Ex Parte Harvey

Patent Trial and Appeal Board

Nov 5, 2014

11372537 (P.T.A.B. Nov. 5, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DONALD L. HARVEY
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Appeal 2012-009877
Application 11/372,5371
Technology Center 3600
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Before ANTON W. FETTING, NINA L. MEDLOCK, and
BRUCE T. WIEDER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1–15 and 25–32. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER
Appellant’s claimed invention relates to a collapsible building.
(Spec. ¶ 1.)

1 According to Appellant, the real party in interest is E.Z. Shelters, Inc.
(Appeal Br. 4.)
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Application 11/372,537

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Claims 1, 8, and 29 are the only independent claims. Claim 1 is
illustrative and is reproduced below (emphasis added):
1. A selectively collapsible structure comprising:
a base;
a first side wall rotatably attached to the base, and
having angular movement relative to the base between
collapsed and erected configurations;
a second side wall rotatably attached to the base,
and having angular movement relative to the base
between collapsed and erected configurations, the first
and second side walls having angular movements
independent of each other relative to the base;
a roof guidingly coupled to both the first side wall
and the second side wall and having movement relative
to the base guided by angular movement of the first and
second side walls between their collapsed and erected
configurations;
a biasing assembly urging the structure into a fully
erected configuration, the biasing assembly having first
and second states in which it has relatively greater and
lesser amount of stored energy, respectively, the first and
second side walls urged from their collapsed
configurations toward their erected configurations by
transition of the biasing mechanism from its first state
toward its second state; and
a standoff assembly having at least two support
members, each support member being defined by first
and second ends and having a base cap attached to the
second end, wherein the base cap further comprises an
opening that is sized to matingly receive the first end of a
separate support member of a second standoff assembly
when the collapsible structure is in a storage
configuration.

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Application 11/372,537

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REJECTION
Claims 1–15 and 25–32 are rejected under 35 U.S.C. § 112, first
paragraph, as being unpatentable for failing to comply with the written
description requirement.

ANALYSIS
During prosecution, claims 1 and 8 were amended to recite: “first and
second side walls having angular movements independent of each other
relative to the base . . . .” Claim 29 was amended to recite similar language.
The Examiner asserts that “[t]he original specification neither
mentions nor implies that the first and second side walls move independent
of each other. Moreover, from fig. 5 of the drawings, the first and second
side walls (28, 30) are shown at the same level and angle during assembly.”
(Answer 5.)
Appellant argues that “[o]ne component or set of components are
connected to one sidewall and a different component or set of components
are connected to the other sidewall. Inherently, the walls can move
independent of one another because it is different structures connected to the
sidewalls.” (Reply 5.)
According to the Specification as originally filed, each side wall (28
and 30) is hinged near the floor. (Spec. ¶¶ 16, 19 and 20.) Each wall can be
moved into place with the aid of cables to reduce the lifting effort. (Spec.
¶¶ 33 and 34.) Near the top of each side wall are rollers. The rollers fit in
tracks in the roof panel. (Spec. ¶ 22.)
In one embodiment discussed in the Specification, cables are attached
to the upper ends of each side wall. (Spec. ¶ 33.) Each cable can then be
Appeal 2012-009877
Application 11/372,537

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wrapped around a cable drum attached to a shaft of a torsional assembly
(230). Each torsional assembly can be attached to a side edge of the roof.
(Spec. ¶¶ 31 and 35 and Fig. 5.) Each torsional assembly includes a torsion
spring to assist in winding the cable on to and off of the cable drum and thus
assists a user in erecting or collapsing its respective side wall. (Spec. ¶¶ 24
and 3133 and Fig. 5.2)
In another embodiment, an axial assembly (330) with a spring is
positioned at least partially within each side wall. (Spec. ¶ 34.) Via cables
attached to each axial assembly, each assembly assists in erecting or
collapsing its respective side wall. (Spec. ¶ 35 and Fig. 5.)
Appellant argues (Reply 5) that although the building could
be assembled by more users, the subject application discloses
that the torsional assemblies 220 [sic, 230] and/or the axial
assemblies 330 allow a user to erect the building with the
slightest of lifting effort. See paragraphs [0033] and [0035] of
the specification as originally filed. The different and separate
components associated with each of the side walls would allow
the user to erect one of the sides and then erect the other side.
After the side walls were erected, then the user could erect the
front and back walls to complete the structure.

The Specification as originally filed does not explicitly state that the
side walls can move independently. It does, however, describe independent
components for each side wall such that each side wall is inherently capable
of angular movements independent of the other, within the constraints
imposed by the guide rollers and their associated tracks.

2 Figure 5 appears to illustrate both an embodiment using torsional
assemblies (with regard to side wall 30) and an embodiment using axial
assemblies (with regard to side wall 28). Thus, Figure 5 shows only one
torsional assembly and only one axial assembly.
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Therefore, we are persuaded that the Examiner erred in rejecting
claim 1 under 35 U.S.C. § 112, first paragraph, for failing to comply with the
written description requirement with regard to the phrase “the first and
second side walls having angular movements independent of each other
relative to the base . . . .” Thus, we reverse the rejection of claim 1. For the
same reason we reverse the rejection of dependent claims 27, 25, and 27,
which depend from claim 1.
Independent claim 8, which contains the identical phrase, was rejected
for the same reason as claim 1. Thus, we also reverse the rejection of
claim 8 and the rejection of dependent claims 915, 26, and 28.
Independent claim 29, which contains a similar phrase, was rejected
for the same reason as claim 1. Thus, for the same reason we reverse the
rejection of claim 29 and the rejection of dependent claims 3032.

DECISION
The Examiner’s rejection of claims 1–15 and 25–32 under 35 U.S.C.
§ 112, first paragraph is reversed.

REVERSED

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