Ex Parte Warner

Board of Patent Appeals and Interferences

Jan 31, 2005

09929362 (B.P.A.I. Jan. 31, 2005)

1 The oral hearing set for January 12, 2005 has been waived by appellant (Paper No. 21).
The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 22
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte GERY WARNER
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Appeal No. 2004-2067
Application No. 09/929,362
____________
ON BRIEF1
____________
Before COHEN, NASE and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 1-3, 5, 6
and 12, which are all of the claims pending in this application.
We REVERSE.
Appeal No. 2004-2067
Application No. 09/929,362
Page 2
2 The examiner has withdrawn the other rejections set forth in the final rejection. See pages 3-4 of
the answer (Paper No. 16).
BACKGROUND
The appellant’s invention relates to a triangular frame tent whose top is
supported by a flying pole. A copy of the claims under appeal is set forth in the
appendix to the appellant’s brief.
The examiner relied upon the following prior art references in rejecting the
appealed claims:
Talmadge 6,173,726 Jan. 16, 2001
Warner (Canadian patent application) 2,229,401 Aug. 13, 1999
The following is the only rejection before us for review.2
Claims 1-3, 5, 6 and 12 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Warner in view of Talmadge.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejection, we make reference to the final
rejection and answer (Paper Nos. 9 and 16) for the examiner's complete reasoning in
support of the rejection and to the brief and reply brief (Paper Nos. 15 and 17) for the
appellant’s arguments thereagainst.
OPINION
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Application No. 09/929,362
Page 3
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. For the reasons
which follow, we must reverse the examiner’s rejection.
Warner discloses a multiple flying pole tent comprising a perimeter frame 17
including four frame members 16 and corner joints 35 supported from the ground by
four corner posts 12. The tent canopy 14 is supported by four flying poles 24 resting on
a cable network 29. Peaks 20 in the canopy correspond to locations where the flying
poles 24 contact the canopy 14. As best illustrated in Figure 3, the cable network 29
consists of a central cable 28 having two connectable ends 30a and 30b shown
connected together and four cables 26 connected between the central cable 28 and the
corner joints 35. With ends 30a and 30b connected together the entire assembly is tight
and the canopy 14 is tensioned (page 5). Warner points out on page 6 that
[i]f the cables were connected across diagonally opposite
corners or to the frame members 16 without the central
cable 28 the tension in each cable would be high and
tensioning the canopy 14 would require a large force. By
utilizing a centre cable 28 and placing the poles at each
corner the tension force is halved making it much easier to
simply pull ends 30a and 30b together and couple them
thereby tensioning the whole tent.
As recognized by the examiner, Warner lacks (1) a triangular frame, as called for
in independent claims 1 and 12, (2) three cables connected (claim 1) or connectable
(claim 12) between respective ones of three corners (claim 1) or corner posts (claim 12)
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Application No. 09/929,362
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3 “A reference may be said to teach away when a person of ordinary skill, upon [examining] the
reference, would be discouraged from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553, 31
USPQ2d 1130, 1131 (Fed. Cir. 1994).
and a common junction element, and (3) a pole attached (claim 1) or attachable (claim
12) at a first end to said common junction element and at a second end contacting and
tensioning a flexible canopy. The examiner relies upon the triangular collapsible truss
structure of Talmadge’s Figure 7 embodiment for a suggestion to provide these features
found lacking in Warner.
Even assuming that Talmadge provides suggestion to modify Warner’s tent so as
to include only three perimeter frame members 16, corner joints 35 and corner posts 12
and three cables 26 to give the tent a triangular shape, we agree with appellant that the
resulting structure would be as illustrated by appellant on page 12 of the brief. To
connect the cables together at a common junction element and to connect a single
flying pole between said common junction and the canopy, as proposed by the
examiner, would not permit location of flying poles at multiple locations to thereby permit
a larger span of the tent and would eliminate the easy tensioning feature afforded by the
central cable 28, as taught by Warner on page 3. A person of ordinary skill in the art
would thus have been discouraged by the express teachings of Warner from connecting
the cables to a common junction element rather than to separate connection points on a
central cable to arrive at the invention recited in claims 1 and 12.3 Accordingly, we must
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Application No. 09/929,362
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reverse the rejection of independent claims 1 and 12, as well as claims 2, 3, 5 and 6
which depend from claim 1.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2004-2067
Application No. 09/929,362
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