Ex Parte Taylor

Patent Trial and Appeal Board

Jul 19, 2018

14587269 (P.T.A.B. Jul. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/587,269 12/31/2014
44088 7590
Kaufhold Dix Patent Law
P. 0. BOX 89626
SIOUX FALLS, SD 57109
07/23/2018
FIRST NAMED INVENTOR
James Taylor
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.
SK10747 1041
EXAMINER
KELLY, CATHERINE A
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
07/23/2018 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):
j ason@kaufboldlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES TAYLOR
Appeal2017-010172
Application 14/587 ,269 1
Technology Center 3600
Before NINA L. MEDLOCK, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, 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 1 and 5-9. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
According to Appellant, the invention is directed to a "door device for
automatically opening to allow a pet to enter a building." Spec. 1, 11. 13-14.
1 According to Appellants, the real party in interest is James Taylor. Br. 2.
Appeal2017-010172
Application 14/587,269
Claims 1 and 9 are the independent claims on appeal. Below, we reproduce
claim 1, as illustrative of the appealed claims.
1. A pet door assembly configured to automatically open
when a pet approaches the pet door, said assembly comprising:
a first door coupled to a building;
a collar configured to be worn by a pet;
a transmitter coupled to said collar;
a frame positioned within said first door to define an opening
through said first door, wherein said frame has a pair of vertical
legs and a central leg coupled to and extending between said
vertical legs, said central leg being positioned adjacent to a top
end of said vertical legs;
a second door being hingedly coupled to said frame, wherein said
second door has a front side and an outer edge, a top side of said
outer edge being hingedly coupled to said central leg, said second
door extending between said vertical legs;
a pair oflock receivers each coupled to said second door, wherein
each of said lock receivers includes a respective first planar
section coupled to said front side and a respective second planar
section perpendicular to said first section such that said second
section extends perpendicularly out from said front side of said
second door, each of said lock receivers being positioned
adjacent to an associated one of a first lateral side and a second
lateral side of said outer edge;
a control circuit coupled to said frame;
a wireless receiver positioned within said frame, said wireless
receiver being in wireless communication with said transmitter,
said wireless receiver being electrically coupled to said control
circuit, said control circuit determining a distance between said
wireless receiver and said transmitter thereby defining a trigger
distance between said wireless receiver and said transmitter; and
a pair of locks each coupled to said frame, said locks being
electrically coupled to said control circuit, said locks being
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Application 14/587,269
actuatable into a locked position to engage said lock receivers
thereby retaining said second door in said closed position when
said transmitter is moved out of said trigger distance, said locks
being actuated into an unlocked position when said transmitter is
moved within said trigger distance.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. claims 1, 7, and 8 under 35 U.S.C. § 103 as unpatentable over
Reid (US 2005/0252622 Al, pub. Nov. 17, 2005) and Welte
(US 2008/0278335 Al, pub. Nov. 13, 2008); and
II. claims 5, 6, and 9 under 35 U.S.C. § 103 as unpatentable over
Reid, Welte, and Kodat (US 8,464,663 B2, iss. June 18, 2013).
ANALYSIS
Rejection I
Based on our review of the record, including Appellant's Appeal Brief
and Reply Brief, and the Examiner's Final Office Action and Answer,
Appellant does not persuade us that the Examiner errs in rejection claims 1,
7, and 8 as obvious based on Reid and Welte. Thus, we sustain the rejection.
Essentially, Appellant argues that the Examiner does not provide a
sufficient reason for combining the references as proposed, but, instead,
provides only conclusory statements without the required evidentiary basis.
See Br. 6-7. As we state above, we are unpersuaded by Appellant. As
explained by the Examiner, the Examiner's rejection "identifies the claimed
elements shown in [Reid], describes the element missing from [Reid] ... ,
[and] identifies where this element is shown in [Welte]." Answer 3. The
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Application 14/587,269
Examiner "provides a reason why one of ordinary skill in the art would be
motivated to combine the references ([i.e.,] the separate lock receiver on the
surface of the door allows for easier replacement in case of wear and tear)."
Id. Further, we agree with the Examiner "that the motivation provided is
sufficient to support a finding of obviousness, as [the E]xaminer has
provided 'some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.'" Id., citing KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398,418 (Fed. Cir. 2007) (quoting In re Kahn,
441 F.3d 977, 988, (Fed, Cir. 2006)). We also agree with the Examiner that
it is common knowledge that modifying Reid such that its integrated lock
receiver is moved to a door surface as disclosed by Welte would provide
benefits and advantages----e.g., such an arrangement would "allow for
replacement of the lock receiver in case of wear and tear without
necessitating replacement of the entire door as is the case with an integral
lock receiver." Answer 3--4.
We now address Appellant's arguments regarding In re Nu Vasive,
Inc., 693 F. App'x 893, 899 (Fed. Cir. 2017) (non-precedential). Initially,
we note that most of Appellant's arguments regarding NuVasive do not
include a citation to any particular portion of the opinion. Thus, we are
unable to determine whether, and if so where, Nu Vasive sets forth many of
the points Appellant raises. With respect to Appellant's argument that in
Nu Vasive, "the court held that mere conclusory statements of motivation are
not sufficient to establish grounds for rejection" (Br. 6-7), in the current
appeal, the Examiner's statements are not conclusory (i.e., they do not
simply state a conclusion, such as that "it would have been obvious to
modify Reid such that its integrated lock receiver is moved to a door surface
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Application 14/587,269
as disclosed by Welte," without giving a reason why it would have been
obvious), but instead the Examiner's statements set forth a reason why it
would have been obvious (see Answer 3--4, discussed supra). With respect
to Appellant's argument that "the heart of ... Nu[V]asive . .. distinguishes
between motivation related to goals shown within the prior art and mere
conclusory statements of general advantage provided absent any other
substantive analysis" (Br. 7), Appellant's remark seems to indicate that a
motivation to combine references must be provided by the references
themselves. This is incorrect, however. It is well settled that the test for
obviousness is not whether the claimed invention is expressly suggested in
any one or all of the references, but whether the claimed subject matter
would have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references. See In re Keller, 642 F.2d 413, 425
(CCP A 1981 ). Further, one of ordinary skill can use his or her ordinary
skill, creativity, and common sense. See KSR 550 U.S. at 418 (2007) ("[A]
court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ").
Finally, Nu Vasive is distinguishable from the current appeal for
numerous reasons----one reason being that, in Nu Vasive, the Court found that
"[i]n sum, the PTAB failed to articulate a reason why the PHOSITA would
have been motivated to modify the" primary reference based on the teaching
of the secondary reference. NuVasive, Inc., 842 F.3d 1376, 1384
(Fed. Cir. 2016). This is not the case here. As set forth, supra, the
Examiner articulates a reason for the proposed modification.
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Application 14/587,269
Rejection II
Appellant does not separately argue the rejection of claims 5, 6, and 9
that depend from claim 1. Thus, we sustain the rejection.
DECISION
We AFFIRM the Examiner's obviousness rejections of claims 1
and 5-9.
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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