Ex Parte Metzger

Board of Patent Appeals and Interferences

May 31, 2007

10441783 (B.P.A.I. May. 31, 2007)

The opinion in support of the decision being entered today was 1
not written for publication and is not binding precedent of the Board. 2
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UNITED STATES PATENT AND TRADEMARK OFFICE 5
_____________ 6
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BEFORE THE BOARD OF PATENT APPEALS 8
AND INTERFERENCES 9
_____________ 10
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Ex parte ANDREW T. METZGER 12
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Appeal No. 2006-3390 15
Application No. 10/441,783 16
Technology Center 3600 17
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Decided: May 31, 2007 20
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Before TERRY J. OWENS, STUART S. LEVY, and ROBERT E. NAPPI, 23
Administrative Patent Judges. 24
25
OWENS, Administrative Patent Judge. 26
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28
DECISION ON APPEAL 29
30
The Appellant appeals from a rejection of claims 1, 2, 5, 12, 13, 15 and 21. 31
The other pending claims, i.e., claims 9-11, 16, 17 and 20, stand allowable. 32
THE INVENTION 33
The Appellant claims a zipper slide formed as a single, unitary piece 34
(claims 1, 2, 5, 12, 13, 15) or a unitary piece (claim 21) with a zipper guard. 35
Claims 1 and 21 are illustrative: 36
Appeal 2006-3390
Application 10/441,783
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1. A zipper slide, comprising: 1
a forward end configured to receive two disconnected rows of zipper 2
teeth and defining front side walls and front upper and front lower surfaces; 3
a rearward end configured to receive a connected end of the two rows 4
and defining rear side walls and rear upper and rear lower surfaces; and 5
a front guard formed as a single, unitary piece with the zipper slide 6
and attached to the forward end and comprising: 7
a first wedge defined by the front side walls 8
forwardly converging; and 9
a second wedge defined by the front upper and front 10
lower surfaces forwardly converging. 11
12
21. A zipper slide comprising formed[1] a zipper guard formed as a 13
unitary piece with the zipper slide, the zipper guard comprising a 14
compound wedge shape configured and arranged to remove fabric or other 15
obstacles from an opening in the zipper slide when the zipper slide is moved 16
along a zipper. 17
18
THE REFERENCE 19
Baroky US 4,819,308 Apr. 11, 1989 20
THE REJECTION 21
Claims 1, 2, 5, 12, 13, 15 and 21 stand rejected under 35 U.S.C. § 102(b) as 22
anticipated by or, in the alternative, under 35 U.S.C. § 103 as obvious over Baroky. 23
OPINION 24
The rejection under 35 U.S.C. § 102(b) is reversed as to claims 1, 2, 5, 12, 25
13 and 15, and affirmed as to claim 21. The rejection under 35 U.S.C. § 103 is 26
affirmed. 27

1 In claim 21 the first appearance of “formed” should be deleted.
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Application 10/441,783
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Rejection under 35 U.S.C. § 102(b) 1
Regarding the claims whose rejections are reversed, we need to address only 2
the independent claims, i.e., claims 1 and 13. Each of those claims requires a 3
guard formed as a single, unitary piece with a zipper slide. 4
Claims 1 and 13 5
Baroky discloses “a separate, readily attachable guard suitable for 6
retrofitting conventional slide fasteners, which will divert adjacent fabric material 7
away from the slider, to prevent catching and subsequent jamming as the slider is 8
moved along” (Baroky, col. 1, ll. 25-30). The guard is “a snap-on guard 1, 9
attachable to the front of the slide 2 of a conventional zipper fastener 3, which is 10
generally crescent-shaped to allow the rear inside surface to be fit about the 11
forward end 4 of the slide 2” (Baroky, col. 2, ll. 6-10). 12
The Examiner argues that Baroky’s “zipper guard can be considered as 13
being formed as a single, unitary piece with the zipper slider broadly interpreted 14
after the zipper guard is snap fitted with the slider, the end result, shown in Fig. 1 15
of Baroky, a zipper guard formed as a single unitary piece with a zipper slider” 16
(Answer 5). During patent prosecution, claims are to be given their broadest 17
reasonable interpretation consistent with the Specification, as the claim language 18
would have been read by one of ordinary skill in the art in view of the 19
Specification. See In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. 20
Cir. 1989); In re Sneed, 710 F.2d 1544, 1548, 218 USPQ 385, 388 (Fed. Cir. 21
1983). The ordinary meaning of “unitary” is “having the character of a unit: 22
UNDIVIDED, WHOLE”.2 The Appellant’s Specification discloses that the 23
integral zipper guide and guard are “formed as a single unit” as in a one-step 24

2 Webster’s New Collegiate Dictionary 1279-80 (G. & C. Merriam 1973).
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molding operation (Specification 3:0008). Thus, the Specification is consistent 1
with the ordinary meaning of “unitary”. Baroky’s zipper guard and zipper slide, 2
when snapped together, have the character of a unit and are whole and undivided. 3
Hence, the snapped-together pieces are unitary. That combination of two snapped-4
together pieces, however, is not a single piece. Hence, the Examiner has not 5
established a prima facie case of anticipation of the inventions claimed in the 6
Appellant’s claims 1 and 13, or their dependent claims 2, 5, 12 and 15. 7
Claim 21 8
Claim 21 requires that the guard and zipper slide form a piece that is unitary, 9
but the claim does not require that the unitary piece is a single piece. As discussed 10
above, Baroky’s snapped-together guard and zipper slide form a unitary piece. 11
The Appellant argues that Baroky’s guard and zipper slide are not a single, 12
unitary piece (Br. 10; Reply Br. 4). The Appellant, however, does not argue that 13
Baroky fails to disclose a guard and zipper slide that is unitary but need not be a 14
single piece. 15
We therefore are not convinced of reversible error in the Examiner’s 16
rejection of claim 21 under 35 U.S.C. § 102(b). 17
Rejection under 35 U.S.C. § 103 18
The Appellant argues: 19
Baroky teaches away from the reference [sic, invention] by stating that “it is 20
therefore the object of the invention to provide a separate, readily attachable 21
guard suitable for retrofitting conventional slide fasteners…” [Baroky, 22
col. 1. ll. 25-27] [Br. 9][3] 23
Baroky is directed to attaching a separate guard to existing slide 24
fasteners. The patent is directed to a guard that is installed on an already 25

3 Citations herein to the Brief are to the Amended Appeal Brief, dated May 23,
2006.
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Application 10/441,783
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existing zipper slide. Thus, staying within the object of Baroky (i.e., 1
retrofitting a zipper guard to a zipper slide), it is clear that there is no 2
motivation to provide a single unitary zipper slide and guard, and that the 3
rejections of the claims involve hindsight reasoning. [Br. 10] 4
* * * 5
The obviousness rejection fails to address the fact that the Examiner’s 6
interpretation of Baroky would defeat the purpose of the reference. Within 7
Baroky, it is clearly stated that “the object of the invention to provide a 8
separate, readily attachable guard suitable for retrofitting conventional slide 9
fasteners…”. (Column 1, lines 25-27, emphasis added). Throughout the 10
reference, this object is emphasized, and attachment of the two pieces is the 11
main focus of the reference. [Reply Br. 4] 12
13
The determining of obviousness does not require staying within the object of 14
Baroky. “The question is not whether the combination was obvious to the patentee 15
but whether the combination was obvious to a person with ordinary skill in the 16
art.” KSR Int’l. Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742, 82 USPQ2d 1385, 1397 17
(2007). In making the obviousness determination one “can take account of the 18
inferences and creative steps that a person of ordinary skill in the art would 19
employ.” KSR, 127 S.Ct. at 1741, 82 USPQ2d at 1396. “A person of ordinary 20
skill is also a person of ordinary creativity, not an automaton.” KSR, 127 S.Ct. at 21
1742, 82 USPQ2d at 1397. 22
Baroky’s disclosure of retrofitting conventional zipper sliders with a 23
separate, readily attachable guard to prevent the sliders from picking up or 24
pinching adjacent fabric material (Baroky, col. 1, ll. 13-16, 25-27) would have led 25
one of ordinary skill in the art, through no more than ordinary creativity, to form 26
the slider and guard as one piece in newly-made zippers to avoid the cost and 27
processing step of making and attaching to the slider a separate guard piece. The 28
Examiner has argued that Baroky would have led one of ordinary skill in the art to 29
form the slider and guard as one piece to provide “increased rigidity and strength 30
Appeal 2006-3390
Application 10/441,783
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which would ensure proper operating functions as well as omitting the need of a 1
fastening means (connection between the zipper guard and zipper slider) which 2
may become worn or broken. Less parts makes for a more economical structure to 3
manufacture, which affords the zipper slider to be readily attach[ed] to a closure 4
article without additional steps or processes” (Answer 5-6). The Appellant has not 5
challenged the Examiner’s reasoning. 6
For the above reasons we are not convinced of reversible error in the 7
rejection under 35 U.S.C. § 103 of the invention claimed in the Appellant’s 8
claims 1, 2, 5, 12, 13, 15 and 21. We are not convinced of reversible error in the 9
rejection of claim 21 under 35 U.S.C. § 103 for the additional reason that, as 10
discussed above, that claim, which requires that the slider and guard are unitary but 11
does not require that they are a single piece, is anticipated by Baroky. Anticipation 12
is the epitome of obviousness. See In re Skoner, 517 F.2d 947, 950, 186 USPQ 80, 13
83 (CCPA 1975); In re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA 14
1974). 15
DECISION 16
The rejection of claims 1, 2, 5, 12, 13, 15 and 21 under 35 U.S.C. §§ 102(b) 17
over Baroky is reversed as to claims 1, 2, 5, 12, 13 and 15, and affirmed as to 18
claim 21. The rejection of claims 1, 2, 5, 12, 13, 15 and 21 under 35 U.S.C. § 103 19
over Baroky is affirmed. 20
No time period for taking any subsequent action in connection with this 21
appeal may be extended under 37 C.F.R. § 1.136(a)(2006). 22
AFFIRMED 23
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Appeal 2006-3390
Application 10/441,783
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LEYDIG, VOIT & MAYER, LTD. 5
(SEATTLE OFFICE) 6
TWO PRUDENTIAL PLAZA 7
SUITE 4900 8
CHICAGO, IL 60601-6731 9