Michael Thomas

Patent Trials and Appeals Board

Dec 11, 2019

15394769 - (D) (P.T.A.B. Dec. 11, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/394,769 12/29/2016 Michael Thomas DCP-Thomas-1401CIP 6878
36787 7590 12/11/2019
BLYNN L. SHIDELER
THE BLK LAW GROUP
3500 BROKKTREE ROAD
SUITE 200
WEXFORD, PA 15090
EXAMINER
MORGAN, EMILY M
ART UNIT PAPER NUMBER
3677
NOTIFICATION DATE DELIVERY MODE
12/11/2019 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):
blynn@BLKLawGroup.com
cbelleci@BLKLawGroup.com
patents@BLKLawGroup.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL THOMAS

Appeal 2019-002769
Application 15/394,769
Technology Center 3600
____________

Before JOHN C. KERINS, MICHAEL L. HOELTER, and
WILLIAM A. CAPP, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–9 and 11–20, which constitute all the
claims pending in this application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “the
applicant and inventor of record Michael Thomas.” Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to jewelry, specifically to a panel
bracelet with replaceable inserted panels.” Spec. ¶ 3. Claims 1, 12, and 17
are independent. Claim 1 is illustrative of the claims on appeal and, is
reproduced below.
1. A panel bracelet comprising:
a body having a width and a circumference;
a plurality of panels configured to be selectively
replaceable within the body of the bracelet, wherein each panel
includes parallel ends configured to be perpendicular to the
width of the body of the bracelet and longer parallel sides
configured to extend along the circumference of the body of the
bracelet, wherein each panel includes a perimeter groove
around the perimeter of the panel;
a pair of panel holding frames forming at least part of the
body of the bracelet, wherein each open panel holding frame is
configured to hold a panel therein, and wherein each panel
holding frame includes a retaining bead that is received within
the perimeter groove of a panel held within the panel holding
frame to receive and retain the panel therein..
EVIDENCE
Name Reference Date
Ishihara et al. (“Ishihara”) US 2007/0194066 Aug. 23, 2007
REJECTION2
Claims 1–9 and 11–20 are rejected under 35 U.S.C. § 103 as being
unpatentable over Ishihara. 3

2 “The 112b rejection of all claims is withdrawn.” Ans. 3.
3 “The 103 rejection of claim 10 is withdrawn. Examiner notes that claim 10
is objected to as being dependent from a rejected claim.” Ans. 3.
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ANALYSIS
Appellant presents separate arguments for claims 1, 3, 6, 7, 9,
and 11–15. Appeal Br. 16–29. We address each such claim separately
below. Remaining claims 2, 4, 5, and 8 stand or fall with parent claim 1,
while claim 16 stands or falls with claim 12. See 37 C.F.R.
§ 41.37(c)(1)(iv). Regarding claims 17–20, see our discussion below.
CLAIM 1
Claim 1 recites “a plurality of panels” and also “a pair of panel
holding frames.” The Examiner relies on Ishihara for disclosing the
limitations of claim 1, but acknowledges that “Ishihara discloses the panel
bracelet with one frame, not two” as recited. Final Act. 10. However,
“Examiner notes that mere duplication of parts has no patentable
significance unless a new and unexpected result is produced. See MPEP
2144.04 (VI) (b).” Final Act. 11. The Examiner also notes a different
orientation of the recited panels than Ishihara discloses, but states that it
would have been obvious “to change the orientation” because
“rearrangement of known parts into a known arrangement is considered
obvious.” Final Act. 11 (referencing MPEP § 2144.04 (VI) (c)). “Examiner
notes that this is done for the purpose of aesthetics.” Final Act. 11.
Appellant acknowledges that the claimed invention “is directed to
what is known as a panel bracelet.” Appeal Br. 16; see also Reply Br. 1.
Appellant states that this “term is well known in the art” and that what
makes “a panel bracelet is that a substantial portion of the bracelet is formed
of decorative panels.” Appeal Br. 16. As such, the device shown in Ishihara
“would not be considered a panel bracelet to one of ordinary skill in the art.”
Appeal Br. 17; see also Reply Br. 1, 2.
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It is not disputed that Appellant’s Specification states, “a panel
bracelet ‘is one utilizing at least one and generally a series of decorative
panels coupled along the bracelet.’” Appeal Br. 18–19 (citing Spec. ¶ 8)
(emphasis added). Appellant now argues, however, that a single-panel
bracelet is not a panel bracelet because “such a reading takes the phrase out
of context and is inconsistent with what one of ordinary skill in the art
would understand as a panel bracelet.”4 Appeal Br. 19; see also Reply
Br. 1. In effect, Appellant is seeking to change the definition of a panel
bracelet from what is stated in Appellant’s Specification (“at least one and
generally a series of” panels, (Spec. ¶ 8)) to what Appellant now alleges a
skilled person would, instead, consider a panel bracelet to be (i.e., a series of
panels). See Appeal Br. 19, Reply Br. 1–2.
We have repeatedly been instructed that claim terms must not only be
given their “broadest reasonable construction,” but also that such
construction must be “consistent with the specification.” See, e.g., In re
ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re
Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984); In re Suitco Surface, Inc.,
603 F.3d 1255, 1259 (Fed. Cir. 2010). In view of such consistent instruction
from our reviewing court, we understand, based on Appellant’s Specification
and the clear language therein, that the recited “panel bracelet” can
encompass one panel or a plurality of panels. See Spec. ¶ 8. Accordingly,
we do not fault the Examiner for relying on Ishihara, which illustrates a

4 Appellant states that in context, “a panel bracelet [is] ‘generally a series of
decorative panels coupled along the bracelet’” and that “[t]he single panel
version of a panel bracelet is simply an oddity and an extreme.” Appeal Br.
19; Reply Br. 2.
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single-panel article of apparel, as a basis for the rejection of this claim. We
further note Ishihara’s indication that different devices may also be
employed within this article. See Ishihara ¶¶ 5, 23, 45. Thus, we are not
persuaded by Appellant’s assertion that “the [E]xaminer cannot point to
ANY relevant teaching that would reference the design of [Ishihara] as a
panel bracelet.” Appeal. Br. 19. This is because the Examiner is merely
abiding by, and remaining consistent with, Appellant’s own description of
what a “panel bracelet” may be.
Appellant next addresses the recited language directed to the
orientation of the panel within the frame of the bracelet. As noted above, the
Examiner acknowledges Ishihara’s different orientation, but determines that
it would have been obvious to change such orientation under the rationale
that it is obvious to rearrange known parts. See Final Act. 11. The
Examiner further provides a specific reason for such change in orientation
by addressing a need of a bicyclist holding onto forward extending handle
bars. See Ans. 4. The Examiner states that the different “orientation as
suggested by [the Examiner] would be easier to read than the orientation
disclosed by Ishihara.” Ans. 4. We thus are not persuaded the Examiner
failed to “provide a motivation or reason,” without the benefit of hindsight,
for such a finding. Appeal Br. 20.
Appellant further contends that, before Ishihara’s orientation can be
rearranged, “the curvature of the wristband must be considered and the prior
art clearly does not teach accommodating such a curvature.” Reply Br. 3;
see also Appeal Br. 21. However, Figure 4 of Ishihara (replicated by
Appellant at Appeal Br. 18 and Reply Br. 3) illustrates the fitting of
device 30 into frame 23. This assembly is depicted as occurring in a
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relatively planar portion of Ishihara’s wristband, such that Appellant’s
curvature concerns are not relevant. We are further not persuaded that
Ishihara “teaches away from the suggested modification” (Appeal Br. 20;
see also Reply Br. 3) because Appellant fails to indicate where Ishihara
criticizes, discredits, or otherwise discourages such a change in orientation.5
Consequently, we are not persuaded by Appellant’s contention that
“[c]hanging this orientation would make the display quite difficult to read
and is certainly not obvious from this teaching.” Appeal Br. 21. Although
we agree in general with Appellant’s contention that a “modification cannot
destroy the intended operation of the device” (Appeal Br. 21), we do not see
the Examiner’s proposed modification bringing about such destruction of
intended operation.
Additionally, Appellant addresses the recitation of “a plurality of
panels” and “a pair of panel holding frames” because the Examiner
acknowledges that Ishihara discloses only one thereof. Appeal Br. 21; see
also Final Act. 10. Appellant states, “[t]here is no reason why one of
ordinary skill in the art reading this reference in its entirety would include a
second frame” and panel. Appeal Br. 21. Appellant states that it is the
“orientation and number of panels and . . . frames of the present invention
[that] helps define this as a panel bracelet and absolutely distinguishes this
from the wristband of the applied art.” Appeal Br. 22. As above, the
Examiner relies on “mere duplication of parts” (Final Act. 11) and further
elaborates that “it would be obvious to utilize two of the electronic devices

5 A teaching away requires a reference to actually criticize, discredit, or
otherwise discourage investigation into the claimed solution. See In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
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so that both features can be used at the same time, so as to broaden which
data the athlete can track.” Ans. 5. Ishihara’s examples for the disclosed
electronic device include “a watch, or a global positioning system,” or “any
of a plurality of suitable electronic devices.” Ishihara ¶¶ 5, 45. Thus,
Ishihara discloses different devices that may be employed, which buttresses
the Examiner’s “duplication of parts” rationale that it would have been
obvious “to utilize two of the electronic devices so that both features can be
used at the same time.” Final Act. 11, Ans. 5.
Accordingly, and based on the record presented, we are not persuaded
the Examiner erred in rejecting claim 1 as being obvious in view of Ishihara.
CLAIM 3
Claim 3 depends from claim 1 and further recites “wherein each panel
holding frame extends over 130 degrees along the circumference of the body
of the bracelet.” The Examiner acknowledges Ishihara’s deficiency in this
manner but reiterates that “[a] change in size is generally recognized as
being within the level [of] ordinary skill in the art.” Final Act. 11. As
support, “Examiner notes that this size is known in the art, taught by
2015/0277489 Lin, figure 7.” Final Act. 11. Appellant acknowledges that
this “claimed 130 degree span requires a change in the size of the display” as
the Examiner is relying upon. Appeal Br. 23. However, Appellant also
points out that this limitation further requires a change in “the shape of the
display” so as to extend in a curvilinear manner “along the circumference of
the body of the bracelet” as recited. Appeal Br. 23; see also Reply Br. 4
(“The prior art shows a flat watch.”). The Examiner does not address the
need for a curved panel as would be apparent for a device that extends
“over 130 degrees along [a] circumference” as recited. Instead, the
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Examiner simply addresses the elongation of the panel, stating
“[e]nlargement would make the data easier to read.” Ans. 5.
The Examiner’s rationale fails to take into account a need for both
elongating and curving the panel. Additionally, the Examiner’s reliance on a
reference (i.e., Lin), without listing that reference in the body of the rejection
has been criticized by our reviewing court. Specifically, we have been
instructed that “[w]here a reference is relied on to support a rejection,
whether or not in a ‘minor capacity,’ there would appear to be no excuse for
not positively including the reference in the statement of the rejection.” In re
Hoch, 428 F.2d 1341, 1342, n.3 (CCPA 1970). This omission suggests
Appellant was not afforded a fair opportunity to react to the thrust of the
Examiner’s rejection. See In re Jung, 637 F. 3d 1356, 1365 (Fed. Cir. 2011).
Accordingly, and based on the record presented, we do not sustain the
Examiner’s rejection of dependent claim 3 as being obvious in view of
Ishihara.
CLAIM 6
Claim 6 depends from claim 1 and further recites, “wherein at least
one panel is a collectable sports related element including informational text
thereon.” Emphasis added. The Examiner relies on Ishihara’s disclosure of
a “timer” as meeting this limitation. Final Act. 12 (referencing Ishihara ¶ 5).
It is understood how Ishihara’s “timer” can reasonably be considered a
“sports related element” as recited, but Appellant contends that the Examiner
is seeking “to void the phrase [“collectable sports related element”] of any
realistic meaning.” Appeal Br. 24; see also Reply Br. 4.
We are instructed that “claims are interpreted with an eye toward
giving effect to all terms in the claim.” Bicon Inc. v. Straumann Co., 441
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F.3d 945, 950 (Fed. Cir. 2006). When addressing this point, the “Examiner
further notes that having a plurality of the panels, as suggested by all the
options of Ishihara, makes the panels ‘collectable.’” Ans. 5. Hence, the
Examiner equates a “collectable” panel to a “plurality” of panels. We agree
with Appellant, and do not agree that one skilled in the art would equate
“collectable,” as this term is employed (see Spec. ¶ 83), to simply more than
one such item. See Reply Br. 4. Accordingly, and based on the record
presented, the Examiner has not provided a rational underpinning to support
the rejection of claim 6. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007). We do not sustain the Examiner’s rejection of claim 6 as being
obvious in view of Ishihara.
CLAIM 7
Claim 7 depends from claim 1 and further recites, “wherein at least
one panel includes a USB key.”6 The Examiner states that Ishihara discloses
“multiple desired uses for the electronics of the bracelet . . . including . . .
electronic storage of splits and times to be accessible using a USB key.”
Final Act. 12 (referencing Ishihara ¶ 2). Appellant disagrees contending that
“there is no teaching or remote suggestion of a USB key” in Ishihara.
Appeal Br. 25. Additionally, Appellant contends that Ishihara “is intended
to provide a method of the user or athlete VIEWING the electronic device
and the [a]thlete would have little use to view a physical USB key.” Appeal
Br. 25.
The Examiner does not dispute Appellant’s latter “viewing”
contention, but, regarding Appellant’s former ‘no suggestion’ contention, the

6 Appellant’s Specification addresses “the inclusion of a USB key (also
called a memory stick).” Spec. ¶ 84.
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Examiner states that “Ishihara discloses a ‘wireless phone’” and “[t]herefore,
[E]xaminer considers the ‘wireless phone’ of [0022] to be a ‘USB key’”
because phones “commonly have memory and have a USB port.” Ans. 6.
Appellant disagrees with the Examiner’s assessment “that a wireless phone
may be considered a USB KEY because it can have memory and a USB
Port.” Reply Br. 5. This is because “[t]here is no support for such an
argument,” and further, Appellant understands that “claims are read in light
of the specification and interpreted by one of ordinary skill in the art.”
Reply Br. 5. However, in this case, Appellant argues “[t]he examiner’s
comments are not understood, not supported by any reasonable
understanding of the prior art and not in line with the meaning of the terms
in light of the specification.” Reply Br. 5.
There is merit to Appellant’s contentions. Although Ishihara discloses
the use of a wireless phone, this term is employed as describing a “two-way
communication device,” and not because of any storage medium it may
contain. Ishihara ¶ 22. Further, the Examiner’s correlation of a wireless
phone to a USB key is based on the phone having memory and a USB port.
See Ans. 6. However, a USB port is simply one type of interconnect that
meets a certain industry standard. Other types of interconnects abound and
some are also employed in phones (e.g., auxiliary jack, mini-USB, FireWire,
etc.). Thus, following the Examiner’s logic, if a phone has a certain type of
port, then that would mean the phone also has a certain type of key or
memory stick (see Spec. ¶ 84) having that port’s name. We are not
persuaded by the Examiner’s logic that use of certain port in a phone equates
to a memory stick of the same connection type. Accordingly, we do not
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sustain the Examiner’s rejection of claim 7 as being obvious in view of
Ishihara.
CLAIM 9
Claim 9 depends from claim 1 and recites, “wherein at least one panel
includes a user identifying barcode.” The Examiner initially equates a
barcode to “an RFID chip” (Final Act. 12), but changes course when
Appellant points out that a barcode “is NOT an RFID chip.” Appeal Br. 26.
Thereafter, the Examiner finds that “barcodes on bracelets are old and well
known.” Ans. 6. Appellant acknowledges that “[a] Barcode is well known”
but that the “prior art does not teach or reasonably suggest the claimed user
identifying Barcode on the wristband thereof.” Reply Br. 6.
We have been instructed that, for a finding of obviousness, more is
needed that just the fact that an item is well known; instead, the Examiner is
to provide a reason for the combination of elements. See KSR, 550 U.S.
at 418 (“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness”). The Examiner’s reliance on an item being “old and well
known” (Ans. 6) is not, in and of itself, sufficient articulated reasoning with
rational underpinning as required by the Supreme Court. Accordingly, we
do not sustain the Examiner’s rejection of claim 9 as being obvious in view
of Ishihara.
CLAIM 11
Claim 11 depends from claim 1 and additionally recites, “wherein the
panel bracelet is reversible.” In addressing reversibility, Appellant’s
Specification discusses the reversibility of each individual panel, and also
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states that “the bracelet may be flipped in its entirety.” Spec. ¶ 29. To
buttress the Examiner’s rejection, the Examiner addresses the elasticity of
Ishihara’s band, i.e., “made of an elastic fabric, [0026]” (Final Act. 12), and
thus concludes that Ishihara’s band “therefore is reversible” (Ans. 7).
Appellant contends that Ishihara’s device “is in fact not reversible as the
term is conventionally used in the art.” Appeal Br. 27. However, as above,
we first look to Appellant’s Specification for meaning, and here, the ability
to “flip” the band is described therein as correlating to being reversible. See
Spec. ¶ 29. Appellant does not explain how Ishihara’s elastic band is not
flippable, but instead, simply reiterates that Ishihara’s band is “not reversible
as the term is conventionally used in the art.” Reply Br. 6.
We are not persuaded by Appellant’s contentions. We sustain the
Examiner’s rejection of claim 11 as being obvious in view of Ishihara.
CLAIM 12
Claim 12 is an independent claim and includes a limitation directed to
an ornamental design on opposite sides of the panel. See Appeal Br. 32
(Claims Appendix); see also id. at 27. The Examiner concludes that it
would have been obvious to include an ornamental design on both sides of
the Ishihara watch insert, relying on “aesthetic purposes” for doing so. Final
Act. 9; see also Ans. 7 (“common in the art to engrave the backs of
watches”). Even presuming it is common for “aesthetic purposes” to mark
the back of a watch, the Examiner does not explain why a user would place
that back side facing out. This is because doing so would defeat the purpose
of wearing the watch in the first place, i.e., it would block the view of the
watch face. The Examiner provides no reason why one might want to wear
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a watch, yet block its view. Appellant also questions the wearing of an
electronic display “that will not be viewed.” Appeal Br. 28, Reply Br. 8.
Again, we are reminded of the above instructions to the effect that
obviousness rejections cannot be conclusory, but instead, “there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” KSR, 550 U.S. at 418. Accordingly, we
do not sustain the Examiner’s rejection of claim 12 as being obvious in view
of Ishihara. We likewise do not sustain the rejection of dependent claim 16,
which was not separately argued. See supra.
CLAIM 13
Claim 13 depends from claim 12 and Appellant contends that
claim 13 “is allowable for the reasons discussed above in connection with
claim 12.” Because we do not sustain the Examiner’s rejection of parent
claim 12, we likewise do not sustain the Examiner’s rejection of dependent
claim 13 as being obvious in view of Ishihara for similar reasons.
CLAIM 14
Claim 14 depends from claim 12 and we likewise do not sustain the
rejection of dependent claim 14. However, in the interest of judicial
economy, we wish to address the recitation in claim 14 requiring that “the
open panel holding frames are formed of elastic material.” Appellant
disputes that this frame construction is taught by Ishihara. See Appeal
Br. 28; see also Reply Br. 8 (“the ‘frame’ 23 of the applied prior art is a
‘semi-rigid’ structure of nylon and polyurethane”). The Examiner, on the
other hand, references Ishihara Paragraphs 38 and 39 regarding the frame’s
construction. See Final Act. 9, Ans. 7. Paragraph 38 of Ishihara indeed
describes a “semi-rigid material” that may form Ishihara’s frame.
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Paragraph 39 of Ishihara, on the other hand, states that frame “23 may also
be formed from filaments, fibers, or yarns that reinforce aperture 22.” To be
clear, Ishihara’s wristband 20 “defines an aperture 22” (Ishihara ¶ 38) and
this wristband 20 itself is defined as being formed of “elastic fiber that
enhances the stretch and recovery properties of wristband 20.” Ishihara
¶ 26. Thus, Ishihara’s disclosure that frame 23 may be formed from the
material forming aperture 22 (and hence forming wristband 20 too) is a
disclosure that this frame 23 material may, likewise, be constructed of elastic
fibers.
Thus, Appellant’s arguments made with respect to the additional
limitations of claim 14 are not, in and of themselves, persuasive of Examiner
error. However, as above, because we do not sustain the rejection of parent
claim 12, we likewise do not sustain the rejection of dependent claim 14.
CLAIM 15
Claim 15 depends from claim 12, and further recites “wherein at least
one of the panels is formed of two separate facing halves coupled together.”
Although we do not sustain the Examiner’s rejection of parent claim 12 as
indicated above, we will further address the Examiner’s specific rejection of
claim 15. See Final Act. 10. The Examiner states that Ishihara’s “panels
(30aʹ or 30bʹ) is formed of two separate facing halves coupled together (rear
surface, not shown, and front surface with display).” Final Act. 10; see also
Ans. 8 (“panels 30 of Ishihara have a front half that is a screen, and a back
half to enclose the electronics in a moisture resistant manner [0043]”).
Appellant disagrees stating “this is simply not found in the applied art
structure.” Appeal Br. 29, Reply Br. 9.
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Ishihara’s disclosure of the construction of its electronic device is
inconclusive. Indeed, Ishihara references “[a]n upper portion/surface of
case 31” (see Ishihara ¶ 43), but there is no further disclosure or illustration
of how this case is assembled, or otherwise put together. While it may be
reasonable to presume that Ishihara’s case 31 is constructed from top and
bottom halves, such method of construction is merely speculation since
Ishihara is silent on this point.
When addressing such matters, we have been instructed that:
The Patent Office has the initial duty of supplying the factual
basis for its rejection. It may not, because it may doubt that the
invention is patentable, resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies
in its factual basis. To the extent the Patent Office rulings are so
supported, there is no basis for resolving doubts against their
correctness. Likewise, we may not resolve doubts in favor of
the Patent Office determination when there are deficiencies in
the record as to the necessary factual bases supporting its legal
conclusion of obviousness.
In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Here, lacking any
specificity in Ishihara as to the method of construction involved, we must
conclude there was a “resort to speculation unfounded assumptions or
hindsight reconstruction to supply deficiencies” in the factual basis the
Examiner relied upon. Accordingly, for this additional reason, we do not
sustain the Examiner’s rejection of claim 15 as being obvious in view of
Ishihara.
CLAIMS 17–20
Regarding independent claim 17 and its dependent claims 18–20,
Appellant argues that these claims “include limitations discussed above in
connection with at least one of claims 1–16 and the claims are allowable for
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the same reasons as discussed above.” Appeal Br. 30. To the extent that
any of these claims recite limitations appearing in other claims that have
been separately argued, our analysis of those arguments apply as above.
Claim 17 recites “wherein each panel holding frame is one of a
“generally ‘C’ shaped cross section” or “includes a retaining bead that is
received within a matching groove” in the associated panel. Claim 12
includes this limitation, and we note that Appellant did not present any
argument directed to that limitation in arguing for the patentability of
claim 12. See Appeal Br. 27–28. Accordingly, it may be assumed that the
argument is not made as to claim 17 either. In any event, the Examiner
relies on the second alternative stating that Ishihara “includes a retaining
bead 23 that is received within a matching groove (35, between 32a and
32b).” Final Act. 6. Indeed a review of Ishihara’s Figures 4 and 5 illustrate
this type of interconnection. See also Ishihara ¶ 42. No other arguments
directed to any limitation in claim 17 were found persuasive of Examiner
error. Accordingly, we are not apprised of any error in the Examiner’s
rejection of claim 17.
Claim 19 includes the same limitation as found in claim 15, directed
to a panel being formed of two halves coupled together. As noted with
respect to claim 15, the finding that Ishihara discloses this limitation
involves resort to speculation unfounded assumptions or hindsight
reconstruction to supply deficiencies. Accordingly, we do not sustain the
rejection of claim 19.
Thus, based on the record presented, we sustain the Examiner’s
rejection of claims 17, 18, and 20 as being obvious in view of Ishihara, and
do not sustain the similar rejection of claim 19.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–9, 11–20 103 Ishihara 1, 2, 4, 5, 8, 11,
17, 18, 20
3, 6, 7, 9, 12–
16, 19
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED IN PART