Ex parte Franssen

Board of Patent Appeals and Interferences

Sep 22, 1998

08432079 (B.P.A.I. Sep. 22, 1998)

Application for patent filed May 1, 1995.1
1
Paper No. 18
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte DANIEL J. FRANSSEN
and ALAN W. INKENBRANDT
______________
Appeal No. 97-4080
Application 08/432,0791
_______________
ON BRIEF
_______________
Before PATE, MCQUADE and CRAWFORD, Administrative Patent
Judges.
PATE, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the examiner’s refusal to allow
claims 1, 5 through 8 and 10 through 12. These are the only
claims remaining in the application.
Appeal No. 97-4080
Application 08/432,079
2
The claimed invention is directed to a stand or modified
table used to hold beverage cans. Claim 1, reproduced below,
is further illustrative of the claimed subject matter.
1. A stand for holding beverage containers, said stand
being comprised of a table member for holding said beverage
containers and a support stand having a lower ground engaging
end and upper end engaging table member, said table member
having openings in the form of cup shaped receptacles for
receiving said beverage cans and said support stand
comprising an upstanding column having an upper end removably
connected to said table member, the upper end of the column
being removably received in a socket in the bottom of the
table member and a lower end being comprised of a collapsible
tripod base having three legs which in a collapsed position
are substantially axially positioned with respect to said
column, the table member being comprised of a plastic deck
having a downwardly depending peripheral flange for
strengthening the table member, the table member having a
substantially flat ground engaging surface comprised of the
bottom of said flange and bottom walls of said flange being
at least of substantially the same depth as said cup shaped
receptacle and said table member being employed as a tray
when removed from the socket.
The references of record relied upon by the examiner as
evidence of obviousness are:
Threlfall et al. (Threlfall) 2,733,881
Feb. 7, 1956
Kopmar 2,805,109 Sep. 3,
1957
Carlson et al. (Carlson) 3,665,867 May
30, 1972
The examiner has rejected claims 1, 5-8 and 10-12 under
Appeal No. 97-4080
Application 08/432,079
3
35 U.S.C. § 103 as unpatentable over Kopmar in view of
Carlson and Threlfall. According to the examiner, Kopmar
teaches a stand for holding containers. The stand comprises
table member 11 and a support stand 10 removably connected to
the table member via a socket in the bottom of the table
member. The table member has a plastic deck 12, 13 having
cup shaped receptacles 15 under its openings 16. Kopmar does
not show a tripod base, nor does it show a downwardly
depending peripheral flange. The examiner has relied on
Carlson to teach a table member having a downwardly depending
peripheral flange wherein the bottom walls of the flange
appear to have substantially the same or greater depth than
the depth of the receptacles located in the table member.
According to the examiner, it would have been obvious to
modify the table member of Kopmar by adding a downwardly
depending peripheral flange thereto. The motivation for this
combination of references is, according to the examiner, for
aesthetic purposes. Finally, the examiner also states that
it would have been obvious to use the tripod stand support of
Threlfall as an alternative to the sharpened supporting stand
of Kopmar to provide a more stable means of support.
Appeal No. 97-4080
Application 08/432,079
4
OPINION
We have carefully reviewed the rejection on appeal in
light of the arguments of the appellants and the examiner.
As a result of this review we have determined that the
applied prior art does not establish a prima facie case of
obviousness with respect to the claims on appeal. Therefore,
the rejection of the claims on appeal is reversed. Our
reasons follow.
We are in agreement with the examiner’s findings of fact
with respect to the Kopmar and Threlfall references.
However, with respect to the Carlson reference, the
examiner’s finding that Carlson has a table-top 20 with a
downwardly depending peripheral flange appears to be based on
assumption or conjecture. All figures of the table 20 in
Carlson are perspective drawings. None shows the cross
section of the
table 20. The specification of Carlson merely states that
the “table top member 20 may be of any desired thickness and
in the embodiment shown has been made thick enough to provide
space for a plurality of drawers 27 adapted to contain
Appeal No. 97-4080
Application 08/432,079
5
additional implements for use in the manicuring operation”
(column 4, lines 27-31). In our view, it is just as likely
to assume that the cylindrical side wall of table 20 of
Carlson does not extend as a peripheral flange but merely
spans the distance between the top surface of table 20 and a
bottom surface of table 20 that provides support for the
drawers 27. At any rate, prima facie obviousness may not be
established with resort to speculation and assumptions. We
may not resort to speculation, unfounded assumptions, or
hindsight reconstruction to supply deficiencies in the
factual basis. See In re GPAC, Inc., 57 F.3d 1573, 1582, 35
USPQ2d 1116, 1123 (Fed. Cir. 1995). Secondly, we agree with
appellants that the combination of Carlson and Kopmar is
based on impermissible hindsight. We see no teachings in the
references themselves that would have suggested their
combination to one of ordinary skill in the art. While the
table 20 of Carlson does have an overreaching member 30, the
table of Carlson is more or less permanently mounted on the
tubular member 22 to provide a lazy Susan function (column 4,
line 25). It is apparent that permanently mounting such a
Appeal No. 97-4080
Application 08/432,079
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table on the beach umbrella of Kopmar would more or less
destroy the functionality of the beach umbrella.
Additionally, it is apparent that none of the applied
references contemplates the removal of a table-like structure
to use the table-like structure as a tray. For these
reasons, it is our determination that the combination of
references posited by the examiner, is based on a hindsight
reconstruction, impermissible under § 103.
REVERSED
WILLIAM F. PATE, III )
Administrative Patent Judge )
)
)
)
JOHN P. MCQUADE ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )

Appeal No. 97-4080
Application 08/432,079
7
Glenn K. Robbins
1015 Locust Street
St. Louis, MO 63102
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