Ex Parte Ver Hage et al

Patent Trial and Appeal Board

Sep 9, 2015

12472547 (P.T.A.B. Sep. 9, 2015)

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.
12/472,547 05/27/2009 Richard P. Ver Hage 892-010US 7884
39600 7590 09/10/2015
SOFER & HAROUN LLP.
215 Lexington Avenue, Suite 1301
NEW YORK, NY 10016
EXAMINER
KIM, SHIN H
ART UNIT PAPER NUMBER
3638
MAIL DATE DELIVERY MODE
09/10/2015 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 RICHARD P. VER HAGE, GLENN R. VER HAGE,
and HENRY W. VER HAGE
____________

Appeal 2012-010095
Application 12/472,547
Technology Center 3600
____________

Before NEAL E. ABRAMS, ANNETTE R. REIMERS,
and MICHAEL L. WOODS, Administrative Patent Judges.

ABRAMS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Richard P. Ver Hage et al. (Appellants) seek our review under 35
U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 2, 6, and
8–11. We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
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THE INVENTION
The claimed invention is directed to a card holder and animal cage
arrangement.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A card holder and animal cage arrangement, said arrangement
comprising:
an animal cage having side walls; and
a card holder having:
a card receiving area;
a cam area for connecting said card holder to a pivot bar on said
animal cage, wherein said cam area includes;
a hook;
a pin clearance;
a lead; and
a holding notch so that the card holder may be raised from a
lower hanging position to an upward locked position, wherein said
cam area of said card holder has a flat portion configured to rest
against one of said side walls of said animal cage, said cam area
further having a flat upper surface to be held against a front side wall
of said cage where said pin clearance is to the inside of said hook,
with said flat upper surface on the other side of said hook, said hook
and said pin clearance are configured to engage said pivot bar of said
cage, such that said holding notch is configured to retain said pivot
bar beyond said lead of said cam area to hold said card holder in an
upwards position.

THE PRIOR ART
The Examiner relied upon the following as evidence of
unpatentability:
Catteau US 6,712,324 B2 Mar. 30, 2004
Park US 7,395,623 B2 July 8, 2008

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THE REJECTIONS
Claims 1, 2, 6, and 8 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Park.
Claims 9–11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Park and Catteau.
OPINION
Claims 1, 2, 6,1 and 8
Obviousness – Park
On the basis of modification by reversal of parts, the Examiner has
found all of the subject matter recited in claim 1 to be present in Park.
According to the Examiner, Park discloses a card holder for an animal cage
comprising hook 356 and cam mechanism 350 that is attachable to the cage,
which interacts with a pivot bar 306 on a card holder back plate in such a
manner as to allow the card holder to hang in a substantially vertical position
or to be raised and held in a substantially horizontal position. Ans. 5
(citations omitted). In arriving at this conclusion, the Examiner has
described in great detail the location and interaction of each of the elements
recited in Appellants’ claim 1 and their relationship to those of Park. See id.
at 5, 8–12. The Examiner’s conclusion that the claimed subject matter
would have been obvious because it amounts to a mere reversal of parts is
based upon placing Park’s pivot bar on the cage, instead of on the card
holder, and the cam mechanism on the card holder, instead of on the cage.
Id. at 5–6. The Examiner’s stated motivation for this reversal of parts is that

1 We note that in the Claims Appendix accompanying Appellants’ Brief,
claim 6 is recited as depending from claim 5, which has been canceled. It
would appear that Appellants intended claim 6 to depend from claim 1. In
the event of further prosecution, this error should be corrected.
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it “would provide an alternative arrangement of parts for securing a card to a
container.” Id. at 5.
Appellants’ initial argument in opposition to this rejection is that
Park’s “element 350 . . . is not part of the card holder[, but is] . . . a
‘retention member’ that is independently secured” to the cage, which is
“significantly different” from the claimed structure, in which “the card
holder has a cam area for connecting the card holder to a pivot bar on said
animal cage.” Br. 10–11 (citing Park, col. 4, ll. 55–63). This argument, on
its own, is not persuasive because the Examiner recognized this difference,
hence the reversal of parts rejection. In this regard, as in the Park
arrangement, Appellants’ claim 1 recites that there are two components to
the invention, a “pivot bar” and a “cam area,” one of which is attached to the
cage and the other to the card holder. Thus, in the same manner as
Appellants’ invention is characterized in the preamble to claim 1, Park’s two
components also comprise a “card holder and animal cage arrangement.”
Appellants also argue that:
[I]f the proposed modification or combination of the prior art
would change the principle of operation of the prior art
invention being modified, then the teachings of the references
are not sufficient to render the claims prima facie obvious. In re
Ratti, 270 F.2d 810,123 USPQ 349 (CCPA 1959). See MPEP
at 2143.01. In the present case, the Park design is for a specific
purpose, namely to provide a card holder and cage arrangement,
where the retention member 350 may be glued/attached to any
type of cage to hold the card holder 304. Reversal of the parts
in this instance would not allow the Park arrangement to
operate in the same manner.
Appellants are aware that the mere reversal or
rearrangement of parts can be considered obvious. However,
this only applies where the changes would not affect or modify
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the operation of the device. Moreover, “[t]he mere fact that a
worker in the art could rearrange the parts of the reference
device to meet the terms of the claims on appeal is not by itself
sufficient to support a finding of obviousness. The prior art
must provide a motivation or reason for the worker in the art,
without the benefit of [Appellants’] specification, to make the
necessary changes in the reference device.” Ex parte Chicago
Rawhide Mfg. Co., 223 USPQ 351, 353 (Bd. Pat. App. & Inter.
1984). See MPEP 2144.04.
In the present case, the claims are not a mere reversal of
the parts of the Park reference. Rather, they are formed in a
different manner and impart different characteristics and
advantages than those disclosed in the Park arrangement.
Id. at 11–12 (citation omitted).
We find the foregoing arguments also not to be persuasive. First,
Appellants have not explained why, if the parts in the Park system were
reversed, the “principle of operation” of the Park system would be changed.
From our perspective, the principle of operation would remain the same, that
is, the card holder would still be movable between a vertical orientation and
a horizontal orientation, and retainable in either. Second, Appellants have
not refuted the Examiner’s conclusion that one of ordinary skill in the art
would have been motivated to reverse the parts in Park because it would
provide an alternative to the disclosed arrangement of components. Third,
Appellants also have not explained why the reversed arrangement of
components would “impart different characteristics and advantages” than
those disclosed by Park, with regard to which we again point out that one of
the two components still is mounted on the cage, and the card holder
remains rotatably movable between vertical and horizontal orientations and
can be retained in either.
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Appellants’ also assert that Park does not disclose that the card holder
is “locked” in the upward position. Br. 12. In this regard, we agree with the
Examiner that Park discloses the claimed limitation, “raised from a lower
hanging position to an upward locked position . Ans. 5–6. In particular,
Park explains:
With reference to FIG. 8, there is shown card holder 300 being
retained in a vertical position by retention member 350. As is
illustrated, in certain embodiments, curved portion 358 is
dimensioned such that when card holder 300 is moved or
pivoted in the general direction A to lift card holder 300 into a
horizontal orientation, flat surface 368 of securing portion 306
rests in curved portion 358 while lower surface 372 of aperture
310 rests against the front surface 374 of hook portion 356.
Accordingly, the retention member and card holder 300 are
designed and dimensioned such that card holder 300 may be
retained in either a vertical or a horizontal orientation. The
benefit of retaining card holder 300 in the horizontal position is
that such an orientation facilitates viewing of animals within
cage 120 by laboratory personnel which a card is disposed in
the card holder.
Col. 5, ll. 18–32 (emphasis omitted).
Thus, in the same manner as Appellants’ invention, Park teaches
establishing dimensional relationships between the flat surfaces of the
component upon which the card holder rotates, and those of the cam area in
which the rotation occurs, such that the interaction between them causes the
card holder to be retained in either of the two operating positions.
Another argument advanced by Appellants is that there is no teaching
or suggestion in Park that discloses a card holder where the cam holder has a
flat portion to rest on the animal cage. Br. 13–15. However, Park discloses
a retention element 350 that is configured to be “secured to” a face of the
cage by an adhesive on the mounting face, which appears to be a flat
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surface. See col. 4, ll. 55–59; Figs. 5, 8. From our perspective, if the parts
were reversed, one of ordinary skill in the art would have found it obvious to
attach the other component to the cage in a like manner.
Finally, Appellants have opined that Park “does not appear to have the
claimed structure of a holding notch” that retains the pivot bar beyond the
lead of the cam area, as required by claim 1, and “may not be as effective at
retaining the card in an upright position.” Br. 14–15. However, persuasive
reasoning in support of these statements has not been provided. Park’s
explanation of the operation of the components of the disclosed card holder
is set forth herein. Supra p. 6. In addition, Appellants have not challenged
the position expressed by the Examiner on page 5 of the Answer that in Park
the “curved corner between the flat region on Element 350 adjacent to
Element 368 and Element 358” comprises the “lead” recited in claim 1, and
“Element 358” the holding notch, or the explanation that follows on pages 5
and 6. This being the case, it stands uncontroverted that these components
are present and are “configured to retain said pivot bar beyond said lead of
said cam area to hold said card holder in an upwards position,” as required
by claim 1.
For the reasons expressed supra, the rejection of independent claim 1
is sustained, as is the like rejection of dependent claims 2, 6, and 8, the
separate patentability of which Appellants chose not to argue. See Br. 16.
Claims 9–11
Obviousness – Park and Catteau
Appellants have chosen not to argue the separate patentability of
claims 9–11, and therefore this rejection is sustained. See id.
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DECISION
Both rejections are sustained, and therefore the decision of the
Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED
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