Ex Parte Hightower

Patent Trial and Appeal Board

Aug 29, 2016

12729450 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121729,450 03/23/2010 Robert C. Hightower
20792 7590 08/30/2016
MYERS BIGEL & SIBLEY, P.A.
PO BOX 37428
RALEIGH, NC 27627
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.
9066-35 7238
EXAMINER
DOYLE, RYAN A
ART UNIT PAPER NUMBER
3637
MAILDATE DELIVERY MODE
08/30/2016 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 ROBERT C. HIGHTOWER1
Appellant
Appeal2014-009492
Application 12/729,450
Technology Center 3600
Before DANIEL S. SONG, STEFAN STAICOVICI and
LEE L. STEPINA, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
1 The real party in interest is Tenn-Tex Plastics, Inc. (Appeal Brief
(hereinafter "App. Br.") 1).
Appeal2014-009492
Application 12/729,450
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 the Examiner's final
rejection of claims 1--4, 8-14, 17, and 19 in the present application (App. Br.
2). We have jurisdiction under 35 U.S.C. §§ 6(b) and 134.
We AFFIRM.
The claimed invention is directed to a bracket assembly for
undermounted drawer and tray slides in cabinetry (Title). Illustrative
independent claim 1 reads as follows (App. Br. 8, Claims App'x, emphasis
added):
1. A bracket assembly for mounting a drawer slide on a
cabinet, comprising:
a mounting bracket, the mounting bracket being adapted
for mounting to a wall or frame of a cabinet, the mounting
bracket including a main panel and receptor mounting structure
attached to the main panel; and
a slide receptor having a mounting portion that is
configured to interact with the receptor mounting structure of
the mounting bracket and enable the slide receptor to move
horizontally relative to the mounting bracket, the slide receptor
also including a receiving portion that is configured to receive a
drawer slide;
wherein the mounting bracket further includes a
generally horizontally disposed recess in a front surface of the
main panel; and
wherein the recess includes an enclosed central notch.
Claim 14 is also an independent claim, which like claim 1, requires a
mounting bracket with "a generally horizontally disposed recess in a front
2
Appeal2014-009492
Application 12/729,450
surface of the main panel," and "wherein the recess includes an enclosed
central notch."
The Examiner rejects claims 1--4, 8-14, 17, and 19 as unpatentable
under 35 U.S.C. § 103(a) over the combination of Branson2 and Domenig. 3
(Ans. 2).
ANALYSIS
Only those arguments actually made by the Appellant have been
considered in this decision. Arguments that the Appellant could have made
but chose not to make have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(l)(vii). We initially observe that in its
Appeal Brief, the Appellant presents arguments arguing the patentability of
independent claims 1 and 14 together (see generally, App. Br. 3, 6). The
Appellant does not separately argue the limitations of claims 2--4, 8-13, 17,
and 19 that ultimately depend from claim 1 or claim 14. Thus, all the claims
stand or fall together.
The Examiner rejects claims 1--4, 8-14, 17, and 19 as being
unpatentable over the combination of Branson and Domenig, finding that
Branson discloses each and every limitation of claims 1 and 14 except for
the limitation reciting "wherein the recess includes an enclosed central
notch." (Ans. 2--4; Final Office Action (hereinafter "Final Act.") 3). The
Examiner finds that in view of Domenig's disclosure of elongated slot 30
2 U.S. Patent No. US 6,733,098 Bl issued May 11, 2004 to Branson.
3 U.S. Patent No. US 5,359,752 issued November 1, 1994 to Domenig.
3
Appeal2014-009492
Application 12/729,450
(i.e., enclosed central notch), it would have been obvious to a person of
ordinary skill in the art to:
add an enclosed central notch similar to that taught by Domenig
to the groove of Branson to securely mount a conventional
drawer slide attachment member by sliding the dog (Branson,
32, Domenig 29) such that it snaps into position when it
engages with the central notch.
(Ans. 4; see also Final Act. 3--4).
We generally agree with the Examiner and address the Appellant's
arguments below. The Appellant argues that Branson's mounting bracket
merely includes a recessed slot, which is not central to the mounting bracket
or enclosed as required by the claims, and is more likely to exhibit
undesirable side-to-side movement (App. Br. 5). However, this argument
appears to be misdirected because, as to the applied rejection, the Examiner
finds that Branson does not disclose a recess that "includes an enclosed
central notch" (Ans. 4). In this regard, we agree with the Examiner that the
Appellant appears to argue the references individually while the rejection is
based on the combination of Branson and Domenig (id. at 7), the rejection
relying on Domenig for disclosing an enclosed central notch (id. at 4; see
also Final Act. 3--4). Nonetheless, we also agree with the Examiner that
"groove 43 of Branson is central to the bracket 40 in the vertical axis, as
shown in Figures 6 & 8," and that no limitations of the claims are directed to
side-to-side movement (id.).
The Appellant also argues that modification of Branson's bracket to
provide a recess including enclosed central notch would "fundamentally
change the manner of operation of the Branson bracket (i.e., it would prevent
the stop tab 41 from flexing)," so as to dissuade a person of ordinary skill in
4
Appeal2014-009492
Application 12/729,450
the art from making such a modification (App. Br. 6). The Examiner
disagrees and finds that the combination proposed would facilitate operation
during installation (Ans. 8).
We are not apprised of Examiner error. Contrary to the assertions of
the Appellant, Branson's principle of operation is broader than Appellant
contends, and is to movably secure a guide attachment (31) to a guide
bracket (40) via structural features (tip 42 on guide bracket 40 and dog 32 on
guide attachment 31) that abut against one another so as to prevent
unintended removal of the guide attachment. Such a principle of operation
is not impacted by implementing a recess having a central notch as
suggested by the Examiner in the rejection. Moreover, we discern no reason
why the stop tab 41 of Branson would need to stop flexing as asserted by the
Appellant.
The Appellant further argues that:
The bracket assembly recited in Claims 1 and 14 relies
on deflection of the slide receptor (e.g., the main panel 42
deflects) in order for the nub 58 to be received in the central
notch. This mode of deflection is in contrast to both Branson
(which relies on the deflection of the flexible stop tab 41) and
Domenig (which relies on the deflection of the resilient stop
29).
(App. Br. 6).
However, this line of argument is unpersuasive because, as the
Examiner responds, the "Appellant's argument is not drawn to claimed
subject matter." (Ans. 9). In this regard, it is not apparent how the claims,
interpreted in light of the Specification, limit which of the claimed
components deflect, and which of the components do not deflect. The
5
Appeal2014-009492
Application 12/729,450
Specification of the application does not discuss or otherwise explain
deflection/non-deflection of its disclosed components.
Finally, the Appellant also argues that in Domenig, it is the resilient
stop 29 that "deflects away from the base plate 10 as it travels between the
ramp 32 and the slot 30," and that any modification to the device of
Domenig would "fundamentally change the operation of the Domenig
Bracket" (App. Br. 6). However, such arguments are unpersuasive because
the Examiner's rejection is premised on modifying the bracket of Branson in
view of Domenig, and as discussed above, neither the claims nor the
Specification recites/explains which of the claimed components deflect, and
which of the components do not deflect.
Therefore, in view of the above, we are not persuaded that the
Examiner erred in rejecting independent claims 1 and 14, and we affirm the
rejection thereof. In addition, as noted, the Appellant does not separately
argue the limitations of claims 2--4, 8-13, 17, and 19 that ultimately depend
from claim 1 or claim 14. Thus, these dependent claims fall with claims 1
and 14.
ORDER
The Examiner's rejection of claims 1--4, 8-14, 17, and 19 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
6