Ex Parte LaMontagne et al

Patent Trial and Appeal Board

Apr 30, 2018

13836398 (P.T.A.B. Apr. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/836,398 03/15/2013
23409 7590 05/02/2018
MICHAEL BEST & FRIEDRICH LLP (Mke)
100 E WISCONSIN A VENUE
Suite 3300
MILWAUKEE, WI 53202
FIRST NAMED INVENTOR
Rick M. LaMontagne
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.
047177-9470-USOO 9999
EXAMINER
KRYCINSKI, STANTONL
ART UNIT PAPER NUMBER
3631
NOTIFICATION DATE DELIVERY MODE
05/02/2018 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICK M. LAMONTAGNE, DAVID DICKEY,
DENISE SLATTON, and ED SAMPLE
Appeal2017-008103
Application 13/836,398
Technology Center 3600
Before BENJAMIN D. M. WOOD, LISA M. GUIJT, and
PAUL J. KORNICZKY, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-008103
Application 13/836,398
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-8 and 21. Claims 9-20 have been cancelled.
App. Br. 13. We have jurisdiction under 35 U.S.C. § 6(b ).
We reverse.
THE INVENTION
The claims are directed to a merchandiser for food products. Sole
independent claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A merchandiser comprising:
a case defining a product display area, the case including
a base and a rear wall coupled to the base, the rear wall partially
defining an airflow passageway in airflow communication with
the product display area and having a rear wall component
defining a channel separate from the airflow passageway, the
case further including a shoe partially disposed in the rear wall
component within the channel and positioned below the base to
support the case on a surface, and load-bearing foam insulation
material disposed in the channel and partially enclosing the shoe;
wherein the shoe and the rear wall component are coupled
together by the load-bearing foam insulation material.
Steelman
Knight
McGovern
Vasseur
REFERENCES
us 3,347,145
us 4,190,305
us 5,475,988
EP 1,288,597 Al
REJECTIONS
Oct. 17, 1967
Feb.26, 1980
Dec. 19, 1995
Mar. 5, 2003
Claims 1-5 and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Vasseur, Knight, and Steelman. Final Act. 3.
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Appeal2017-008103
Application 13/836,398
Claims 6-8 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Vasseur, Knight, Steelman, and McGovern. Id. at 5.
ANALYSIS
Claims 1-5 and 21-Unpatentable over Vasseur, Knight, and Steelman
For independent claim 1, the Examiner finds that Vasseur teaches a
merchandizer having, e.g., a case, a rear wall, a rear wall component
defining a channel, a shoe partially disposed in the rear wall component, and
"load bearing insulation material"-a polystyrene insulation insert placed
inside the vertical leg portion of the shoe-that is "disposed in the channel."
Final Act. 3 (citing Vasseur i-f 15); see Vasseur Figs. 1, 2, 5. The Examiner
acknowledges, however, that Vasseur does not teach, among other things,
"load-bearing foam insulation material partially enclosing the shoes, wherein
the shoes and the rear wall component are coupled together by the load-
bearing insulation material." Final Act. 3. The Examiner therefore relies on
Knight to teach "the use of load-bearing foam insulation material (e.g.:
expanding polyurethane foam) to enclose structural supports within the
interior spaces of the case of a refrigerator." Id. (citing Knight 2:49-51).
The Examiner also asserts that Knight teaches that "it is well known to inject
such material within the wall spaces of refrigerators," and "the material is
useful for supports that transmit loads." Id. (citing Knight 3:46-48, 5:1-2).
The Examiner determines that it would have been obvious for one of
ordinary skill in the art to replace Vasseur's polystyrene insert with Knight's
expanding polyurethane foam "for the purpose of using a well-known
suitable thermal insulation injected into the interior space of the refrigerator
that also acts to distribute loads from the rear wall to the shoes." Id. at 4
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Appeal2017-008103
Application 13/836,398
(emphasis added). Appellants dispute that one of ordinary skill in the art
would have been motivated to make this substitution. App. Br. 7.
We are not persuaded that one of ordinary skill in the art would have
been motivated to use Knight's polyurethane foam in place of Vasseur's
polystyrene insert. As an initial matter, Vasseur's polystyrene insert is
placed inside the vertical leg portion of Vasseur's shoe; it does not partially
enclose the shoe. 1 Thus, simply replacing the polystyrene insert with
polyurethane foam would not necessarily result in enclosing the shoe in the
foam and coupling the shoe and the rear wall component together with the
foam, as claim 1 requires. More importantly, the record does not support the
Examiner's finding that one of ordinary skill in the art would have been
motivated to make the proposed substitution to take advantage of
polyurethane foam's load-bearing property, because there is nothing in the
prior art of record indicating that one of ordinary skill in the art knew that
polyurethane foam, by itself, is capable of bearing loads. Knight describes a
load-bearing component comprising "a body of fibrous material" that is
impregnated with the foamed insulation "to form a rigid structural support
bridging between the inner liner and the out case [of a refrigerator]." Knight
3:46-58. Knight uses polyurethane foam by itself-i.e., not impregnated in
a body of fibrous material---only as a thermal insulator. Id. at 5:10-12.
Indeed, because Knight uses polyurethane foam only in conjunction with a
body of fibrous material to create a load-bearing structure, Knight implies
1 Contrary to the Examiner's assertion (Final Act. 3), paragraph 15 of
Vasseur does not ascribe to the polystyrene insert any load-bearing
properties or function, but only describes it as an insert "of a thermally
insulating material." Vasseur i-f 15.
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Appeal2017-008103
Application 13/836,398
that polyurethane foam cannot, by itself, bear loads. Because, on the present
record, one of ordinary skill in the art at the time of the invention did not
know that polyurethane foam could bear loads, the skilled artisan could not
have used such knowledge to motivate the substitution. Therefore, the
Examiner's determination of unpatentability is premised on a finding that is
not supported by the current record, and we decline to sustain this rejection.
Claims 6-8-Unpatentable over Vasseur, Knight, Steelman, and McGovern
The rejection of claims 6-8 as unpatentable over Vasseur, Knight,
Steelman, and McGovern relies on the Examiner's unsupported finding that
one of ordinary skill in the art would have been motivated to use Knight's
polyurethane foam in place of Vasseur' s polystyrene insert. Final Act. 5---6.
McGovern is not relied upon to cure this deficiency. Therefore, for the
reasons discussed above, we do not sustain this rejection.
DECISION
For the above reasons, the Examiner's rejection of claims 1-8 and 21
is reversed.
REVERSED
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