15004052 - (D) (P.T.A.B. Apr. 30, 2020)

SUKRUANGSAP, Apichat

Patent Trials and Appeals BoardApr 30, 2020

15004052 - (D) (P.T.A.B. Apr. 30, 2020)

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. 15/004,052 01/22/2016 Apichat SUKRUANGSAP 9033/0001PUS1 9824 60601 7590 04/30/2020 Muncy, Geissler, Olds & Lowe, P.C. 4000 Legato Road Suite 310 Fairfax, VA 22033 EXAMINER MCGOWAN, JAMIE LOUISE ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 04/30/2020 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): MAILROOM@MG-IP.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte APICHAT SUKRUANGSAP Appeal 2019-005380 Application 15/004052 Technology Center 3600 ____________ Before HUBERT C. LORIN, KENNETH G. SCHOPFER, and AMEE A. SHAH, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL 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). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Apichat Sukruangsap. Appeal Br. 2. Appeal 2019-005380 Application 15/004052 2 BACKGROUND “The present disclosure relates to a fruit picker having an angled leaf shape. More particularly, the present disclosure relates to a fruit picker having an angled leaf shape with a scissors-like cutter at its tip.” Spec. 1. CLAIMS Claims 1, 4, and 18 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A fruit picker, comprising: first and second curved sections that are each outwardly curved to have a single curvature starting from a first end to a second end, the first and second curved sections being in a direct contact with each other and form acute angles at the first and second ends, respectively, so as to form an elongated space enclosed by the first and second curved sections between the first and second ends with acute inner angles at the front and second ends, a lower surface of the first curved section at the first end is directly in contact with and immovably fixedly attached to an upper surface of the second curved section at the first end at a cutter angle; a handle attached to the first and second curved sections at the second end; and a bag attached to the first and second curved sections, wherein the bag has a cutout section at the first end, and the cutout section is separated from the first end as the cutout section is downwardly inclined from the first and second curved sections. Appeal Br. 23. Appeal 2019-005380 Application 15/004052 3 REJECTIONS 1. The Examiner rejects claims 1 and 5–19 under 35 U.S.C. § 103 as unpatentable over Terrill2 in view of Hodges3 and Chua.4 2. The Examiner rejects claims 2–4 and 20 under 35 U.S.C. § 103 as unpatentable over Terrill in view of Hodges, Chua, and Newcomb.5 DISCUSSION Each of the independent claims requires first and second curved sections each formed with a single curvature from a first end to a second end and that directly contact each other to form acute angles at the first and second ends. With respect to claim 1, for example, the Examiner relies on Terrill as teaching a fruit picker, but the Examiner acknowledges that Terrill does not “disclose a single three dimensional curvature of each of the curved sections with acute angles at the first and second ends.” Final Act. 2–3. However, the Examiner finds that Hodges discloses a fruit picker with first and second elongated sections with a single curvature and that are connected at acute angles at each end “to enable easy engagement with the fruit.” Id. at 3. The Examiner determines that “[i]t would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize a single curvature in Terrill as taught by Hodges as it would be combining prior art elements according to known methods to yield predictable results.” Id. The Examiner relies on the same findings and reasoning for each of the 2 Terrill, US 598,401, iss. Feb. 1, 1898. 3 Hodges, US 669,169, iss. Mar. 5, 1901. 4 Chua, US 5,142,854, iss. Sept. 1, 1992. 5 Newcomb, US 55,150, iss. May 29, 1866. Appeal 2019-005380 Application 15/004052 4 independent claims with respect to the first and second curved sections. See id. at 2–4, 6. Appellant argues that the Examiner “has not articulated a reasonable motivation or reason for those skilled in the art to combine Terrill and Hodges.” Appeal Br. 15. Appellant asserts that the Examiner merely modifies Terrill with the shape of the frame of Hodges without reason to do so. Id. at 16. Appellant asserts that neither reference discloses or suggest a need to change the shape of Terrill’s device and that there is no evidence that the combination would not change the operation or functionality of Terrill’s device. Id. Appellant also notes that Terrill and Hodges provide devices that operate in very different ways. Id. We agree with Appellant that the Examiner has not set forth an adequate reason to show that the proposed combination would have been obvious. The Examiner reasons that the combination would have been obvious because it merely combines known elements to yield predictable results. Yet, the Examiner does not explain adequately how the proposed combination yields predictable results such that the combination is no more than the predictable use of prior art elements according to their established functions. And the Examiner does not otherwise explain why a person of ordinary skill in the art would have had a reason to make the proposed combination or substitution of parts. Terrill discloses a pear-shaped rim that is “light and narrow and must be stiff for holding a bag and shearing off the fruit” with a large circular back end for admitting a piece of fruit and a narrow front end to prevent fruit from passing through. Terrill, col. 1, ll. 40–52. Hodges discloses a fruit picker including two jaw members 6 and 22 that close vertically around a Appeal 2019-005380 Application 15/004052 5 piece of fruit so that a quick downward pull will break the stem of the fruit. See Hodges, col. 2, ll. 36–54. Thus, Terrill discloses a pear shaped rim that allows entry of fruit and “picks” the fruit by a shearing action, and Hodges discloses two wire jaw members that pick a fruit by pulling and breaking its stem. We agree with Appellant that these devices operate in different manners. Appeal Br. 16. Given the different manner in which the devices operate, including the different functions provided by the curved sections, the Examiner has not explained adequately why modifying Terrill’s device to include curved members as disclosed in Hodges would yield predictable results. Without such explanation or other reasoning to support the proposed combination, we determine that the Examiner has not set forth an adequate rationale to support the conclusion of obviousness. Based on the foregoing, we do not sustain the rejection of independent claims 1, 4, and 18. For the same reasons, we do not sustain the rejection of dependent claims 5–17 and 19. With respect to the rejection of claims 2–4 and 20, the Examiner does not include additional findings or reasoning that cures the deficiency in the rejection of the independent claims from which these claims depend. Thus, we also do not sustain the rejection of claims 2–4 and 20. CONCLUSION We REVERSE the rejections of claims 1–20. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5–19 103 Terrill, Hodges, Chua 1, 5–19 Appeal 2019-005380 Application 15/004052 6 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 2–4, 20 103 Terrill, Hodges, Chua, Newcomb 2–4, 20 Overall Outcome 1–20 REVERSED