and we do
not sustain the rejection of claim 14 as unpatentable in view of Duban-Hu
and Seng. Claims 15 and 27 both depend directly from claim 14 and we also
do not sustain the rejections of these dependent claims for the same reasons.
Claim 20
Claim 20 depends from claim 14 and the stated basis for the rejection
of claim 20 does not cure the deficiencies in the rejection of claim 14.2 We
do not sustain the rejection of claim 20.

2 Claim 20, indicated in the Answer as anticipated by Duban-Hu is
dependent directly upon claim 14 which is rejected under 35 U.S.C. § 103(a)
as being unpatentable over Duban-Hu and Seng. Clms. Appx. Appellant
correctly points out that claim 20 is improperly rejected as anticipated by
Duban-Hu where its base claim, claim 14, is rejected as unpatentable over
Duban-Hu and Seng. App. Br. 7. We therefore address claim 20 in our
Analysis in conjunction with the appropriate base claim 14.
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DECISION
For the above reasons, the Examiner’s rejection of claims 1-4 and 18
is AFFIRMED.
The Examiner’s rejection of claims 14, 15, 20, 25, 26, 27, and 28 is
REVERSED.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011).

AFFIRMED-IN-PART

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