Ex Parte Trausch

Board of Patent Appeals and Interferences

Oct 27, 2010

11277411 (B.P.A.I. Oct. 27, 2010)

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.
11/277,411 03/24/2006 Robert J. TRAUSCH 39034.07.0001 4753
23418 7590 10/28/2010
VEDDER PRICE P.C.
222 N. LASALLE STREET
CHICAGO, IL 60601
EXAMINER
CHEN, JOSE V
ART UNIT PAPER NUMBER
3637
MAIL DATE DELIVERY MODE
10/28/2010 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT J. TRAUSCH
____________

Appeal 2009-009474
Application 11/277,411
Technology Center 3600
____________

Before WILLIAM F. PATE III, STEVEN D.A. McCARTHY and
MICHAEL W. O’NEILL, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009474
Application 11/277,411

2
STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 2
final decision rejecting claims 1-3 and 6-8. More specifically, the Examiner 3
rejects claim 6 under 35 U.S.C. § 102(b) as being anticipated by Shell (US 4
3,346,226, issued Oct. 10, 1967); claims 1, 2, 7 and 8 under 35 U.S.C. 5
§ 103(a) as being unpatentable over Meyers (US 6,189,707 B1, issued Feb. 6
20, 2001) and Shell; and claim 3 under § 103(a) as being unpatentable over 7
Meyers, Shell and Mastrodicasa (US 4,938,442, issued Jul. 3, 1990). The 8
Appellant has cancelled claims 4 and 5. We have jurisdiction over the 9
appeal under 35 U.S.C. § 6(b). 10
We AFFIRM. 11
Claims 1 and 6 are independent claims. Claim 6 is illustrative of the 12
claims on appeal: 13
6. A bracket for a shelf assembly, comprising: 14
a member having a top edge, a tapered bottom 15
edge, and a back edge; 16
a pair of prongs extending outwardly from the 17
back edge of the member; and 18
a plurality of slots in spaced and angled alignment 19
on the prongs, wherein the slots permit the 20
bracket to be installed in one of a plurality 21
of angularly aligned positions. 22
Claim 1 recites a shelf assembly including a pair of brackets 23
removably attached to a brace, “wherein the brackets have a plurality of 24
prongs that extend outwardly from a back edge of the bracket, and wherein 25
the prongs have a plurality of slots in spaced angled alignment, the slots 26
permitting the bracket to be connected to a supporting surface in one of a 27
plurality of positions.” 28
Appeal 2009-009474
Application 11/277,411

3
ISSUES 1
This appeal turns on two issues: 2
First, does Shell describe, with respect to claim 6, a 3
plurality of slots in spaced and angled alignment on a pair of 4
prongs extending outwardly from the back edge of a member? 5
(See Ans. 3-4 and 6; App. Br. 4). 6
Second, do the evidence and technical reasoning 7
underlying the rejection of claim 1 adequately support the 8
conclusion that a shelf assembly including a pair of brackets 9
removably attached to a brace, “wherein the brackets have a 10
plurality of prongs that extend outwardly from a back edge of 11
the bracket, and wherein the prongs have a plurality of slots in 12
spaced angled alignment, the slots permitting the bracket to be 13
connected to a supporting surface in one of a plurality of 14
positions,” would have been obvious? 15
The Appeal Brief includes statements separately addressing dependent 16
claims 2, 7 and 8. (See App. Br. 6-7). These statements rely exclusively on 17
the arguments provided for the rejections of independent claims 1 and 6. 18
(Id.) Likewise, the Appellant’s sole argument regarding the patentability of 19
claim 3 is that the teachings of Mastrodiscasa fail to remedy the perceived 20
deficiency in the combined teachings of Meyers and Shell. (See App. Br. 7-21
8). In view of the manner in which the Appellants frame their arguments 22
regarding the patentability of the independent claims, the arguments raise no 23
issue independent of the issues raised with respect to the independent claims. 24
Appeal 2009-009474
Application 11/277,411

4
FINDINGS OF FACTS 1
The record supports the following findings of fact (“FF”) by a 2
preponderance of the evidence. 3
1. We adopt the Examiner’s finding at page 3, lines 16-18 of the 4
Examiner’s Answer that Shell describes a “top edge, tapered bottom edge, a 5
pair of prongs (6a, 6b), plurality of slots (22, 30) in spaced and angled 6
alignment on the prongs.” (Ans. 3). 7
2. Shell discloses brackets 2. Each bracket 2 includes prongs or 8
hooked extensions 6a, 6b, depicted in Figure 1 as extending outwardly from 9
a back or rear edge 4 of the bracket 2. (Shell, col. 2, ll. 3-10). Shell 10
describes slots or notches 22, 26 on prong or hooked extension 6a. (Shell, 11
col. 2, ll. 31-47). Shell also describes slots or notches 30, 34 on prong or 12
hooked extension 6b. (Shell, col. 2, ll. 59-61 and col. 3, ll. 1-6). 13
3. Figures 2 and 4 of Shell depict the front wall 8 of an upright 10 14
intersecting slots or notches on the prongs or hooked extensions 6a, 6b. In 15
Figure 2, front wall 8 intersects the slot or notch 26 on the prong or hooked 16
extension 6a; and the slot or notch 34 on the prong or hooked extension 6b. 17
(See Shell, col. 3, ll. 15-22). In Figure 4, front wall 8 intersects slot or notch 18
22 on prong or hooked extension 6a; and slot or notch 34 on prong or 19
hooked extension 6b. (See Shell, col. 3, ll. 41-46). 20
4. A comparison of Figures 2 and 4 of Shell indicates that the 21
prong or hooked extension 6a and the slots or notches 22, 26 are at different 22
rotational orientations with respect to a common origin located in or near the 23
slot 34 in the two figures. In other words, Figures 2 and 4 depict the angular 24
orientation of the extent of the front wall 8 relative to the bracket 2 in the 25
two drawing figures as radiating from the common origin in or near the slot 26
Appeal 2009-009474
Application 11/277,411

5
or notch 32. The angular orientation of the extent of the front wall 8 relative 1
to the bracket 2 in each of the two drawing figures is at an angle to the other. 2
3
PRINCIPLES OF LAW 4
A claim under examination is given its broadest reasonable 5
interpretation consistent with the underlying specification. In re Am. Acad. 6
of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). In the absence of 7
an express definition of a claim term in the specification or a clear 8
disclaimer of scope, the claim term is interpreted as broadly as the ordinary 9
usage of the term by one of ordinary skill in the art would permit. In re 10
ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re 11
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Properties of preferred 12
embodiments described in the specification which are not recited in a claim 13
do not limit the reasonable scope of the claim. E-Pass Techs., Inc. v. 3Com 14
Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003). 15
16
ANALYSIS 17
First Issue 18
The Appellant contends: 19
It should be noted that Applicant's alignments A, B 20
and C each intersect two slots exclusively and 21
radiate from a common origin in angular alignment 22
to one another. See, e.g., Fig. 2. This is to be 23
distinguished from Shell, wherein no two pairs of 24
corresponding slots are so aligned. See, e.g., ̀2ٓ26 25
at Figs. 1-4. 26
(App. Br. 4). 27
Appeal 2009-009474
Application 11/277,411

6
The Examiner has not provided an explicit interpretation of claim 6. 1
On the other hand, it is not clear that the Appellant’s interpretation of claim 2
6 is the broadest reasonable interpretation of the claim. The term “plurality 3
of slots in spaced and angular alignment on the prongs” reasonably may be 4
interpreted as encompassing at least two slots, each slot of the at least two 5
slots being spaced and each slot of the at least two slots being aligned along 6
an angled alignment. This interpretation of the term “a plurality of slots in 7
spaced and angled alignment” is consistent with Figures 1 and 2 of the 8
Appellant’s drawing, which depict three pairs of slots, 46A, 48A; 46B, 48B; 9
and 46C, 48C, each slot of each pair being spaced from the other and each 10
pair of slots lying along an angled alignment A, B or C. Under this 11
interpretation, the Examiner’s finding that Shell anticipates claim 6 is 12
correct. 13
The correctness of the finding is illustrated by Figure 4 of Shell. Each 14
of Shell’s brackets 2 includes prongs or hooked extensions 6a, 6b extending 15
outwardly from a back or rear edge 4 of the bracket 2. (FF 2). The extent of 16
the front wall 8 of the upright 10 as the front wall 8 engages the prongs or 17
hooked extensions 6a, 6b defines an alignment. Since the prong or hooked 18
extension 6a is spaced from the prong or hooked extension 6b, the slot or 19
notch 22 on the prong or hooked extension 6a and the slot or notch 34 on the 20
prong or hooked extension 6b are spaced. The alignment of Figure 4 21
intersects exclusively the slot or notch 22 on the prong or hooked extension 22
6a and the slot or notch 34 on the prong or hooked extension 6b. (See FF 2 23
and 4). Consequently, the plurality of slots 22, 34 is in spaced and angled 24
alignment on the prongs or hooked extensions 6a, 6b. 25
Appeal 2009-009474
Application 11/277,411

7
Claim 6 does not recite any relationship between different spaced and 1
angled alignments of different pluralities of slots. It recites that the slots of 2
the plurality of slots already recited “permit the bracket to be installed in one 3
of a plurality of angularly aligned positions” but says nothing of installation 4
in any other of the plurality of aligned positions. As the Examiner points 5
out, the Appellant’s argument that no two pairs of Shells slots or notches 22, 6
26, 30, 34 are aligned such that the alignments radiate from a common origin 7
in angular alignment to one another is unpersuasive because it is not 8
commensurate with the scope of claim 6. The Examiner’s finding that Shell 9
anticipates claim 6 is correct. 10
Even were the Appellant’s interpretation of claim 6 adopted for 11
purposes of this appeal only, the Examiner’s finding of anticipation by Shell 12
would be correct. The extent of the front wall 8 of the upright 10 as the 13
front wall 8 engages the prongs or hooked extensions 6a, 6b defines one 14
alignment as depicted in Figure 2 of Shell and another alignment as depicted 15
in Figure 4. Each of the two alignments intersects two slots exclusively. 16
The alignment of Figure 2 intersects the slot or notch 26 on the prong or 17
hooked extension 6a and the slot or notch 32 on the prong or hooked 18
extension 6b. (See FF 2 and 3). The alignment of Figure 4 intersects the 19
slot or notch 22 on the prong or hooked extension 6a and the slot or notch 32 20
on the prong or hooked extension 6b. (See FF 2 and 4). Figures 2 and 4 21
depict the two alignments as radiating from a common origin located in or 22
near slot or notch 32. The two alignments as depicted in Figures 2 and 4 are 23
in angular alignment, that is, at angles to one another. Therefore, even in 24
accordance with the Appellant’s interpretation of claim 6, Shell discloses “a 25
plurality of slots in spaced and angled alignment on the prongs.”26
Appeal 2009-009474
Application 11/277,411

8
Second Issue 1
The Appellant’s argument with respect to the rejections of claims 1, 2, 2
7 and 8 under § 103(a) is limited to the assertion that Shell does not teach 3
“prongs hav[ing] a plurality of slots in spaced angled alignment” and that 4
Meyer does not cure this perceived deficiency in the teachings of Shell. 5
(App. Br. 5-6). The Appellant frames this argument by stating that, “[a]s 6
discussed in detail above, and incorporated by reference as if fully 7
reproduced herein, Shell does not teach this limitation.” (App. Br. 6). In 8
incorporating the argument regarding the anticipation of claim 6 by Shell as 9
if fully reproduced, the Appellant draws no distinction in the manner in 10
which the term “a plurality of slots in spaced and angled alignment on the 11
prongs” as used in claim 6 and the term “prongs hav[ing] a plurality of slots 12
in spaced angled alignment” as used in claim 1 are to be interpreted. 13
Despite slight difference in wording, no distinction between the scope 14
and meaning of these two terms, at least in their broadest reasonable 15
interpretation, is apparent. The term “prongs hav[ing] a plurality of slots in 16
spaced angled alignment” as used in claim 1 encompasses at least two slots, 17
each slot of the at least two slots being spaced and each slot of the at least 18
two slots being aligned along an angled alignment. Claim 1 does not recite 19
any relationship between different spaced and angled alignments of different 20
pluralities of slots. For the same reasons that Shell disclosed “a plurality of 21
slots in spaced and angled alignment on the prongs” as that term is used in 22
claim 6, Shell discloses “prongs hav[ing] a plurality of slots in spaced angled 23
alignment” as that term is used in claim 1. Since the Appellant’s assertion 24
that the teachings of Shell are deficient is not persuasive, the Appellant’s 25
Appeal 2009-009474
Application 11/277,411

9
argument that Meyer fails to make up the perceived deficiency in the 1
teachings of Shell is not persuasive. 2
3
CONCLUSIONS 4
Shell describes, with respect to claim 6, a plurality of slots in spaced 5
and angled alignment on a pair of prongs extending outwardly from the back 6
edge of a member. We sustain the rejection of claim 6 under § 102(b) as 7
being anticipated by Shell. 8
The evidence and technical reasoning underlying the rejection of 9
claim 1 adequately support the conclusion that a shelf assembly including a 10
pair of brackets removably attached to a brace, “wherein the brackets have a 11
plurality of prongs that extend outwardly from a back edge of the bracket, 12
and wherein the prongs have a plurality of slots in spaced angled alignment, 13
the slots permitting the bracket to be connected to a supporting surface in 14
one of a plurality of positions,” would have been obvious. We sustain the 15
rejection of claims 1-2 and 7-8 under § 103(a) as being unpatentable over 16
Meyers and Shell; and the rejections of claim 3 under § 103(a) as being 17
unpatentable over Meyers, Shell and Mastrodicasa. 18
19
DECISION 20
We AFFIRM the Examiner’s decision finally rejecting claims 1-3 and 21
6-8. 22
23
Appeal 2009-009474
Application 11/277,411

10
No time period for taking any subsequent action in connection with 1
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 2
§ 1.136(a)(1) (2009). 3
4
AFFIRMED 5
6
7
Klh 8
9
10
11
VEDDER PRICE P.C. 12
222 N. LASALLE STREET 13
CHICAGO, IL 60601 14