Ex Parte Fewster et al

Patent Trial and Appeal Board

Feb 28, 2017

12641696 (P.T.A.B. Feb. 28, 2017)

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.
12/641,696 12/18/2009 David I. Fewster 35942-US-PAT 1097
95866 7590 03/02/2017
Fleit Gibbons Gutman Bongini & Bianco P.L.
551 NW 77th street
Suite 111
Boca Raton, EL 33487
EXAMINER
RADKOWSKI, PETER
ART UNIT PAPER NUMBER
2883
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
ptoboc a @ fggbb .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID I. FEWSTER, ROGER WILLIAM ENT A, and
JOHN ANDREW CARLTON GROSS
Appeal 2015-006366
Application 12/641,696
Technology Center 2800
Before MARKNAGUMO, JAMES C. HOUSEL, and
JENNIFER R. GUPTA, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner’s decision rejecting claims 1—20. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision refers to the Specification (Spec.) filed December 18, 2009,
the Examiner’s Non-Final Office Action (Non-Final) delivered May 9, 2014,
Appellants’ Appeal Brief (Br.) filed October 15, 2014, and the Examiner’s
Answer (Ans.) delivered April 9, 2015.
2 According to Appellants, the real party in interest is Research In Motion
Limited. Br. 3.
Appeal 2015-006366
Application 12/641,696
STATEMENT OF THE CASE
The invention relates to a cable management system to aid in the
management of cable connections and wiring used in communication
closets, IT rooms, and other central wiring locales in the IT and
telecommunications industries. Spec. H 2 and 3. The system can provide
and direct communication paths for cables and cable connections, as well as
provide easy access for installing or removing individual cables or devices.
Id. Appellants disclose a cable management system having at least two
parallel tracks for arranging spools independently to allow the spools to be
offset relative to each other. Id. at 15. Further, each spool has an
engagement member located at a proximate end thereof configured for
releasable engagement with one of the tracks and an annular flange coupled
to the distal end thereof. Id. at 17.
Claim 1, reproduced below from the Claims Appendix to Appellants’
Brief, is illustrative of the subject matter on appeal. The recitation at issue is
italicized.
1. A cable management system comprising:
a mounting member defining at least two substantially
parallel tracks; and
at least two spools, each spool comprising:
a spool body having a proximate end and a
distal end;
an engagement member located at the
proximate end of the spool body, said engagement
member configured to be releasably engaged with one
of said tracks; and
an annular flange coupled to the distal end of
the spool body, said annular flange having a diameter
greater than a diameter of the spool body;
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Application 12/641,696
wherein each spool is independently mountable to
said tracks using the engagement member.
The Rejections
The Examiner maintains, and Appellants request our review of, the
following grounds of rejection under 35 U.S.C. § 103(a):
1. Claims 1 and 18 as unpatentable over Burek3 in view of Rendu4
(Non-Final 2-4);
2. Claims 2—7 and 12—15 as unpatentable over Burek in view of
Rendu, and further in view of Hines5 (Non-Final 4—7);
3. Claim 8 as unpatentable over Burek in view of Rendu, and
further in view of Wislinski6 (Non-Final 8);
4. Claims 9, 16, 17, and 20 as unpatentable over Burek in view of
Rendu, and further in view of Vidacovich7 (Non-Final 9 and 11—15);
5. Claim 10 as unpatentable over Burek in view of Rendu, and
further in view of Vidacovich and Remington8 (Non-Final 9—10);
6. Claim 11 as unpatentable over Burek in view of Rendu, and
further in view of Pierro9 and Badcock10 (Non-Final 10—11).
3 US 7,627,223 Bl, issued December 1, 2009.
4 FR 2 520 944 A, published August 5, 1983. The Examiner relies, without
objection, on the English-language Derwent Abstract (Thomson Reuters
2014). In addition, the Examiner provides and relies on a full English-
language translation of Rendu in the Answer. See Ans. 2.
5 US 6,398,149 Bl, issued June 4, 2002.
6 US 6,330,390 Bl, issued December 11, 2001.
7 US 5,402,515, issued March 28, 1995.
8 US 5,350,228, issued September 27, 1994.
9 US 5,908,172, issued June 1, 1999.
10 US 6,361,330 Bl, issued March 26, 2002.
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ANALYSIS
We review the appealed rejections for reversible error based upon the
issues identified by Appellants and in light of the arguments and evidence
produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”)). After considering
the evidence presented in this Appeal and each of Appellants’ contentions,
we are not persuaded that Appellants identity reversible error. Thus, we
affirm the Examiner’s rejections for the reasons expressed in the Final
Office Action and the Answer. We add the following primarily for
emphasis.
Appellants’ arguments focus exclusively on the annular flange
recitation present in each of independent claims 1,18, and 20, and no claim
is argued separately. As such, all claims stand or fall together and our
discussion below is limited to this recitation.
The Examiner finds, without dispute, that Burek teaches a cable
management system substantially as recited in claim 1, except for an explicit
teaching that the flange 34a11 is an annular flange. Compare Non-Final 3
with Br. 10. The Examiner, however, does find Burek teaches flange 34a
has a diameter greater than a diameter of the spool body. Non-Final 3. For
an annular flange, the Examiner finds Rendu teaches a circular flange on a
11 Throughout this Opinion, for clarity, we present labels to elements in
figures in bold font, regardless of their presentation in the original document.
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spool that can be made by rotational molding. Id. at 3^4. The Examiner
concludes it would have been obvious to modify Burek’ spool to include an
annular flange that can be made by rotational molding as taught by Rendu.
Id. at 4.
Appellants contend that the Examiner erred in making the above
obviousness conclusion. Br. 10—11. Appellants note that Burek teaches the
flange plate 34a “extends ‘beyond the circumference of the spool enough to
keep [the] slack cable that is guided by the spool from sliding off of the
spool.’” Id. at 11, quoting Burek 3:41—43. Appellants assert that “such
sliding can only happen on the upperside of the spool or on the underside of
the spool (rather than the sides of the spool) in view of how Burek teaches
using [the cable management system].” Br. 11—12, citing Burek, Figs. 6 and
7. Appellants urge that Burek’s rounded-rectangular flange plate which
extends vertically, but not horizontally, is specifically designed to meet
Burek’s need to prevent slack cable from sliding off the spools. Br. 12.
Moreover, Appellants argue that the ordinary artisan would have
every reason not to modify Burek to include an annular flange. Id. at 13. In
particular, Appellants urge that Burek’s flange plates 34a “are designed to
be conservative with respect to their lateral/horizontal dimensions to thereby
fit within [the relatively limited horizontal] cabinet space without impinging
on the sides of the cabinet and without interfering with the placement of
[the] other spools.” Id. Appellants demonstrate this feature via annotated
drawings depicting Burek modified to include annular flanges on the distal
ends of the spools in which the outer spools’ flanges would impinge on the
sides of the cabinet, and spools in adjacent tracks would be prevented from
being aligned with each other. Id. at 13—14. Appellants argue that these
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Application 12/641,696
issues are likely why Burek adopted the rounded-rectangular shape of flange
plate 34a. Id. at 14.
The Examiner responds that modifying Burek to have an annular
flange would entail a design choice balancing one form’s advantages over
another. Ans. 5. In particular, the Examiner finds Rendu teaches that a
spool with annular flange offers a configuration that is lighter, supports
better wear due to friction, is easily recyclable, as well as can be made by
rotational molding. Id. Appellants do not address, nor otherwise identify
reversible error in these additional findings nor in the Examiner’s position
that the proposed modification to Burek’s flange would have been an
obvious choice of design entailing a balancing between the advantages and
disadvantages of each design. Moreover, in this regard, we note that both
annular (Rendu) and rounded-rectangular (Burek) designs (as well as other
flange shapes such as shown in Hines’ Figure 7 and Vidacovich’s Figure 1)
are known to those skilled in the art.
We further note that Appellants not only do not direct our attention to
any teaching in the Specification for a special purpose for the shape of the
flange being annular, but Appellants teach:
While the illustrated embodiment is an annular flange 140, the flange
140 can have a square shape, a diamond shape, a triangular shape, an
ovular shape, or any other shape that permits cables or wires to be
routed and maintained around the spool 115.
Spec. 125. Appellants teach that the annular flange can have a diameter
greater than the diameter of the spool body (id.), just as Burek teaches for
flange plate 34a (Burek 3:39-43 (“plates extend beyond the circumference
of the spool enough to keep slack cable that is guided by the spool from
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Application 12/641,696
sliding off of the spool.”)). Therefore, we are satisfied that the Examiner has
established that the flange shape is within the design skill of one of ordinary
skill in the art and the annular shape is known as taught by Rendu. Cf. In re
Kuhle, 526 F.2d 553, 555 (CCPA 1975) (finding that the use of the claimed
feature “would be an obvious matter of design choice” when it “solves no
stated problem” and “presents no novel or unexpected result” over the
disclosed alternatives).
Regarding Appellants’ argument that an annular flange design would
not have been obvious in Burek due to spacing constraints, the Examiner
finds that, faced with such spacing constraints, the ordinary artisan would
have simply provided a smaller diameter annular flange or slightly increase
track separation, with a reasonably expectation of success in preventing
slack cables from sliding off the guide spools. Ans. 7 and 8. Again,
Appellants do not address, nor otherwise identify reversible error in, this
finding. See also, Randall Mfg. v. Rea, 733 F.3d 1355, 1362 (Fed. Cir.
2013) (obviousness analysis requires the prior art as a whole to be read in
context, taking account of the knowledge, creativity, and design skill of one
of ordinary skill in the art).
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in Burek and
Rendu with Appellants’ countervailing arguments for non-obviousness and
conclude, by a preponderance of the evidence and weight of argument, that
the claimed invention encompassed by appealed claims 1—20 would have
been obvious as a matter of law under 35 U.S.C. § 103(a).
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DECISION
Upon consideration of the record, and for the reasons given above and
in the Non-Final Office Action and the Answer, the decision of the
Examiner rejecting claims 1—20 under 35 U.S.C. § 103(a) 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)(1).
AFFIRMED
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