Ex Parte Giarrizzo et al

Patent Trial and Appeal Board

Feb 22, 2018

12711645 (P.T.A.B. Feb. 22, 2018)

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.
DCR.P4000 1133
EXAMINER
MILLER, SAMANTHA A
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
12/711,645 02/24/2010
23575 7590 02/22/2018
CURATOLO SIDOTI CO., LPA
24500 CENTER RIDGE ROAD, SUITE 280
CLEVELAND, OH 44145
Michael GIARRIZZO JR.
02/22/2018 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 MICHAEL GIARRIZZO JR. and DOUGLAS KIRK
Appeal 2017-0041121
Application 12/711,645
Technology Center 3700
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 1,2, 8—21, 24—31,
33, and 38. We have jurisdiction to review the case under 35 U.S.C. §§ 134
and 6.
The invention “relates to a booth for performing one or more vehicle
collision repair operations on a vehicle.” Spec. 1,11. 11—12.
1 The Appellants identify DCR IP Co., LLP as the real party in interest.
Appeal Br. 3.
Appeal 2017-004112
Application 12/711,645
Claim 1 is illustrative:
1. A vehicle collision repair booth comprising:
a housing;
a first air handling system, wherein said first air
handling system comprises an air intake duct, an air
exhaust duct, a fan in fluid communication with said air
intake duct, a plenum in fluid communication with said
fan, and a filter in fluid communication with said air
plenum; and
a second air handling system in fluid
communication with a movable tool.
Claims 1, 2, and 8—20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gummer (US 5,882,404, iss. Mar. 16, 1999), Sjoberg (US
6,361,427 Bl, iss. Mar. 26, 2002), and Pippa (US 7,014,338 B2, iss.
Mar. 21,2006).
Claims 21, 24—31, 33, and 38 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gummer and Sjoberg.
We REVERSE.
ANALYSIS
Claims 1, 2, and 8—20
We are persuaded by the Appellants’ argument that Gummer fails to
disclose or suggest a secondary air handling system in fluid communication
with a mobile tool, in that neither the opening 135 of Gummer, nor the end
of the flexible exhaust hose 14 of Sjoberg, are tools, nor is it mobile. Appeal
Br. 7. More specifically, the Appellants argue opening 135 in Gummer
would not have been recognized by the ordinary artisan as a tool, as claimed,
and is not mobile without permitting movement of the structure in which the
opening is created. Id. at 7—8; see also id. at 9; Reply Br. 2—6.
2
Appeal 2017-004112
Application 12/711,645
In rejecting claim 1, the Examiner finds a non-movable “tool” at
element 135 of Gummer, and finds the end of the flexible hose 14 in Sjoberg
is a “movable tool,” as claimed. Answer 2—3. The Examiner finds it would
have been obvious “to have modified the tool of GUMMER in view of the
movable conduit” of Sjoberg. Id. at 4.
Gummer discloses a “suction conduit 134 opens into the booth 112
via an opening 135 which generally flares out into the booth 112 to direct
powder being drawn by the suction, into the conduit 134.” Gunner, col. 5,
11. 16—19. Gummer also discloses “base 130 of the booth 112 has a
generally conical cross-section, tapering toward the cent[er] thereof to . . .
direct water draining from the booth 112 into an outlet 132.” Id. at col. 5,11.
26—29. Outlet 132, in Figure 2, corresponds to outlet 135 in Figure 3, and
also to outlet 32 in Figure 1. Opening 135 is thus an opening through the
surface of the base, or floor, of the booth.
The Examiner asserts “[t]he definition of tool at www.google.com on
11/14/2016 [is] ‘a thing used in an occupation or pursuit.’” Answer 8. We
first are skeptical that the Google search engine is a dictionary. Second, the
definition essentially encompasses all “things” that are used, which has a
reach that would appear to exclude very few “things.”
We are persuaded that the skilled artisan would not have recognized
Gummer’s hole in the base of a booth as a tool, because we are persuaded
that a floor drain is not a tool. For example, Merriam-Webster’s Dictionary
defines a tool as “a handheld device that aids in accomplishing a task,” “the
cutting or shaping part in a machine or machine tool,” and “something (such
as an instrument or apparatus) used in performing an operation.” Merriam
Webster Online Dictionary (last retrieved on January 25, 2018 from
3
Appeal 2017-004112
Application 12/711,645
https://www.merriam-webster.com/dictionary/tool). We find this definition
more reasonable, when considered in view of the Specification. A floor
drain does not conform to any of those meanings.
Sjoberg “relates to an extractor system, especially for exhaust gases
from a motor vehicle,” where a “hose can be connected to the exhaust pipe
of the vehicle and can be detached therefrom at the end position.” Sjoberg,
col. 1,11. 6—19. The hose 14 of Sjoberg could be itself considered to be a
tool, in that is used in performing the operation of removing exhaust gas
from a vehicle. The claim, however, recites “a second air handling system
in fluid communication with a movable tool.” Sjoberg’s hose 14 is part of a
claimed “air handling system,” and, therefore, cannot also be a separate
movable tool in fluid communication with an air handling system, as
claimed.
In addition, even if the floor drain of Gummer is considered a tool,
and was connected to the hose of Sjoberg, the floor drain would not be
movable within the floor, and, thus, the combination would not meet the
language of “a second air handling system in fluid communication with a
movable tool,” as claimed, because the tool wouldn’t be movable.
In summary, neither Gummer nor Sjoberg, individually or in
combination, discloses a movable tool, as claimed. The Examiner, thus,
does not support adequately the obviousness rejection of claims 1 and 15,
because the Examiner has not established that a movable tool in fluid
communication with an air handling system is disclosed in the cited art. For
this reason, we do not sustain the rejection of independent claim 1, and of
dependent claims 2 and 8—20 that were rejected along with claim 1.
4
Appeal 2017-004112
Application 12/711,645
Claims 21 and 24—30
Independent claim 21 recites “a movable tool comprising a hood in
fluid communication with said exhaust duct.”
The Examiner asserts Gummer discloses “a tool (135) comprising a
hood (hood of 135).” Answer 6. The Examiner also asserts that because
Gummer’s “tool” is not movable, Sjoberg’s hose “14 would be connected to
hood of 135 and exhaust duct 134 of GUMMER) in fluid communication
with said exhaust duct; and a movable tool (end of 14 is movable) in fluid
communication with said exhaust duct.” Id. The Examiner, thus, uses
similar reasoning in rejecting claim 21 as advanced at claim 1, but now
finds, apparently, that the entire “hood,” of which the floor drain is part,
would become a movable tool by being connected to Sjoberg’s hose, or that
the floor drain would move within the floor of the hood structure by being
connected to a flexible hose. See id. at 5—6.
The Appellants again argue the orifice 135 of Gummer is not a tool,
and that moving a floor drain within a vacuum chamber of Gummer would
open up other holes that would destroy the suction system of Gummer.
Appeal Br. 10-11.
We agree with the Appellants, for the same reasons we set forth above
at claim 1.
Claims 31, 33, and 38
Independent claim 31 recites “a tool in fluid communication with an
exhaust duct; a mounting carrying said tool and a portion of said exhaust
duct; a movable base engaged with said mounting.”
The Appellants’ arguments for claim 31, and the Examiner’s
response, refer to the arguments for claims 1 and 21. Appeal Br. 12; Reply
5
Appeal 2017-004112
Application 12/711,645
Br. 6—7. We do not sustain the rejection of independent claim 31, and
dependent claims 33 and 38, for the same reasons as for claims 1 and 21.
DECISION
We reverse the rejections under 35 U.S.C. § 103(a) of claims 1, 2, 8—
21, 24—31, 33, and 38.
REVERSED
6