13739892 (P.T.A.B. Sep. 25, 2018)

Ex Parte Judkins

Patent Trial and Appeal BoardSep 25, 2018

13739892 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/739,892 01/11/2013 23464 7590 09/27/2018 BUCHANAN INGERSOLL & ROONEY PC P.O. BOX 1404 ALEXANDRIA, VA 22313-1404 FIRST NAMED INVENTOR Ren Judkins 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. 0029616-000365 5531 EXAMINER MITCHELL, KATHERINE W ART UNIT PAPER NUMBER 3634 NOTIFICATION DATE DELIVERY MODE 09/27/2018 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): ADIPDOC 1@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte REN JUDKINS Appeal2017-000938 Application 13/739,892 1 Technology Center 3600 Before WILLIAM A. CAPP, LEE L. STEPINA, and FREDERICK C. LANEY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Ren Judkins (Appellant) appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision (entered July 16, 2015, hereinafter "Final Act.") to reject claims 1-13 and 15-17.2 We have jurisdiction under 35 U.S.C. Â§ 6(b). An oral hearing was conducted on September 4, 2018. We AFFIRM. 1 According to Appellant, the real party in interest is Flexo Solutions LLC. Appeal Br. 1. 2 Claim 14 has been canceled. Appeal Br. 1. Appeal2017-000938 Application 13/739,892 CLAIMED SUBJECT MATTER The subject matter of Appellant's claimed invention "relates to draperies used to cover windows and other architectural openings." Spec. 1. Claims 1 and 13 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A drape comprising: a panel of material having a length, a width, a top edge, a front and a back, the panel comprised of a series of strips of material having a width of 7 inches to 12 inches each strip having a pair of lengthwise, substantially parallel sides, the strips arranged side by side, adjacent strips being attached together in a manner so that adjacent lengthwise sides form a tab having a width not greater than 5/8 inch, each strip having a sharp lengthwise pleat substantially parallel to and between the substantially parallel sides of the strip such that the panel has a series of sharp pleats projecting outward on the front of the panel and a series of tabs projecting outward from the back of the panel; and a support from which the panel is hung such that the series of sharp pleats and the series of tabs are substantially perpendicular to the support. Appeal Br. 12 (Claims App.) (emphasis added). Appellant's arguments focus on the highlighted claim language. REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 1, 2, and 17 under 35 U.S.C. Â§ I03(a) as unpatentable over Ruggles (US 6,311,755 Bl, iss. Nov. 6, 2001) and Beauchamp (US 5,297,607, iss. Mar. 29, 1994). 2 Appeal2017-000938 Application 13/739,892 II. The Examiner rejected claims 3, 5, 6, 11-13, and 16 under 35 U.S.C. Â§ 103(a) as unpatentable over Ruggles, Beauchamp, and Judkins (US 5,857,511, iss. Jan. 12, 1999). III. The Examiner rejected claims 4 and 15 under 35 U.S.C. Â§ 103(a) as unpatentable over Ruggles, Beauchamp, Judkins, and Alcocer (US 5,184,659, iss. Feb. 9, 1993). IV. The Examiner rejected claims 7-10 under 35 U.S.C. Â§ 103(a) as unpatentable over Ruggles, Beauchamp, Judkins, and Zahner (US 6,494,248 B 1, iss. Dec. 17, 2002). ANALYSIS Rejection I The Examiner finds that the combined teachings of Ruggles and Beauchamp disclose most of the claimed elements, including a series of strips of material arranged side by side forming the recited tab feature, but do not disclose that the series of material strips have a width of 7 inches to 12 inches and the tabs have a width not greater than 5/8 inch (hereinafter, "the dimensional claim elements"), as claim 1 recites. Final Act. 2. The Examiner determines that it would have been obvious to modify the vertical blinds that Ruggles discloses to have panels with a series of sharp pleats projecting outward on the front of the strips of material forming a panel in view of Beauchamp' s disclosure because it was known to facilitate the folding of the drape and to create a pleasing aesthetic appearance. Id. Because the only resulting difference between this modified Ruggles drape and the drape of claim 1 would be the dimensional claim elements of the tab and strip widths, the Examiner concludes there is not a patentable 3 Appeal2017-000938 Application 13/739,892 distinction. Id. (citing Gardner v. TEC Systems, Inc., 725 F.2d 1338 (Fed. Cir. 1984)). Pointing to column 3, lines 45-55, and column 5, lines 30-34, of Ruggles, the Examiner adds "the particular dimensions selected are within the purview of the artisan of ordinary skill in the art" because the width of the tabs and strips of a blind are known to be variables that depend on the desired final product specifications. Ans. 5-6. At those citations, Ruggles states, "[t]he widths of the three portions may be varied depending upon the desired final product specifications" and the "various dimensional relationships and numbers of components will be referred to in the following description, but they are to be taken as illustrative rather than limiting in any respect." Ruggles col. 3, 11. 53-55, col. 5, 11. 30-34. The Examiner explains further that because adjusting the widths of the tab and strips was a known design variable and there is nothing to indicate the claimed adjustments to these known variables causes an unexpected result, the dimensional claim elements would have been a known option within the technical grasp of a skilled artisan. Ans. 8. Appellant emphasizes in response that "the vanes or louvers [in Ruggles and Beauchamp] are sized to overlap when in the closed position." Appeal Br. 7. Appellant asserts, "[i]n both the vertical shade disclosed by Ruggles and the vertical shade disclosed by Beauchamp the louvers rotate to close or open the space between adjacent louvers and the width of that space is determined by the width of the material connected between adjacent louvers." Id. at 6. Appellant argues that, "[b ]ecause of the significant difference between the width of the claimed strips and the width of the claimed tabs, the claimed tabs cannot perform the function of the louvers in 4 Appeal2017-000938 Application 13/739,892 the shades disclosed by Ruggles and Beauchamp." Appeal Br. 7-8. Therefore, Appellant concludes, a skilled artisan "would not be motivated to modify the louvers or 'tabs' in these shades to be not greater than 5/8 inch in width." Id. at 8. Appellant's argument is not persuasive. "The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims." In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990). "These cases have consistently held that in such a situation, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range." Id. Appellant has made no such showing in the present case. Appellant offers no evidence to show persuasively that a skilled artisan would have thought, when designing a drape, the tab width must necessarily allow it to overlap with the strips in the closed position. At most, Ruggles and Beauchamp show a desire to have a tab design that will assist in more fully blocking light from passing through the strips of the drape in the closed position, but this simply demonstrates that the width of the blind tabs and strips were known to be result-effective-variables. In fact, Ruggles states expressly, it was known that "[t]he widths of the three portions [ of a drape] may be varied depending upon the desired final product specification." Ruggles col. 3, 11. 53-55. Although Appellant argues that the design considerations for the tabs and strips in the drapes Ruggles and Beauchamp describe would require different widths that are greater than those claim 1 recites for the dimensional claim elements, this does not undermine the Examiner's finding that the width of the tabs and strips were 5 Appeal2017-000938 Application 13/739,892 recognized to be design variables, which are dependent upon the desired final product specifications. Finally, and perhaps most importantly, there is no evidence introduced by Appellant that the claim 1 dimensional claim elements are critical to achieving an unexpected result. Because the Examiner's factual findings are supported by a preponderance of the evidence and the obviousness determination is based on a rationale with a rational underpinning, Appellant has not persuasively shown the Examiner's prima facie case of obviousness for claim 1 is deficient. Therefore, we sustain the Examiner's rejection of claims 1, 2, and 1 7. Appellant does not argue that dependent claims 2 and 17 are separately patentable (see Appeal Br. 6-9), thus, we sustain the rejection of these claims as well. Rejection II Appellant argues independent claim 13 is patentable for the same reasons that are alleged for claim 1. See Appeal Br. 7-10. For the reasons discussed above (see supra Rejection I), we are not persuaded the Examiner's rejection of claim 13 is deficient. Therefore, because Appellant does not argue dependent claims 3, 5, 6, 11, 12, and 16 are separately patentable (see Appeal Br. 9-10), we sustain the Examiner's rejection of claims 3, 5, 6, 11-13, and 16. Rejections III-IV Appellant argues dependent claims 4, 7-10, and 15 are patentable because they suffer from the same alleged deficiencies existing with the Examiner's obviousness determination of claim 1. Appeal Br. 10-11. For the reasons discussed above (see supra Rejection I), we are not persuaded 6 Appeal2017-000938 Application 13/739,892 the Examiner's rejection of claim 1 is deficient. Therefore, we sustain the Examiner's rejections of claims 4, 7-10, and 15. DECISION We affirm the Examiner's decision to reject claims 1-13 and 15-17 as unpatentable under 35 U.S.C. Â§ 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7