Ex Parte TuttleDownload PDFPatent Trial and Appeal BoardJul 28, 201713354847 (P.T.A.B. Jul. 28, 2017) Copy Citation 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. 2015-0017 2657 EXAMINER TRIGGS, ANDREW J ART UNIT PAPER NUMBER 3638 MAIL DATE DELIVERY MODE 13/354,847 01/20/2012 28078 7590 07/31/2017 MAGINOT, MOORE & BECK, LLP One Indiana Square, Suite 2200 INDIANAPOLIS, IN 46204 Michael T. Tuttle 07/31/2017 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 PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL T. TUTTLE Appeal 2017-001825 Application 13/354,847 Technology Center 3600 Before JOSEPH L. DIXON, JOHN A. EVANS, and AARON W. MOORE, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2017-001825 Application 13/354,847 STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from a Non-Final Rejection of claims 1—10 and 15, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. THE INVENTION The application is directed to “[a] wall panel system . . . that includes a series of interlocking wall panels with a pressure-adherent backing.” (Abstract.) Claim 1, reproduced below, exemplifies the subject matter on appeal: 1. A wall covering system for a building wall comprising: a plurality of like-configured interlocking wood panels, each of said wood panels including; a rear surface for engagement with a building wall surface and an opposite exposed front surface; a perimeter shape defined in a plan view of the front surface of the panels, the perimeter shape having opposite sides and opposite ends in said plan view; a first arrangement of one or more recesses and one or more projections formed in one of said opposite sides of the perimeter shape, and a second arrangement of one or more recesses and one or more projections formed in the other of said opposite sides of the perimeter shape, said first and second arrangements configured so that projections on said one of said opposite sides of one of said plurality of wood panels interlock with recesses on said other of said opposite sides of an adjacent wood panel and so that recesses on said one of said opposite sides of one of said 1 Appellant identifies Inhabit, Inc. as the real party in interest. (App. Br. 2.) 2 Appeal 2017-001825 Application 13/354,847 plurality of wood panels interlock with projections on said other of said opposite sides of an adjacent wood panel; a third arrangement of one or more recesses and one or more projections formed in said one of said opposite ends of the perimeter shape, and a fourth arrangement of one or more recesses and one or more projections formed in said other of said opposite ends of the perimeter shape, said third and fourth arrangements configured so that projections on said one of said opposite ends of said one of said plurality of wood panels interlock with recesses on said other of said opposite ends of an adjacent wood panel, and so that recesses on said one of said opposite ends of one of said plurality of wood panels interlock with projections on said other of said opposite ends of an adjacent wood panel; and a pattern of lines defined at a depth across said front surface of said wood panel, said pattern of lines cooperating with said first, second, third and fourth arrangements of recesses and projections to form a continuous, uninterrupted pattern across the building wall surface when said plurality of wood panels is mounted to the building wall, the continuous, uninterrupted pattern including the first, second, third and fourth arrangements of recesses and projections. THE REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Besaw US 5,794,542 Aug. 18, 1998 Pervan et al. US 2009/0155612 A1 June 18, 2009 THE REJECTIONS 1. Claim 1 stands rejected under 35 U.S.C. § 112, second paragraph, as indefinite for failing to particularly point out and distinctly 3 Appeal 2017-001825 Application 13/354,847 claim the subject matter which the applicant regards as the invention. (See Final Act. 2.) 2. Claims 1—4, 6, 7, and 15 stand rejected under 35 U.S.C. § 102(b) as anticipated by Pervan. (See Non-Final Act. 3—6.) 3. Claims 5, 9, and 10 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Pervan. (See Non-Final Act. 6—7.) 4. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Pervan and Besaw. (See Non-Final Act. 7.) ANALYSIS Section 112 The Examiner finds claim 1 indefinite because it “defines ‘one or more recesses and one or more projections’ but then later refers to these features as ‘projections’ and ‘recesses’ assuming the ‘or more’ aspect of the claim, not the ‘one or more.’” (Non-Final Act. 2.) We make no finding on the merits of the Examiner’s rejection because Appellants present no arguments directed to this rejection. Consequently, the rejection of claim 1 is summarily affirmed. See 37 C.F.R. § 41.31(c) (“An appeal, when taken, is presumed to be taken from the rejection of all claims under rejection unless cancelled by an amendment filed by the applicant and entered by the Office.”); MPEP § 1205.02 (9th ed., March 2014) (“[T]he Board may summarily sustain any grounds of rejections not argued.”); see also Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to present arguments on a particular issue — or, more broadly, on a particular rejection — the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.”); Hyatt v. Dudas, 551 4 Appeal 2017-001825 Application 13/354,847 F.3d 1307, 1313—14 (Fed. Cir. 2008) (“the Board may treat arguments appellant failed to make for a given ground of rejection as waived”). Claim 1 recites “a perimeter shape defined in a plan view of the front surface of the panels, the perimeter shape having opposite sides and opposite ends in said plan view” and that various recesses and projections are formed in “sides” and “ends” of “the perimeter shape.” The Examiner finds this shown in Fig. 7d of Pervan, shown below. We do not agree that Pervan describes “a perimeter shape defined in a plan view of the front surface of the panels” with recesses in projections formed in the perimeter shape, as claimed. A perimeter shape in a plan view of the front surface of the Figure 7d panel would be, essentially, a rectangle, such as that shown in Pervan’s Figure 8a, reproduced below. Figure 7d “illustrate[s] a floor surface. ” (Pervan f 121.) As shown, this plan view would not reflect the tongue and groove of the locking system 4, 4’ as recesses and projections formed in the sides and ends Sections 102 and 103 Fig. 7d Figure 7d “illustrate[s] a floor panel. ” (Pervan f 120.) * O 6 5 Appeal 2017-001825 Application 13/354,847 of the perimeter shape. The Examiner’s analysis is flawed because it improperly reads the language “defined in a plan view of the front surface of the panels” out of the claim. Because we agree with Appellants’ argument regarding the claimed plan view and perimeter shape, we decline to sustain the prior art rejections of claims 1—10 and 15, each of which contain that limitation. We do not reach Appellant’s other arguments regarding the prior art. DECISION The rejection of claim 1 as indefinite under 35U.S.C. § 112, second paragraph, is affirmed. The rejections of claims 1—10 and 15 under 35U.S.C. §§ 102 and 103 are 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)(l)(iv). AFFIRMED-IN-PART 6 Copy with citationCopy as parenthetical citation