Ex Parte Van Romer

Board of Patent Appeals and Interferences

Jun 29, 2006

10655076 (B.P.A.I. Jun. 29, 2006)

1
The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte EDWARD W. VAN ROMER
_____________
Appeal No. 2006-1255
Application No. 10/655,076
______________
ON BRIEF
_______________
Before OWENS, CRAWFORD, and LEVY, Administrative Patent Judges
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal is from a rejection of claims 1-17, which are
all of the pending claims.
THE INVENTION
The appellant claims a multi-compartment, foldable, portable
containment device for collecting contaminated fluid. Claim 1 is
illustrative:
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Application No. 10/655,076
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1. A multi-compartment foldable and portable
containment for collecting contaminate fluid
comprising;
flexible sheeting forming a floor;
flexible sheeting forming exterior walls connected
with said floor adjacent its periphery forming an
enclosed area;
a plurality of flexible interior walls each
connected along a lower edge with said floor and at
each end with a pair of opposed of said exterior walls,
said interior walls along with said exterior walls and
said floor forming a plurality of containment
areas within said enclosed area;
a plurality of foldable braces connected with said
exterior walls and having an up position for
maintaining said exterior walls in an upstanding
position and a down position in which said walls lie on
said floor;
said interior walls having an interior wall
support for maintaining said interior walls in an
upstanding position when fluid is in said containment
areas; wherein,
said multi-compartment containment may be folded
into a compact generally flat configuration for storage
and may be unfolded and spread into an expanded
multi-compartment unit which said exterior and interior
walls are maintained in an upright position forming
said plurality of containment areas for containing said
contaminated fluid.
Appeal No. 2006-1255
Application No. 10/655,076
The rejection under 35 U.S.C. § 112, second paragraph, is1
withdrawn as to claims 14-16 in the examiner’s answer (page 9).
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THE REFERENCES
Van Romer et al. (Van Romer ‘588) 5,090,588 Feb. 25, 1992
Shaw et al. (Shaw) 5,429,437 Jul. 04, 1995
Van Romer (Van Romer ‘233) 5,762,233 Jun. 09, 1998
Kellogg et al. (Kellogg ‘188) 5,971,188 Oct. 26, 1999
Kellogg et al. (Kellogg ‘924) RE37,924 Dec. 10, 2002
THE REJECTIONS
The claims stand rejected as follows: claim 16 under
35 U.S.C. § 112, first paragraph, written description
requirement; claim 17 under 35 U.S.C. § 112, second paragraph, as
indefinite for failing to particularly point out and distinctly
claim the subject matter which the appellant regards as the
invention; claims 1, 7, 14 and 15 under 35 U.S.C. § 102(b) as1
anticipated by Kellogg ‘188 or Kellogg ‘924; claims 1-8 and 13-17
under 35 U.S.C. § 103 as obvious over Van Romer ‘233 in view of
Kellogg ‘188 and Kellogg ‘924; claims 1, 2 and 7-17 under
35 U.S.C. § 103 as obvious over Van Romer ‘588 in view of
Kellogg ‘188 and Kellogg ‘924; and claim 10 under 35 U.S.C. § 103
as obvious over Van Romer ‘588 in view of Kellogg ‘188,
Kellogg ‘924 and Shaw.
Appeal No. 2006-1255
Application No. 10/655,076
The examiner does not rely upon Shaw for any disclosure2
that remedies the deficiency in Van Romer ‘588, Kellogg ‘188 and
Kellogg ‘924 with respect to claim 1 from which claim 10 depends
(answer, page 8).
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OPINION
We affirm the rejection of claim 17 under 35 U.S.C. § 112,
second paragraph, and reverse the other rejections. Regarding
the rejections over prior art we need to address only the
independent claims, i.e., claims 1, 14 and 17. Each of these2
claims requires a multi-compartment containment for collecting
contaminated fluid.
Rejection of claim 16 under
35 U.S.C. § 112, first paragraph
The examiner argues that the appellant’s original disclosure
does not provide adequate written descriptive support for
“including a drain in an outer wall of each said compartment” in
claim 16 (answer, page 4). The appellant’s original
specification states that “[a] drain 54 is provided with each
compartment, preferably in the lower edge of an exterior wall”
(page 9, lines 1-2). Therefore, we reverse the rejection of
claim 16 under 35 U.S.C. § 112, first paragraph, written
description requirement.
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Application No. 10/655,076
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Rejection of claim 17 under
35 U.S.C. § 112, second paragraph
The appellant does not challenge the rejection of claim 17
under 35 U.S.C. § 112, second paragraph, but, rather, states that
“[i]t has been proposed to change ‘interior’ to ‘exterior’ to
rectify this indefiniteness” (brief, page 7). Because the
rejection of claim 17 under 35 U.S.C. § 112, second paragraph, is
not challenged, we summarily affirm that rejection.
Rejection of claims 1, 7, 14 and 15 under
35 U.S.C. § 102(b) over Kellogg ‘188 or Kellogg ‘924
Kellogg ‘924 is a reissue of Kellogg ‘188. Consequently, we
address only one of these references, i.e., Kellogg ‘188.
Kellogg ‘188 discloses a collapsible container for storing
and transporting objects such as garments and toys (col. 1,
lines 15-19). The container has side panels (20) comprised of a
frame (22), a web (24) and edging (26) (col. 3, lines 54-56).
“The web 24 is a flexible foldable material, such as nylon cloth
or nylon mesh, but can be any suitably flexible material. The
nylon, or other flexible material, may be solid or perforated”
(col. 3, lines 62-65). The elements of the container preferably
are attached by stitching, but can be attached by other methods
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including heat sealing, gluing and the like (col. 4, lines 58-
63). Nylon mesh divider panels (80,82) may be stitched to the
webs of opposite side panels to form separate compartments within
the container (col. 5, lines 5-13).
The examiner argues that the Kellogg ‘188 container, when it
has solid walls, is capable of holding contaminated fluid
(answer, pages 5 and 10). The examiner, however, has not
provided evidence or reasoning which shows that a solid, flexible
material necessarily is capable of holding contaminated fluid.
Moreover, the examiner has not established that Kellogg ‘188
discloses walls that are attached to each other and to the
container’s floor in a way that enables the container to hold
contaminated fluid.
The examiner argues that garments and toys can flow as they
are being poured from one container to another or into a washing
machine and, therefore, are fluids (answer, page 10). During
patent prosecution, claims are to be given their broadest
reasonable interpretation consistent with the specification, as
the claim language would have been read by one of ordinary skill
in the art in view of the specification. See In re Zletz, 893
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F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989); In re
Sneed, 710 F.2d 1544, 1548, 218 USPQ 385, 388 (Fed. Cir. 1983).
The examiner has not explained, and it is not apparent, how the
term “fluid” in the appellant’s claims reasonably can be
construed, in view of the appellant’s specification, as including
garments and toys.
We therefore find that the examiner has not carried the
burden of establishing a prima facie case of anticipation of the
appellant’s claimed invention over Kellogg ‘188 or Kellogg ‘924.
Accordingly, we reverse the rejections under 35 U.S.C. § 102(b)
over those references.
Rejection of claims 1-8 and 13-17 under
35 U.S.C. § 103 over Van Romer ‘233
in view of Kellogg ‘188 and Kellogg ‘924
Van Romer ‘233 discloses a single-compartment, portable,
foldable containment device for hazardous chemicals such as
petrochemicals and fuels (col. 1, lines 5-14).
The examiner argues (answer, page 6):
Both Kellogg references teach the flexible interior
partition walls. It would have been obvious to add
interior walls to segment the containment area and
segregate the fluid being contained to separate
different fluids or provide separation to more easily
handle a smaller volume of fluid.... It would have
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Application No. 10/655,076
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been obvious to connect the lower edge of the interior
walls with the floor and each end of the interior walls
with a respective one of a pair of opposed walls to
provide a water tight connection prohibiting mixing
from one compartment to an adjacent compartment.
The examiner has not established that Kellogg’s disclosure
of nylon mesh divider panels that are in a container for storing
and transporting objects such as garments and toys and are
stitched to the container’s side panels would have fairly
suggested, to one of ordinary skill in the art, contaminated
fluid-impervious divider panels that are attached to the
container’s side panels and floor in a way that enables
compartments formed by the divider panels to contain contaminated
fluid. Thus, the record indicates that the examiner arrived at
the claimed invention by impermissible hindsight in view of the
appellant’s disclosure. See W.L. Gore & Associates v. Garlock,
Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir. 1983),
cert. denied, 469 U.S. 851 (1984); In re Rothermel, 276 F.2d 393,
396, 125 USPQ 328, 331 (CCPA 1960). Consequently, we reverse the
rejection under 35 U.S.C. § 103 over Van Romer ‘233 in view of
Kellogg ‘188 and Kellogg ‘924.
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Application No. 10/655,076
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Rejection of claims 1, 2 and 7-17 under
35 U.S.C. § 103 over Van Romer ‘588
in view of Kellogg ‘188 and Kellogg ‘924
Van Romer ‘588 discloses a single-compartment, portable
containment device for hazardous chemicals such as agricultural
chemicals and the like, having upstanding walls braced with
flexible straps such that the walls can collapse when run over by
a vehicle (col. 3, lines 17-48).
The examiner’s rationale (answer, pages 7-8) for this
rejection is similar to that set forth with respect to the
rejection over Van Romer ‘233 in view of the Kellogg references,
and is unpersuasive for the reasons given above regarding that
rejection.
DECISION
The rejection of claim 17 under 35 U.S.C. § 112, second
paragraph, is affirmed. The rejections of claim 16 under
35 U.S.C. § 112, first paragraph, written description
requirement, claims 1, 7, 14 and 15 under 35 U.S.C. § 102(b) over
Kellogg ‘188 or Kellogg ‘924, claims 1-8 and 13-17 under
35 U.S.C. § 103 over Van Romer ‘233 in view of Kellogg ‘188 and
Kellogg ‘924, claims 1, 2 and 7-17 under 35 U.S.C. § 103 over
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Application No. 10/655,076
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Van Romer ‘588 in view of Kellogg ‘188 and Kellogg ‘924, and
claim 10 under 35 U.S.C. § 103 over Van Romer ‘588 in view of
Kellogg ‘188, Kellogg ‘924 and Shaw, are reversed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a) (1) (iv).
AFFIRMED-IN-PART
TERRY J. OWENS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
STUART S. LEVY )
Administrative Patent Judge )
TJO/vsh
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Application No. 10/655,076
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HENRY S. JAUDON
MCNAIR LAW FIRM, P.A.
P.O. BOX 10827
GREENVILLE, SC 29603