Ex Parte Kollman et al

Patent Trial and Appeal Board

Sep 28, 2017

13927256 (P.T.A.B. Sep. 28, 2017)

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.
13/927,256 06/26/2013 Michael Kollman 0049998-000064 2381
23464 7590 10/02/2017
BUCHANAN INGERSOLL & ROONEY PC
P.O. BOX 1404
ALEXANDRIA, VA 22313-1404
EXAMINER
ALIE, GHASSEM
ART UNIT PAPER NUMBER
3724
NOTIFICATION DATE DELIVERY MODE
10/02/2017 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):
ADIPDOCl@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL KOLLMAN and ADAM WARD
Appeal 2015-007450
Application 13/927,256
Technology Center 3700
Before KEN B. BARRETT, EDWARD A. BROWN, and
LEE L. STEPINA, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Kollman and Adam Ward (Appellants)1 appeal under
35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 23—33,
which are all the pending claims. We heard oral argument on September 20,
2017. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The Appeal Brief identifies Lumino, Inc., as the real party in interest.
Appeal Br. 1.
Appeal 2015-007450
Application 13/927,256
CLAIMED SUBJECT MATTER
Claim 23, reproduced below, is representative of the claimed subject
matter:
23. A blind cutting machine comprised of:
a stand;
a cutting mechanism attached to the stand;
a movable work surface connected to the stand so as to be
movable relative to the cutting machine;
an actuator connected to the movable work surface for
moving the work surface relative to the cutting mechanism; and
a controller connected to the actuator, the controller
having a housing, a data entry device attached to the housing, a
display attached to the housing, a memory, and a processor;
the memory containing a program such that when an
operator enters information that comprises at least one product
identifier which is not merely a dimension of the product and
with which at least one dimension of the blind to be cut is
associated and the dimensions of an opening over which the blind
to be cut is to be mounted the controller sends a signal to the
actuator which causes the actuator to position the work surface
at a location where a correct amount of material can be trimmed
from an end of the blind to be cut to enable the blind to fit the
opening.
Appeal Br. 16 (Claims App.).
REJECTIONS
1. Claims 23—27 and 30-33 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Jabbari (US 6,945,152 B2, issued Sept. 20, 2005) and
McGlinchy (US 2004/0000367 Al, published Jan. 1, 2004).
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2. Claim 29 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Jabbari, McGlinchy, and Chuang (US 2002/0178884 Al, published
Dec. 5, 2002).
3. Claims 23—28 and 30-33 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Dick (US 2005/0115375 Al, published June 2, 2005)
and McGlinchy.
4. Claim 29 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Dick, McGlinchy, and Chuang.
ANALYSIS
Rejection 1: Claims 23—27 and 30—33 over Jabbari and McGlinchy
Appellants argue the patentability of claims 23—29 and 30—33 as a
group. Appeal Br. 8—10. We select claim 23 as representative, and claims
24—29 and 30-33 stand or fall with claim 23. See 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner finds that Jabbari discloses a blind cutting apparatus
comprising a movable work surface 70 and an actuator 76 connected to a
controller 20, 22. Final Act. 2. The Examiner finds that controller 20, 22
has a memory containing a program, such that when an operator enters
information that includes at least one dimension of the blind to be cut and
the dimensions of an opening over which the blind to be cut is to be
mounted, controller 20, 22 sends a signal to actuator 76, causing actuator 76
to position an end stop at a location where a correct amount of material can
be trimmed from an end of the blind to be cut to enable the blind to fit the
opening. Id. (citing Jabbari, col. 5,11. 49-60, Fig. 1). The Examiner finds
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Jabbari does not teach that the memory contains a program to enable the
operator to enter information that has at least one product identifier, as
claimed. Id. at 2—3. The Examiner finds that McGlinchy teaches the use of
a product identifier, which is not merely a dimension of the product and with
which a dimension of the product is associated. Id. at 3. Particularly, the
Examiner finds that McGlinchy teaches using a bar code 56 as a product
identifier affixed to a product, where the bar code may identify the type and
a dimension associated with the product, as well as other product details.
Id.\ see McGlinchy | 51.
The Examiner concludes that it would have been obvious to provide
Jabbari’s controller with a mechanism to enter with a product identifier at
least a dimension and another detail of the product to be cut or processed, as
taught by McGlinchy, “to enable the operator to identify the product and
enter information related to the product from a label affixed to the product
and reduce[] the time needed to processed the product.” Id.
Appellants contend that McGlinchy is non-analogous prior art.
Appeal Br. 5. Appellants contend that McGlinchy is not from the same field
of endeavor as the claimed invention. Id. at 6. Regarding the “problem”
prong of the non-analogous art test, Appellants contend that the
Specification states that “there is a need for a blind trimming machine that
automatically calculates the amount of material that should be trimmed from
a blind.” Id. (citing Spec. 3:11—13). Appellants assert they are seeking to
“reduce[e] errors that occur whenever an operator must make calculations of
the amount to be cut and set end stops in a blind cutting machine.” Id. at 6—
7; see Spec. 3:7—8. Appellants note that the Specification describes that
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Application 13/927,256
“there is a need for a blind trimming machine that automatically calculates
the amount of material that should be trimmed from a blind and then
automatically positions the end stops so that the correct amount of material
is cut away.” Id. at 6—7; see Spec. 3:11—13.
Appellants contend that McGlinchy does not address the problem of
“automatically calculating any amount of material to be trimmed or setting
end stops.” Appeal Br. 7. Rather, Appellants contend, McGlinchy is
concerned with determining how much energy to apply to a sealant for
sealing a glass window. Id. According to Appellants, one seeking to design
a blind cutting machine would not consider McGlinchy. Id.
These contentions are not persuasive. A reference is “reasonably
pertinent” to the problem faced by the inventor if it “logically would have
commended itself to an inventor’s attention in considering his problem.” In
re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379-80 (Fed. Cir. 2007).
As for the scope of analogous art:
The Supreme Court’s decision in KSR International Co. v.
Teleflex, Inc., 550 U.S. 398 [] (2007), directs us to construe the
scope of analogous art broadly, stating that ‘ familiar items may
have obvious uses beyond their primary purposes, and a person
of ordinary skill often will be able to fit the teachings of multiple
patents together like pieces of a puzzle.” Id. at 402 (emphasis
added).
Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010).
McGlinchy describes:
The system includes the bar code reader 54, a CPU and a
database that identifies different IGU configurations that
correspond to different bar codes. The bar code identifies one or
more optical properties of the IGU 14. A bar code read by the
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reader 54 is processed by the CPU that accesses the database to
determine the type of glass of each pane of the given IGU and
the pressed thickness of the IGU.
McGlinchy | 51, Fig. 15.
We are not persuaded that McGlinchy’s teaching of using a bar code
to identify relevant information about a product so that it is processed using
appropriate processing conditions for that product is not reasonably pertinent
to the problem that Appellants contend is addressed by the claimed blind
cutting machine. The Examiner finds that McGlinchy teaches “a quick well
known alternative method to enter the type and a dimension associated with
the product.” Ans. 9. The Examiner explains that McGlinchy “is related art
since it teaches a product identifier that is associated with the type and a
dimension of the product. This is reasonably pertinent to the particular
problem with which the applicant was concerned.” Id. The Examiner adds
that:
Any product can be identified by a bar code that is associated
with the type and dimension of the product. It does not make a
difference if that product is cut by a cutting machine or it is
handled differently. In this case, the next process after a quick
identification of the product by a bar code and a bar code detector
could be any process.
Id. (emphasis added).
Although McGlinchy does not describe using the “product identifier”
in a blind cutting machine, we are not persuaded that one of ordinary skill in
the art would not have looked to McGlinchy to teach an alternative, well-
known way to enter data pertaining to a product, to ensure that the product is
processed using appropriate processing conditions.
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Appellants also contend that IGUs (insulating glass units) disclosed in
McGlinchy are not cut to fit an opening. Appeal Br. 9. Consequently,
Appellants contend, one skilled in the art seeking to design a cutting
machine would not consider McGlinchy. Id. Appellants further contend
that even if one seeking to design a blind cutting machine considered
McGlinchy, McGlinchy would not have led the skilled artisan to the claimed
cutting machine, because none of the information that McGlinchy associates
with a bar code relates to window blinds. Id. Appellants contend that the
Examiner’s rejection relies on impermissible hindsight. Id. at 9—10.
These contentions are also not persuasive. The Examiner relies on
McGlinchy to teach the use of a bar code that contains product details
(“product identifier”) as an alternative to manually entering information
relating to a window blind that is automatically processed using that
information, as taught by Jabbari. Appellants do not apprise us of any error
in the Examiner’s rationale for combining the reference teachings—that is,
“to enable the operator to identify the product and enter information related
to the product from a label affixed to the product and reduce [] the time
needed to processed the product.” Final Act. 3.
For these reasons, we sustain the rejection of claim 23 as unpatentable
over Jabbari and McGlinchy. Claims 24—29 and 30-33 fall with claim 23.
Rejection 2: Claim 29 over Jabbari, McGlinchy, and Chuang
Appellants contend that dependent claim 29 is patentable for the same
reasons as claim 23. Appeal Br. 13. Appellants also contend that Chuang
does not cure the deficiencies in the rejection of claim 23. Id. at 14. As
Appellants have not apprised us of any deficiency in the rejection of claim
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23, we sustain the rejection of claim 29 as unpatentable over Jabbari,
McGlinchy, and Chuang for the same reasons as claim 23.
Rejection 3: Claims 23—28 and 30—33 over Dick and McGlinchy
Claims 23—27 and 30-33
Appellants argue the patentability of claims 23—27 and 30—33 as a
group. Appeal Br. 12. We select claim 23 as representative, and claims 24—
27 and 30-33 stand or fall with claim 23.
As to claim 23, the Examiner finds that Dick discloses an apparatus
capable of cutting blinds comprising a cutting mechanism 138, a movable
work surface (“as an end stop”) movable relative to the “cutting machine,”
and an actuator 132 connected to controller 150. Final Act. 4.2 The
Examiner finds that controller 150 has a memory 62 containing a program,
such that when an operator enters information that includes a product type
and at least one dimension of the blind to be cut and the dimensions of an
opening over which the blind to be cut is to be mounted, controller 150
sends a signal to actuator 132, causing actuator 132 to position an end stop at
a location where a correct amount of material can be trimmed from an end of
the blind to enable the blind to fit the opening. Id. (citing Dick 172).
The Examiner finds that Dick does not teach that the memory contains
a program to enable the operator to enter information that has at least one
2 Claim 23 recites “a movable work surface connected to the stand so as to
be movable relative to the cutting machine” and “an actuator connected to
the movable work surface for moving the work surface relative to the cutting
mechanism.” Appeal Br. 16 (Claims App.) (emphasis added). It appears
“cutting machine” should be “cutting mechanism” in the former limitation.
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product identifier, as claimed. Id. The Examiner relies on McGlinchy to
teach a product identifier. Id. at 5.
Regarding Dick, Appellants contend that “the work surface on which
the board travels in not movable relative to the cutting mechanism.”
Appeal Br. 11 (emphasis added). Rather, Appellants contend, cutting
mechanism 138 is firmly attached to that surface. Id. Appellants further
contend that the only surface in the apparatus shown in Figures 4 and 5 of
Dick that is movable relative to the cutting mechanism is the surface on the
pusher mechanism 132 that abuts the end of the board. Id. But, Appellants
contend, the rejection identifies pusher mechanism 132 as the “actuator,”
and, consequently, the structure cannot be a movable work surface
connected to the stand, as claimed. Id.
With reference to Figure 4 of Dick, we understand the Examiner’s
position is that the surface shown as abutting the end surface of the
workpiece 134 corresponds to the claimed “movable work surface,” and the
portion of the pusher mechanism 132 that is connected to the work surface
for moving the work surface relative to the saw 138 corresponds to the
claimed actuator. Appellants do not identify any limitation distinguishing
the structure of the claimed movable work surface from the work surface in
Dick. Additionally, Appellants do not explain persuasively why the
structure of Dick’s pusher mechanism 132 apart from the work surface,
which is connected to the work surface and functions to move the work
surface relative to saw 138, does not correspond to the claimed actuator.
For these reasons, we sustain the rejection of claim 23 as unpatentable
over Dick and McGlinchy. Claims 24—27 and 30—33 fall with claim 23.
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Claim 28
Claim 28 depends from claim 23 and recites
the memory contains a program the [sic] will cause an error
message to appear in the display whenever: i.) an operator enters
a width of a blind to be cut and a width provided by the customer
and ii.) the width of a blind to be cut is not greater than the width
provided by the customer.
Appeal Br. 17 (Claims App.). The Examiner finds that Dick discloses this
limitation. Final Act. 6 (citing Dick 172,11. 13—20).
Appellants contend that the disclosure in Dick regarding “an
audio/visual device, such as an indicator light 164,” pertains to whether the
data that was entered was received, and Dick does not teach or suggest that
“the data being entered is compared to a standard and an error message is
provided if that entered data does not comply with that standard.” Appeal
Br. 12-13.
Appellants’ contention is persuasive. Although Dick discloses
inputting of data about workpieces, such as length, in the apparatus, and that
“[a]n audio/visual device, such as an indicator light 164, may be used to
signal successful (and/or unsuccessful) input of data, such as length and/or
defect positions, to the local controller,” paragraph 72 does not indicate that
the claimed comparison is performed by a program, which may result in
appearance of an error message on a display. Accordingly, we do not
sustain the rejection of claim 28 as unpatentable over Dick and McGlinchy.
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Rejection 4: Claim 29 over Dick, McGlinchy, and Chuang
Appellants contend that claim 29 is patentable for the reasons
presented in relation to the rejection of claim 23 over Dick and McGlinchy.
Appeal Br. 14. Appellants also contend that Chuang does not cure the
deficiencies in the rejection of claim 23. Id. at 14—15. As Appellants have
not apprised us of any deficiency in the rejection of claim 23, we sustain the
rejection of claim 29 as unpatentable over Dick, McGlinchy, and Chuang for
the same reasons as claim 23.
DECISION
The Examiner’s decision to reject claims 23—27 is affirmed, and to
reject claim 28 is reversed.
No time period for taking any subsequent action in connection with
this appeal maybe extended according to 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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