Ex Parte Giampavolo et alDownload PDFBoard of Patent Appeals and InterferencesJun 4, 201210676412 (B.P.A.I. Jun. 4, 2012) Copy Citation 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. 10/676,412 09/30/2003 Paul Giampavolo P3758-17 8071 7590 06/05/2012 OSTROLENK, FABER, GERB & SOFFEN, LLP 1180 Avenue of the Americas New York, NY 10036-8403 EXAMINER CHEN, JOSE V ART UNIT PAPER NUMBER 3637 MAIL DATE DELIVERY MODE 06/05/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte PAUL GIAMPAVOLO and ROBERT SHELTON ____________ Appeal 2009-013981 Application 10/676,412 Technology Center 3600 ____________ Before JOHN C. KERINS, GAY ANN SPAHN and EDWARD A. BROWN, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-013981 Application 10/676,412 2 STATEMENT OF THE CASE Paul Giampavolo and Robert Shelton (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-4, 6, 7, 9-12, 17, 19, 21, 23 and 25-32. Claim 24 has been canceled; claims 5, 8, 18, 20, 22 and 33-35 have been withdrawn; claim 14 has been allowed, and claims 13, 15 and 16 are objected to. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Appellants’ invention is directed to a pallet guard. Independent claim 1 is illustrative: 1. A guard for protecting the sides of a pallet on which goods can be stacked or a merchandise grouping placed on a support surface, the guard comprising: a plurality of modular guard sections, each section being couplable to an adjacent section to surround at least a portion of the perimeter of a pallet or merchandise grouping, each modular guard section having top and bottom portions disposed between front and back portions, the bottom portion being wider than the top portion making each modular guard section substantially wedge or triangular shape in cross section to increase the stability of the guard section; and the guard sections each having a complementary portion of a joint for coupling the sections together. THE REJECTIONS The Examiner has rejected claims 1-4, 6, 7, 9-12, 17, 19, 21, 23 and 25-32 under 35 U.S.C. § 103(a) as being obvious over Giampavolo (CA 2 375 246 A1, pub. Dec. 7, 2000) in view of Heuss (US 5,913,501, iss. Jun. 22, 1999). Appeal 2009-013981 Application 10/676,412 3 ISSUE Did the Examiner err in concluding that the subject matter of claims 1, 21 and 25 would have been obvious over Giampavolo in view of Heuss? ANALYSIS Appellants argue claims 1-4, 6, 7, 9-12, 17, 19, 23 and 26-32 as a group. We will take claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 21 and 25 are separately argued in the Reply Brief. Reply Br. 2. The bulk of Appellants’ arguments presented in the Appeal Brief are directed to the Heuss patent, and attack the Heuss patent individually as not teaching or suggesting various elements of the claims. Appeal Br. 9-10. These arguments do not apprise us of any error in the Examiner’s position. See In re Keller, 642 F.2d 413, 425 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (nonobviousness cannot be established by attacking references individually where rejections are based on combinations of references). A further attack on the Heuss disclosure appears in the Reply Brief. There, Appellants argue that the Heuss stacker sections are not wedge shaped or triangular shaped, because they have a complex shape that includes the flat floor bearing extensions 25, 26. Reply Br. 1. Appellants recognize, however, that the Heuss sections have cap walls 29, 30, that are unitary with downwardly angulated stiffener wall members 31, 32. Id.; see Heuss, Figs. 3-5, 7 and col. 2, ll. 51-55. The cross-sectional shape of the Heuss cap wall and stiffener walls is very similar to the cross-section of the same portions of Appellants’ guard sections, and Appellants’ arguments do Appeal 2009-013981 Application 10/676,412 4 not persuade us of error in the Examiner’s position that Heuss discloses elements having wedge shapes. Appellants further argue that it would not have been obvious to combine the teachings of Heuss with Giampavolo, because Heuss is directed to a stacker base, whereas Giampavolo is directed to a pallet guard. Appeal Br. 10-11. This argument is in the vein of asserting that the devices disclosed in the respective references are non-analogous art. Appellants have not, however, persuasively shown that Heuss is outside the field of Appellants’ endeavor, or that Heuss is not reasonably pertinent to the problem with which the inventor was concerned. In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992). As to the former, the Heuss device is disclosed as being provided to form an enclosure for the lower levels of a stack of articles, as is Appellants’ invention. (Heuss, Abstr.). As to the latter, Appellants were concerned with increasing the stability of the pallet guard, Similarly, the “downwardly angulated stiffener wall members 31 and 32” of Heuss “impart greater stability to the base.” Heuss, col. 2, ll. 51-55. Appellants also assert that the Examiner has not set forth any motivation for combining teachings from a stacker base with those of a pallet guard. Appeal Br. 10-11. The Examiner states that “the patent to Heuss et al[.] teaches the use of providing a wedge shaped member to provide better strength and stability,” and that it would have been obvious to modify the members of Giampavolo to have a wedge shaped base, to predictably provide increased strength and stability. Ans. 4-5. Appellants have not apprised us of error in the Examiner’s position. Appellants additionally maintain that even if the teachings are properly combinable, the combination would result in a device that could not Appeal 2009-013981 Application 10/676,412 5 be used as a pallet guard, in that the flat floor bearing extensions in Heuss would require that a pallet be lifted in order to be placed atop those extensions. Appeal Br. 11; Reply Br. 1-2. The Examiner makes clear that the proposed modification is not to bodily incorporate all features of the Heuss device into the Giampavolo device, but rather to simply form the Giampavolo guard sections with a wedge shaped cross-section. The Examiner’s proposed modification does not contemplate also including the Heuss flat floor bearing extension portions 25, 26 in the modified Giampavolo structure. Thus, Appellants arguments in this respect are unavailing. Appellants urge that Giampavolo does not teach or suggest the claim limitation calling for “‘each section being couplable to an adjacent section.’” Appeal Br. 11. Appellants note that an example of this claim limitation is shown in “Fig[ure] 11 where sections 120 and 122 are coupled together.” Appeal Br. 10. Appellants assert that sections 42 in Figure 3 of Giampavolo can only be connected by using intervening sections 44, 46 and 48. Appeal Br. 11. First, the claim limitation does not require that each section be directly coupled to each other section. Second, the claimed “modular guard section[s]” is sufficiently broad so as to encompass, in the cited Figure 3 embodiment of Giampavolo, a “section” that includes element 42 as well as one or more connecting members 44, 46 and/or 48. This is evidenced in Appellants’ citation to their Figure 11 as corresponding to that limitation. Appellants describe this construction as including “a connector 120 [is] fitted to a section 90 to mate with a complementary connector 122.” Spec., p. 11, para. [0069]. Appellants have not apprised us of error in the Appeal 2009-013981 Application 10/676,412 6 Examiner’s position with respect to Giampavolo as meeting this claim limitation. For the foregoing reasons, the Examiner’s rejection of claims 1-4, 6, 7, 9-12, 17, 19, 23 and 26-32 as being unpatentable over Giampavolo in view of Heuss is sustained. In the Reply Brief, Appellants appear to argue for the separate patentability of claims 21 and 25, and in particular with respect to limitations directed to structure for receiving signage. Reply Br. 2. Much of the argument is devoted to limitations found in claim 14, which had been deemed allowable by the Examiner, and not the broader recitations in claims 21 and 25. Thus, to the extent that those arguments are not directed to what is actually set forth in claims 21 and 25, the arguments are not commensurate in scope with the claims, and are not persuasive of patentability. Appellants maintain that the combination of Giampavolo and Heuss does not teach or suggest a pallet guard wherein at least one of the guard sections has an outwardly facing surface having an area for the receipt of a removable signage member, as set forth in claims 21 and 25. Reply Br. 2. The claim limitation requires nothing more structurally than an outwardly facing surface onto which removable signage can be received. Giampavolo describes, with respect to the structure in Figure 1 thereof, that “advertising space 28 for messaging, such as sale information, on, for example, one of wall portions 22” may be provided. Appellants have not demonstrated how this disclosure fails to meet the limitation argued in connection with claims 21 and 25. The rejection of these claims as unpatentable over Giampavolo and Heuss is sustained. Appeal 2009-013981 Application 10/676,412 7 CONCLUSION The Examiner did not err in concluding that the subject matter of claims 1, 21 and 25 would have been obvious over Giampavolo in view of Heuss. DECISION The rejection of claims 1-4, 6, 7, 9-12, 17, 19, 21, 23 and 25-32 as being unpatentable over Giampavolo in view of Heuss is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED hh Copy with citationCopy as parenthetical citation