Ex Parte AllenDownload PDFPatent Trial and Appeal BoardFeb 21, 201712326331 (P.T.A.B. Feb. 21, 2017) Copy Citation 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. 12/326,331 12/02/2008 Kraig Herman Allen Polyvac.1026 3193 26812 7590 HAYES SOLOWAY P.C. 175 CANAL STREET MANCHESTER, NH 03101 EXAMINER KIRSCH, ANDREW THOMAS ART UNIT PAPER NUMBER 3781 NOTIFICATION DATE DELIVERY MODE 02/23/2017 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): TSULLIVAN@HAYES-SOLOWAY.COM dbrancheau@hayes-soloway.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KRAIG HERMAN ALLEN Appeal 2015-005195 Application 12/326,331 Technology Center 3700 Before LYNNE H. BROWNE, ANNETTE R. REIMERS, and JEFFREY A. STEPHENS, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Kraig Herman Allen (Appellant) appeals under 35 U.S.C. § 134 from the rejection of claims 1—10, 12, 14, 16—18, 20—22, and 24 under 35 U.S.C. § 103(a) as unpatentable over McAlpine (US 6,749,077, iss. June 15, 2004) and Bindman (US 5,367,742, iss. Nov. 29, 1994).1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 The rejection of claim 5 under 35 U.S.C. § 112, first paragraph is overcome by the Amendment filed August 8, 2014. See Advisory Act. In addition, the Examiner withdraws the rejection of claim 23 under 35 U.S.C. § 103(a) as unpatentable over McAlpine and Bindman. Ans. 11. Appeal 2015-005195 Application 12/326,331 CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system for a modular component sterilization case, the system comprising: a plurality of case walls, each case wall having a plurality of through-holes, wherein each of the plurality of through-holes is formed through an entire thickness of each case wall, respectively; a plurality of connectors, each having at least two connector elements, and at least one bracing element for each of the at least two connector elements, wherein the at least one bracing element is positioned a spaced distance from at least one of the two connector elements, wherein a gap is formed between the at least one bracing element and the at least one of the two connector elements, and wherein at least one of the plurality of case walls is removably insertable within the gap; at least one protrusion element connected to each of the at least two connector elements, wherein the at least one protrusion element is flexibly movable within the gap, and wherein the at least one protrusion element engages with one of the plurality of through-holes within at least one of the plurality of case walls when it is positioned within the gap; and at least one latch connector having at least one latch connector element that mechanically connects to one of the plurality of through-holes within at least one of the case walls and a latch connected to the at least one latch connector element, wherein the latch is movable relative to the latch connector element, wherein the latch releasably engages another of the case walls. DISCUSSION Claims 1—7, 9, 10, 12, 14, and 20—22 Appellant argues claims 1—7, 9, 10, 12, 14, and 20—22 together. See Appeal Br. 17—19; see also Reply Br. 9. We select independent claim 1 as 2 Appeal 2015-005195 Application 12/326,331 the illustrative claim, and claims 2—7, 9, 10, 12, 14, and 20-22 stand or fall with claim 1. The Examiner finds that McAlpine discloses all of the limitations of claim 1 except for at least one latch connector having at least one latch connector element that mechanically connects to one of the plurality of through-holes within at least one of the case walls and a latch connected to the at least one latch connector element, wherein the latch is movable relative the latch connector element, wherein the latch releasably engages another of the case walls. Final Act. 6. The Examiner finds that “Bindman discloses an openable ring including at least one latch connector (10) having at least one latch connector element (13) and a latch (14) connected to the at least one latch connector element, wherein the latch (19) is movable (pivotable) relative the latch connector element (13).” Id. Based on these findings, the Examiner determines that it would have been obvious “to have included the latch, connector, and latch element of Bindman for the purposes of providing a click or snap closure to the ringlet for secure attachment through a through- hole aperture in a wall panel, while permitting removal of the ring from the panel.” Id. (citing Bindman 2:17—32). Appellant contends that “[n]o combination of McAlpine and Bindman discloses” “a ‘latch connector element’ that mechanically connects to at least one of the case walls. A ‘latch’ is connected to the latch connector element. The latch is movable relative to the latch connector element. And, the latch releasably engages another of the case walls.” Appeal Br. 14 (emphasis omitted). In support of this contention, Appellant argues that: Bindman fail[s] to overcome the shortcomings of McAlpine, since Bindman teaches that latch connector element 13 and latch 14 are a ‘snap’ or ‘click’ closure which engage together. See Col. 3 Appeal 2015-005195 Application 12/326,331 2, lines 17-44 of Bindman. These structures do not engage with walls at all—they only engage with each other. Thus, neither structure identified by the Examiner ‘mechanically connects’ to one case wall or ‘releasably engages’ to another case wall, as required by claim 1. Id. at 16. Responding to this argument, the Examiner explains that: Appellant’s drawings as originally filed at Figs. 8 and 9 do not specifically show any configuration of the latch connector element 36 “mechanically connecting” to any of the through- holes, nor is it described in the specification at the first paragraph of the Detailed Description, spanning pages 4-5: “The latch connector 18 includes at least one latch connector element 36 that mechanically connects to one of the case walls 12, 12 A. A latch 46 is movably oriented relative to the latch connector element 36. The latch 46 releasably engages another of the case walls 12, 12A”, and latch 46 is only shown as potentially engaging a case wall by contact only, as it is projections 32, 38, and 48 which are described by the specification at the first paragraph of page 7, as engaging through the through-holes. Therefore, the threshold of what can be considered engagement of the latch and latch connector element with the case walls is at most by mere contact as defined by the original specification as filed, and the contact of the connectors 41 of Me Alpine et al. modified by Bindman with the through holes at least during assembly meets the requirement of the claim [ed] mechanical connection to the through-holes and releasabl[e] engagement with the through- holes. Ans. 12—13. In other words, the Examiner construes the claim terminology “mechanically connects to” as broad enough to encompass indirect connection, such as the connection between the latching ends of Bindman’s ring 10 to an item the ring is attached to via an opening in that item. In support of this claim construction, the Examiner directs our attention to Figures 8 and 9, the paragraph spanning pages 4—5 of the Specification, and the first paragraph on page 7 of the Specification. See id. The Examiner 4 Appeal 2015-005195 Application 12/326,331 construes the claim language “releasably engages” as broad enough to encompass indirect engagement in a similar manner. See id. Replying to this argument, Appellant focuses on the Examiner’s statement about contact “at least during assembly” and argues that: Appellant believes the Examiner is now reasoning that while placing the shower curtain ring of Bindman through the holes in the walls, it is possible that the point 13 and the cavity 14 will at least each momentarily engage with a different wall. The cavity 14 of Bindman cannot engage with the hole in the wall panel 11 of Me Alpine. Reply Br. 7. However, as discussed supra, we do not understand the rejection to propose engagement of Bindman’s cavity 14 and McAlpine’s hole in the wall panel 11. Rather, we understand the rejection to rely on engagement of Bindman’s ring with McAlpine’s holes in its wall panel to meet the limitation at issue. Thus, Appellant does not apprise us of error. Appellant further argues that in the proposed combination “[t]he panels clearly would be held together by the entire shower curtain ring when the point 13 engages with the cavity 14, not by any engagement of the point 13 or cavity 14 with a wall.” Reply Br. 8. However, in view of the uncontested claim construction applied by the Examiner, claim 1 does not preclude indirect engagement via the ring body. Accordingly, Appellant does not apprise us of error. In addition, Appellant argues that “locking projections 32, 38, and 48 engaging with holes in a case wall is more than ‘mere contact,’ such as the momentary contact during assembly the Examiner relies on.” Reply Br. 8. However, as discussed supra, we do not understand the rejection to only rely on such momentary contact. Thus, Appellant’s argument is unconvincing. Finally, Appellant argues that: 5 Appeal 2015-005195 Application 12/326,331 The key to understanding the flawed rejection is to recognize the unambiguous fact that pending claim 1 is directed to a “latch connector element” being engaged with one case wall and a “latch” being engaged with a different case wall, and the rejection is based on a “latch connector element” which engages with the “latch.” Reply Br. 9 (emphasis omitted). However, this argument is not commensurate in scope with claim 1, as claim 1 does not preclude either the latch connector element or the latch from being engaged with the same wall, so long as the latch also engages a different wall. Thus, Appellant does not apprise us of error. For these reasons, we sustain the Examiner’s decision rejecting claim 1, and claims 2—7, 9, 10, 12, 14, and 20-22, which fall therewith. Claim 8 The Examiner finds that “McAlpine et al. in view of Bindman discloses the claimed invention including wherein the latch is pivotally connected to . . . the latch connector element [because] the living hinge of the ring of Bindman must be pivoted to remove/engage the latch elements 13 and 14[].” Final Act. 8—9. Appellant contends that “Bindman fails to disclose any pivotal connection between structures 13 and 14, identified by the Examiner as the latch connector element and the latch, respectively.” Appeal Br. 18. In support of this contention, Appellant argues that “[o]ne having skill in the art would not consider deflection properties of a shower curtain holder ring to equate to being ‘pivotally connected.’” Id. at 18—19. Responding to this argument, the Examiner explains that “Appellant’s pivotal connection functions under the same deflection properties as those exhibited by Bindman. Appellant does not disclose any manner of pivotal 6 Appeal 2015-005195 Application 12/326,331 connection between the latch and latch connector element other than the ‘the latch connector element 36 may be a flexible tabs [sic]. . Ans. 14 (citing Spec. 9:14—11:2). Replying to this argument, Appellant directs our attention to “page 10, line 22 of the description [which] states, ‘ [a] latch 46 is pivotable with the latch frame 44 at a proximal end of the latch 46’ and FIG. 9 [which] illustrates a pivoting latch.” Reply Br. 10. “In determining the ordinary and customary meaning of the claim term as viewed by a person of ordinary skill in the art, it is appropriate to consult a general dictionary definition of the word for guidance.” Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (citing Phillips c. AWHCorp., 415 F.3d 1303, 1322-23 (Fed. Cir. 2005) (enbanc)). An ordinary and customary meaning of the noun “pivot” is “a shaft or pin on which something turns” and for the adjective “pivot” is “turning on or as if on a pivot.” Merriam-webster.com, http://www.merriam- webster.com/dictionary/pivot (last accessed February 15, 2017). Thus, an ordinary and customary meaning of the claim term “pivotally” is turning as if on a shaft or pin. As shown in the marked-up copy of Figure 9 reproduced below, in the instant invention, latch 46 turns at the pivot axis indicated (which appears to be a live hinge) as if on a shaft. Thus, the definition discussed supra, is consistent with the use of this term in the Specification, and we adopt it as our own. 7 Appeal 2015-005195 Application 12/326,331 Figure 9 depicts a side view of a latch connector. See Spec. 4. Bindman fails to disclose elements 13 and 14 turning as if on a shaft, a pin, a pivot axis, or any similar structure. Thus, Appellant is correct that Bindman’s latch is not pivotally connected to its latch connector element. For this reason, we do not sustain the Examiner’s decision rejecting claim 8. Claims 16—18 and 24 Appellant argues claims 16—18 and 24 together. See Appeal Br. 17, 18. We select independent claim 16 as the representative claim, and claims 17, 18, and 24 stand or fall with claim 16. The Examiner’s rejection of claim 16 is similar to the rejection of claim 1 discussed supra, with the addition of findings pertaining to the bracing element. See Final Act. 10—11. In particular, the Examiner finds that McAlpine discloses 8 Appeal 2015-005195 Application 12/326,331 a plurality of connectors (as in re claim 1 above), each of the plurality of connectors having at least a first region and at least a second region, the first region in substantially symmetrical opposition to the second region about an axis (see Fig. 6 above), wherein each region of each of the plurality of connectors includes a connector element and a pair of bracing elements, wherein the connector element and the pair of bracing elements are integrally connected with the connector at a first end and free from connection at a second end (see Fig. 6 above). Final Act. 10—11. To aid in our discussion of this rejection, we include a copy of the marked-up version of Me Alpine’s Figures 5 and 6 included in the Final Action: ./** Figures 5 and 6 illustrate parts of the container. See McAlpine 3:34; see also Final Act. 5. As quoted above, the Examiner refers to the rejection of claim 1 to identify the elements in McAlpine that correspond to the claimed plurality of connectors. See id. at 10. The rejection of claim 1 identifies McAlpine’s comer posts 42 as corresponding to the plurality of connectors. 9 Appeal 2015-005195 Application 12/326,331 See id. at 4. Thus, in this rejection, we understand the Examiner to also identify Me Alpine’s comer posts 42 as corresponding to the claimed plurality of connectors. For the connector element and the bracing elements, the Examiner refers to the marked-up copy of Figure 6, reproduced supra. See id. at 11. The marked-up copy of Figure 6 identifies the first bracing element as a portion of Me Alpine’s outer flange 44a and the second bracing element as a portion of Me Alpine’s inner flange 44b. See id. at 5. This figure does not indicate what element corresponds to the connector element, but the rejection identifies the second end of the connector element as corresponding to the free end of spaced lug 45. See id. at 11. Accordingly, we understand the rejection to equate spaced lug 45 with the claimed connector element. Appellant contends that neither McAlpine nor Bindman disclose “the connector element and the pair of bracing elements are integrally connected with the connector at a first end and free from connection at a second end.” Appeal Br. 17. In support of this contention, Appellant argues that “it is impossible for the connector element, identified as 44a, to be ‘free from connection at a second end. ’ Indeed, the connector element 44a would have one of the bracing elements connected to the end, as is shown in the annotated figure provided by the Examiner.” Id. at 18. Appellant’s argument is not responsive to the rejection as articulated by the Examiner. See Final Act. 10-11. As discussed supra, the rejection equates spaced lug 45 with the claimed connector element. Spaced lug 45 is connected to the connector at one end and is “free from connection at the other end” as required by claim 16. Thus, Appellant’s argument is unconvincing. 10 Appeal 2015-005195 Application 12/326,331 Accordingly, we sustain the Examiner’s decision rejecting claim 16, and claims 17, 18, and 24, which fall therewith. DECISION The Examiner’s rejection of claims 1—7, 9, 10, 12, 14, 16—18, 20-22, and 24 is AFFIRMED. The Examiner’s rejection of claim 8 is REVERSED. 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)(l)(iv). AFFIRMED-IN-PART 11 Copy with citationCopy as parenthetical citation