Ex Parte Matus

Patent Trial and Appeal Board

Feb 28, 2019

14488425 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/488,425 09/17/2014
35856 7590 03/04/2019
SMITH TEMPEL BLAHA LLC
Docketing Department
50 Glenlake Parkway
Suite 340
Atlanta, GA 30328
FIRST NAMED INVENTOR
Jose Orlando Matus JR.
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.
13025.0025Ul 5574
EXAMINER
ROERSMA, ANDREW MARK
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
mtempel@srtslaw.com
docket@srtslaw.com
gsmith @srtslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSE ORLANDO MATUS JR.
Appeal2018-001978
Application 14/488,425
Technology Center 3600
Before JILL D. HILL, JEREMY M. PLENZLER, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) from the
Examiner's Final Office Action ("Final Act.") rejecting claims 1, 4--21, and
25--40, which are all the claims pending in the application. We have
jurisdiction under 35 U.S.C. § 6(b).
For the reasons explained below, we do not find error in at least one
rejection of the claims. Accordingly, we AFFIRM.
Appeal2018-001978
Application 14/488,425
Claimed Subject Matter
Claims 1 and 21 are independent. The claimed invention relates
generally to food shield systems, also known as "sneeze guards," which
shield food to be served by an attendant or available for self-service at a
cafeteria or buffet. Spec. ,r 1. Claim 1, reproduced below, illustrates the
claimed subject matter, with selected limitations emphasized.
1. A modular food shield system comprising:
a support post having an upper end, a lower end and an
outer surface defining a length between the upper end and lower
end, wherein the outer surface is free of drilled holes; the support
post further comprising at least four spoke elements extending
from the outer surface of the support post to a centrally located
hub element, the four spokes defining four substantially smooth
sector sections within an interior volume of the support post, the
hub element defining a closed cylindrical geometry for receiving
a fastener of a top cap component at the upper end of the support
post;
two or more brackets adjustably mounted to the support
post, each bracket comprising a contour section that extends
away from the support post, each contour section having a
frustum shape with a circular cross-section surrounding a bore,
each bracket comprising a substantially continuous and uniform
solid material;
a viewing panel mounted to at least one of the two or more
brackets; and
an ancillary component mounted to each of the two or
more brackets;
wherein each of the two or more brackets comprises a
double duty set screw that tightens through the bore of the
contour section of one of the two or more brackets, each set screw
consisting of first and second threaded ends and configured to fix
the position of its associated bracket on the support post by
penetrating past the bore with the first threaded end and by
receiving one of the ancillary components with the second
threaded end such that the double duty set screw is concealed
from exposure to splashed food by the ancillary component, the
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Application 14/488,425
system substantially reducing open seams, recesses or
unnecessary projections that may result from mating components
in order to avoid exposure to splashed food.
Rejections
I. Claims 1, 4--21, and 25--40 stand rejected under 35 U.S.C.
§ 112(a), as failing to comply with the written description requirement.
Final Act. 2-3.
II. Claims 1, 5, 7-11, 15-21, 25, 27-31, and 35--40 stand rejected
under 35 U.S.C. § 103 as unpatentable over McGrath (US 8,302,919 Bl,
issued Nov. 6, 2012), Bernard (US 2,874,984, issued Feb. 24, 1959), Blum
(US 3,157,378, issued Nov. 17, 1964), and Michel (US 4,036,371, issued
July 19, 1977). Final Act. 4--10.
III. Claims 4, 12, 13, 32, and 33 stand rejected under 35 U.S.C.
§ 103 as unpatentable over McGrath, Bernard, Blum, Michel, and McGrath
'223 (US 8,936,223 Bl, issued Jan. 20, 2015). Final Act. 10-11.
IV. Claims 6 and 26 stand rejected under 35 U.S.C. § 103 as
unpatentable over McGrath, Bernard, Blum, Michel, and McGrath '872 (US
8,196,872 Bl, issued June 12, 2012). Final Act. 11.
V. Claims 9 and 29 stand rejected under 35 U.S.C. § 103 as
unpatentable over McGrath, Bernard, Blum, Michel, and Williman (US
2007/0236112 Al, published Oct. 11, 2007). Final Act. 12.
VI. Claims 9 and 29 stand rejected under 35 U.S.C. § 103 as
unpatentable over McGrath, Bernard, Blum, Michel, and McGrath '984S
(US D625,984 S, issued Oct. 26, 2010). Final Act. 12-13.
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Application 14/488,425
VII. Claims 12, 13, 18-20, 32, 33, and 38--40 stand rejected under
35 U.S.C. § 103 as unpatentable over McGrath, Bernard, Blum, Michel, and
Atkins (US 8,403,430 B2, issued Mar. 26, 2013). Final Act. 13-14.
VIII. Claims 12, 14, 32, and 34 stand rejected under 35 U.S.C. § 103
as unpatentable over McGrath, Bernard, Blum, Michel, and McGrath '329
(US 9,144,329 Bl, issued Sept. 29, 2015). Final Act. 14--15.
IX. Claims 12-14 and 32-34 stand rejected under 35 U.S.C. § 103
as unpatentable over McGrath, Bernard, Blum, Michel, and Matus (US
8,308,249 B2, issued Nov. 13, 2012). Final Act. 15-16.
DISCUSSION
Rejectionl-35 U.S.C. § 112(a)
The Examiner finds the Specification lacks written description support
for "substantially smooth sector sections" within an interior volume of the
support post and the "bracket comprising a substantially continuous and
uniform solid material," as recited in claims 1 and 21. Final Act. 3. The
dependent claims are rejected based on their dependence from claims 1 and
21. Id.
Appellant contends Figures IA and IB of the Specification are
sufficiently detailed to show the disputed claim elements. Appeal Br. 10-
16; Reply Br. 2--4. In particular, Appellant contends that the straight vertical
lines in Figure IA denote smooth surfaces of the bottom two sector sections,
and that the drawing is sufficiently detailed to show that Appellant was in
possession of the claimed four spokes defining four substantially smooth
sector sections within an interior volume of the support post. Appeal Br. 14.
As to the "substantially continuous and uniform solid material" of the
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Appeal2018-001978
Application 14/488,425
brackets, Appellant argues Figure lB is sufficiently detailed to show
possession of these features, in part because "the single, uniform clear
shading of the cross-sectional view of the contour section (20) denotes a
substantially continuous and uniform solid material as would be understood
by one of ordinary skill in the art." Id. at 14--15.
We agree with Appellant that the Specification shows possession of
the "bracket comprising a substantially continuous and uniform solid
material," as recited in claims 1 and 21. We interpret this limitation to
require a bracket made of a single piece (continuous) of a single solid
material (uniform, or unvaried). The Examiner finds the depicted bracket is
not uniform because it has "varying surfaces and shapes," including a
frustum shape. Ans. 4. The claim, however, refers to the material being
uniform, not the overall shape of the bracket. Although the description of
Figure lB does not explicitly describe the material of the brackets, the
cutaway view of them in Figure lB would have been reasonably understood
by one of skill in the art to depict a single piece of a single, solid material,
absent indication otherwise.
We agree with the Examiner, however, that the Specification does not
show possession of the four spokes "defining four substantially smooth
sector sections." The Examiner finds straight vertical lines are not a drawing
standard for smooth surfaces, and that the vertical lines could be interpreted
to show a non-smooth surface. Ans. 2. The Examiner also notes that, even
if the vertical lines are interpreted as showing a smooth surface, as argued by
Appellant, only two of the four sections are shown with the vertical lines.
Ans. 3. Appellant argues in the Reply Brief that the lines "were presented to
denote ... polished or smooth metal surfaces of the walls of the spoke
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Application 14/488,425
elements 12," in light of the guidance for design patent drawings in the
Manual of Patent Examining Procedure (MPEP) § 1503.02. Reply Br. 4.
MPEP § 1503 .02 provides that "[ o ]blique line shading must be used to show
transparent, translucent and highly polished or reflective surfaces, such as a
mirror." Appellant also quotes and emphasizes certain portions of 37 C.F.R.
§ 1.84(m) regarding shading in drawings, without explaining how the lines
in Figure IA depict smooth surfaces in light of the guidance. Reply Br. 3.
We agree with the Examiner that the Specification does not provide
sufficient written description support for "substantially smooth sector
sections." The lines shown in two of the internal sections of the tube
depicted in Figure IA are not oblique, but rather extend along the
longitudinal axis of the support post. Therefore, contrary to Appellant's
argument, the lines are not consistent with MPEP § I503.02's guidance on
how to show "transparent, translucent and highly polished or reflective
surfaces, such as a mirror" in design patents, to the extent such guidance has
application in utility drawings. 1 Although we agree with Appellant that the
"vertical" lines would have been understood as shading to show the overall
shape of the interior of the bottom two sectors, there is no evidence to
support Appellant's suggestion that such shading provides an indication as
to the degree of roughness or smoothness of the surface. In addition, to the
extent the lines could be interpreted to indicate a substantially smooth
surface, we agree with the Examiner that the lack of lines in the remaining
two sectors would preclude interpreting all four sector sections to have
substantially smooth surfaces, in the absence of some other explanation for
1 We note MPEP § 608.02 similarly includes oblique lines as a drawing
symbol for an elevation view of a transparent material.
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Application 14/488,425
the difference in shading. Thus, the Specification is silent as to the
smoothness or roughness of the internal sections shown in Figure IA, and
we are not persuaded one of skill in the art would have presumed any degree
of roughness or smoothness in the absence of any indication of its
importance.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of claims 1, 4--21,
and 25--40 under 35 U.S.C. § 112(a).
Rejections II-IX-35 U.S.C. § 103
The dispositive issue with respect to the obviousness rejections is
whether Michel teaches the claimed support post "comprising at least four
spoke elements extending from the outer surface of the support post to a
centrally located hub element," as recited in independent claims 1 and 21.
The Examiner finds that Michel teaches a column comprising sections 20
and 21, and that section 20 comprises at least four spoke elements 30 and a
central hub element 31. Final Act. 4--5 (citing Michel Fig. 2). The
Examiner finds Michel discloses parts 20 and 21 as integrally formed. Id. at
5 ( citing Michel col. 3, 11. 3 9--45).
Appellant argues that the claimed support post must have integral
spokes because the claims recite that the spokes extend "from the outer
surface" of the support post. Appeal Br. 25. Appellant contends Michel's
tension shaft 20 "is a separate element/different part relative to the column
section 21," and, therefore, does not extend from the outer surface of the
surrounding post, as recited in the claims. Id.
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Application 14/488,425
We agree with Appellant. The claim language requiring that the
spokes extend from the outer surface of the support post is sufficient to limit
the claims to a support post with an outer surface that has spoke elements
extending from it as a unitary piece, as shown in Figure IA of the
Specification. The Examiner's explanation, essentially that the claims do
not recite the term "integral," see Ans. 9, does not explain how the claims
may otherwise be interpreted in light of the limitations noted above. The
Examiner does not dispute that Figure 2 of Michel shows tension member 20
is separate from the tube surrounding it. In addition, column 3, lines 39--45,
relied on by the Examiner in the Final Action, see Final Act. 4--5, teaches
that tension member 20 may be integrally formed rather than formed by a
plurality of members, and does not teach forming the tension member with
the surrounding tubular post as a unitary piece, see Michel col. 3, 11. 39--45.
Thus, we agree with Appellant that Michel does not teach the support post
"comprising at least four spoke elements extending from the outer surface of
the support post to a centrally located hub element."2
For the foregoing reasons, we do not sustain the rejection of claims 1
and 21 under 35 U.S.C. § 103 as unpatentable over McGrath, Bernard,
Blum, and Michel. The Examiner's rejections of dependent claims 4--20 and
25--40 depend on the same unsupported findings regarding Michel discussed
herein. Thus, for the same reasons as claims 1 and 21, we do not sustain the
rejections of dependent claims 4--20 and 25--40 as unpatentable under 35
U.S.C. § 103.
2 Although the Board is authorized to reject claims under 37 C.F.R.
§ 4I.50(b), no inference should be drawn when the Board elects not to do so.
See MPEP § 1213.02.
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DECISION
We affirm the Examiner's decision to reject claims 1, 4--21, and 25-
40 under 35 U.S.C. § 112(a).
We reverse the Examiner's decision to reject claims 1, 4--21, and 25-
40 under 35 U.S.C. § 103.
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
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