Ex Parte Zelek et alDownload PDFPatent Trial and Appeal BoardSep 13, 201814338437 (P.T.A.B. Sep. 13, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/338,437 07/23/2014 26096 7590 09/17/2018 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 FIRST NAMED INVENTOR John B. Zelek 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. 13524 PUS; 67080-625 PUSl CONFIRMATION NO. 9828 EXAMINER KRYCINSKI, STANTONL ART UNIT PAPER NUMBER 3631 NOTIFICATION DATE DELIVERY MODE 09/17/2018 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): ptodocket@cgolaw.com cgolaw@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN B. ZELEK, SUZANNE WHITFIELD CLARK, and RY AN C. MEERS Appeal2017-009399 Application 14/338,437 1 Technology Center 3600 Before JAMES P. CAL VE, JEREMY M. PLENZLER, and FREDERICK C. LANEY, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner's Final Decision rejecting claims 1-5, 7-11, 13-20, and 23-34. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE and enter NEW GROUNDS OF REJECTION in accordance with 37 C.F.R. § 41.50(b). 1 Appellant is the Applicant, Rehrig Pacific Company, identified by the Appeal Brief as the real party in interest. Appeal Br. 1. Appeal2017-009399 Application 14/338,437 CLAIMED SUBJECT MATTER Claims 1 and 19 are independent, with claims 2-5, 7-11, 13-18, and 20, and 23-34 depending from claim 1 or 19. Claim 1 is representative of the claims on appeal, and is reproduced below: 1. A collapsible shelving unit comprising: a support base; a first side wall extending upwardly from one side of said base; a second side wall extending upwardly from an opposite side of said base, wherein each of said first and second side walls are comprised of a plurality of rigid panels connected to each other with at least one hinge such that the rigid panels are moveable between a display position where the panels extend vertically to form the first and second side walls and a stowed position wherein at least two of the rigid panels at least partially overlap each other; and a plurality of shelves supported by the first and second side walls such that the shelves can be selectively removed therefrom. REJECTI0NS 2 1. Claim 1, 2, 7-9, 13, 14, 16, 19, and 32 are rejected under 35 U.S.C. § 102 as being anticipated by Seeanner (DE 102004041625 Al; Apr. 13, 2006). 2. Claims 3, 4, 10, 11, and 15 are rejected under 35 U.S.C. § 103 as being unpatentable over Seeanner and Pouch (US 5,382,087; Jan. 17, 1995). 3. Claim 5 is rejected under 35 U.S.C. § 103 as being unpatentable over Seeanner, Pouch, and Bigliardi (US 4,577,772; Mar. 25, 1986). 4. Claims 17 and 18 are rejected under 35 U.S.C. § 103 as being unpatentable over Seeanner and Hay (US 2011/0084069 Al; Apr. 14, 2011). 2 The rejection under 35 U.S.C. § 112(b) has been withdrawn. Ans. 2. 2 Appeal2017-009399 Application 14/338,437 5. Claims 20, 23-26, and 28-31 are rejected under 35 U.S.C. § 103 as being unpatentable over Seeanner and Bigliardi. 6. Claim 27 is rejected under 35 U.S.C. § 103 as being unpatentable over Seeanner, Bigliardi, and Howitt (US 5,027,961; July 2, 1991). 7. Claim 33 is rejected under 35 U.S.C. § 103 as being unpatentable over Seeanner and Howitt. 8. Claim 34 is rejected under 35 U.S.C. § 103 as being unpatentable over Seeanner, Pouch, and Hay. OPINION Current Rejections The claims each require "a plurality of shelves supported by the first and second side walls" ( claim 1) or "by the first and second vertical supports" (claim 19). The Examiner cites Seeanner's elements 11 and 12 as corresponding to the plurality of shelves. Final Act. 4--5. We agree that Seeanner's elements 11 and 12 are shelves. The problem with the rejection, as Appellant points out (Appeal Br. 3--4), is that element 12 (the drawer part) is not "supported by the first and second side walls" ( claim 1) or "by the first and second vertical supports" ( claim 19). The stated bases for the rejections of claims 3-5, 10, 11, 15, 17, 18, 20, 23-26, and 28-31 over various combinations of Seeanner and other references do not cure the deficiency noted above. Accordingly, we do not sustain the Examiner's decision to reject claims 1-5, 7-11, 13-20, and 23-34. Because we enter new grounds of rejection based on Seeanner, but not as to all claims rejected by the Examiner applying that reference, we 3 Appeal2017-009399 Application 14/338,437 additionally address the arguments presented by Appellant for dependent claims, which we find persuasive, that are not included in our new ground based on Seeanner. Claim 3 depends from claim 2, which depends from claim 1. Claim 2 recites "a cap that is supported by upper ends of the first and second side walls." Claim 3 adds that "the cap encloses the rigid panels and the plurality of shelves between a bottom surface of the cap and the base when in the stowed position." The Examiner finds that Pouch teaches these features and proposes modifying Seeanner accordingly, "for the purpose of forming one carrying case when in the stowed position as taught by Pouch." Final Act. 7 (citing Pouch, 1:52-55). Appellant responds, explaining that Seeanner requires use of two separate cases and the Examiner relies on impermissible hindsight for the proposed combination. Appeal Br. 5-7. We agree. The cited portion of Pouch, relied on by the Examiner as the rationale for the proposed combination (Final Act. 7), simply explains that "it is an object of the invention to provide a collapsible, portable bar or counter having parts which are functionally interchangeable and which collapses to form its own carrying case" (Pouch, 1:52-55). Seeanner, however, addresses a similar objective, but does so with two separate carrying cases based on its components. See, e.g., Seeanner ,r,r 4, 23, 30. The Examiner's proposed modification appears to be nothing more than an impermissible hindsight reconstruction based on Appellant's own disclosure. Claim 10 depends from claim 3 and the rejection of that claim does not cure the deficiencies in the rejection of claim 3. 4 Appeal2017-009399 Application 14/338,437 The rejection of claim 11 suffers from similar deficiencies, relying on the same rationale as that discussed above relative to claim 3. New Grounds of Rejection3 Seeanner/Pouch Grounds Although we agree that the Examiner has failed to establish that claims 1, 2, 7-9, 13, 14, 16, 19, and 32 are anticipated by Seeanner or that claim 15 is unpatentable over the combined teachings of Seeanner and Pouch, we determine that those claims would have been unpatentable over Seeanner and Pouch under 35 U.S.C. § 103. Specifically, we adopt the Examiner's findings related to claims 1, 2, 7-9, 13-16, 19, and 32, other than those specifically discussed below as not being adopted. Final Act. 4-- 6. With respect to claims 1 and 19, and as noted above, element 12 (the drawer part) of Seeanner is not "supported by the first and second side walls" ( claim 1) or "by the first and second vertical supports" ( claim 19). There is no dispute, however, and we find, that Seeanner's element 11 is a shelf that is "supported by the first and second side walls" ( claim 1) or "by the first and second vertical supports" (claim 19). We determine that adding a second shelf, similar to element 11, in Seeanner would have been obvious to one skilled in the art at the time of the invention in order to provide increased storage versatility or increased storage space and stability as Pouch teaches for shelf 60 that is positioned along an approximate midpoint 3 That our decision includes new grounds of rejection only on combinations of references cited by the Examiner in the Final Action, should not be read to imply that other claims are patentable of other combinations of references, whether or not cited in the Final Action. 5 Appeal2017-009399 Application 14/338,437 of each vertical sidewall. See Pouch, 2:54--58, Figs. lb, 8. Accordingly, we determine that claims 1 and 19 are unpatentable over Seeanner. Claim 14 depends from claim 1 and recites that "adjacent ones of the rigid panels are selectively locked together with at least one lock component that comprises at least one pressable latch." As noted above, we adopt the Examiner's findings that Seeanner's element 32 or 35 forms a "pressable latch." Final Act. 6 (citing Seeanner ,r,r 25-26). Appellant disagrees with that finding. See Appeal Br. 4. ("Components 32 and 35 are sliding pins and are not pressable latches."). Seeanner describes operation of "round bar 32" as being "push awayable" to lock and unlock panels relative to one another. Seeanner ,r 25. Seeanner also explains that "rail 35" can be "down-pushed" to lock and unlock panels relative to one another. Id. at ,r 26. There is no dispute that Seeanner teaches the features of claim 14, other than whether the latches in Seeanner are "pressable" (i.e., whether a latch that is "pushed" is "pressable"). We determine Seeanner's latches are "pressable." Appellant's Specification uses the term "press" only twice, explaining that its latches 170, 172 can be "pressed inwardly" to release the latch. We discern no meaningful difference between use of the term "press" and "push" based on this discussion from the Specification. Spec. ,r,r 91-92. Appellant's simple disagreement with the Examiner's finding, which we adopt, does not apprise us of any persuasive reason as to why our construction of "pressable latch" is not the broadest reasonable interpretation of that term. Accordingly, we determine that a bar or rail described as being pushed for actuation is a "pressable latch." Claim 32 depends from claim 1 and recites that "adjacent ones of the rigid panels are selectively locked together with at least one pressable latch, 6 Appeal2017-009399 Application 14/338,437 and wherein at least one lower panel of the plurality of rigid panels is attached to at least one rigid side portion of the support base with another pressable latch." Again, similar to the discussion above relative to claim 14, we adopt the Examiner's findings that Seeanner's element 32 or 35 forms a "pressable latch." Final Act. 6 (citing Seeanner ,r,r 25-26). To the extent Seeanner does not expressly teach that "at least one lower panel ( e.g.; 4b) of the plurality of rigid panels is attached to at least one of the rigid side portions (21) with another pressable latch," similar to that discussed above relative to claim 14, we determine such an arrangement would have been obvious. Seeanner explains that panel 4b is connected to piece 21 with hinge 20, similar to the connection between other panels employing hinge 20 that secure those panels together when in an assembled condition using bar 32/rail 35. Seeanner ,r 23. It would have been obvious to employ the same latches expressly taught for locking the other hinged connections to maintain panel 4b in an upright orientation relative to piece 21 when in an assembled state. Claim 15 depends from claim 1 and recites that "at least two of the rigid panels from each of the first and second side walls include slots that slidably receive sliding edges of the shelves." There is no dispute that Pouch teaches at least one shelf received in corresponding slots formed in sidewalls to support the shelf. See, e.g., Appeal Br. 9. Rather, Appellant disputes that Pouch teaches two shelves and two sets of corresponding slots. Id. We find that Pouch teaches a shelf and corresponding slots formed in sidewalls that support the shelf. See Pouch, 3:32-36, Figs. 3a, 8. It would have been obvious to one skilled in the art at the time of the invention to further modify the teachings of Seeanner noted above to include slots in its 7 Appeal2017-009399 Application 14/338,437 sidewalls "for the purpose of not requiring the shelves to be fastened to the side walls, thus providing a more simple set up of the shelving unit," as explained by the Examiner. Final Act. 10. Seeanner/Howitt Ground Claim 3 3 depends from claim 1 and recites that each shelf includes an upper surface and a lower surface facing opposite the upper surface, and wherein each shelf includes a protrusion formed in one of the upper and lower surf aces and a corresponding recess formed within the other of the upper and lower surfaces such that the recess on one shelf receives the protrusion on an adjacent stacked shelf when in the stowed position. We adopt the Examiner's findings regarding Howitt teaching the additional features of that claim and the rationale for further modifying Seeanner' s teachings accordingly. Final Act. 16-17. Based on our findings and reasoning set forth above, including those findings noted above as adopted from the Examiner's rejection, we reject claims 1, 2, 7-9, 13-16, 19, and 32 on the basis that those claims are unpatentable under 35 U.S.C. § 103 over Seeanner and claim 33 on the basis that claim is unpatentable under 35 U.S.C. § 103 over Seeanner and Howitt. DECISION We REVERSE the Examiner's decision to reject claims 1-5, 7-11, 13-20, and 23-34. We enter a NEW GROUND OF REJECTION of claims 1, 2, 7-9, 13- 16, 19, and 32 on the basis that those claims are unpatentable under 35 U.S.C. § 103 over Seeanner and Pouch. 8 Appeal2017-009399 Application 14/338,437 We enter a NEW GROUND OF REJECTION of claim 33 on the basis that claim is unpatentable under 35 U.S.C. § 103 over Seeanner and Howitt. This decision contains a new ground of rejection pursuant to 3 7 C.F.R. § 4I.50(b). Section 4I.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." Section 4I.50(b) also provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new grounds of rejection to avoid termination of the appeal as to the rejected claims: ( 1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure§ 1214.01. REVERSED; 37 C.F.R. § 4I.50(b) 9 Copy with citationCopy as parenthetical citation