Ex Parte Claeys

Patent Trial and Appeal Board

Mar 29, 2018

14299602 (P.T.A.B. Mar. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/299,602 06/09/2014
28827 7590 04/02/2018
GABLE & GOTW ALS
100 WEST FIFTH STREET, lOTH FLOOR
TULSA, OK 74103
FIRST NAMED INVENTOR
Jay V. Claeys
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
007261-00028 9316
EXAMINER
ELOSHWAY, NIKI MARINA
ART UNIT PAPER NUMBER
3728
NOTIFICATION DATE DELIVERY MODE
04/02/2018 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):
iplaw@gablelaw.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAY V. CLAEYS
Appeal2017-005217 1
Application 14/299, 602
Technology Center 3700
Before: MICHAEL L. HOELTER, BRETT C. MARTIN, and
NATHAN A. ENGELS, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a Decision on Appeal, under 35 U.S.C. § 134(a), from the
Examiner's fmal rejection of claims 1, 2, and 5-11. Final Act. 1 (Office
Action Summary). "Claims 3 and 4 are objected to as being dependent upon
1 Appellant identifies no other Appeals that affect the present Appeal. App.
Br. 4. The Examiner identifies two "Board Decisions [that] were rendered
in the two parent cases of the present application." Ans. 2. These are (a)
Appeal No. 2008-003571, mailed September 26, 2008, pertaining to Patent
Application No. 11/117,984, now abandoned; and, (b) Appeal No. 2012-
002402, mailed January 15, 2014, whose application issued as U.S. Patent
No. 8, 746,478. Ans. 2. Appellant replies, "none of the six references relied
on by the Examiner in those proceedings have been reiterated by the
Examiner in the present case." Reply Br. 2.
Appeal 2017-005217
Application 14/299, 602
a rejected base claim, but would be allowable if rewritten in independent
form including all of the limitations of the base claim and any intervening
claims." Final Act. 5; see also App. Br. 7. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates generally to storage tanks and
more particularly concerns collapsible portable tanks for storing liquids."
Spec. 1 :2-3. Apparatus claims 1, 9, and 11 are independent. Claim 1 is
illustrative of the claims on appeal and is reproduced below.
1. A portable tank for storing liquids comprising:
a collapsible frame;
a liner of material impervious to the liquid to be stored having
side walls supported by said frame and a floor panel; and
a plurality of hand grips on a top surface of said floor panel for
manipulating said liner to collapse with said frame.
REFERENCES RELIED ON BY THE EXAMINER
Ellison
Van Romer et al.
(hereinafter "Van Romer '588")
Van Romer
(hereinafter "Van Romer '233")
Moffat et al.
(hereinafter "Moffat")
Christensen
US 3,829,007 Aug. 13, 1974
US 5,090,588 Feb. 25, 1992
us 5, 762,233 June 9, 1998
US 2003/0029873 Al Feb. 13,2003
US 7,036,676 B2 May2, 2006
THE REJECTIONS ON APPEAL
Claim 1 is rejectedunder35 U.S.C. § 103(a)as unpatentableoverVan
Romer '588 and Van Romer '233.
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Claim 2 is rejectedunder35 U.S.C. § 103(a)as unpatentableoverVan
Romer '233, Van Romer '588, and Christensen.
Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Van Romer '233, Van Romer '588, and Ellison.
Claims 7 and 8 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Van Romer '233, Van Romer '588, and Moffat.
Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Van Romer '233 and Ellison.
Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Van Romer '233 and Moffat.
ANALYSIS
The rejection of claim 1 as unpatentable
over Van Romer '233 and Van Romer '588
The Examiner primarily relies on Van Romer '233 for disclosing the
limitations of claim 1, including "hand grips are elements 32," "except for
the liner being suspended from the frame perimeter. " 2 Final Act. 2. For this
missing limitation, the Examiner relies on the teachings of Van Romer '588.
Final Act. 2-3. The Examiner concludes that it would have been obvious to
combine Van Romer '588's upper frame perimeter25 with Van Romer
'23 3 's tank, "in order to give the tank more support in the areas between
framemembersB." Final Act. 3; see also Ans. 4.
2 Van Romer '233 identifies item 32 as an "anchor tab" "under which
horizontal brace leg 24 is secured." Van Romer '233 4:28-34. The
Examiner states, "[t]he grips are capable of being grasped by a user's hand
and are capable of manipulating the liner to collapse with the frame." Final
Act. 2.
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Application 14/299, 602
Appellant addresses Van Romer '233 's "anchors" 32 contending that
they anchor the brace and that there is no teaching of their use as "a hand
grip." App. Br. 10-11 ("Van Romer '233 never refers to the anchor tab 32
or the arm 32a as a hand grip."); see also App. Br. 12. Appellant discusses
the interaction between Van Romer '23 3 's anchors and corresponding brace
stating that the anchor's "stated purpose [is] securing the horizontal brace
leg 24 beneath the arm 32a." App. Br. 11; see also Van Romer '233 4:33-
34. Appellant contends, "Van Romer '233 does not teach, and does not even
suggest, that the 'interior anchor tab 32 having an arm 32a' is, or may
function as, a hand grip" or that "elements 32 are capable of being grasped
by a user's hand." App. Br. 11, 12.
The Examiner responds that in Van Romer '233, "[t]he horizontal leg
at 32a is not secured directly to the bottom wall of the liner so that brace B
may slide underneath it." Ans. 4. Based on this operation, the Examiner
states, "[ s ]ince brace B may slide under 32a, a user's hand may also slide
between 32a and the liner bottom wall to grasp portion 32a of element 32."
Ans. 4. Hence, "[i]t is the [E]xaminer's position that the anchor tabs 32 of
Van Romer '233 can be considered 'hand grips' to the degree set forth in the
claims, since a user may grasp and pull the anchor tabs to manipulate the
liner." Ans. 4.
In this Appeal, "the PTO must give claims their broadest reasonable
construction consistent with the [S]pecification. Therefore, we look to the
specification to see if it provides a definition for claim terms, but otherwise
apply a broad interpretation." In re ICON Health and Fitness, Inc., 496 F.3d
1374, 1379 (Fed. Cir. 2007). A review of Appellant's Specification does not
provide any special defmition of the claim term "hand grips" other than that
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Application 14/299, 602
they "facilitate manipulation of the liner to collapse the liner with the
frame." Spec. 3 :5---6.
Appellant explains that Van Romer '233 does not teach the use of
anchors 32 '"for manipulating said liner to collapse with said frame' as
claimed." App. Br. 11, 12. According to Appellant, this is because, in Van
Romer '233, "the braces B must first be folded against the liner floor panel,
covering the anchor tabs 32 and making it impossible to grasp the anchor
tabs 32 at all, much less use them to manipulate the liner." App. Br. 11-12;
see also Van Romer '233 Figs. 5 and 6.
The Examiner, to the contrary, states, "[i]t is the [E]xaminer's
position thatthe user may grasp the element 32 of Van Romer '233 prior to
an inward folding of the sidewalls and braces, so that the user may gather
and pull the bottom wall of the liner." Ans. 4 (emphasis added).
Alternatively, the Examiner states, "the side walls of the Van Romer '233
liner may flatten outwardly" and that " [ i]t is not necessary or required by the
pending claims that the sidewalls fold inwardly prior to grasping the hand
. " An 4 grips. s. .
Addressing only the Examiner's response regarding "prior to an
inward folding," Appellant contends "[t]his is speculation offered by the
Examiner without supporting evidence." Reply Br. 2. Appellant further
contends that this possibility (i.e., grasping anchors 3 2 by hand prior to
inward folding) "is neither suggested by, nor even inferable from, the
teachings of Van Romer '233." Reply Br. 2; see also App. Br. 12.
We are instructed:
The Patent Office has the initial duty of supplying the factual
basis for its rejection. It may not, because it may doubt that the
invention is patentable, resort to speculation, unfounded
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assumptions or hindsight reconstruction to supply deficiencies
in its factual basis. To the extent the Patent Office rulings are
so supported, there is no basis for resolving doubts against their
correctness. Likewise, we may not resolve doubts in favor of
the Patent Office determination when there are deficiencies in
the record as to the necessary factual bases supporting its legal
conclusion of obviousness.
In re Warner, 379F.2d1011, 1017(CCPA1967).
Based on the record presented, we do not fmd it unreasonable for a
user to be able to grasp Van Romer '233 's anchors 32 for lifting purposes,
especially because anchor 32 is already designed to allow the sliding of a
horizontal portion of brace B (i.e., strap 24a containing rigid arm 24b)
underneath. Van Romer '233 4:20-34. Hence, the Examiner's conclusion
that Van Romer '233 's "grips are capable of being grasped by a user's hand"
(Final Act. 2) is reasonable and not considered to be "speculation" (App. Br.
11; Reply Br. 4) as asserted by Appellant. Appellant also does not
persuasively explain how such "hand grips" cannot be employed "prior to an
inward folding of the sidewalls and braces" or when folding the sidewalls
outwardly. See supra. Hence, as instructed above (i.e., "[t]o the extent the
Patent Office rulings are so supported, there is no basis for resolving doubts
against their correctness"), we are not persuaded the Examiner's rulings are
unsupported or unreasonable such that we are to resolve doubts against their
correctness. Warner, 379 F.2d at 1017.
The Examiner further concludes that Van Romer '233 's anchors 32
"are capable of manipulating the liner to collapse with the frame." Final
Act. 2; see also Ans. 5 (explaining that the combined references "would not
preventthe tank from collapsing"). Addressing Van Romer '588, Appellant
states, "[t]he term 'collapse' used in Appellant's [S]pecification and claims
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is inconsistent with the concept of 'collapse' discussed by Van Romer '588."
App. Br. 13. However, the Examiner relies on Van Romer '233 for
disclosing a "collapsible container," not Van Romer '588. Final Act. 2.
Appellant also contends that combining the two references for the
reason expressed by the Examiner (i.e., "in order to give the tank more
support in the areas between the frame members B" (Final Act. 3)), "is
inconsistent with and counter-productive to the provision of grips
manipulating the liner to collapse with the frame as claimed." App. Br. 13-
14. Appellant does not explain how this might be so or how Van Romer
'5 8 8 'supper frame perimeter 25 (stated as being "an elongated, radially
compressible, solid foam core" (Van Romer '588 3:448-9)) cannot be
collapsed along with the liner as recited.
Accordingly, and based on the record presented, we are not persuaded
the Examiner erred in rejecting claim 1 as being obvious over Van Romer
'233 and Van Romer '588. We sustain its rejection.
The rejection of (a) claim 2 as unpatentable over Van Romer '233, Van
Romer '588, and Christensen; (b) claims 5 and 6 as unpatentable over Van
Romer '233, Van Romer '588, and Ellison; and, (c) claims 7 and 8 as
unpatentable over Van Romer '233, Van Romer '588, and Moffat
Each of these claims depend, directly or indirectly, from claim 1. See
App. Br. 15. Appellant states that these claims "are not unpatentable," in
view of the additional reference to Christensen, Ellison, and Moffat, " [ fJ or
the reasons stated above with respect to Claim 1." App. Br. 15. Appellant's
contention is not persuasive. We sustain the Examiner's rejection of claims
2 and 5-8.
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The rejection of claims 9 and 10
as unpatentable over Van Romer '233 and Ellison
Appellant argues claims 9 and 10 together. App. Br. 15. We select
claim 9 for review, with claim 10 standing or falling with claim 9. See 37
C.F.R. § 41.37(c)(l)(iv).
Independent claim 9 "requires a collapsible free-standing frame."
App. Br. 15. "It is the [E]xaminer's position that Van Romer '233 teaches a
frame B that can be considered free standing to the degree set forth in
amended claim 9 because the frame B does not need to be supported by
another element." Final Act. 5; see also Ans. 6 (emphasis added).
Appellant contends, "[ n ]either Van Romer '233 nor Ellison disclose a
collapsible free-standing frame." App. Br. 15.
Appellant acknowledges that Van Romer '233 teaches that braces B
can be mounted internally (Fig. 2) or externally (Fig. 3). App. Br. 15
(referencing Van Romer '233 3:63---65). When viewing the latter,
externally-mounted configuration, a fastener 48a is illustrated passing
through grommet 48 "for securing the brace to the ground." See Van Romer
'233 Fig. 3; 4:42--43 (Discussing "grommet 38" and "fastener 38a". ).
However, when the former, internally-mounted configuration is illustrated,
no such fastener is employed (because it would puncture the liner). See Van
Romer '233 Fig. 2. In this internally-mounted configuration, Van Romer
'233 states, "[i]n FIG. 2, side brace Bis disposed on an interior side lOc of
the retaining wall and opposes the forces of fluid in the direction of arrows
30." 3 Van Romer '233 4:10-12.
3 Van Romer '233 also states, "[fJorces against the interior side of retaining
wall 10 are resisted by this anchoring of horizontal leg 24." Van Romer
'233 4:34--35.
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Accordingly, lacking any disclosure to the contrary, we agree with the
Examiner that Van Romer '233 discloses a "free-standing frame" (in its
internal configuration) because no other support is provided other than the
frame's braces B. See Final Act. 5; see also Ans. 6. We sustain the
Examiner's rejection of claims 9and10.
The rejection of claim 11
as unpatentableover Van Romer '233 and Moffat
Independent claim 11 includes a limitation directed to "a drain." See
App. Br. 16. The Examiner relies on Moffat to "teach that it is known to
provide a tank with a drain hole (see element 96)." Final Act. 4. Appellant
does not dispute that Moffat discloses a tank with drain, but instead
contends, "[ n ]either reference teaches a hand grip" or one "opposite a drain"
as recited. App. Br. 16. Appellant's arguments are not persuasive that Van
Romer '233 fails to teach a hand grip, or that one such grip is not opposite at
least one ofMoffat's various drains. Accordingly, and based on the record
presented, we sustain the Examiner's rejection of claim 11.
DECISION
The Examiner's rejections of claims 1, 2, and 5-11 are affrrmed.
Further, as stated above,"[ c ]laims 3 and 4 are objected to as being
dependent upon a rejected base claim, but would be allowable if rewritten in
independent form including all of the limitations of the base claim and any
intervening claims." Final Act. 5.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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