Ex parte Wise

Board of Patent Appeals and Interferences

Nov 8, 2000

08739888 (B.P.A.I. Nov. 8, 2000)

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for publication and is not binding precedent of the Board.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. 21
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DICK A. WISE
____________
Appeal No. 2000-1457
Application No. 08/739,888
____________
ON BRIEF
____________
Before ABRAMS, NASE, and JENNIFER D. BAHR, Administrative Patent
Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 to 9, which are all of the claims
pending in this application.
We REVERSE.
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Application No. 08/739,888
BACKGROUND
The appellant's invention relates to a shower curtain
rod. A copy of the claims under appeal is set forth in the
appendix to the appellant's brief.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Goché 2,778,030 Jan. 22,
1957
Glutting, Sr. 3,107,361 Oct. 22,
1963
Perrotta 5,103,531 Apr. 14,
1992
Claims 1 to 9 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Perrotta in view of Goché and
Glutting, Sr.
Rather than reiterate the conflicting viewpoints advanced
by the examiner and the appellant regarding the above-noted
rejection, we make reference to the answer (Paper No. 18,
mailed July 14, 1999) for the examiner's complete reasoning in
support of the rejection, and to the brief (Paper No. 17,
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Application No. 08/739,888
filed June 7, 1999) and reply brief (Paper No. 19, filed
August 19, 1999) for the appellant's arguments thereagainst.
OPINION
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. Upon evaluation of all the evidence before us, it
is our conclusion that the evidence adduced by the examiner is
insufficient to establish a prima facie case of obviousness
with respect to the claims under appeal. Accordingly, we will
not sustain the examiner's rejection of claims 1 to 9 under 35
U.S.C. § 103. Our reasoning for this determination follows.
In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a prima facie case of
obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of
obviousness is established by presenting evidence that would
have led one of ordinary skill in the art to combine the
Appeal No. 2000-1457 Page 4
Application No. 08/739,888
relevant teachings of the references to arrive at the claimed
invention. See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d
1596, 1598 (Fed. Cir. 1988) and In re Lintner, 458 F.2d 1013,
1016, 173 USPQ 560, 562 (CCPA 1972).
Claim 1 (the only independent claim on appeal) reads as
follows:
A shower curtain rod for hanging and supporting the
weight of a shower curtain and comprising an elongate rod
having first and second spaced end portions defining an
angle therebetween, wherein said end portions are fixed
in location above a bath tub by end receiving fittings,
and wherein said rod defines one smooth continuous curve
between said end portions, and said fittings are
supported on a pair of parallel walls located at opposite
ends of said bath tub, and said fittings comprise:
(a) a back plate attached to said wall;
(b) a protruding rod connector with a major axis,
wherein said connector is a protruding hollow cylinder to
fit around said rod and is slidingly adjustable with the
rod; and
(c) said major axis of said protruding rod connector
is horizontal and is angled with respect to said wall to
form an angle with an opposed rod connector that is the
same as the angle between the end portion of the rod;
wherein said fittings
(d) support said rod elevated above the bath tub at
a height and in a horizontal plane to define a shower
enclosure; and said shower curtain rod has said two end
portions and a curving portion conforming to a portion of
the curvature of the bath tub therebelow to enable a
curtain hanging from the rod to drape into the tub.
Appeal No. 2000-1457 Page 5
Application No. 08/739,888
The appellants argue that the applied prior art does not
suggest the claimed subject matter. We agree.
All the claims under appeal require a rod to have one
smooth continuous curve between first and second end portions
received and fixed in fittings supported on a pair of parallel
walls located at opposite ends of a bath tub. However, these
limitations are not suggested by the applied prior art. In
that regard, while Perrotta does teach a curved shower curtain
bar 12 mounted by end supports (see, for example Figure 2),
Perrotta does not teach or suggest using a curved shower
curtain bar mounted by end supports onto a pair of parallel
walls located at opposite ends of a bath tub. In fact,
Perrotta teaches in Figure 3 a straight shower curtain bar 12
mounted by end supports onto a pair of parallel walls located
at opposite ends of a bath tub. Glutting, Sr. also teaches in
Figure 1 a straight shower curtain rod 4 mounted by end
supports onto a pair of parallel walls located at opposite
ends of a bath tub. Goché teaches in Figures 1-2 a shower
curtain rod 25 mounted by end supports onto a pair of parallel
walls located at opposite ends of a bath tub. Goché's shower
Appeal No. 2000-1457 Page 6
Application No. 08/739,888
curtain rod 25 clearly is not one smooth continuous curve
between first and second end portions received and fixed in
fittings. To supply these omissions in the teachings of the
applied prior art, the examiner made determinations (answer,
pages 4-6) that these differences would have been obvious to
an artisan. However, these determinations have not been
supported by any evidence that would have led an artisan to
arrive at the claimed invention.
In our view, the only suggestion for modifying Perrotta
in the manner proposed by the examiner to meet the above-noted
limitations stems from hindsight knowledge derived from the
appellant's own disclosure. The use of such hindsight
knowledge to support an obviousness rejection under 35 U.S.C.
§ 103 is, of course, impermissible. See, for example, W. L.
Gore and Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553,
220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S.
851 (1984). It follows that we cannot sustain the examiner's
rejections of claims 1 to 9.
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Application No. 08/739,888
CONCLUSION
To summarize, the decision of the examiner to reject
claims 1 to 9 under 35 U.S.C. § 103 is reversed.
REVERSED
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2000-1457 Page 8
Application No. 08/739,888
DONALD GUNN
GUNN & ASSOCIATES
FIVE GREENWAY PLAZA
SUITE 2900
HOUSTON, TX 77046
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Application No. 08/739,888
JVN/dl