Ex Parte Payne

Patent Trial and Appeal Board

Jun 15, 2018

14255024 (P.T.A.B. Jun. 15, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/255,024 04/17/2014
75826 7590 06/19/2018
MICHAELE. ZALL
MICHAELE. ZALL LAW FIRM
TWO YORKSHIRE DRIVE
SUFFERN, NY 10901
FIRST NAMED INVENTOR
Thomas M. Payne
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Vallin-Payne 5007
EXAMINER
DESAI, KAUSHIKKUMAR A
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
06/19/2018 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):
MIKE@ZALL-LA W.COM
ZallLaw NY@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS M. PAYNE
Appeal2018-005946 1
Application 14/255,0242
Technology Center 3700
Before BRUCE T. WIEDER, KENNETH G. SCHOPPER, and
AMEE A. SHAH, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 5, 6, and 8-10. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief ("Br.," filed Jan. 2, 2018), the
Examiner's Answer ("Ans.," mailed Feb. 8, 2018), and the Final Office
Action ("Final Act.," mailed Aug. 22, 2017).
2 According to Appellant, the real party in interest is Thomas M. Payne.
Br. 1.
Appeal 2018-005946
Application 14/255,024
BACKGROUND
According to Appellant, "[ t ]he present invention relates generally to
detachable handles for commercial quart size paint containers. More
particularly, the present invention relates to detachable handles which do not
make use of top or bottom rims for attachment." Spec. ,r 2.
ILLUSTRATIVE CLAIM
Claim 5 is the only independent claim on appeal and recites:
5. An adjustable handle for holding an object, the handle
compnsmg:
a grip member having an upper end, a lower end and a
central portion therebetween;
an elongated substantially straight base section extending
from the upper end of the grip member, the central portion and
lower end of the grip member spaced apart from the base section
at least a sufficient distance to permit a user's hand to pass
between the lower end of the grip member and the base section
and to enable the user to grip the central portion of the grip
member with the hand;
the base section having a first surface facing the central
portion of the grip member and an opposed second surface
contoured for contact with the object;
a slip resistant surface on the second surface for contact
with the object;
a length of a hook or loop locating strip affixed to the first
surface, the locating strip having an upper portion located near
the upper end of the grip portion and a lower portion;
at least two straps, each having a first and second end, the
first end and second end capable of removably connecting to
each other,
wherein a portion of each of the straps between the first
and second ends has a hook or loop surface to detachably affix
to a portion of the hook or loop locating strip, the straps being of
sufficient length to encircle the object,
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Application 14/255,024
wherein one strap is affixed above the other strap along the
locating strip, the locations of the straps affixed along the length
of the locating strip being adjustable to accommodate the size of
the object being held by the handle;
wherein when the at least two straps are mounted to the
locating strip and the object is placed against the slip resistant
surface, the at least two straps encircles the object and each of
the first end and second end of the straps are connected to each
other to hold and support the object,
whereby the grip member may be used to hold the object
by the user's hand and alternatively as a hook to hang on an
object or to hang an object therefrom.
Br. 10.
REJECTIONS
1. The Examiner rejects claims 5, 8, and 9 under 35 U.S.C. § I03(a) as
unpatentable over Posey3 in view of Shull, 4 Bernier, 5 and Williams. 6
2. The Examiner rejects claim 6 under 35 U.S.C. § I03(a) as unpatentable
over Posey in view of Shull, Bernier, Williams, and Marino. 7
3. The Examiner rejects claim 10 under 35 U.S.C. § I03(a) as unpatentable
over Posey in view of Shull, Bernier, Williams, and Meintzer. 8
3 Posey et al., US 6,729,665 Bl, iss. May 4, 2004.
4 Shull, US 4,817,810, iss. Apr. 4, 1989.
5 Bernier, US 7,730,588 Bl, iss. June 8, 2010.
6 Williams, US 5,325,991, iss. July 5, 1994.
7 Marino et al., US 5,083,733, iss. Jan. 28, 1992.
8 Meintzer, US 6,557,738 Bl, iss. May 6, 2003.
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Application 14/255,024
DISCUSSION
Claim 5, 8, and 9
With respect to these claims, Appellant raises arguments only with
respect to the limitations of claim 5. See Br. 3---6. Accordingly, we address
only claim 5 below and claims 8 and 9 fall therewith.
With respect to claim 5, the Examiner finds that Posey teaches an
adjustable handle as claimed, except that Posey does not disclose a space
between the grip section and base section for allowing a user's hand to pass;
the slip resistant surface on the base section; or a locating strip with
hook/loop material and corresponding hook/loop material on a strap. Final
Act. 3---6. The Examiner relies on Shull, Bernier, and Williams as teaching
these elements, respectively, and the Examiner concludes that it would have
been obvious to modify Posey's device with these features. Id.
As discussed below, we are not persuaded of reversible error by
Appellant's arguments.
As an initial matter, we agree with the Examiner that many of
Appellant's arguments attack the references individually without addressing
the combination relied upon in the rejection. See Ans. 2. One cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references. See In re Keller, 642 F.2d 413, 426
(CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
Appellant first argues that Posey does not include an open hand grip
as recited in claim 5 that allows the handle to be hung on various objects.
Br. 3. We are not persuaded by this argument because the rejection does not
rely on Posey for this claim requirement. Rather, the Examiner
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Application 14/255,024
acknowledges that Posey lacks an open hand grip, and the Examiner finds
that it would have been obvious to modify Posey to include an open hand
grip based on the teachings of Shull. See Final Act. 3.
Next, Appellant argues that Posey does not disclose straps that are
affixed to a locating strip on the base section of the handle. Br. 3. However,
we are not persuaded by this argument because the Examiner acknowledges
that Posey does not disclose the claimed locating strip and relies on
Williams with respect to this limitation. See Final Act. 4--5.
Appellant also argues that Shull teaches away from the claimed
invention because Shull discloses a base or bottom wall, which is not an
elongated substantially straight base section as claimed. Br. 4. Appellant
also asserts that Shull does not disclose the straps and locating strip claimed
and Shull "does not have the broad versatility of Applicant's invention." Id.
We are not persuaded of error. First, we note that Appellant has not
identified any particular reason why Shull teaches away from the claimed
invention other than that Shull discloses an allegedly alternative arrangement
for the base section. A reference may be said to teach away when a person
of ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant. In re Gurley, 27
F.3d 551, 53 (Fed. Cir. 1994). However, the mere fact that Shull may
disclose a different way of holding an object, i.e. with a bottom support, is
not sufficient to show that Shull teaches away from the path taken in the
claims before us. See DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
567 F.3d 1314, 1327 (Fed. Cir. 2009) ("A reference does not teach away
[ ... ] if it merely expresses a general preference for an alternative
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Application 14/255,024
invention[.]"). Further, to the extent Appellant argues that Shull does not
have the "broad versatility of' Appellant's invention, Appellant does not
explain how the alleged broad versatility of Appellant's device is manifested
in the claims such that the art of record does not render the claimed device
obvious.
Appellant next argues that Bernier is non-analogous art because
Bernier "is not in the same field of endeavor as the claimed invention and is
not reasonably pertinent to the problem solved, i.e., a holder for objects that
can also be used as a hook for such objects or as a hook for other objects."
Br. 4. Appellant further asserts that "[ o ]ne skilled in the art would not look
to the art of fire hose holding apparatus art to create Applicant's invention."
Id. We disagree and find that Bernier's device is in the same field of
endeavor as the claimed device. Specifically, we find that Bernier is in the
field of detachable handles for objects as is the claimed device. See Spec. 3.
Also, to the extent Appellant argues that Bernier does not teach or suggest
other elements of the claim such as the open hand grip, we are not persuaded
because the Examiner does not rely on Bernier for such elements and
Appellant otherwise does not explain why the combination with Bernier
includes reversible error.
Finally, Appellant argues that Williams "does not teach or suggest the
numerous elements and functionality of [Appellant's] claimed adjustable
handle ... [including] the open hand grip" and the straight elongated base
section. Br. 4. We are not persuaded by this argument because the rejection
relies on Williams only with respect to the claim requirements of a locating
strip and corresponding hook or loop material on a strap. Final Act. 4--5.
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Based on the foregoing, we are not persuaded of reversible error in the
rejection of claim 5. Accordingly, we sustain the rejection of claim 5, and
we also sustain the rejection of claims 8 and 9, which fall with claim 5.
Claims 6 and 10
With respect to the additional art relied upon in rejection claims 6
and 10, Appellant argues only that Marino and Meintzer do not disclose
elements allegedly missing from the art with respect to independent claim 5.
Br. 5. In particular, Appellant asserts that these references do not disclose
an open hand grip or detachable and adjustably affixed straps. Id. Having
found no deficiency in the rejection of claim 5 as discussed above, we are
not persuaded by Appellant's arguments here. Accordingly, we also sustain
the rejections of claims 6 and 10.
CONCLUSION
We AFFIRM the rejections of claims 5, 6, and 8-10.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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