Robert Miller

Patent Trials and Appeals Board

Mar 5, 2021

2020005204 (P.T.A.B. Mar. 5, 2021)

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.
15/494,450 04/22/2017 Robert Miller MIL-201-17 5923
7590 03/05/2021
Brad Goldizen
1801 Jordan Run Road
Maysville, WV 26833
EXAMINER
HIJAZ, OMAR F
ART UNIT PAPER NUMBER
3635
MAIL DATE DELIVERY MODE
03/05/2021 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 ROBERT MILLER
Appeal 2020-005204
Application 15/494,450
Technology Center 3600
Before JENNIFER D. BAHR, MICHAEL J. FITZPATRICK, and
WILLIAM A. CAPP, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b). An oral hearing in accordance with 37 C.F.R. § 41.47 was
held on February 22, 2021.
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as the named inventor,
Robert Miller. Appeal Br. 5.
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CLAIMED SUBJECT MATTER
Appellant’s invention is directed to a plate mounted above a window
for attaching window treatments. Spec. ¶ 3. Claim 1, reproduced below, is
illustrative of the claimed subject matter.
1. A curtain plate assembly fastened above an opening having a
header extending above said opening in a wall that comprises
vertical support members, said opening in the wall having a
width and being surrounded by trim, said curtain plate assembly
comprising:
a curtain plate having a height of at least three inches, a
thickness of at least one-quarter of an inch, and a length that is
greater than the width of the opening above which the curtain
plate is mounted;
a window treatment attached to said curtain plate;
and, fasteners extending through said curtain plate into
the vertical support members of the wall.
REJECTIONS
Claims 1, 3, 7, 16, and 20 stand rejected under 35 U.S.C. § 102(a)(1)
as being anticipated by Wilkerson (DIY Sliding Barn Door YouTube video,
https://www.youtube.com/watch?v=KhLFSgSjEqI, Nov. 28, 2014).
Claims 2, 4–6, 9–14, and 17–19 stand rejected under 35 U.S.C. § 103
as being unpatentable over Wilkerson.
Claims 8 and 15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Wilkerson and Giuseppe (US 5,497,594, issued
Mar. 12, 1996).
OPINION
Anticipation—Wilkerson
Appellant presents arguments contesting the rejection without specific
reference to any particular claims. See Appeal Br. 17–27. We select
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independent claim 1 to decide the appeal of the anticipation rejection, and
claims 3, 7, 16, and 20 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv) (permitting the Board to select a single claim to decide the
appeal as to a single ground of rejection of a group of claims argued
together).
With reference to screen shots of Wilkerson’s YouTube video taken at
denoted time increments, as well as an annotated screen shot of the
Wilkerson video captured at approximately time 5:41 and provided on
page 9 of the Final Action (labeled “Annotated Figure 1” by the Examiner),
the Examiner finds that Wilkerson anticipates the subject matter of claim 1.
Final Act. 2–3. The Examiner reads the claimed curtain plate on the 1 x 4
board attached above an opening in the wall to wall studs (i.e., vertical
support members) by threaded fasteners and reads the claimed window
treatment on the barn door, including the pulleys and metal flat bar, attached
to the curtain plate. See Final Act. 2–3, 9 (Annotated Figure 1).
Appellant argues that “[n]either the metal bar nor the underlying strip
of wood can be reasonably interpreted to be the same as the instantly
claimed curtain plate.” Appeal Br. 18. According to Appellant, “[m]ounting
window treatments to the surface of the metal plate would interfere with the
sliding of the pulleys across the top of the metal bar” and “the underlying
strip of wood is not exposed to allow for the installation of a window
treatment thereon.” Appeal Br. 18. Continuing with this line of argument,
Appellant contends that attaching anything to the face of Wilkerson’s metal
track would render Wilkerson’s “device unsatisfactory for its [intended]
purposes” and “would change its principle of operation.” Appeal Br. 24–26.
Further, Appellant submits that the cost of faux doors in Wilkerson is
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substantially larger than that of Appellant’s invention and, thus, it would not
be economically feasible to use Wilkerson’s invention to achieve the results
of Appellant’s invention. Appeal Br. 18.
Appellant’s arguments regarding mounting of window treatments to
the metal plate interfering with sliding of the pulley and the strip of wood
(the 1 x 4) not being exposed for installation of a window treatment thereon
are not responsive to the rejection set forth by the Examiner. The
anticipation rejection does not propose to mount any additional structure to
either the metal plate or the strip of wood. Rather, as explained above, the
Examiner reads the claimed “window treatment” on the sliding barn door,
including the doors themselves and the pulleys and metal flat bar, which
Wilkerson discloses is mounted to the strip of wood (i.e., the curtain plate).
Appellant’s argument regarding the relative cost of Wilkerson’s faux doors
as compared to that of Appellant’s invention is unpersuasive because it
amounts to unsupported attorney argument and, thus, is entitled to little
weight,2 and because it is not commensurate with claim 1, which does not
specify the cost of the device.
Appellant contends that “[t]he barn door cannot be reasonably
interpreted to be a window treatment” and that “the rail assembly cannot be
reasonably interpreted to be a curtain plate.” Appeal Br. 20. Assuming that
“the rail assembly” refers to Wilkerson’s metal flat plate, Appellant’s
argument that this cannot reasonably be interpreted to be a curtain plate is
not responsive to the rejection, which considers the metal flat plate to be part
of the window treatment, not the curtain plate. Appellant does not

2 See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
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persuasively explain why the barn door (and the pulleys and metal flat plate
associated therewith) cannot reasonably be interpreted to be a window
treatment. Appellant’s Specification does not provide a restrictive definition
of “window treatments” or limit the size, weight, or materials of the window
treatments. Rather, the Specification refers broadly to “a variety of window
treatments including retractable blinds, curtains, and shades.” Spec. ¶ 5. In
light of this disclosure, Appellant fails to persuade us that a person having
ordinary skill in the art would construe “window treatment” as excluding
those made of wood or faux wood. Indeed, a person having ordinary skill in
the field of window treatments would be familiar with retractable blinds
made of wood and faux wood, such as plantation shutters, which are
common in the industry and typically are mounted in a hinged arrangement
or a sliding arrangement to cover a window opening. See Ans. 3 (stating
that a simple online “search for window barn door will show a great number
of results of a barn door over a window”).
Appellant also argues that Wilkerson does not solve the problem that
Appellant addresses, namely, “the problem of having holes punched in the
wall for mounting different window treatments.” Appeal Br. 22. This
argument is not persuasive because it is not commensurate with the scope of
claim 1, which does not recite solving this problem. See In re Self, 671
F.2d 1344, 1348 (CCPA 1982) (limitations not appearing in the claims
cannot be relied upon for patentability). It is well established that “[t]he law
of anticipation does not require that the reference ‘teach’ what the subject
matter of the patent teaches . . . . [I]t is only necessary that the claims under
attack, as construed by the court, ‘read on’ something disclosed in the
reference.” Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772 (Fed.
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Cir. 1983), overruled in part on other grounds, SRI Int'l v. Matsushita Elec.
Corp. of Am., 775 F.2d 1107, 1125 (Fed.Cir.1985) (en banc).
For the above reasons, Appellant fails to apprise us of error in the
rejection of claim 1 as anticipated by Wilkerson. Accordingly, we sustain
the rejection of claim 1, and of claims 3, 7, 16, and 20, which fall with
claim 1, as anticipated by Wilkerson.
Obviousness—Wilkerson
Claims 2 and 9
Dependent claim 2 and independent claim 9 recite that wood screws
pass through the curtain plate and into the vertical support members. Appeal
Br. 28–29 (Claims App.). The Examiner finds that “Wilkerson teaches said
fasteners pass through the curtain plate and into the vertical support
members (video at 5:02 to 5:10 and at 5:25 to 5:30) but fails to disclose said
fasteners are wood screws.” Final Act. 5. Wilkerson discloses tacking up
the 1 x 4, drilling pilot holes through pre-drilled holes in the 1 x 4 into the
wall studs, and then mounting the metal flat plate, the spacers, and the 1 x 4
to the wall studs using “lug bolts.” Wilkerson 5:24–5:30. The Examiner
“takes official notice that it would have been obvious to one of ordinary skill
in the art before the effective filing date of the invention to use wood screws
as fasteners since it is well known that wood screws are best used when
securing structural wooden elements.” Final Act. 5.
Appellant does not specifically dispute that it was well known to use
wood screws when securing structural wooden elements. Appellant argues
that “[t]he weight of the faux barn doors requires the use of lag bolts, as
wood screws cannot be used to secure the doors to the wall.” Appeal Br. 22;
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see Reply Br. 4 (arguing that wood screws and lag bolts are not
interchangeable).
In response, the Examiner submits that “lag screws can be interpreted
as basically heavy duty wood screws.” Ans. 3. According to the Examiner,
“[s]ince the claims do not specify what type (thickness, length, material etc.)
of wood screws are used, lag screws meet the limitation since they are
indeed screws, which essentially screw into wood.” Ans. 3.
Given that Wilkerson screws the fasteners used to mount the metal
flat plate, spacers, and 1 x 4 to the wall studs (i.e., vertical support members)
into the wall studs from one side of the wall (i.e., without using nuts on the
back side of the wall), the Examiner’s position that Wilkerson’s fasteners,
even if heavy duty, are “wood screws” is reasonable. As the Examiner
points out, the claims do not specify any particular size or gauge of wood
screws. Appellant’s remark in the “Summary of claimed subject matter”
section of the Appeal Brief that “the shear strength of a wood screw would
not handle the combined weight of [Wilkerson’s] track assembly and faux
barn doors” (Appeal Br. 11) is unavailing because it is not directed to the
heavy duty screws used by Wilkerson and contemplated by the Examiner’s
rejection and, in any event, is unsupported attorney argument entitled to no
weight.
Appellant’s arguments regarding mounting of window treatments to
the metal plate interfering with sliding of the pulley, thereby rendering
Wilkerson unsatisfactory for its intended purpose or changing its principle of
operation, and the strip of wood (the 1 x 4) not being exposed for installation
of a window treatment thereon (Appeal Br. 18, 24–25) are not responsive to
the obviousness rejections set forth by the Examiner. The Examiner does
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not propose to mount any additional structure to either the metal plate or the
strip of wood. Rather, as explained above, the Examiner reads the claimed
“window treatment” on the sliding barn door, including the doors themselves
and the pulleys and metal flat bar, which Wilkerson discloses is mounted to
the strip of wood (i.e., the curtain plate).
For the above reasons, Appellant fails to apprise us of error in the
rejection of claims 2 and 9 as unpatentable over Wilkerson, which we thus
sustain.
Claims 10 and 14
Claim 10 depends from claim 9 and further recites that the curtain
plate includes predrilled openings provided in a plurality of groups at a
predetermined distance along the length of the curtain plate. Appeal Br. 29
(Claims App.). The Examiner finds that Wilkerson discloses such predrilled
openings. Final Act. 7 (citing Wilkerson 5:02–5:10). Claim 14 depends
from claim 9 and further recites that the “curtain plate is formed from one or
more of a lightweight rigid material consisting of wood, aluminum,
polypropylene and a homopolymer.” Appeal Br. 29 (Claims App.). The
Examiner finds that Wilkerson discloses the curtain plate is formed from
wood (wooden 1 x 4). Final Act. 8 (citing Wilkerson 5:10–5:14). Appellant
does not identify any error or deficiency in either of these findings.
Appellant’s bald statements in the “Summary of claimed subject matter”
section of the Appeal Brief that, with respect to claim 10, “Wilkerson fails to
teach or suggest this limitation in her video” (Appeal Br. 13) and, with
respect to claim 14, “[t]his is neither taught nor suggested by the cited
references” do not constitute separate arguments for patentability of
claim 10 or claim 14 apart from claim 9. See In re Lovin, 652 F.3d 1349,
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1357 (Fed. Cir. 2011) (holding that the Board had reasonably interpreted 37
C.F.R. § 41.37(c)(1)(vii) (the predecessor to § 41.37(c)(1)(iv)) as requiring
“more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art”).
Accordingly, for the reasons discussed above in regard to claim 9, we
also sustain the rejection of claims 10 and 14 as unpatentable over
Wilkerson.
Claims 4–6, 11–13, and 17–19
The Examiner finds that Wilkerson fails to disclose the particular
patterns of openings recited in claims 4–6, 11–13, and 17–19, but determines
that such patterns would have been obvious, as matters of routine
optimization, “in order to facilitate the assembly by providing an indicia of
the location of the studs hidden behind the drywall, which would save time
by avoiding the use of a stud-finder . . . . since some wall constructions may
have studs that are not proportionally spaced” and “in order to provide
ample support for the plate so that the assembly does not easily fall off the
wall.” Final Act. 5–7. Appellant does not identify any flaw or deficiency in
the Examiner’s reasoning and, thus, fails to apprise us of error in the
rejection of these claims. Accordingly, we sustain the rejection of
claims 4–6, 11–13, and 17–19 as unpatentable over Wilkerson.
Obviousness—Wilkerson in view of Giuseppe
Claims 8 and 15 recite that the “curtain plate is formed from material
that is extruded and reinforced with fiber.” Appeal Br. 28, 29 (Claims
App.). The Examiner finds that Wilkerson fails to disclose this feature, but
that Giuseppe teaches a frame component formed from material that is
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extruded and reinforced with fiber. Final Act. 8 (citing Giuseppe, Abstract,
col. 3, ll. 35–40). The Examiner also finds that “composite trim building
materials are well known and often substituted for conventional wood trim
materials.” Final Act. 8. The Examiner determines it would have been
obvious to modify Wilkerson’s plate assembly (i.e., the 1 x 4) “to be formed
from material that is extruded and reinforced with fiber, as taught by
Giuseppe . . . in order to provide a more durable material to strengthen the
assembly.” Final Act. 8.
Appellant argues that Giuseppe “fails to disclose the sacrificial curtain
plate as claimed” and, thus, “cannot overcome the deficiencies of the
Wilkerson video.” Appeal Br. 22. This argument is not persuasive because
claims 8 and 15 do not recite a “sacrificial” curtain plate. See In re Self, 671
F.2d at 1348. The Examiner relies on Giuseppe only for its teaching
regarding using extruded composite materials for structural members. To
the extent that Appellant is arguing that Giuseppe does not cure the
purported deficiencies of Wilkerson in regard to the 1 x 4 being a curtain
plate, these arguments are unpersuasive for the reasons discussed above in
regard to the anticipation rejection. Accordingly, we sustain the rejection of
claims 8 and 15 as unpatentable over Wilkerson and Giuseppe.
CONCLUSION
The Examiner’s rejections of claims 1–20 are sustained.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3, 7, 16, 20 102(a)(1) Wilkerson 1, 3, 7, 16,
20

2, 4–6, 9–14,
17–19
103 Wilkerson 2, 4–6, 9–14,
17–19

8, 15 103 Wilkerson, Giuseppe 8, 15
Overall
Outcome
1–20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED