Ex Parte Christian et al

Patent Trial and Appeal Board

Oct 11, 2013

11546649 (P.T.A.B. Oct. 11, 2013)

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.
11/546,649 10/12/2006 Steven Lee Christian SLC-001 4363
7590 10/11/2013
JAMES M. BETTIS, JR.
WEDGE INTERNATIONAL TOWER
1415 LOUISIANA, 37 TH FLOOR
HOUSTON, TX 77002
EXAMINER
MCDUFFIE, MICHAEL D
ART UNIT PAPER NUMBER
3632
MAIL DATE DELIVERY MODE
10/11/2013 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 STEVEN LEE CHRISTIAN
and MICHAEL S. MAIZE
____________________

Appeal 2011-012716
Application 11/546,649
Technology Center 3600
____________________

Before: PHILLIP J. KAUFFMAN, CHARLES N. GREENHUT, and
PATRICK R. SCANLON, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants seek review of the Examiner’s rejection of claims 1-6, 8,
10-13, 15-17, 19, and 20 under 35 U.S.C. § 103(a) as unpatentable over
Oyama (US 6,871,826 B2; issued Mar. 29, 2005). We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm-in-part.

The Invention
Appellants’ claimed invention relates to a leg adjusting assembly.
App. Br. 17-21, Claims App’x; Spec., para. [005]. Claims 1, 10, and 16 are
the independent claims on appeal. Claim 1, reproduced below, is illustrative
of the claimed subject matter:
1. A leg adjusting assembly, comprising:
a housing connected to a leg of a table;
a rod having an exterior surface and being vertically
movable within the housing;
a foot mechanism having a hole with an interior wall and
extending outwardly from the housing; and
a biasing member wedging the interior wall of the hole
against the exterior surface of the rod to prevent the rod from
moving during absence of a force applied to the foot
mechanism.

OPINION1
Before addressing the claims, we note that at times the Examiner
alternately makes reference to Figures 1 and 6 of Oyama. See, e.g., Ans. 4,
8. Oyama’s Figure 1 depicts the Example 1 embodiment and Figure 6

1 Though all of the claims on appeal are rejected as obvious over Oyama, we
note that only the rejection of claim 20 involves a modification of Oyama.
See Ans. 6.
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depicts the Example 2 embodiment. These embodiments are similar except
that the embodiment of Example 1 includes push button 6 and locking piece
5 while the embodiment of Example 2 instead includes lever 56 and locking
piece 55. Oyama, col. 2, ll. 51-53, 65-67; col. 6, ll. 47-51; figs 1, 6.
Significantly, each locking piece 5, 55, includes an element 39. We address
the Examiner’s alternate reference to Figures 1 and 6 where there is a
distinction between the embodiments that relates to Appellants’ argument.

Claims 1, 2, 6, 16, and 172
Claim 1 is directed to a leg adjustment assembly that includes a rod, a
foot mechanism having a hole, and a biasing member. The biasing member
wedges the interior wall of the hole in the foot mechanism against the
exterior surface of the rod to prevent the rod from moving during absence of
a force applied to the foot mechanism. Claim 16 is similar to independent
claim 1 except that it calls for a lever having a hole rather than a foot
mechanism having a hole.
Appellants argue that the hole (shaft hole 14) of Oyama’s foot
mechanism/lever (locking piece 55) does not wedge against the exterior
surface of the rod to prevent the rod from moving as called for in claim 1.
Br. 11-12, 14.
The Examiner did not find that Oyama’s shaft hole 14 corresponds to
a hole in a foot mechanism/lever as claimed. Rather, the Examiner found
that Oyama’s concavo-convex part 39 corresponds to a hole in a foot

2 Appellants argue claims 1, 2, and 6 as a group and argue claims 16 and 17
as a group. Br. 11-12, 14. We select independent claims 1 and 16,
respectively, as representative. See 37 C.F.R. § 41.37(c)(1)(vii)(2011).
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mechanism/lever as claimed. Ans. 4, 6. For that reason, Appellants’
contention is not responsive to the rejection as articulated by the Examiner
and does not apprise us of error in the rejection of claims 1 and 16.
Accordingly, we sustain the rejection of claims 1, 2, 6, 16, and 17.

Claim 3
Claim 3 depends from claim 1 and recites “wherein the housing has a
rectangular shape with two openings for slidably receiving the rod.” Br. 17,
Claims App’x, Claim 3.
Appellants argue that the threads of Oyama’s structure (concavo-
convex part 39) cannot slidably receive the threaded rod (sliding shaft 17).3
Br. 12.
The Examiner did not find that Oyama’s rod (sliding shaft 17) is
slidably received in concavo-convex part 39. Rather, the Examiner correctly
found that Oyama’s rod (sliding shaft 17, the upper portion of leg 10) is
slidably received in two openings (shaft holes 12, 13) of the housing
(attaching case 4). Ans. 4, 9; Oyama, col. 3, ll. 26-45 (leg 10 is supported in
a manner freely movable up and down by shaft holes 12, 13 (i.e. slidably
received)); see also col. 5, ll. 53-56. Appellants’ argument is not responsive
to the rejection as articulated by the Examiner and does not apprise us of
error. Consequently, we sustain the rejection of claim 3.

3 Here, and at times throughout the Appeal Brief, Appellants utilize claim
nomenclature without reference to the corresponding nomenclature in
Oyama. We provide the corresponding reference nomenclature by
correlating to the Examiner’s findings. See Ans. 4.
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Claims 4 and 20
Claim 4 depends from independent claim 1 and recites “a disk-shaped
glide that removably attaches to one end of the rod and abuts against a
surface on which the leg is positioned.” Br. 17, Claims App’x, Claim 4.
Similarly, claim 20 depends from claim 16 and recites “a glide threadably
attached to one end of the rod, the glide being positioned on a surface that
supports the table.” Br. 21, Claims App’x, Claim 20.
Appellants argue that the head of Oyama’s screw is not removable,
and cannot be removable because it is used to screw and unscrew the rod.
Br. 12 (claim 4), 15 (claim 20).
What Appellants refer to as the head of Oyama’s screw is top 21 of
ground contact part 16 of leg 10. Oyama, col. 3, ll. 52-55; figs 1, 3, 6. Top
21 is formed of resin and is integral to sliding shaft 17. Id. For that reason,
if fine adjustment of Oyama’s mechanism is needed, it would be
accomplished by turning leg 10 via top 21.4 Oyama, col. 6, ll. 35-36; see
also col. 6, ll. 20-36 (concerning operation of the mechanism). Thus,
Appellants’ argument is that top 21 cannot be a removably attached disk-
shaped glide as claimed because it must remain a part of Oyama’s leg 10 so
that it may be turned for fine adjustment.
Such argument is not persuasive because it is not responsive to the
rejection as articulated by the Examiner. The Examiner did not find that
Oyama’s top 21 corresponds to a disk-shaped glide as claimed. Rather, the

4 Oyama does not explicitly state that turning of leg 10 is via top 21.
However, given that top 21 has a larger diameter than pad 25, and that pad
25 is not easily accessible (under top 21, contacting the floor), one of
ordinary skill in the art would infer that adjustments are via top 21 rather
than pad 25.
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Examiner found that Oyama’s pad 25, which forms the bottom of ground
contact part 16, corresponds to a disk-shaped glide as claimed. See Ans. 5;
see also Oyama, col. 3, ll. 63-65; fig. 3. Appellants have not apprised us of
error in the rejection of claims 4 and claim 20, and we sustain the rejection
of these claims.

Claim 5
Claim 5 depends from independent claim 1 and recites “wherein the
foot mechanism has a rectangular shape with an opening for slidably
receiving the rod.” Br. 18, Claims App’x, Claim 5.
The Examiner found with regard to claim 5 that Oyama’s “housing 4
has a rectangular shape (as shown in Fig. 1) with two openings 12, 13 for
slidably receiving the rod 17.” Ans. 4.5 However, claim 5 calls for the foot
mechanism to have a rectangular shape and an opening for slidably receiving
the rod, not the housing. Cf. Br. 17, Claims App’x, Claim 3; see also Br. 13.
Consequently, the Examiner has not made a finding that Oyama
discloses a foot mechanism having a rectangular shape and an opening for
slidably receiving the rod as called for in claim 5. As such, we do not
sustain the rejection of claim 5.

Claim 8
Claim 8 depends from independent claim 1 and recites “wherein the
housing has (1) a first portion with a rectangular configuration forming a
cavity for receiving the rod and a portion of the foot mechanism and (2) a

5 The Examiner’s Response to Argument provides nothing further in this
regard. See Ans. 7-11.
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second portion having an elongated shape for attaching to the leg.” Br. 18,
Claims App’x, Claim 8. In parity with the claim language, the Specification
describes the first portion of the housing having a rectangular configuration
(rectangular shaped structure 136 of first end 132 of housing 130). Spec.,
para. [0030]; fig. 3.
Appellants argue “claim 8 recites that the housing has a first portion
with a rectangular configuration forming a cavity for receiving the rod and a
portion of the foot mechanism. By contrast, Figures 6 and 7 in Oyama
appear to show that the cavity is circular.” Br. 13. That is, Appellants argue
that the first portion of Oyama’s housing (attaching case 4) has a circular
cavity rather than a rectangular configuration forming a cavity as claimed.
The Examiner found that Oyama’s housing (attaching case 4) includes
a first portion with a rectangular configuration forming a cavity for receiving
rod 17 and a portion of the foot mechanism. Ans. 5; see also Office Action
dated Dec. 18, 2009, at 6 (annotated version of Oyama’s Figure 66).
Oyama’s housing (attaching case 4) is the same in Example 2 (Figures 6 and
7) and Example 1 (Figure 1). By comparing the Examiner’s annotated
version of Oyama’s Figure 6 to Oyama’s Figure 1, it can be understood that
the Examiner found that box-shaped case body 29, the lower portion of
attaching case 4 below box part 28, corresponds to the claimed first portion
of the housing having a rectangular configuration. See Oyama, col. 4, ll. 44-
49; figs 1, 6; Office Action dated Dec. 18, 2009, at 6. Indeed, Oyama’s box-

6 We make reference to the Office Action from which appeal was taken
because this annotated Figure is omitted from the Examiner’s Answer. The
Answer makes reference to the Figure but does not include it. See Ans. 4
(“as shown in Fig. 6 below”).
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shaped case body 29, as the nomenclature implies, is depicted as a
rectangular configuration forming a cavity. Oyama, figs. 1, 2, 4, 5, and 6.
Appellants have not apprised us of error in the rejection of claim 8.
Accordingly, we sustain the rejection of claim 8.

Claims 10-13 and 157
Claim 10 is directed to a method for adjusting the height of a table
that calls for biasing an interior wall of a hole in a lever8 against an outer
surface of a movable rod to pinch the rod and prevent it from moving within
that hole.
The Examiner found that Oyama discloses a hole (concavo-convex
part 39) in a lever (locking piece 55 and integral lever 56) that pinches the
rod (sliding shaft 17 of leg 10) on its outer surface (concavo-convex part 18)
to prevent the rod from moving within the hole. Ans. 4-5.9 Indeed,
concavo-convex part 39 does pinch concavo-convex part 18 to prevent
movement of sliding shaft 17 of leg 10. Oyama, col. 6, ll. 56-67; see also
col. 6, ll. 20-27 (disclosing similar operation of Example 1); figs 1, 3, 6.
Appellants argue that Oyama differs from the method of claim 10 in
that Oyama utilizes two concavo-convex parts (18 and 39) to prevent the rod
from moving. Br. 13-14.
At most, Appellants have pointed out that the reference nomenclature
(concavo-convex part 18 and concavo-convex part 39) differs from that of

7 Appellants argue claims 10-13 and 15 as a group, and we select
independent claim 10 as representative. Br. 13-14; see 37 C.F.R.
§ 41.37(c)(1)(vii).
8 Compare the “foot mechanism” of claim 1 to the “lever” of claim 10.
9 See bracket on annotated version of Oyama’s Figure 6 included in the
Office Action dated Dec. 18, 2009, at 6.
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the claimed subject matter (“rod” and “hole,” respectively). Such a
distinction does not persuasively demonstrate the finding is in error because
the nomenclature is not controlling. Cf. In re Bond, 910 F.2d 831, 832 (Fed.
Cir. 1990) (“The elements must be arranged as required by the claim, but
this is not an ipsissimis verbis test”). Appellants’ conclusory assertion does
not cogently explain how the Examiner’s finding is in error. Accordingly,
we sustain the rejection of claims 10-13 and 15.

Claim 19
Claim 19 depends from claim 16 and calls for the hole to be centrally
located in the flat rectangular shaped lever. Br. 21, Claims App’x, claim 19.
The Examiner found that Oyama’s lever (locking piece 55 and
integral lever 56) has a flat rectangular shape at top board 40. Ans. 6.
Oyama’s top board 40 is the upper part of locking piece 5 of Example 1,
while locking piece 55 and integral lever 56 are part of Example 2. In
Oyama’s Example 2, locking piece 55 replaces locking piece 5, and locking
piece 55 is not described nor depicted as including top board 40. Oyama,
col. 6, ll. 47-51; figs. 6, 7. Thus, this rejection mixes two embodiments
without proposing a modification to incorporate the applicable portion of
each embodiment. Consequently, we do not sustain the rejection of claim
19.

DECISION
We affirm the Examiner’s decision to reject claims 1-4, 6, 8, 10-13,
15-17, and 20, and we reverse the Examiner’s decision to reject claims 5 and
19.
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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

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