Ex Parte Van Tassell

Patent Trial and Appeal Board

Mar 31, 2017

12728207 (P.T.A.B. Mar. 31, 2017)

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.
12/728,207 03/20/2010 RONALD E. VAN TASSELL III RVT 1000 4931
64828 7590 04/04/2017
HarnlH MofTiirk
EXAMINER
The Law Office of Clay McGurk KELLY, CATHERINE A
P.O. BOX 1488
Orange, CA 92856 ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
04/04/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
CLAYMCGURK@GMAIL.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD E. VAN TASSELL, III
Appeal 2015-001025
Application 12/728,207
Technology Center 3600
Before JENNIFER D. BAHR, JOHN C. KERINS, and
AMANDA F. WIEKER, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ronald E. Van Tassell, III (Appellant) seeks our review under 35
U.S.C. § 134 of the final rejection of claims 1—19. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
THE INVENTION
Appellant’s claimed invention is directed to a device for opening and
closing a sliding door along a track. Claim 1, reproduced below, is
illustrative:
Appeal 2015-001025
Application 12/728,207
1. A device for opening/closing a sliding door along a track,
the device comprising:
a battery;
at least one wheel;
a servo coupled to the at least one wheel and coupled to the
battery; and
a controller coupled to the servo and battery,
the battery, the at least one wheel, the servo and the controller
being housed in the device,
wherein the controller is configured to control the servo to
rotate the at least one wheel along the track in one direction to
move the device in the one direction to open the sliding door
and to control the servo to rotate the at least one wheel along
the track in the opposite direction to move the device in the
opposite direction to close the sliding door.
THE REJECTIONS
The Examiner rejects:
(i) claims 1, 12—14, and 19 under 35 U.S.C. § 103(a) as being
unpatentable over Milano (US 6,343,436 Bl, issued Feb. 5, 2002) in view of
Jehn (US 2002/0117982 Al, published Aug. 29, 2002);
(ii) claim 2 under 35 U.S.C. § 103(a) as being unpatentable over
Milano in view of Jehn and Bilt (US 4,754,572, issued July 5, 1988);
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Application 12/728,207
(iii) claims 3, 4, 10, and 111 under 35 U.S.C. § 103(a) as being
unpatentable over Milano in view of Jehn and Laird (US 2010/0242369 Al,
published Sept. 30, 2010);
(iv) claim 5 under 35 U.S.C. § 103(a) as being unpatentable over
Milano in view of Jehn and Ebbe (US 2009/0193717 Al, published Aug. 6,
2009);
(v) claims 6—8 under 35 U.S.C. § 103(a) as being unpatentable over
Milano in view of Jehn and Freeman (US 7,213,369 B2, issued May 8,
2007);
(vi) claim 9 under 35 U.S.C. § 103(a) as being unpatentable over
Milano in view of Jehn and Schenck (US 5,216,782, issued June 8, 1993);
and
(vii) claims 15—18 under 35 U.S.C. § 103(a) as being unpatentable
over Milano in view of Jehn and Laird.
ANALYSIS
Claims 1, 12—14, and 19—Milano/Jehn
The Examiner concludes that the subject matter of independent claims
1 and 19 would have been obvious in view of the combined teachings of
Milano and Jehn. Final Act. 2—3. In reaching this conclusion, the Examiner
recognizes that Milano discloses track 24 attached to window 18 (regarded
1 The Final Action lists claims 17 and 18 as being subject to this rejection,
and grouped with these claims. Final Act. 5. Claims 17 and 18 are also
identified as being subject to a rejection over the same references, but
grouped with claims 15 and 16 in rejection (vii) above. In that claims 17
and 18 depend from claim 15, it is more logical to address the rejection of
these claims in rejection (vii).
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Application 12/728,207
by the Examiner as being a door) and a device attached to the window
frame, for moving the track and attached window, and that, in order to meet
all recited limitations of claims 1 and 19, the track needs to be attached to
the frame of the door instead of to the door, and the device needs to be
attached to the door, in order that it is configured to move in opposite
directions to open and close the door. Id.
According to the Examiner, making such a modification “would be a
mere rearrangement of parts and thus obvious.” Id. The Examiner reasons
that providing a frame track (i.e., positioning the track on the frame) would
“better conceal the track for a more attractive overall door assembly,”
maintaining, without citing to any evidence, that this ability to better conceal
the track was known in the art. Id. at 3. The Examiner attempts to clarify
what the rearrangement would constitute, stating that “the track 24 is fixed
to the vertical frame member 14 and the drive unit is fixed to the sash 18.”
Ans. 9. The Examiner posits that, “[w]ith such a rearrangement, the track 24
would be more [discreetly] located and the sash would be moved just as
easily.” Id.
We agree with Appellant that the Examiner’s invocation of the “mere
rearrangement (or reversal) of parts” rationale is flawed and fails to establish
the obviousness of the claimed subject matter. See Appeal Br. 13—15; Reply
Br. 9—10. The Milano device, as disclosed, has the motor and drive gear
arrangement mounted to the front face of frame 14 via mounting bracket 46.
Milano, Fig. 1. In a “mere” rearrangement or reversal of parts, track 24
would be mounted to the same front face of frame 14. We fail to see how a
track mounted in this position could possibly be more discreetly located,
which is the reason given by the Examiner for making such modification.
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Application 12/728,207
The Examiner’s vague reference to some unidentified frame track known in
the art to be better concealed is unavailing, in that the statement is not
supported by any evidence, let alone a preponderance of evidence.
In addition to the track being more prominent, or at least no less
discreet than in the embodiment actually disclosed by Milano, it would
appear that the driving device would be more prominent as well, in that it
would have to protrude out well past the front face of frame 14 in order to
have the drive gear in position to engage the track. As such, the Examiner’s
reasoning is flawed on this basis, as well.
If it is the Examiner’s intended modification to position the track not
on the front face of window frame 14, but instead on the inner face that is
perpendicular to the front face, the Examiner fails to provide sufficient detail
as to whether the track will be oriented such that the teeth face in the same
direction as in the unmodified form, or such that the teeth face perpendicular
to that direction. Relatedly, the Examiner fails to explain how the drive unit
is to be mounted to window sash 18 so as to engage the teeth of the track. In
addition, although it appears to potentially be an issue (to a lesser extent)
with the unmodified version of Milano as well, it would appear that, in the
Examiner’s proposed modification, the drive unit would exert a raising (or
lowering) force on the window only on the side to which it is disposed. This
would appear to potentially cause jamming, thus impairing the ability to
raise and lower the window.
Appellant additionally points out that, were the reversal or
rearrangement effected, the lever used to engage the drive gear with the
track would be raised or lowered with the door (window), possibly making it
more difficult to operate, particularly at its higher points of travel. Reply Br.
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Application 12/728,207
10. Further, although there is some dispute as to where, in Milano, an on/off
switch might be located, certainly in the arrangement actually disclosed, it
could readily be positioned on the stationary driving device, whereas, if that
device were raised and lowered in the Examiner’s proposed rearrangement,
it is more likely that an on/off switch would need to be located elsewhere on
a stationary member.
Accordingly, the Examiner has not established that the subject matter
of claims 1 and 19 would have been obvious via a mere rearrangement or
reversal of parts disclosed in Milano. The Examiner does not rely on Jehn in
any manner that remedies the deficiencies noted above with respect to the
Milano reference. The rejection of claims 1 and 19, and of dependent claims
12—14 also subject to this rejection, is not sustained.
Claim 2—Milano/Jehn/Bilt
The Examiner does not rely on Bilt in any manner that remedies the
deficiencies noted above with respect to the Milano reference. The rejection
of claim 2 is thus not sustained.
Claims 3, 4, 10, and 11—Milano/Jehn/Laird
The Examiner does not rely on Laird in any manner that remedies the
deficiencies noted above with respect to the Milano reference. The rejection
of claims 3,4, 10, and 11 is thus not sustained.
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Application 12/728,207
Claim 5—Milano/Jehn/Ebbe
The Examiner does not rely on Ebbe in any manner that remedies the
deficiencies noted above with respect to the Milano reference. The rejection
of claim 5 is thus not sustained.
Claims 6—8—Milano/Jehn/Freeman
The Examiner does not rely on Freeman in any manner that remedies
the deficiencies noted above with respect to the Milano reference. The
rejection of claims 6—8 is thus not sustained.
Claim 9—Milano/Jehn/Schenck
The Examiner does not rely on Schenck in any manner that remedies
the deficiencies noted above with respect to the Milano reference. The
rejection of claim 9 is thus not sustained.
Claims 15—18—Milano/Jehn/Laird
Claim 15 is independent. The Examiner relies on the same flawed
“mere rearrangement/reversal of parts” rationale in reaching the conclusion
that claim 15 would have been obvious over Milano, Jehn, and Laird. Jehn
and Laird are not relied on in any manner that remedies the deficiencies
noted above with respect to the Milano reference. The rejection of claim 15,
and of claims 16—18 depending therefrom, is not sustained.
DECISION
The Examiner’s rejections of claims 1—19 are reversed.
REVERSED
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