Ex Parte Brooks

Patent Trial and Appeal Board

Nov 6, 2014

12025320 (P.T.A.B. Nov. 6, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/025,320 02/04/2008 William R. Brooks BRO02 P300 1037
277 7590 11/07/2014
PRICE HENEVELD LLP
695 KENMOOR SE
P O BOX 2567
GRAND RAPIDS, MI 49501
EXAMINER
REIS, RYAN ALEXANDER
ART UNIT PAPER NUMBER
3752
MAIL DATE DELIVERY MODE
11/07/2014 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 WILLIAM R. BROOKS
____________________

Appeal 2012-011208
Application 12/025,320
Technology Center 3700
____________________

Before: MICHELLE R. OSINSKI, JILL D. HILL, and LISA M. GUIJT,
Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
William R. Brooks (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner’s final decision rejecting claims 1–8, 11–16, and 20–24. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

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THE CLAIMED SUBJECT MATTER
Claim 20, reproduced below, is illustrative of the claimed subject
matter.
20. A septic system comprising:
an elongated chamber adapted for positioning in a trench
on a ground surface;
a pipe positioned under the chamber; and
multiple pipe stands engaging and supporting the pipe at
spaced locations, the pipe stands each comprising a body
having a pipe-supporting portion and including a stabilizer for
the body, the stabilizer having at least three non-aligned
ground-engaging points for resting on the ground surface to
hold the pipe in a stable position above the ground surface
based primarily on gravity, the stands each including at least
one panel with a fold-out dispersing flange located under and
below the pipe and located above a ground-contacting portion
of the panels for dispersing waste dropped from openings in the
pipe.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Sachs
Good
Dormon
Honnecke
US 2,937,833
US 4,268,189
US 5,367,127
US 6,076,780
May 24, 1960
May 19, 1981
Nov. 22, 1994
June 20, 2000
REJECTIONS
Claims 1–8, 11–14, 16, 20, and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Good and Sachs. Ans. 4–10.
Claim 15 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Good, Sachs, and Dormon. Ans. 10–11.
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Claims 22–24 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Good and Honnecke. Ans. 11–13.
OPINION
Rejection of Claims 1–8, 11–14, 16, 20, and 21 over Good and Sachs and
Rejection of Claim 15 over Good, Sachs, and Dorman
The Examiner found that Good disclosed a septic system comprising
an elongated chamber, a pipe, and multiple pipe stands, but that Good did
not expressly disclose the specifically-claimed pipe stands. Ans. 5. The
Examiner found that Sachs disclosed pipe stands meeting the claim
limitations and concluded that “it would have been obvious to one having
ordinary skill in the art . . . to have used the pipe stands of Sachs with the
septic system of Good in order to support the pipe at desired heights using a
simple support structure.” Id. The Examiner further concluded that “[t]he
modification involves a simple substitution of one known art for another
according to known methods.” Id.
Appellant argues that Sachs’s arm 20 cannot be a dispersing flange
because (i) the trench is filled in use and nothing can therefore disperse, (ii)
arm 20 is located so close to the ground that it would be unable to disperse
anything even if used in a different environment, and (iii) arm 20 is laterally
spaced to a location far from directly under the pipe. Br. 12. The Examiner
responds that a “portion of arm 20 of Sachs at 21 protrudes from a side of
panel 14 such that waste leaking from pipe 30 would contact 21 and be
deflected from its course.” Ans. 14. Appellant has provided persuasive
reasoning as to why head formation 21 of Sachs would not disperse waste
leaking from pipe 30. In particular, waste would not be able to be dispersed
once the area around the pipe stand is filled completely when in use. In
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addition, the lateral offset of head formation 21 of arm 20 relative to any
pipe 30 that would be disposed in Sachs’s pipe stand at spaced openings 12
would prevent head formation 21 of arm 20 of Sachs from dispersing waste
dropping from pipe 30. See, e.g., Sachs, Figs. 1, 2, and 4. Any waste would
fall instead to either side of head formation 21. Accordingly, Sachs’ head
formation 21 of arm 20 does not meet the claim limitation of “a fold-out
dispersing flange located under and below the pipe . . . for dispersing waste
dropped from openings in the pipe” as recited in claim 20 or “a fold-out
dispersing flange that, when installed, is located under and below the pipe
. . . so that the flange is positioned for dispersing waste dropped from
openings in the pipe” as recited in claim 21.
For the foregoing reasons, we do not sustain the Examiner’s rejection
of claims 20 and 21, and claims 1–8 and 11–16 which depend therefrom.
Rejection of Claims 22–24 Over Good and Honnecke
The Examiner found that Good disclosed a septic system comprising
an elongated chamber, a pipe, and multiple pipe stands, but that Good did
not expressly disclose the specific pipe stands. Ans. 11. The Examiner
found that Honnecke disclosed pipe stands meeting the claim limitations and
concluded that “it would have been obvious to one having ordinary skill in
the art . . . to have used the pipe stands of Honnecke . . . with the septic
system of Good in order to support the pipe at desired heights using a simple
support structure.” Id. at 11–12. The Examiner further concluded that “[t]he
modification involves a simple substitution of one known art for another
according to known methods.” Id. at 12.
Appellant argues that Honnecke is non-analogous art because it is
directed to a pipe having no apertures for use with an air conditioner and
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includes a strap, which is totally different than the structure recited in the
claims at issue. Br. 15. The established precedent of our reviewing Court
sets up a twofold test for determining whether art is analogous: “. . . ‘(1)
whether the art is from the same field of endeavor, regardless of the problem
addressed and, (2) if the reference is not within the field of the inventor’s
endeavor, whether the reference still is reasonably pertinent to the particular
problem with which the inventor is involved.”’ In re Klein, 647 F.3d 1343,
1348 (Fed. Cir. 2011) (quoting In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
2004)).
One problem with which Appellant was involved is “engag[ing] the
ground surface in at least three non-aligned locations for stably supporting
the pipe . . . .” Spec. ¶ 4. Honnecke similarly teaches that after tabs 108
“are secured, a strong, stable triangulated structure is formed.” Honnecke,
4:53–54. Accordingly, the teachings of Honnecke are reasonably pertinent
to particular problems with which the inventor was involved, and we agree
with the Examiner that Honnecke is analogous art. Ans. 13.
Appellant also argues that Honnecke does not disclose a fold out foot
as set forth in the claims, and instead “discloses a flange for engaging
another flange.” Br. 15. Appellant does not persuasively explain why
Honnecke’s flange does not meet the claim language of a “folded-out foot
extending in a direction away from the other panel” (see id. at 21, Clms.
App’x.) as explained by the Examiner. Ans. 9–12. The flange appears to be
folded out relative to the panel and also extends in a direction away from the
other panel.
Appellant’s additional argument that “[i]t is not understood how a
temporary overhead pipe-supporting apparatus (i.e.[,] Good, that is intended
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to be removed after a trench is completely filled), can be combined with a
conduit support (i.e.[,] Honnecke, which provides a sheet metal stand
without any opening or pipe-supporting surface, and which has no ‘foot’ as
defined in the claims)” (Br. 16) does not persuasively explain why the
Examiner’s articulated reasoning for combining Good and Honnecke,
namely, simple substitution of one known art for another according to
known methods (Ans. 11–12), lacks a rational underpinning. See In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (citation omitted) (cited with
approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007))
(“[R]ejections on obviousness grounds . . . [require] some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness.”). In other words, Appellant does not present on-point
arguments to rebut the Examiner’s reasoning.
We are also not persuaded by Appellant’s “teach away” argument (Br.
16) because Appellant has not identified any passages in the prior art that
criticize, discredit, or discourage the incorporation of a foot. See In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Additionally, Appellant’s
arguments as to why arm 20 of Sachs is not a foot (Br. 16) are not persuasive
because they fail to address the rejection articulated by the Examiner that
relies on a combination of Good and Honnecke.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 22, as well as claims 23 and 24 for which Appellant relies on the same
arguments and reasoning. Br. 16.
DECISION
The Examiner’s decision rejecting claims 1–8, 11–16, 20, and 21 is
reversed.
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The Examiner’s decision rejecting claims 22–24 is affirmed.
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-IN-PART

rvb