Ex Parte Zelek et al

Patent Trial and Appeal Board

Sep 13, 2018

14338437 (P.T.A.B. Sep. 13, 2018)

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.
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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
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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.
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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.
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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,
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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
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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.
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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)
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