Ex Parte Vidovic

Patent Trial and Appeal Board

Sep 6, 2016

13307536 (P.T.A.B. Sep. 6, 2016)

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.
13/307,536 11/30/2011 David Allen Vidovic JR. CCL.P1200 3738
23575 7590 09/06/2016
CURATOLO SIDOTI CO., LPA
24500 CENTER RIDGE ROAD, SUITE 280
CLEVELAND, OH 44145
EXAMINER
HARM, NICKOLAS R
ART UNIT PAPER NUMBER
1745
MAIL DATE DELIVERY MODE
09/06/2016 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 DAVID ALLEN VIDOVIC JR.
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Appeal 2015-002266
Application 13/307,536
Technology Center 1700
________________

Before TERRY J. OWENS, KAREN M. HASTINGS, and
DEBRA L. DENNETT, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–4 and 7–17. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellant’s claim a carpet gripping device. Claim 1 is
illustrative:
1. An apparatus for removing carpet comprising:
a base;
a hoist engaged with the base, wherein a pulling line
speed of the hoist is greater than or equal to about 33 feet per
minute;
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a resilient line with first and second ends, wherein the
first end is removably engaged with the hoist;
a carpet gripping means removably engaged with the
second end of the resilient line; and
at least one friction surface engaged with a bottom
surface of the base for holding the base in position.

The Reference
Barrett US 5,456,794 Oct. 10, 1995
The Rejection
Claims 1–4 and 7–17 stand rejected under 35 U.S.C. § 103 over
Barrett.
OPINION
We affirm the rejection as to claims 1–4, 7–10, and 12–17 and reverse
is as to claim 11.
Claims 1–4, 7–10, and 12–17
The Appellant argues claims 1–4, 7–10, and 12–17 in two groups:
1) claims 1–4, 7, 9, 10, and 12–17, and 2) claim 8 (App. Br. 6–10). We,
therefore, limit our discussion to one claim in the first group, i.e., claim 1,
and claim 8. Claims 2–4, 7, 9, 10, and 12–17 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(iv) (2012).
Claim 1
Barrett discloses a carpet stripping device comprising a base (20), a
winch (62) engaged with the base, a winch cable (63) engaged at one of its
ends with the winch, a carpet gripping device (90) engaged with the other
end of the winch cable, and a friction surface (50) for holding the base in
position (col. 4, ll. 36–43, 66–67; col. 5, ll. 13–19; Fig. 6). “Speed
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controller 82 allows a user to vary the winch speed for maximizing the
stripping process” (col. 5, ll. 9–11).
The Appellant argues that compared to hoists, winches provide power
and torque which are large and pulling line speeds which are slow and
variable (versus substantially constant for hoists) (App. Br. 6–7).1 The
Appellant provides web site pages which show that winches and hoists are
different products (App. Br. 7).
“A person of ordinary skill is also a person of ordinary creativity, not
an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). In
making an obviousness determination one “can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR, 550 U.S. at 418.
A winch is “[a] stationary motor-driven or hand-powered hoisting
machine with a drum around which a rope or chain winds as the load is
lifted”,2 i.e., “[a] machine having a drum on which to coil a rope, cable, or
chain for hauling, pulling, or hoisting.”3 Because a winch is a hoisting
machine, Barrett’s disclosure that the winch speed is variable to maximize
the carpet stripping process (col. 5, ll. 9–11) would have led one of ordinary

1 The Appellant’s Specification states that “[p]revious carpet removal
devices typically use winches which have a pulling line speed significantly
less than 15 feet per minute. By utilizing a hoist instead of a winch, pulling
line speed may be equal to or greater than about 15 feet per minute, resulting
in faster carpet removal” (Spec. 6:1–4).
2 WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY 1320 (Houghton
Mifflin 1984).
3 MCGRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 2169
(McGraw-Hill, 5th ed. 1994).
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skill in the art, through no more than ordinary creativity, to use either a
winch or a hoist to achieve the desired maximized carpet stripping speed.
Thus, we are not persuaded of reversible error in the rejection of
claim 1 and claims 2–4, 7, 9, 10, and 12–17 that stand or fall therewith.
Claim 8
Claim 8 requires a carpet gripping means which comprises a top plate,
a bottom plate, at least one tack strip and an least one nut and bolt assembly,
“wherein the top plate comprises a top pull plate and the bottom plate
comprises a bottom restrictor plate, and wherein the top pull plate and
bottom restrictor plate are removably engaged with each other via the at
least one nut and bolt assembly.”
Barrett’s carpet gripping device (90) comprises upper (92) and
lower (94) jaw elements (each of which corresponds to the Appellant’s
bottom restrictor plate) (col. 5, ll. 15–16; Fig. 4). The upper jaw
element (92) is attached by nuts and bolts to a plate (93) (which corresponds
to the Appellant’s top pull plate) comprising grasping teeth (98) (col. 5,
ll. 29–33). The lower jaw element (94) is attached by nuts and bolts
(projecting fasteners 96) to a plate (which corresponds to the Appellant’s top
pull plate) comprising grasping teeth (95) (col. 5, ll. 25–27).
The Appellant asserts that the Appellant’s Specification and Figures 1
and 2 indicate that “during carpet removal, the top pull plate will be
disposed on one side of the carpet to be removed, and the bottom restrictor
plate will be disposed on the opposite side of the carpet from the top pull
plate” (App. Br. 9).
During patent prosecution, claims are to be given their broadest
reasonable interpretation consistent with the Specification, as the claim
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language would have been read by one of ordinary skill in the art in view of
the Specification. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989); In re
Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983); In re Herz, 537 F.2d 549, 551
(CCPA 1976); In re Okuzawa, 537 F.2d 545, 548 (CCPA 1976).
Limitations, however, are not to be read from the Specification into the
claims. See In re Prater, 415 F.2d 1393, 1405 (CCPA 1969).
The Appellant’s Specification does not define “bottom restrictor
plate” such that it excludes Barrett’s upper and lower jaw elements 92
and 94. The Specification states that “[i]n certain embodiments, the top
plate comprises a top pull plate which acts to engage and pull the carpet to
be removed, and the bottom plate comprises a bottom restrictor plate which
acts to restrict the carpet to be removed from disengaging from the top pull
plate” (Spec. 6:18–20). The Appellant’s interpretation of claim 8
improperly reads those embodiments into the claim.
Hence, we are not convinced of reversible error in the rejection of
claim 8.
Claim 11
Claim 11, which depends from claim 8, requires that “the bolt of the
at least one nut and bolt assembly passes through the bottom restrictor plate,
the carpet being removed and the top pull plate, and wherein the nut of the
nut and bolt assembly engages with the bolt on the surface of the top pull
plate opposite the bottom restrictor plate.”
Barrett’s bolts do not pass through the carpet (12) and the nuts do not
engage the bolts on the surface of the grasping teeth-containing plates (93,
95) opposite the jaw elements (92, 94) (Fig. 5).
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The Examiner asserts that “the nut and bolt assemblies of BARRETT
are removable, so are capable of performing the intended use limitation of
being capable of being passed through a carpet work being processed by the
stripping device” (Ans. 5).
The Examiner does not establish that the broadest reasonable
interpretation, consistent with the Specification, of the Appellant’s claim
requirement of a bolt which passes through the carpet encompasses a bolt
that can be removed from the device and inserted through the carpet. Also,
the Examiner does not address the claim requirement that the nut of the nut
and bolt assembly engages with the bolt on the surface of the top pull plate
opposite the bottom restrictor plate.
The Examiner, therefore, has not established a prima facie case of
obviousness of the device claimed in the Appellant’s claim 11.
DECISION/ORDER
The rejection of claims 1–4 and 7–17 under 35 U.S.C. § 103 over
Barrett is affirmed as to claims 1–4, 7–10, and 12–17 and reversed as to
claim 11.
It is ordered that the Examiner’s decision is affirmed-in-part.
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-IN-PART