Eric Fogle

Patent Trials and Appeals Board

Sep 15, 2020

14590352 - (D) (P.T.A.B. Sep. 15, 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.
14/590,352 01/06/2015 Eric Warren Fogle 8286 3447
6858 7590 09/15/2020
BREINER & BREINER, L.L.C.
115 NORTH HENRY STREET
ALEXANDRIA, VA 22314
EXAMINER
LARSEN, JEFFREY R
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
09/15/2020 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERIC WARREN FOGLE

Appeal 2019-006837
Application 14/590,352
Technology Center 3600
____________

Before JOHN C. KERINS, JILL D. HILL, and GEORGE R. HOSKINS,
Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–12, the only claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b). A telephonic oral
hearing was conducted on September 10, 2020, with Mary J. Breiner, Esq.,
appearing on behalf of Appellant.
We REVERSE.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as the named
inventor, Eric Warren Fogle. Appeal Br. 1–2.
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Application 14/590,352

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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a pet litter box cleaning system.
Claim 1 is illustrative, and is reproduced below:
1. A pet litter box comprising, in combination:

(a) a base structure comprising

(i) a first bottom wall having a first perimeter defining an
interior area of the first bottom wall,

(ii) at least one side wall which adjoins and extends
upward from a substantial portion of the first perimeter of
the first bottom wall so as to leave a portion of the first
perimeter free, on the first bottom wall, of said at least one
side wall, and wherein said at least one side wall does not
extend beyond said first perimeter,

(iii) a second bottom wall extending continuously from or
in an abutting joined manner outward from said first
bottom wall in said portion of the first perimeter which is
free of said at least one side wall, wherein said second
bottom wall does not include upstanding side walls and is
not directly connected to said at least one side wall;

(b) a sieve member comprising

(i) a horizontally planar sifting portion, wherein the sifting
portion has a second perimeter smaller than said first
perimeter of the first bottom wall and has a configuration
which allows insertion of the sifting portion through the
portion of the first perimeter free of said at least one side
wall,

(ii) a back wall extending upward from one end of the
sifting portion so that when the sifting portion is within the
base structure the back wall substantially fills said portion
of the first perimeter free of said at least one side wall; and

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(iii) a handle member extending upward of the sifting
portion and the back wall.
THE REJECTIONS
The Examiner rejects:
(i) claims 1–4 and 7–9 under 35 U.S.C. § 103 as being unpatentable
over Hecht (US 8,851,014 B2, issued Oct. 7, 2014) in view of van Zuilekom
(US 8,336,497 B2, issued Dec. 25, 2012), and Sheriff (US 5,921,596, issued
July 13, 1999);
(ii) claims 5 and 6 under 35 U.S.C. § 103 as being unpatentable over
Hecht in view of van Zuilekom, Sheriff, and Neil (US 2004/0244708 A1,
published Dec. 9, 2004);
(iii) claims 10 and 12 under 35 U.S.C. § 103 as being unpatentable
over Hecht in view of van Zuilekom, Sheriff, and Larson (US 6,820,628 B2,
issued Nov. 23, 2004); and
(iv) claim 11 under 35 U.S.C. § 103 as being unpatentable over Hecht
in view of van Zuilekom, Sheriff, and Ball (US 3,851,763, issued Dec. 3,
1974).
ANALYSIS
Claims 1–4 and 7–9--§ 103--Hecht/van Zuilekom/Sheriff
The Examiner finds that Hecht discloses a pet litter box cleaning
system that includes a base structure and a sieve member, but that these
components lack certain structural features required by claim 1. Final Act.
2–3. In particular, the Examiner finds that Hecht does not teach that a first
bottom wall of the base structure has at least one side wall extending around
a first perimeter, yet having a portion of the first perimeter free of the at least
one side wall, and a second bottom wall that extends continuously outwardly
from the first bottom wall at the region of the first perimeter having no
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upwardly extending side wall, and that the second bottom wall has no
upstanding side wall or walls. Id. The Examiner turns to van Zuilekom as
disclosing an animal waste management device that includes a first bottom
wall and a second bottom wall having the claim elements found missing in
Hecht. Id. at 3. The Examiner concludes that it would have been obvious to
modify the base structure of Hecht to have a portion of its first perimeter
free of the at least one side wall, and to provide a second bottom wall
extending continuously outwardly from the first bottom wall in the portion
of the first perimeter that is free of a side wall, “because doing so would
have provided an easy to use solution for small animal waste that can be
used to enhance, replace, or compliment [sic] current products that are
designed or used for small animal waste management.” Id. at 3.
The Examiner also finds that Hecht lacks an upwardly-extending
handle on its sieve member, cites to Sheriff as disclosing such a handle, and
concludes that it would have been obvious to modify the Hecht sieve
member to include a handle. Final Act. 3–4. Because we determine that the
Examiner has not provided a viable reason to modify Hecht in view of van
Zuilekom that is supported by rational underpinnings, as discussed below,
we need not reach the issue as to the propriety of the additional proposed
modification in view of Sheriff.
Appellant points out that the base structure of Hecht has four side
walls around the perimeter of the interior of the structure, including a front
wall that is shorter than the other walls, and that the short front wall is
required in order to aid in the proper reinsertion of the sifting insert
(corresponding to the sieve member in claim 1) at an angle relative to the
base member. Appeal Br. 14, citing Hecht, col. 4, ll. 44–64, Fig. 8; see also
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Reply Br. 2–3. Appellant asserts that, were the shortened front wall or any
of the other walls removed, as proposed by the Examiner, Hecht would no
longer be suitable for its intended use in the containment of the litter
material. Appeal Br. 14.
The passage in Hecht cited by Appellant, as well as the ensuing
discussion at column 4, line 65 to column 5, line 28, do evidence that Hecht
attaches some importance to having the shortened front wall interact with the
bottom surface of the sifting insert during reinsertion of the insert into the
base structure. In particular, the height of the front wall is selected so that
the sifting insert remains oriented at an angle relative to the base structure as
it is slid over the top edge of the front wall and into the base, to thereby
scoop and otherwise manage the litter material present in the base structure,
and so that, ultimately, the sifting insert nests into the base structure. Hecht,
col. 4, l. 44–col. 5, l. 28.
The Examiner replies that removal of the front wall of the base
structure of Hecht would not render the Hecht apparatus unsuitable for
containing litter material, in that the back wall of the sifting insert would
contain the litter at that side of the nested base and insert. Ans. 5. This
position, although responsive to part of Appellant’s argument, does not
address the effect of removing the front wall of the Hecht base on the
process of reinserting the sifting insert into the base, taught by Hecht to
preferably be done with the sifting insert at an angle to the base structure.2 It

2 We are cognizant that, in the absence of any front wall on the Hecht base
structure, a user would be able, to some extent, to maintain the sifting insert
at a desired angle as it is reinserted simply by holding it in such position and
sliding the leading edge of the insert along the base structure. For that
matter, it appears that, with the front wall removed, the sifting insert could
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also fails to consider that Hecht relies on the front wall to retain the litter
remaining in the base structure once the sifting insert is removed for
cleaning. See Hecht, col. 3, ll. 35–39 (minimum height of front wall
selected to retain desired volume/height of litter material).
This loss of some degree of functionality in Hecht is to be evaluated
in terms of what is gained by making the modification. Our reviewing court
has recognized that a given course of action often has simultaneous
advantages and disadvantages, and this does not necessarily obviate any or
all reasons to combine teachings. See Winner Int’l Royalty Corp. v. Wang,
202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“The fact that the motivating
benefit comes at the expense of another benefit, however, should not nullify
its use as a basis to modify the disclosure of one reference with the teachings
of another. Instead, the benefits, both lost and gained, should be weighed
against one another.”).
The above-quoted reason advanced by the Examiner for removing the
front wall of Hecht, and extending, from that wall-free portion of the
perimeter, an exterior area of the bottom wall, is excerpted directly from
column 1, lines 48–62 of van Zuilekom. In van Zuilekom, small animal
toilet pads are disclosed as being a replacement for traditional litter boxes, or
being positioned as a liner inside a conventional litter box. van Zuilekom,
col. 3, ll. 1–2; see also Figs. 3, 4. van Zuilekom is devoid of any suggestion
that any of the several constructions of the toilet pads disclosed therein
would have any application to the construction of a litter box itself. The

be reinserted with its bottom surface essentially parallel to the base structure.
However, the Examiner does not provide an assessment as to the effect the
proposed modification would have on the relative ease or difficulty with
which the sifting insert would be reinserted in the absence of a front wall.
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Examiner does not identify, and we are at a loss in identifying, what problem
exists in the Hecht construction for which any of the van Zuilekom pad
configurations provide the so-called “easy to use solution for small animal
waste,” as recited in van Zuilekom and parroted by the Examiner in
articulating the reason for the proposed modification. See Final Act. 3.
It appears to be no more than happenstance that van Zuilekom might
be viewed as disclosing structure that corresponds to only a part of the
claimed structure, i.e., upright walls, partial absence of an upright wall, and
a bottom wall bounded in part by the upright walls and extending outwardly
from the portion unbounded by upright walls. van Zuilekom, Fig. 7. The
upright walls are repeatedly and consistently described as being provided to
protect building wall structure in a corner of a room, whereas the bottom
wall appears to simply be of sufficient area that a small animal will fit
thereon, so as to protect the floor as well. van Zuilekom, passim. These
considerations do not appear to have any particular applicability to the
construction of the Hecht litter box and cleaning device, and particularly not
to the configuration and function of the upright walls and bottom wall of the
Hecht base structure.
Accordingly, we do not sustain the rejection of claim 1 as being
unpatentable over Hecht, van Zuilekom, and Sheriff. Claims 2–4 and 7–9
depend from claim 1, and the rejection is not sustained as to those claims,
either.

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Claims 5 and 6--§ 103--Hecht/van Zuilekom/Sheriff/Neil
The Examiner does not rely on Neil in any manner that cures the
deficiencies in the combination of Hecht and van Zuilekom. The rejection
of claims 5 and 6 is therefore not sustained.

Claims 10 and 12--§ 103--Hecht/van Zuilekom/Sheriff/Larson
The Examiner does not rely on Larson in any manner that cures the
deficiencies in the combination of Hecht and van Zuilekom. The rejection
of claims 10 and 12 is therefore not sustained.

Claim 11--§ 103--Hecht/van Zuilekom/Sheriff/Ball
The Examiner does not rely on Ball in any manner that cures the
deficiencies in the combination of Hecht and van Zuilekom. The rejection
of claim 11 is therefore not sustained.

DECISION
The rejections of claims 1–12 under 35 U.S.C. § 103 are reversed.
CONCLUSION
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 7–9 103 Hecht, van Zuilekom,
Sheriff
1–4, 7–9
5, 6 103 Hecht, van Zuilekom,
Sheriff, Neil
5, 6
10, 12 103 Hecht, van Zuilekom,
Sheriff, Larson
10, 12
11 103 Hecht, van Zuilekom,
Sheriff, Ball
11
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
Overall
Outcome

1–12

REVERSED