Ex Parte Kraft

Board of Patent Appeals and Interferences

Mar 26, 2012

10755182 (B.P.A.I. Mar. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte FRANCES M. KRAFT
____________________

Appeal 2009-014339
Application 10/755,182
Technology Center 3600
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Before STEVEN D.A. McCARTHY, KEN B. BARRETT,
and JAMES P. CALVE, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Frances M. Kraft (Appellant) seeks our review under 35 U.S.C. § 134
of the final rejection of claims 1-5. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
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THE INVENTION
Appellant’s claimed invention pertains to a non-skid treatment to a
stair tread. Spec. 1-2. Claim 1, reproduced below, is representative of the
subject matter on appeal.
1. In an architectural staircase having stringers and a wood
stair tread of the type forming a generally horizontal member to
be walked upon by humans, the improvement in combination
with the staircase comprising a three dimensional pattern in a
top surface of the wood of the stair tread, wherein the wood of
the stair tread is structurally sufficient to carry the weight of
humans walking thereupon.
THE REJECTIONS
The following Examiner’s rejections are before us for review:
1. Claims 1, 3, and 5 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Schmidt (US 1,566,042, iss. Dec. 15, 1925)
2. Claim 2 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schmidt and Schneider (US 4,644,720, iss. Feb. 24,
1987); and
3. Claim 4 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schmidt and Lavallee (US 2,190,211, iss. Feb. 13, 1940).
OPINION
Appellant argues the claims subject to the anticipation rejection as a
group. App. Br.1 2-5. We select claim 1 as representative, and claims 3 and
5 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Appellant argues that the Examiner erred in finding that Schmidt’s
cork material is “wood” within the meaning of claim 1. App. Br. 3; see also

1 We refer to the “Reply to Notification of Non-Compliant Appeal Brief,”
filed April 9, 2009, and to the Argument section contained therein.
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Ans. 4 (citing Schmidt 1, l. 71). Appellant supplied Wikipedia entries for
“cork cambium” and “wood,” and argues that “cork is one of many layers of
bark, technically cork cambium is a lateral meristem or phellogen [but]
[w]ood, on the other hand, is a solid material that is a secondary xylem of a
woody plant.” App. Br. 3 (footnotes omitted). However, the Examiner
correctly points out that Appellant’s own Wikipedia exhibit supports a
broader construction of “wood”:
In citing applicant's own Exhibit B entitled "Wood", line 4 of
the definition provides as follows: in the wider sense, wood
may refer to other materials and tissues with comparable
properties (emphasis added.)
Ans. 7; see also Exh. B (the common meaning of “wood” as the secondary
xylem of a woody plant is “an approximation only”). Further, while the
Wikipedia discussions may reflect the understanding of a botanist, we
cannot find that a person of ordinary skill in the architectural staircase art
would have the same narrow understanding of the term “wood.” The
Examiner’s interpretation of “wood” as encompassing other materials with
comparable properties to the secondary xylem of a woody plant is not
unreasonably broad, and therefore is correct. The Examiner offers a
reasoned discussion as to why cork has such comparable properties. Ans. 7-
8. On the record before us, we see no error in the Examiner’s finding that
Schmidt’s cork is “wood” within the meaning of the claimed invention.
Appellant’s arguments also raise an issue regarding the claim
language “wherein the wood of the stair tread is structurally sufficient to
carry the weight of humans walking thereupon.” App. Br. 3. This is a
functional limitation. Although the Examiner characterized this language as
a statement of intended use, the Examiner applied the correct analysis – the
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functional limitation is satisfied where the prior art structure is capable of
performing the recited function. See Ans. 4, 8-9; see also In re Swinehart,
439 F.2d 210, 213 (CCPA 1971). The Examiner reasonably found that
Schmidt’s tread has the claimed structural sufficiency. Ans. 8. Appellant
presents no persuasive argument or evidence that Schmidt’s tread lacks the
capability of “carry[ing] humans walking thereupon.”
We affirm the Examiner’s rejection of claims 1, 3, and 5 as
anticipated by Schmidt2. Appellant does not offer separate arguments for
the obviousness rejections of claims 2 and 4, but merely relies on the claims’
dependency from claim 1. App. Br. 5. Accordingly, we also affirm the
rejections of claims 2 and 4.
DECISION
The decision of the Examiner to reject claims 1-5 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)(1)(iv).

AFFIRMED

2 Even if Schmidt was not anticipatory, there cannot be any reasonable
dispute that stair treads with wood structurally sufficient to carry the weight
of a human were well known in the art. Appellant admits as much in the
language of claim 1 – stating that the claimed subject matter is a purported
improvement on staircases having such treads. It also cannot be disputed
that it was known in the art to utilize a three-dimensional pattern with a stair
tread for safety and antiskid purposes. See, e.g., Schmidt; Lavallee. “The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” KSR Int’l. v.
Teleflex Inc., 550 U.S. 398, 416 (2007)
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