CT Metalworks, Inc.

Patent Trials and Appeals Board

Dec 22, 2020

2020001858 (P.T.A.B. Dec. 22, 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.
15/991,239 05/29/2018 Casey Tennsion 82618.00003 5808
32584 7590 12/22/2020
Rosenthal Pauerstein Sandoloski Agather LLP
755 EAST MULBERRY STREET AVE
SUITE 200
SAN ANTONIO, TX 78212
EXAMINER
GRAHAM, MARK S
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
12/22/2020 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@rpsalaw.com
wquirk@rpsalaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CASEY TENNSION
Appeal 2020-001858
Application 15/991,239
Technology Center 3700
Before CHARLES N. GREENHUT, MICHELLE R. OSINSKI, and
LEE L. STEPINA, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge,
CHARLES N. GREENHUT
Opinion Dissenting filed by Administrative Patent Judge,
LEE L. STEPINA

GREENHUT, Administrative Patent Judge.
Appeal 2020-001858
Application 15/991,239
2
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, 2, and 4. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to a portable modular multi-configuration
target stand. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A portable target stand, comprising:
a) a base assembly comprising a first support piece and a
second support piece, each support piece having engagement
features and a main body, and three transverse pieces, each
transverse piece having at least one target support section and
engagement features, wherein the engagement features of each
transverse piece are securable to the engagement features of the
first and second support pieces to secure each transverse piece to
the first and second support pieces; and
b) a cap member comprising:
1) a target mount, an intermediate connector, and a
target mount fastener;
2) wherein the target mount is securable to the
intermediate connector using the target mount fastener, and
wherein the intermediate connector has at least one circular hole;
and

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as CT Metalworks, Inc..
Appeal Br. 4.
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3) wherein the intermediate connector further includes
an intermediate fastener, and wherein the intermediate connector
is securable to a connector post using the intermediate fastener.
REFERENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Fernandez US 2017/0343324 A1 Nov. 30, 2017
REJECTION2
Claims 1, 2, and 4 are rejected under 35 U.S.C. § 103 as being
unpatentable over Fernandez. Final Act. 2.
OPINION
Claims 1, 2 and 4 are argued based on claim 1. Appeal Br. 9. The
Examiner found Fernandez discloses the claimed target stand albeit without
a circular hole in the intermediate connector, for which the Examiner took
official notice that holes can be circular. Final Act. 2–3. The sole point of
contention raised by Appellant is the supposed absence of any “target
support section” associated with the banked portion 351 of Fernandez’s
bottom plate 350. The Examiner regards that banked portion 351 as one of
the recited “transverse pieces” and Appellant does not dispute the
Examiner’s interpretation of banked portion 351 and planar portion 352 each
being respective “transverse pieces” according to claim 1. Rather, Appellant
contends that by citing reference numerals identifying orifices 305, 3553
with regard to pieces 300 and 352, and omitting any reference numeral
associated with a particular structure affixed to banked portion 351, the

2 Claim 5 was allowed. Final Act. 3.
3 Fernandez does not appear to mention reference numeral 355 in
Fernandez’s Specification.
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Application 15/991,239
4
Examiner implicitly admitted that banked portion 351 lacks a “target support
section” as required by claim 1. Appeal Br. 6.
We disagree with Appellant that the Examiner’s failure to cite an
additional reference numeral in the Final Action constituted an implicit
admission that the Examiner did not regard banked portion 351 to include a
“target support section.” Where the Examiner can rely on a more specific
structure than may be necessary to meet a broad claim limitation, such as
Fernandez’s orifices 305, 355 (undisputedly “target support sections”), there
is nothing wrong with, or unusual about, the Examiner relying on that
structure, or citing reference numerals associated therewith.4 Doing so does
not constitute an “admission” on the part of the Examiner that the claim
language “target support section” must, in all instances, be narrowly
construed to require that particular, or similar, structure. Absent from the
claim language is any requirement for each target support section to exhibit
any type of similarity, support the same target or type of targets, or do so in
the same way. See, e.g., Reply Br. 6 (arguing “the target could be supported
by any one of the claimed target support sections”). Thus, the absence of an
orifice or similar structure on Fernandez’s banked portion 351, or the
absence of some particular component that is identifiable by a specific
reference numeral, is not, without more, indicative of Examiner error. See
Appeal Br. 6–7; Reply Br. 7. In other words, the question is not whether the
claim language is as conclusively satisfied with respect to the supposed
“target support section” on banked portion 351 as it is compared to the
structure identified as “target support section[s]” on pieces 300 and 352.

4 Here, the Examiner reliance on Fernandez’s orifices seems to have, at least
in part, resulted from the simple convenience of having cited those orifices
in prior office actions addressing prior versions of the claims. See Ans. 4.
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Rather, the question with regard to the issue raised by Appellant is only
whether the claim language, given its broadest reasonable interpretation in
light of the Specification, is satisfied by the structure actually relied upon by
the Examiner for the “target support section” of banked portion 351.
Appellant is reminded that “[f]iling a Board appeal does not, unto
itself, entitle an appellant to de novo review of all aspects of a rejection.” See
Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)(precedential)(citations
omitted). “[T]he Board will not, as a general matter, unilaterally review
those uncontested aspects of the rejection.” Id at 1075-76 (citations omitted).
Appellant’s arguments must address the Examiner’s action. 37 C.F.R.
§ 41.37(c)(1)(iv)(“The arguments shall explain why the examiner erred as to
each ground of rejection contested by appellant”). “[A]ny arguments or
authorities not included in the appeal brief will be refused consideration by
the Board for purposes of the present appeal.” Id.
Multiple times in the Final action, from which this appeal was taken,
the Examiner stated that each of the elements cited as transverse pieces
“helps support the target and thus comprises a target support section.” Final
Act. 2, 3. From these statements we think it was, or should have been, clear
that the Examiner was not overlooking the requirement for each transverse
piece to have a “target support section.” Rather, the Examiner was indicating
that, due to the breath of the phrase “target support section,” any section of
the cited pieces could reasonably be construed as a “target support section.”
Indeed, the Examiner’s position is not, on its face, unreasonable. The
“target” is broadly recited and forms no part of the combination actually
claimed. There is nothing wrong with using some unclaimed subject matter
to define the subject matter actually claimed. Here, however, no structural
specificity is provided with regard to the “target” in any way that would
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imply that some specific structure or functional capability is required of the
section used to support it, resulting in an extremely broad limitation. As the
Examiner correctly points out in the Examiner’s Answer, Appellant appears
to have acknowledged the Examiner’s position in this regard. Ans 4 (citing
Appeal Br. 9). However, as the Examiner also points out, Appellants have
failed to identify the supposed errors in the Examiner’s position with any
specificity:
Appellant’s. . .ignoring the actual structure being relied on
to meet the limits of the claims as presently constructed, cannot
be considered persuasive. Appellant has not explained in any
fashion why the feature identified as the “target support section”
on each transverse piece does not meet the limitations of the
claims.
Appellant’s sole statement regarding the elements actually
identified by the examiner as a “target support section” on each
transverse piece, is that these features are not “equivalent to the
language recited in the claim”, (page 9 of brief, line 5). However,
the appellant offers no explanation of what language recited in
the claim differentiates the claimed features from those identified
by the examiner in the prior art.
Ans. 4.
The Examiner’s position in this regard is addressed for the first time
by Appellant in Appellant’s Reply Brief. Reply Br. 4–6. 37 C.F.R.
§ 41.41(b)(2) makes clear that
[a]ny argument raised in the reply brief which was not raised in
the appeal brief, or is not responsive to an argument raised in the
examiner's answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the
present appeal, unless good cause is shown.
Good cause for not addressing this issue earlier having not been
shown by Appellant, Appellant’s arguments in this regard are untimely.
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Even if there were good cause for not presenting these arguments earlier,
Appellant’s arguments are unpersuasive because they ask us to read
limitations from the Specification and the Figures into Appellant’s claims.
Our reviewing court has frequently “cautioned against reading
limitations into a claim from the preferred embodiment described in the
specification, even if it is the only embodiment described, absent clear
disclaimer in the specification.” In re American Academy of Science Tech
Center, 367 F.3d 1359, 1369 (Fed. Cir. 2004) (citations omitted). The fact
that the term “section” is used (Spec. para. 13) in conjunction with figures
depicting, and a description stating, for example, “target support sections
106 are welded to the back surface 108 of transverse piece 104a. . .[and] are
rectangular shaped with hollow openings,” does not evince a clear intent to
disavow other arrangements based on the mere use of the word “section.”
See Reply Br. 5. Use of the generic term “section” to refer to something
illustrated and described in a preferred embodiment with more specificity
does not evince a clear intent to limit the meaning of the word itself to
exclude all other arrangements, particularly where Appellant chose to omit
language from the Specification or elsewhere that could have very easily
been recited in the claims to do so. During prosecution Appellant is free to
choose claim language limiting the claim scope to embodiments disclosed in
the Specification or depicted in the Figures. Where Appellant chooses not to
do so, it is our duty in reading the claim in view of Appellant’s disclosure
not to import limitations Appellant chose to omit. It has been long-settled
that patent disclosures need only describe the best mode, not all modes, of
the invention. 35 U.S.C. § 112(a); Continental Paper Bag Co. v. Eastern
Paper Bag Co., 210 US 405 (US 1908); Winans v. Denmead, 56 US 330
(1854). It is true that claims must be read in light of the Specification but
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ultimately it is the claims that define the scope of protection sought. The
omission from the claims of certain aspects of the preferred modes or
embodiments in the disclosure can be just as informative to the skilled
artisan with regard to that scope as their inclusion.
The challenge in construing claims is to interpret the meaning of
terms expressly recited without importing narrowing limitations from the
rest of the disclosure into the claims. In re Prater, 415 F.2d 1393, 1404
(CCPA 1969). Here, the evidence and arguments before us do not illustrate
any clear intent to disavow meanings of the term “section” that do not
include “separate structural features” as argued by Appellant. See Reply
Br. 4. Appellant could have easily combined the phrase “target support” with
the term “feature” (more commensurate with Appellant’s argument), or
“element”, “body”, or some other word connoting that the subject matter in
question involves something more than just a section, which is typically and
undisputedly understood to refer to just a region or portion of the whole.
Appellant also could have, alternatively or additionally, used language such
as “welded to” or, more broadly, “coupled to,” or “disposed on,” as was
done in the Specification and claim 5 to imply a requirement for “separate
structural features.” Again, this language from the Specification and these
aspects of Appellant’s disclosure are notably absent from the claim
language. It would be inconsistent with the Specification to import language
into the claims that Appellant chose to omit.
In sum, we are not apprised of sufficient language in the claim or
evidence in the Specification to conclude that one skilled in the art would
understand the phrase “target support section” in and of itself should have a
narrow meaning requiring, as Appellant argues, “separate structural
features.” Rather, the so-called “separate structural features” to which
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Appellant refers are details further defining the specific nature or
characteristics of the section described in the disclosure that Appellant, by
Appellant’s own decision, chose to omit from the language of claim 1. We
must decline to import those details now.
For the foregoing reasons, we sustain the Examiner’s rejection.
CONCLUSION
The Examiner’s rejection is AFFIRMED.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 4 103 Fernandez 1, 2, 4
RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

Appeal 2020-001858
Application 15/991,239
10

STEPINA, Administrative Patent Judge, Dissenting.

I respectfully dissent from the Majority’s decision to affirm the
Examiner’s rejection of claims 1, 2, and 4 as unpatentable over Fernandez
because the rejection relies on an unreasonably broad interpretation of claim
1. Instead of attempting to address whether it would have been obvious to
provide a target support section on each of the three transverse members
disclosed by Fernandez, rather than just two, the Examiner chose to apply a
strained interpretation of claim 1, finding a target support section in a
transverse member where none is present.
“The correct inquiry in giving a claim term its broadest reasonable
interpretation in light of the specification is not whether the specification
proscribes or precludes some broad reading of the claim term adopted by the
examiner.” In re Smith Int’l, Inc., 871 F.3d 1375, 1382–83 (Fed. Cir. 2017).
Rather, the broadest reasonable claim interpretation in light of the
specification assigns a meaning to a disputed claim term “that corresponds
with ... how the inventor describes his invention in the specification.” Id. at
1383.
Appellant’s Specification and Figures consistently characterize “target
support sections” as structure distinct from “transverse pieces.” Figures 1, 2,
and 5 identify target support sections 106 and 110 as structure attached to
transverse pieces 104a, 104b, and 104c. Appellant’s Specification includes
no embodiment in which transverse pieces 104a, 104b, and 104c, without
additional structure, are characterized as, or as having, target support
sections. Instead, the Specification proceeds on the basis that the target
support sections are structure different from the transverse pieces, and then
further describes the target support sections and their relationship with the
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transverse pieces. Spec. ¶ 4 (“Multiple target support sections can be
welded to the transverse pieces.”); id. ¶ 13 (“Three small target support
sections 106 are welded to the back surface 108 of transverse piece 104a.”),
(“Target support sections 106 are rectangular shaped with hollow openings,
preferably sized between ½ and 1 inch wide and 1 ½ and 2 inches long”); id.
¶ 14 (“On the left side of Fig. 1, there are shown two transverse pieces 104b,
104c connected to a target support section 110 and placed in grooves 105c,
105d.”); id. (“Target support section 110 is rectangular shaped with a hollow
opening 111, preferably sized between 3 and 4 inches wide and between 4 ½
and 5 ½ inches long.”); id. ¶ 22 (“As previously described, target support
section 110 is rectangular shaped with a hollow opening 111 at the top,
preferably sized between 2 5/8 and 4 5/8 inches wide and between 4 and 6
inches long.”).
Additionally, Appellant’s Specification also uses the word “section”
to identify at least one other component aside from the recited target support
sections. Spec. ¶ 18 (“A secondary support section 126 is welded to target
support section 110.”); see also id. ¶ 16. Thus, when referring to disclosed
structure, the word “section,” is not used by the Specification merely to
indicate a region of a component, it is used to identify the component.
Additionally, target support sections and transverse pieces are
separately recited in claim 1. Thus, unlike in Smith where the Board
considered a failure of the claim to separately recite both a “mandrel” and a
“body” as evidence that a mandrel, taken together with a body and another
component, met the claim requirement for a “body” (see Smith, 871 F.3d at
1382), an additional factor in the plain language of claim 1 weighs in favor
of interpreting the term “target support section” as something other than
merely a region of a transverse piece itself.
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In light of Appellant’s Specification and Figures, a person of ordinary
skill in the art would have interpreted the “target support section” in the
phrase “each transverse piece having at least one target support section” in
claim 1 as a structure that is dedicated to holding a target support and is
distinct from the transverse piece as a whole.
In the beginning of the rejection of claim 1, the Examiner appears to
agree with this claim interpretation, stating:
Fernandez discloses a portable target stand comprising a first
support piece 200a and a second support piece 200b with each
support piece having engagement features 230, 305, 225;
transverse pieces 300, 351, 352 with at least one target support
section 305, 355 and engagement features 360, 365, 381, 382
which engage with the support piece engagement features.
Final Act. 2 (emphasis added). Thus, in the Final Office Action, the
Examiner went to the trouble of finding structure in Fernandez that is
dedicated to holding target supports and is structurally distinct from the
remainder of the transverse pieces.5 The Examiner’s statement is factually
correct, the cited transverse pieces from Fernandez, taken together, have at
least one (two) orifices 305 and 355, which the Examiner equates to target
support sections. However, as Appellant pointed out in the Appeal Brief,
this disclosure in Fernandez fails to meet the claim language because claim 1
requires each of the three transverse pieces to have a target support section,

5 As the Majority points out, further down in the rejection of claim 1, the
Examiner states, “[e]ach of the transverse features helps support the target
and thus comprises a target support section.” Final Act. 2.
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and orifices 305 and 355 appear on only two of the transverse pieces in
Fernandez.6
In the Answer, the Examiner clarifies the rejection of claim 1 and no
longer refers to orifices 305 and 355 as meeting the requirement for target
support sections. See Ans. 3–5. Instead, the Examiner relies exclusively on
the conclusion that “each of the transverse pieces 300, 351, and 352 helps
support the target and thus comprises a ‘target support section.’” Id. at 3–4.
As Appellant correctly points out, this is not what claim 1 recites. See
Appeal Br. 9; Reply Br. 3–7. Rather, as discussed above, under the broadest
reasonable interpretation of claim 1 in light of the Specification, the recited
target support sections are structures discrete from the transverse pieces as a
whole. The Examiner’s unreasonably broad interpretation of the term
“target support section” in claim 1 led to the unsupported finding that each
of the three transverse pieces disclosed by Fernandez has at least one target
support section because it “helps support” a target. For the forgoing reasons,
I am persuaded the Examiner erred in rejecting claim 1, and I would reverse
the rejection of claim 1 and claims 2 and 4 depending therefrom.

6 Appellant does not contest the Examiner’s finding on page 2 of the Final
Office Action that orifices 305 and 355 in Fernandez are target support
sections. See Appeal Br. 6–8.