Doskocil Manufacturing Company, Inc.

Patent Trials and Appeals Board

Jun 25, 2020

2019003687 (P.T.A.B. Jun. 25, 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.
15/636,867 06/29/2017 David LINK PM-US165441A 8967
22919 7590 06/25/2020
GLOBAL IP COUNSELORS, LLP
DAVID TARNOFF
1233 20TH STREET, NW
SUITE 600
WASHINGTON, DC 20036-2680
EXAMINER
VALENTI, ANDREA M
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
06/25/2020 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):
mailpto@giplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID LINK
Appeal 2019-003687
Application 15/636,867
Technology Center 3600
Before DANIEL S. SONG, BENJAMIN D. M. WOOD, and
BRETT C. MARTIN, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s April 19, 2018 Final Action rejecting claims 1–14. See Final
Act. 1. An oral hearing in accordance with 37 C.F.R. § 41.47 was held on
June 4, 2020, a transcript of which will be entered into the record in due
course. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to the applicant as defined by 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Doskocil
Manufacturing Company, Inc. Appeal Br. 3.
Appeal 2019-003687
Application 15/636,867

2
CLAIMED SUBJECT MATTER
The claims are directed to a pet enclosure system. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. An animal enclosure comprising:
a panel having a first horizontal wire, a second horizontal
wire, a first vertical wire extending between the first and
second horizontal wires of the panel and a second vertical
wire extending between the first and second horizontal wires
of the panel, the first and second vertical wires of the panel
and the first and second horizontal wires of the panel forming
a perimeter of an opening sized and configured to enable an
animal to pass therethrough;
a door having a first horizontal wire, a second horizontal
wire, and a vertical wire extending between the first and
second horizontal wires of the door, each of the first
horizontal wire and the second horizontal wire of the door
being pivotally attached to the first vertical wire of the panel
so that the door is pivotal between a closed position and an
open position, and attached so that the door is vertically
movable between a latched position and an unlatched
position;
a first hook attached to the first horizontal wire of the door
and configured to engage the first horizontal wire of the panel
adjacent the second vertical wire of the panel when the door
is in the closed position and the latched position;
a second hook attached to the first horizontal wire of the
door and configured to engage the first horizontal wire of the
panel adjacent the first vertical wire of the panel when the
door is in the closed position and the latched position;
a third hook attached to the second horizontal wire of the
door and configured to engage the second horizontal wire of
the panel adjacent the first vertical wire of the panel when the
door is in the closed position and the latched position;
a fourth hook attached to the second horizontal wire of the
door and configured to engage the second horizontal wire of
the panel adjacent the second vertical wire of the panel when
the door is in the closed position and the latched position; and
Appeal 2019-003687
Application 15/636,867

3
a latch attached to the door, the latch configured to move
in a horizontal direction and engage the second vertical wire
of the panel,
the first hook, the second hook, the third hook and the
fourth hook are configured to engage the first and second
horizontal wires of the panel adjacent the first and second
vertical wires of the panel forming the perimeter of the
opening to secure the door in the closed position, and the first
hook, the second hook, the third hook and the fourth hook
being vertically movable between the latched position and the
unlatched position.
Appeal Br. 20 (Claims App.).
REFERENCES
Name Reference Date
Link US 6,883,463 B2 Apr. 26, 2005
PPP Precision Pet Products,
Inc. Advertisement
20072
REJECTION3
Claims Rejected 35 U.S.C. § Reference(s)/Basis
1–14 103 Link, PPP

2 The Examiner finds that PPP was identified in a June 17, 2016 IDS of
parent application 13/913,625, and was “published at least as early 2007.”
Final Act. 3. Appellant does not dispute this finding.

3 The Examiner had also rejected the claims as indefinite. Final Act. 2–3.
This rejection was apparently withdrawn after the entry of Appellant’s
August 3, 2018 Amendment of the claims. See Appeal Br. 7 (noting that
Examiner did not address the indefiniteness rejection in an August 3, 2018
Advisory Action issued after the Amendment was entered); Ans., generally
(not addressing the indefiniteness rejection).
Appeal 2019-003687
Application 15/636,867

4
OPINION
Appellant argues claims 1–13 as a group, and claim 14 separately.
Appeal Br. 8–18. We select claim 1 as representative of the grouped claims,
and decide the appeal of those claims on the basis of claim 1 alone.
37 C.F.R. § 41.37(c)(1)(iv). We will discuss claim 14 separately. In
addition, we note that only those arguments actually made by Appellant
have been considered in this decision. Arguments which Appellant could
have made but chose not to make in the Brief have not been considered and
are deemed to be waived. See id.; see also In re Jung, 637 F.3d 1356, 1365
(Fed. Cir. 2011) (“it has long been the Board’s practice to require an
applicant to identify the alleged error in the examiner’s rejections”); Ex
Parte Frye, 94 USPQ2d 1072, 1075–76 (BPAI 2010, precedential)(“The
panel then reviews the obviousness rejection for error based upon the issues
identified by appellant, and in light of the arguments and evidence produced
thereon.”).

A. Claim 1
The Examiner finds that Link teaches most of the limitations of
claim 1, but “is silent on the placement as claimed of a first hook, second
hook, third hook and fourth hook along with the door [that] is vertically
movable between a latched position and an unlatched position.” Final
Act. 4. The Examiner therefore relies on PPP for this limitation. The
Examiner finds that PPP depicts a vertically slidable door with a hook
having the same structure and serving the same purpose as the claimed
hooks:
Appeal 2019-003687
Application 15/636,867

5
Precision Pet Products (PPP) teaches an animal door system for
an animal enclosure, a hook fabricated from a wire rod that is
curved to form a blunt tip of the hook (PPP picture of crate has a
hook fixed on the top center horizontal wire[] of the door that
receives the a [sic] horizontal wire rod of the top portion of the
front cage panel), the horizontal wire rods wrapped around the
vertical wire rod of the frame is gapped away from upper
horizontal wire rods of the frame so that the door is vertically
slideable about the vertical wire rod of the frame enabling the
door to slide in the upward direction to an upward position and
in a downward direction to a downward position, the entry of the
hook capable of receiving a horizontal wire rod when in the
closed position and in the downward position (PPP operational
function of crate door in the picture).
Id. at 4–5. The Examiner determines that “[i]t would have been obvious to
one of ordinary skill in the art to modify the teachings of Link with the
teachings of PPP at the time of the invention for a more secure closure.” Id.
at 5.
The Examiner acknowledges that Link as modified by PPP “is silent
on the use of the second, third and fourth hooks,” but determines that “the
modification is merely an obvious engineering design choice involving the
duplication of a known element for a multiple effect performing the same
intended function . . . for a secure hold and does not present a patentably
distinct limitation over the prior art of record.” Id. (citing In re Harza, 274
F.2d 669, 671 (CCPA 1960). The Examiner further determines that “[t]he
modification is merely the shifting the location of a known element
performing the same intended function which does not present a patentably
distinct limitation over the prior art of record . . . . for a more secure
closure.” Id. (citing In re Japikse, 181 F.2d 1019 (CCPA 1950)).
Appellant responds, inter alia, that “[t]he Examiner has failed to
provide any evidentiary basis for the alleged motivation on the record,” and
Appeal 2019-003687
Application 15/636,867

6
“has simply made conclusory statements that the combination of references
would form a secure closure.” Appeal Br. 11. According to Appellant, “the
Examiner appears to be relying on common knowledge or common sense.”
Id.
This argument does not persuade us that the Examiner erred in
rejecting claim 1. We disagree that the Examiner failed to provide evidence
in support of its finding that one of ordinary skill in the art would have
combined the references to form a more secure closure. The Examiner
found that “PPP teaches the known general knowledge of one of ordinary
skill in the art that it is known to use a hook member to secure the door panel
to the first horizontal member of the front face panel by sliding the door
panel up and down along a vertical member to have the hook engage the
horizontal member of the front face panel.” Ans. 7–8. The Examiner
explains that “PPP is establishing and suggesting the knowledge and
motivation to place the hook members around the perimeter of the door
panel to secure placement of the door panel.” Id. at 8. In other words, the
Examiner relies on PPP to establish that the claimed hook structure was
known, and further, that its purpose—to secure a wire crate door to the front
face panel—was also known. Notably, Appellant does not appear to dispute
either of these findings.4

4 At the hearing Appellant’s counsel stated that Appellant disputed these
findings on page 8 of the Appeal brief. Tr. 6:13–22. The particular
statement on which Appellant relies reads as follows:
Appellant submits that the claims are allowable, since neither of
the two cited references alone or in combination render obvious
an animal enclosure comprising a door that is vertically movable
between a latched position and an unlatched position, a first
hook, a second hook a third hook and fourth hook attached to the
Appeal 2019-003687
Application 15/636,867

7
Appellant further argues that “[t]he structure recited in claim 1 is not a
mere duplication of parts.” Appeal Br. 13. Appellant’s point is that the
claimed hooks are not in the same position as PPP’s hook, i.e., they do not
merely “extend outwardly from the center of the top perimeter of the door,”
as is the case with PPP’s hook. Id. Appellant particularly notes that two of
the claimed hooks (the third and fourth hooks) “engage the horizontal wire
that forms the lower perimeter of the opening of the panel adjacent the
vertical perimeter wires.” Id. Appellant asserts that “there is no disclosure
in any reference of disposing hooks adjacent the corners of the door, and
there is no disclosure of disposing hooks at a lower position of the door.” Id.
at 14.
This argument mischaracterizes the Examiner’s rejection. The
Examiner is not arguing that the references expressly disclose four hooks at
the claimed hook locations, but rather relies on Harza to support the
determination that duplicating known structure (PPP’s hook) to perform its

door and configured to engage the first and second horizontal
wires of a panel adjacent the first and second vertical wires of the
panel forming the perimeter of the opening to secure the door in
the closed position, and the first hook, the second hook, the third
hook and the fourth hook being vertically movable between the
latched position and the unlatched position, as required by
independent claim 1 of this application.
Appeal Br. 8. This statement, however, is merely a general denial that claim
1 is unpatentable over the cited references, and does not address any specific
findings made by the Examiner. In re Lovin, 652 F.3d 1349, 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”).
Appeal 2019-003687
Application 15/636,867

8
known function (securing the door) is an obvious modification of what is
disclosed, and relies on Japikse to support the determination that
repositioning the known structure is also an obvious modification of what is
disclosed. See Final Act. 5 (citing Japikse for the proposition that “shifting
the location of a known element performing the same intended function . . .
does not present a patentably distinct limitation over the prior art of record);
Ans. 5 (same). Appellant does not dispute the general principle that
reproducing known structure for a known function is not inventive, but
instead argues that the specific claimed hook locations are not disclosed.
Yet Appellant does not address the Examiner’s Japikse analysis, much less
demonstrate why it is incorrect. For example, Appellant does not dispute
that hooks located at the bottom of Link’s door would have the same
structure or operate in the same way as the hook depicted in PPP.
Appellant’s remaining arguments concern what appear to be the
Examiner’s alternative reasoning to support the rejection of claim 1 over
Link and PPP. For example, the Examiner refers to Link’s curved wires 35
in the analysis. Final Act. 4. These curved wires differ from the claimed
hooks because they are not attached to and movable with the door; instead,
they extend from the side edges of the two side panels 13a, b towards
adjacent side panels 15a, b. Link, 3:49–53. Regardless, what is clear is that
the Examiner articulated a rejection that does not and need not rely on this
structure, because it is not disputed that PPP depicts the claimed hook
structure. Thus, arguments directed to Link’s curved wires 35 are moot.
The Examiner also appears to present alternative reasons to combine
Link and PPP, i.e., “for safe and happy puppies as depicted in [PPP],” and
because the modification would have been “obvious to try.” Ans. 8. Our
Appeal 2019-003687
Application 15/636,867

9
analysis, however, relies only on the rationale that the combination would
result in a “more secure closure.” Final Act. 5. Thus, Appellant’s
arguments in opposition to the Examiner’s alternative rationales are also
moot.
B. Claim 14
Claim 14 depends from claim 1 and additionally recites “wherein the
first hook is disposed outside of the perimeter of the opening when the door
is in the closed position and the latched position.” Appeal Br. 22 (claims
app.). The Examiner determines that “Link as modified” teaches this
limitation. Final Act. 7. Appellant responds that in PPP, “the hook is
disposed within the perimeter of the opening when the door is in the closed
position and the latched position.” Appeal Br. 18. In defense of the
rejection of claim 14, the Examiner asserts that “[t]he claim language is
broad in nature and the structure of the prior art satisfies the structural
limitation of the claim since at least a portion of the hook is outside the
perimeter of the opening when it is engaged with the horizontal bar of the
face panel of the crate. Appellant did not specifically address claim 14 in its
Reply Brief.
We are not persuaded that the Examiner erred in rejecting claim 14.
First, Appellant’s argument appears to be based on PPP alone, instead of the
combination of references on which the rejection is based. See In re Merck
& Co., Inc., 800 F.2d 1091, 1097–98 (Fed. Cir. 1986) (“Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.”
(citations omitted)). Second, we agree with the Examiner that the claim
language is broad enough to encompass at least a portion of the hook being
Appeal 2019-003687
Application 15/636,867

10
outside the perimeter of the opening when the door is in the closed and
latched position.
CONCLUSION
The Examiner’s rejections are affirmed.
More specifically,
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–14 103 Link, PPP 1–14

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