Ex Parte Stites

Patent Trial and Appeal Board

Jul 16, 2018

13763719 (P.T.A.B. Jul. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/763,719
27059 7590
MARTINS. HIGH
PO Box 33190
Clemson, SC 29633
FILING DATE FIRST NAMED INVENTOR
02/10/2013 Ronald Lee Stites JR.
07/18/2018
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.
Stites2012 1104
EXAMINER
LUTZ, JESSICA H
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
07/18/2018 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):
marty@martyhigh.com
martinshigh@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD LEE STITES JR.
Appeal 2017-011049
Application 13/7 63, 719 1
Technology Center 3600
Before MEREDITH C. PETRA VICK, PHILIP J. HOFFMANN, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's rejection of claims 4, 5, 7-10, and 12-16. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
According to Appellant, the invention is directed to "concrete
finishing equipment and leveling equipment." Spec. ,r 4. Claims 4 and 12
1 According to Appellant, the real party in interest is "The Original Screed
Bracket LLC." Br. 3.
Appeal2017-011049
Application 13/763,719
are the independent claims on appeal. Below, we reproduce claim 4 as
illustrative of the appealed claims.
4. A screed bracket comprising
a screed clamp;
a handle bracket; and
a plurality of stepped grips located in the interior of the
handle bracket that provide a resistance fit without a threaded
connection for accepting a handle and serve to securely grip an
interchangeable screed handle when inserted in the handle
bracket;
wherein the screed clamp is a rectangular cube structure
with a top, a front side, and a back side;
wherein the opening formed by the front side and the back
side of the screed clamp of the screed clamp can accept a screed
board;
wherein the screed clamp will accept a 2x4 screed board;
wherein the screed bracket forms one or more screed
fastener apertures;
wherein the screed bracket forms one handle aperture that
can accept a handle;
wherein the screed bracket does not include a handle
specifically designed for the screed bracket;
wherein the handle bracket that is integrally formed with
the screed clamp in such a manner so that a handle protrudes
from the side of screed clamp at an angle between ten (10) and
thirty-eight (3 8) degrees relative to the horizontal axis of the top
of the clamp;
wherein one or more fasteners are inserted through the one
or more screed fastener apertures to secure a handle; and
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Application 13/763,719
wherein the location where a screed handle is accepted
into the handle bracket allows for rotation of the screed board
around the long axis of the screed board.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. claims 4, 5, 7, 10, and 12-18 under 35 U.S.C. § I03(a) as
unpatentable over Pardue (US 8,016,517 Bl, iss. Sept. 13,
2011) and Ballmer (US 3,625,513, iss. Dec. 7, 1971);
II. claims 8 and 9 under 35 U.S.C. § I03(a) as unpatentable over
Pardue, Ballmer, and Topping (US 2011/0283611 Al, pub.
Nov. 24, 2011); and
III. claims 4, 5, 7, 10, and 12-18 under 35 U.S.C. § I03(a) as
unpatentable over Libman (US 2010/0212096 Al, pub.
Aug. 26, 2010) and Yen (US 2004/0040277 Al, pub. Mar. 4,
2004).
ANALYSIS
Rejection I
As set forth above, independent claim 4 recites, in relevant part, "a
plurality of stepped grips located in the interior of the handle bracket that
provide a resistance fit without a threaded connection for accepting a handle
and serve to securely grip an interchangeable screed handle when inserted in
the handle bracket." Br., Claims App. Appellant argues that the Examiner's
obviousness rejection is in error because the Examiner's combination of
references does not disclose or render obvious the claimed plurality of
stepped grips, as well as the resistance fit provided by the grips. See id.
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Application 13/763,719
at 8-10. Based on our review of the record, for the following reasons, we
agree with Appellant.
Specifically, we agree with Appellant that it appears that "Ballmer
does not include ' [ a plurality of] steps."' Id. at 9. Instead, Ballmer only
appears to disclose a single "' stepped shoulder 80."' Id. ( citation omitted).
Thus, inasmuch as the Examiner's rejection states that it would have been
obvious to modify "[t]he screed bracket of Pardue ... to include the stepped
grips ([F]ig. 10, stepped shoulder 80) taught by Ballmer" (Answer 2), and it
is not clear that Ballmer includes a plurality of steps, the Examiner's
proposed combination does not appear to disclose or render obvious claim 4.
Notwithstanding the above discussion, as stated above, we also
determine (see Br. 8-10) that the Examiner does not support adequately the
finding that the combination of Pardue and Ballmer discloses claim 4 's
recitation of "a plurality of stepped grips ... that provide a resistance fit"
(id. at Claims App.) (emphasis added). Specifically, we agree with
Appellant that, based on its disclosure,
Ballmer teaches and requires the use of a bonding agent to hold
the golf club shaft in the hosel bore ... ("bonding material
disposed and filling the void between the head end portion of said
shaft and the wall of the hosel bore so as to bond the entire outer
surface of that portion of the shaft within the bore directly to the
wall of the hosel bore." Ballmer[] [ c ]laim 1 ).
Br. 8-9. Thus, inasmuch as there appears to be a void (i.e., a space) between
Ballmer's shaft and wall, the Examiner does not support adequately the
finding that "[t]he screed bracket of Pardue ... modified to include the
stepped grips ([F]ig. 10, stepped shoulder 80) taught by Ballmer"
(Answer 2) would result in an arrangement that provides the claimed
resistance fit.
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Application 13/763,719
Thus, based on the foregoing, we do not sustain the Examiner's
rejection based on Pardue and Ballmer of claim 4. We also do not sustain
the Examiner's rejection based on Pardue and Ballmer of independent
claim 12, which includes a recitation similar to that discussed above with
respect to claim 4. Further, we do not sustain the obviousness rejection,
based on Pardue and Ballmer, of claims 5, 7, 10, and 13-18 that depend
from claims 4 and 12.
Rejection II
The Examiner does not rely on Topper to disclose anything that
remedies the above deficiency in claim 4's rejection. Thus, we do not
sustain the Examiner's obviousness rejection of claims 8 and 9 that depend
from claim 4, based on Pardue, Ballmer, and Topper.
Rejection III
For the following reasons, Appellant does not persuade us that the
Examiner's obviousness rejection of claims 4, 5, 7, 10, and 12-18, based on
Libman and Yen, is in error. Thus, we sustain the rejection.
Appellant argues that "[ t ]he Examiner has misconstrued the threads of
Figure 2 of Yen as equivalent to the [claimed] stepped grips ....
[Appellant] respectfully submits that Yen teaches a significantly different
invention from the stepped grips of the [ claimed] [ s ]creed [b ]racket."
Appellant's argument does not to persuade us that the Examiner errs. We
note, for example, that Appellant does not provide any evidence, such as a
Declaration, or point to anything in the Specification or claim, which
precludes Yen's assembly units 204 and fastening units 206 from teaching
the claimed stepped grips. Answer 4.
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Appellant also argues that rejection is in error because "[t]he
Examiner has failed to established what the level of ordinary skill in the art
was to support the obviousness rejection." Br. 12. In cases where the
patents and prior art are "easily understandable, a factual determination of
the level of skill in the art [is] unnecessary .... [One] cannot argue that an
unnecessary fact is material." Chore-Time Equipment Inc. v. Cumberland
Corp., 713 F.2d 774, 779 (Fed. Cir. 1983). "[T]he absence of specific
findings on the level of skill in the art does not give rise to reversible error
'where the prior art itself reflects an appropriate level[,] and a need for
testimony is not shown."' Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
Cir. 2001) (citing Litton Indus. Prods., Inc. v. Solid State Systems Corp., 755
F.2d 158 (Fed. Cir. 1985)). Here, the references and Appellant's claimed
invention are directed to hand tools for leveling concrete, sweeping, digging,
and raking-all of which reflect the appropriate level of skill needed to
assess the issues in the rejection. Thus, the Examiner's omission of a
statement expressly indicating the level of ordinary skill does not provide a
basis for reversing the rejection.
DECISION
We REVERSE the Examiner's obvious rejection, based on Pardue
and Ballmer, of claims 4, 5, 7, 10, and 12-18.
We REVERSE the Examiner's obvious rejection, based on Pardue,
Ballmer, and Topper, of claims 8 and 9.
We AFFIRM the Examiner's obvious rejection, based on Libman and
Yen, of claims 4, 5, 7, 10, and 12-18.
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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). See
37 C.F.R. § 41.50(±).
AFFIRMED-IN-PART
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