The Boeing Company

Patent Trials and Appeals Board

Apr 9, 2020

15042678 - (D) (P.T.A.B. Apr. 9, 2020)

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.
15/042,678 02/12/2016 Kevin Cassou 15-2223-US-NP (10623-65) 1040
104057 7590 04/09/2020
Evans & Dixon, LLC
211 N. Broadway, Suite 2500
Metropolitan Square
St.Louis, MO 63102
EXAMINER
LUGO, CARLOS
ART UNIT PAPER NUMBER
3675
NOTIFICATION DATE DELIVERY MODE
04/09/2020 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):
ip@evans-dixon.com
jrolnicki@evans-dixon.com
patentadmin@boeing.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte KEVIN CASSOU
__________

Appeal 2019-006009
Application 15/042,678
Technology Center 3600
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, 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 1–5, 7, 9, 11–13, 15–17, 19, and 20.
Claims 6, 10, 14, and 18 have been withdrawn from consideration. Final
Act. 1 (Office Action Summary).2 We have jurisdiction under 35 U.S.C.

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
Boeing Company.” Appeal Br. 2.
2 Claim 8 has been canceled. See Amendment dated September 18, 2018.
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§ 6(b). For the reasons explained below, we do not find error in the
Examiner’s rejection of these claims. Accordingly, we AFFIRM the
Examiner’s rejection.

CLAIMED SUBJECT MATTER
The disclosed subject matter “pertains to a self-releasing panel
support latch that allows easy installation of a panel over an opening and
removal of the panel from over the opening.” Spec. ¶ 1. Apparatus claims 1
and 11, and method claim 19, are independent. Claim 1 is illustrative of the
claims on appeal and is reproduced below.
1. A latch that releasably supports a panel, the latch
comprising:
a housing having first and second side flanges with a space
between the first and second side flanges;
the first side flange and the second side flange are oriented
vertically;
first and second slots extending into the respective first
and second side flanges, the first slot extends vertically upwardly
through a bottom edge of the first side flange and the second slot
extends vertically upwardly through a bottom edge of the second
side flange, the first and second slots being configured to receive
a panel strike that has been manually positioned in the first and
second slots; and,
a strike hold in the space between the first and second side
flanges, the strike hold being moveable in the space between a
locked position of the strike hold in the first and second slots and
an unlocked position of the strike hold in the first and second
slots where the strike hold is configured to be moved to the
locked position of the strike hold in the first and second slots in
response to a panel strike being manually moved into the first
and second slots and manually released in the first and second
slots, and the strike hold is configured to be moved to the
unlocked position of the strike hold in the first and second slots
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in response to a panel strike in the first and second slots being
manually moved upwardly in the first and second slots.

REFERENCE
Kong US 2008/0174126 A1 July 24, 2008

THE REJECTION ON APPEAL
Claims 1–5, 7, 9, 11–13, 15–17, 19, and 20 are rejected under
35 U.S.C. § 102(a)(1) as anticipated by Kong. Final Act. 2.

ANALYSIS
Appellant argues all the claims (i.e., claims 1–5, 7, 9, 11–13, 15–17,
19, and 20) together.3 See Appeal Br. 6–13. We select claim 1 for review,
with the remaining claims (i.e., claims 2–5, 7, 9, 11–13, 15–17, 19, and 20)
standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Kong discloses a latch (used in aircraft)
having the limitations of claim 1. See Final Act. 2–4; Kong Abstract. The
Examiner replicates Figure 3 of Kong and, alongside such replication,
provides an annotated version of this Figure, which has been rotated 90
degrees (along with a detail thereof). See Final Act. 3; see also Ans. 5
(providing another illustration of Kong’s Figure 3 as originally depicted and

3 Appellant contends that Kong does not anticipate independent claims 11
and 19 for reasons similar to those presented with respect to claim 1. See
Appeal Br. 10–11.
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rotated 90 degrees). The Figures supplied by the Examiner in the Final
Office Action are reproduced below in their entirety.

On the left is Figure 3 of Kong as originally depicted. On the right is
this same Figure rotated 90 degrees by the Examiner, who indicated such
components as “side flanges,” “bottom edges,” and “slots.” The smaller
center image is a detail provided by the Examiner and annotated with arrows
depicting “strike movement.” No modification of the structure of Kong’s
assembly depicted in Figure 3 has occurred other than a change in the
original orientation of this Figure and the identification of various
components and/or directions of movement. See Kong Fig. 3; Final Act. 3;
see also Ans. 5.
Appellant contests the Examiner’s finding that Kong discloses slots
that extend “vertically upwardly through a bottom edge” of the side flanges
as recited. See Appeal Br. 10 (addressing original Figure 3 of Kong).
Appellant also argues that “[t]he word ‘bottom’ as commonly understood
and as used in the application” means “the deepest or lowest part” or “the
underside of something.” Appeal Br. 9 (citing thefreedictionary.com and
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merriam-webster.com/dictionary). Thus, according to Appellant, Kong does
not disclose slots extending vertically upwardly through a bottom edge of
the side flanges because in Kong’s non-rotated Figure 3, Kong’s slots, i.e.,
groove 12, instead extend vertically downwardly into a projecting tongue 14.
See Appeal Br. 10.
Claim 1 does not require any particular orientation of the recited latch
mechanism other than the side flanges be “oriented vertically,” the slots
extend “vertically upwardly,” and there be a “bottom edge.” This claimed
arrangement can readily be maintained by rotating Kong’s latch 90 degrees
from its originally depicted orientation to what is now shown in Examiner’s
annotated Figure 3. See Final Act. 3. Upon such rotation, Kong’s side
flanges are still “oriented vertically,” the slots still extend “vertically
upwardly,” and there is a “bottom edge” (the latter still satisfying
Appellant’s proffered definition above). See Final Act. 3–4; Ans. 3–6. As
such, Appellant’s contention that Kong does not disclose slots extending
vertically upward through a bottom edge is unavailing because the Examiner
has shown that Kong discloses this limitation upon its rotation while still
maintaining the claimed orientation. In other words, the Examiner’s rotation
of Kong discloses every element and limitation of the claimed invention
“shown in a single prior reference, arranged as in the claim.” Karsten Mfg.
Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001); see also
Net MoneyIN, Inc. v. Verisign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008)
(“the importance of the requirement that the reference describe not only the
elements of the claimed invention, but also that it describe those elements
‘arranged as in the claim’”). As discussed in more detail below, Kong’s
device is “for use in the passenger compartment of commercial aircraft” and
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Kong merely discusses “positioning the latch device correctly,” but does not
specify any particular orientation for the correct installation or position of
the latch device.4 Kong ¶ 16.
Appellant additionally contends (1) “the Kong reference does not
teach rotating the latch 10 of the Kong reference clockwise 90°” (Appeal Br.
11); (2) “[t]his interpretation of the Kong reference is only taught by the
Final Rejection and is based on hindsight of the application” (id.) and, (3) by
rotating Kong’s latch 90 degrees, “[t]he positioning of the striker pin 22 on
top of the latch groove 12 will prevent the striker pin 22 from becoming
dislodged or separated from the latch 10 due to turbulence or a hard landing”
(id. at 12; citing Kong ¶ 16).
These contentions are unpersuasive as they relate to the issue of
obviousness rather than anticipation. Addressing (3) first, even if crediting
Appellant’s contention that the operability of Kong’s latch is compromised
when rotating Kong’s latch 90 degrees, this contention is not well-taken.
This is because Kong discloses that “[b]y positioning the latch devices
correctly, the interior linings can be securely maintained in their installed

4 In an analogous case directed to relative dimensions rather than relative
orientation, our reviewing court, in Gardner v. TEC Systems, Inc., 725 F.2d
1338, 1346, (Fed. Cir. 1984), cert. denied, 469 U.S. 830 (1984), stated that,
where the only difference between the prior art and the claims was a
recitation of relative dimensions of the claimed device, and a device having
the claimed relative dimensions would not perform differently than the prior
art device, the claimed device was not patentably distinct from the prior art
device. Accord In re Yount, 171 F.2d 317, 318 (CCPA 1948) and In re
Kirke, 40 F.2d 765, 767 (CCPA 1930). More succinctly, “[s]ize matters not,
Yoda tells us. Nor does time.” U.S. v. Hodge, 558 F.3d 630, 632 (7th Cir.
2009). Substituting “orientation” for “dimensions” in Gardner above, Yoda
may have equally expressed, “orientation matters not.”
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position without any adverse movement in normal flight condition.” Kong
¶ 16. Hence, Kong does not disclose that its latch is inoperable when rotated
90 degrees during normal flight conditions or that “[t]he positioning of the
striker pin 22 on top of the latch groove 12 will prevent the striker pin 22
from becoming dislodged or separated from the latch 10 due to turbulence or
a hard landing,” as Appellant would have us to believe. Appeal Br. 12.
“Attorney’s argument in a brief cannot take the place of evidence.” In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (citation omitted).
Regarding Appellant’s “does not teach rotating” and “hindsight”
contentions (see (1) and (2) above), Kong’s device is specifically disclosed
as being applicable for use in “the passenger compartment of an aircraft.”
Kong Abstract; see also Ans. 6 (“the latch described by Kong is used in
aircrafts”). As the walls of such compartments are somewhat semicircular in
shape, one skilled in the art would understand that Kong’s device may be
positioned upon a generally vertical surface, a generally horizontal surface,
or a surface oriented therebetween. Hence, a skilled person would
understand a possible need to rotate Kong’s device based upon the
orientation of the surface to which it is to be applied. As such, Appellant’s
above contentions (1) and (2) are not persuasive of Examiner error.
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claims 1–5, 7, 9, 11–13, 15–17, 19, and 20 as being
anticipated by Kong.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed
1–5, 7, 9,
11–13, 15–
17, 19, 20
102(a)(1) Kong 1–5, 7, 9,
11–13,
15–17, 19,
20
No time 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