Ex Parte Zhang

Patent Trial and Appeal Board

Sep 13, 2016

13457653 (P.T.A.B. Sep. 13, 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.
13/457,653 04/27/2012 She Shun Zhang 4539 8961
45295 7590 09/13/2016
CAROTHERS AND CAROTHERS
FORT PITT COMMONS, SUITE 140
445 FORT PITT BLVD.
PITTSBURGH, PA 15219
EXAMINER
MEKHAEIL, SHIREF M
ART UNIT PAPER NUMBER
3634
MAIL DATE DELIVERY MODE
09/13/2016 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 SHE SHUN ZHANG
____________

Appeal 2014-008403
Application 13/457,653
Technology Center 3600
____________

Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
She Shun Zhang (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 1, 3–6, 8, 9, 11–13, 15, 16, and
18–20, which are all of the pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

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Application 13/457,653

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CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates “to a casement window fall
prevention device with an emergency escape release mechanism.” Spec.
para. 1. Claims 1, 8, and 15 are independent. Claim 1, reproduced below, is
illustrative of the subject matter on appeal.
1. A casement window opening control fall prevention
device with an emergency escape release mechanism, the device
comprising[:]
a rigid limit arm of pre-selected length having a pivotal
connection at a proximal end for securement to a casement
window frame and a roller axially secured at its distal end with
said roller received and confined for travel in a track of a track
arm securable to a casement window sash;
an outer limit stop in said track positioned to stop said
roller at an outer sash opening limit position, said outer limit stop
comprised of a narrowed neck area in said track which is
dimensioned to pass said roller with a force fit; and
an escape disengagement opening in a bottom side of said
track and positioned outwardly beyond said outer limit stop and
dimensioned to pass said roller for thereby disengaging said
roller from said track by first forcing said roller beyond said outer
limit stop and then downwardly through said disengagement
opening with hand manipulation of said limit arm by an operator.

EVIDENCE
The Examiner relied upon the following evidence:
Runk
Nguyen
Wellman
US 2012/0036781 A1
US 8,505,240 B2
GB 2 391 901 A
Feb. 16, 2012
Aug. 13, 2013
Feb. 18, 2004
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Application 13/457,653

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REJECTIONS
Appellant appeals from the Final Action, dated August 30, 2013,
which includes the following rejections:
1. Claims 1, 3, 4, 8, 9, 11, and 15–18 under 35 U.S.C. § 103(a) as
unpatentable over Runk.1
2. Claims 5, 12, and 19 under 35 U.S.C. § 103(a) as unpatentable
over Runk and Wellman.
3. Claims 6, 13, and 20 under 35 U.S.C. § 103(a) as unpatentable
over Runk, Wellman, and Nguyen.

ANALYSIS
First Ground of Rejection: Obviousness based on Runk
Independent claim 1 calls for:
[A]n escape disengagement opening in a bottom side of said
track and positioned outwardly beyond said outer limit stop and
dimensioned to pass said roller for thereby disengaging said
roller from said track by first forcing said roller beyond said outer
limit stop and then downwardly through said disengagement
opening with hand manipulation of said limit arm by an operator.
Br. (Claims App.). Independent claims 8 and 15 recite similar limitations.
Id.

1 Although the Examiner’s statement of this ground of rejection on page 9 of
the Final Action omits claim 4, the Examiner’s detailed explanation of the
rejection includes analysis of claim 4. Final Act. 9. Similarly, the
Examiner’s statement of this ground of rejection on page 7 of the Final
Action omits claim 17, though the Examiner’s detailed explanation of the
rejection includes analysis of claim 17. Id. at 8. As such, we understand
claims 4 and 17 to be included in this ground of rejection.
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The Examiner found that Runk discloses a window fall protection
device, substantially as claimed, including:
[A]n escape disengagement opening . . . in said track positioned
outwardly beyond said outer limit stop and dimensioned to pass
said roller (37) for thereby disengaging said roller (37) from said
track (19) by first forcing said roller (37) beyond said outer limit
stop (22) and through said disengagement opening with hand
manipulation (grip 23) of said limit arm (34) by an operator.
Final Act. 3. The Examiner acknowledged that Runk “fails to disclose [that]
the disengagement opening [is] positioned on the bottom side of the track.”
Id. However, the Examiner determined that “teaching the same mechanism
of . . . R[unk] on the top of the casement window arrangement[,] instead of
on the bottom[,] will have the disengagement opening consequently on the
bottom of the track, and the roller [will] move downwardly to disengage.”
Id. According to the Examiner, this modification would be “a simple
reversal/relocation of parts [that] can be easily appreciated by a person of
ordinary skill in the art.” Id.
Appellant argues that the Examiner’s finding with respect to Runk’s
escape disengagement is in error because “[i]t is clear that the R[unk]
engagement opening is on the side of his track, not on the top or the
bottom,” and that the “roller exits to the side of his track.” Br. 6. The
Examiner responds that, although “the engagement or disengagement (as
recited in claim 1) opening does have access from the side[,] it also does
have access from the top.” Ans. 5 (emphasis added). According to the
Examiner:
[T]he space in the track sans the limit stop is wide enough to
receive the roller from the top direction (at least partially since
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Application 13/457,653

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inserting partially (for instance one third) of the roller (while 22
is completely retracted) the width of the distance from the edge
30 to the edge of 21 will indeed be enough (even if it’s less than
the diameter of the roller) to receive the roller when inserted
directly from a vertical position, as a result the opening is also
open at the top.
Id. (emphasis added).
The Examiner’s position that completely retracting release stop 22
yields a space in the track wide enough to insert and remove the roller from
a vertical direction is speculative and based on assumptions with respect to
the structure and dimensions of Runk’s frame track and release assembly 17.
Runk does not disclose any relative dimensions of the opening at exit end 30
of track 19, release arm 22, or roller 37 so as to make it possible to
determine whether roller 37 could engage (or disengage) the track in the
manner described by the Examiner. To the extent that the Examiner relies
on Runk’s figures to support the stated position (Final Act. 4; Ans. 6), we
note that Runk does not provide that the figures are drawn to scale, and,
therefore, it is too speculative in this instance for us to rely on the relative
dimensions of track 19, exit end opening 30, roller 37, and/or release arm 22
depicted in the figures as evidence to support the Examiner’s finding.
“[P]atent drawings do not define the precise proportions of the elements and
may not be relied on to show particular sizes if the specification is
completely silent on the issue.” Hockerson-Halberstadt, Inc. v. Avia Group
Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000) (citing In re Wright, 569 F.2d
1124, 1127 (CCPA 1977) (“Absent any written description in the
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Application 13/457,653

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specification of quantitative values, arguments based on measurement of a
drawing are of little value.”)).
The Examiner’s position is also inconsistent with Runk’s disclosure as
to the operation of the frame track and release assembly. Specifically, Runk
discloses that, in order to disengage the sash limit arm from the track, a user
manipulates a grip to “cause the release arm 22 to retract, which frees the
roller 37 from the exit end of the track 19,” such that, “[a]s the sash begins
to be opened wider, the roller 37 is pulled out of the track 19 to decouple the
sash arm from the frame track and release assembly.” Runk, para. 33 (italics
added, boldface omitted). We understand Runk’s roller to exit the opening
at the end of the track in the direction of the opening sash (i.e., horizontally
relative to assembly base 18), and we find insufficient evidence to support
the Examiner’s position that Runk’s assembly would function such that the
roller engages or disengages from the top of the track in a vertical direction.
Additionally, the Examiner’s statement in the Answer that “limit arm
34 of R[unk] will be able to move in a vertical direction in an arrangement
where a rising hinge is being utilized (where rising hinges are known in the
art) and/or during the installation process of the window” (Ans. 6) is
unavailing. The rejection presented does not propose a modification of
Runk’s assembly to include a rising hinge or articulate any reasoning in
support of such a modification. Final Act. 2–3.
Because the Examiner’s findings as to the scope and content of Runk
are not supported by a preponderance of the evidence, the Examiner has not
adequately established that the subject matter of claims 1, 8, and 15 would
have been obvious to one of ordinary skill in the art. For this reason, we do
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not sustain the Examiner’s rejection of independent claims 1, 8, and 15, and
of claims 3, 4, 9, 11, and 16–18 depending therefrom, under 35 U.S.C.
§ 103(a) as unpatentable over Runk.

Second and Third Grounds of Rejection: Obviousness based on Runk and
one or more of Wellman and Nguyen
The rejections of dependent claims 5, 6, 12, 13, 19, and 20 rely on the
same unsupported findings as to the disclosure of Runk relied upon in the
first ground of rejection. See Final Act. 10–12. The Examiner did not make
any findings as to the scope and content of Wellman or Nguyen that would
cure the deficiency in Runk discussed supra. Accordingly, we do not
sustain the Examiner’s rejections under 35 U.S.C. § 103(a) of claims 5, 6,
12, 13, 19, and 20.

DECISION
The decision of the Examiner to reject claims 1, 3–6, 8, 9, 11–13, 15,
16, and 18–20 is REVERSED.

REVERSED