14556262 (P.T.A.B. Oct. 24, 2018)

Ex Parte FRENAL et al

Patent Trial and Appeal BoardOct 24, 2018

14556262 (P.T.A.B. Oct. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/556,262 12/01/2014 Antoine FRENAL 40582 7590 10/26/2018 American Air Liquide, Inc. Intellectual Property Department 9811 Katy Freeway Suite 100 Houston, TX 77024 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. Serie 9782 9427 EXAMINER ALLEN, JEFFREY R ART UNIT PAPER NUMBER 3733 NOTIFICATION DATE DELIVERY MODE 10/26/2018 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): IP-USOffice@airliquide.com Neva.Dare-c@airliquide.com J us tin.Murray@airliquide.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANTOINE FRENAL, RENAUD LIGONESCHE, and CHIARA T ARANTELLO Appeal2018-003067 Application 14/556,262 Technology Center 3700 Before: STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Antoine Frenal et al. ("Appellants") appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1-7 and 9-13. 1 We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 Appellants submit the real party in interest is Air Liquide Large Industries U.S. LP. Br. 2. Appeal2018-003067 Application 14/556,262 THE CLAIMED SUBJECT MATTER The claims are directed to a container/container support assembly. Spec. 1: 10. Sole independent claim 1 is reproduced below: 1. A container/container support assembly, comprising: - a gas container (11) comprising a protective cap (3) comprising a peripheral wall (3), and - a container support (20) able and designed to accept and bear said gas container ( 11 ), wherein: - the protective cap (3) of the gas container (11) comprises a fixing element (10) projecting from the surface of the peripheral wall (3), and - said container support (20) comprises: i) an attachment system (24) for fixing said container support (20) to a load bearing structure (30), and ii) a housing (22) able and designed to accept said fixing element (10) borne by the protective cap (3) of the gas container ( 11) so as to secure said gas container ( 11) to said container support (20) when said fixing element ( 10) is connected with said housing (22) of the container support (20), wherein the housing (22) in the form of a notch is open at the top when the container support (20) is fixed to the load bearing structure (30). REJECTIONS 1) Claims 1-7 and 9-12 are rejected under 35 U.S.C. Â§ 103 as unpatentable over Terrill (US 3,370,624, issued Feb. 27, 1968) and Lisowski (US 5,026,016, issued June 25, 1991). 2) Claim 13 is rejected under 35 U.S.C. Â§ 103 as unpatentable over Terrill, Lisowski, and Christen et al. (US 2009/0030384 Al, published Jan. 29, 2009). 2 Appeal2018-003067 Application 14/556,262 DISCUSSION Rejection 1 The Examiner finds that Terrill discloses most of the limitations of claim 1, including a protective cap 14 having a fixing element 17, "an attachment system (20) for fixing said container support to a load bearing structure (23)," and a housing designed to accept the fixing element 17 to support a container when the fixing element is connected to the housing, but that the housing does not have a notch open at the top. Final Act. 2-3. The Examiner finds that Lisowski discloses a mounting structure with a housing having a notch open at the top. Id. at 3. The Examiner concludes that it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a mounting structure with a housing having a notch open at the top as "a simple substitution of one known element for another to achieve a predictable result" of "hanging objects on a mounting surface." Id. at 4--5. Appellants argue that the Examiner's formulaic recitation "is not an articulated reasoning." Br. 5-6 (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). According to Appellants, the Examiner offers no explanation why a person of ordinary skill in the art would use a microphone mount to "hang the gas cylinder of Terrill on the wall." Id. at 6. Appellants assert that without a reasoned explanation, the Examiner's basis for the rejection is based on hindsight. Id. The Examiner responds that because Lisowski' s "mounting structure [] would hang a device in a similar and predictable manner [ to that] taught by the primary reference . . . the modification would be substitution of one element for another to obtain a predictable result." Ans. 5. According to the 3 Appeal2018-003067 Application 14/556,262 Examiner, because "both structures are used for hanging objects on a mounting surface and would provide the equivalent structure ... there would be no change in the operation of Terrill ... with nothing more than predicable results." Id. ( emphasis added). For the following reasons, we do not sustain the rejection. Although Terrill discloses a support structure, the Examiner does not direct our attention to any portion of Terrill that discloses that the support structure of Terrill is used to hang Terrill's cylinder. Terrill discloses that bar extension 20 ( support structure) "can be secured to the wall," and is used to prevent the cylinder "from being knocked over from any cause." Terrill, 3:41--45. Figure 3 of Terrill discloses that support structure 20 is vertically below fixing element 17 of the cylinder indicating that support structure 20 is not used to hang or mount the cylinder. Compare Terrill, Fig. 3 with, Lisowski, Fig. 8. Consequently, the Examiner's finding that the structures of Terrill and Lisowski are both used for hanging objects is not supported by a preponderance of the evidence. Consequently, modifying Terrill with Lisowski as proposed in the rejection would result in a change of operation of Terrill. Therefore, we do not sustain the rejection of claim 1 as unpatentable over Terrill and Lisowski, nor do we sustain the rejection of claims 2-7 and 9-12 which depend from claim 1. Rejection 2 Claim 13 depends indirectly from claim 1. Br. 10 (Claims App.). The Examiner rejects claim 13 based on the combination of Terrill and Lisowski with additional disclosure from Christen. Final Act. 4. The Examiner does not rely on the additional disclosure from Christen to cure the deficiencies in 4 Appeal2018-003067 Application 14/556,262 the combination of Terrill and Lisowski discussed above in connection with claim 1. Id. We, therefore, do not sustain the rejection of claim 13. DECISION The Examiner's decision to reject claims 1-7 and 9-13 is reversed. REVERSED 5