Ex Parte Michnik et al

Patent Trial and Appeal Board

Mar 12, 2018

12214908 (P.T.A.B. Mar. 12, 2018)

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.
12/214,908 06/24/2008 Alisa Michnik 3950
72333 7590 03/14/2018
ALISA DUBE AKA ALISA MICHNIK DUBE
YEFIM MICHNIK
23 CLEMSON RD.
CHERRY HILL, NJ 08034
EXAMINER
STRIMBU, GREGORY J
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
03/14/2018 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):
AlisaUMD @hotmail.com
pmichnik @ gmail. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALISA MICHNIK and YEFIM MICHNIK
Appeal 2015-007676
Application 12/214,908
Technology Center 3600
Before EDWARD A. BROWN, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Alisa Michnik and Yefim Michnik (“Appellants”) appeal under 35
U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1 and 3—16.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-007676
Application 12/214,908
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below with italics added, is illustrative of the
claimed subject matter.
1: A straight trajectory sliding shutter apparatus comprising:
a) an object comprising at least one opening surrounded by a
predetermined exterior area defined as an object sealing area;
b) a shutter comprising an exterior area defined as a shutter
sealing area, said shutter sealing area is complementary to said
object sealing area such that each point of said object sealing area
corresponds to only one point of said shutter sealing area and
vice versa, wherein a pair of the corresponding sealing area
points is defined as a sealing pair;
c) a guiding means for guiding said shutter between a fully
opened position and a closed position for sealing said at least one
opening in said closed position and for providing maximum
accessibility to said at least one opening in said fully opened
position,
a distance from any point of said object sealing area to any other
point of said object sealing area remains unchanged when said
shutter is moved between said fully opened position and said
closed position, any point of the straight trajectory sliding shutter
apparatus other than points of the object sealing area belongs to
said object if a distance from said any point of the straight
trajectory sliding shutter apparatus other than points of the object
sealing area to any point of said object sealing area remains
unchanged when said shutter is moved between said fully opened
position and said closed position, thereby a shape of said object
remains unchanged when said shutter is moved between said
fully opened position and said closed position,
a distance from any point of said shutter sealing area to any other
point of said shutter sealing area remains unchanged when said
shutter is moved between said fully opened position and said
closed position, any point of the straight trajectory sliding shutter
apparatus other than points of the shutter sealing area belongs to
said shutter if a distance from said any point of the straight
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trajectory sliding shutter apparatus other than points of the
shutter sealing area to any point of said shutter sealing area
remains unchanged when said shutter is moved between said
fully opened position and said closed position, thereby a shape
of said shutter remains unchanged when said shutter is moved
between said fully opened position and said closed position,
each point of said shutter sealing area is moved along a
trajectory line when said shutter is moved between said fully
opened position and said closed position, wherein the trajectory
lines are straight and parallel to each other, thereby an
orientation of said shutter sealing area with respect to said object
sealing area remains unchanged when said shutter is moved
between said fully opened position and said closed position,
distances between the two points of each of the sealing pairs are
equal in any one position of said shutter, said at least one opening
is sealed by the sealing pairs in said closed position where a
distance between the two points of each of the sealing pairs is
equal to zero, wherein said closed position is a position of said
shutter where said object sealing area is initially contacted by
said shutter sealing area when said shutter is moved from said
fully opened position toward said closed position,
a triangular area of a plane is defined by any three points of said
object sealing area not residing on a same straight line, wherein
the trajectory lines are not perpendicular to at least one of the
triangular areas and none of the trajectory lines resides on any
plane defined by the triangular areas, whereby said shutter
sealing area is guided slidably with respect to said object sealing
area by said guiding means,
said shutter and said object are configured such that, except
points of the sealing pairs, any point of said shutter is distant
from any point of said object in any position of said shutter,
thereby said shutter sealing area is guided slidably with respect
to said object sealing area regardless of shapes of portions of said
shutter and said object formed by points other than points of the
sealing pairs.
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Application 12/214,908
REJECTIONS
1) Claim 7—16 are rejected under 35 U.S.C. § 112, second paragraph
as being indefinite.1
2) Claims 1, 3, 5, 6—8, 10, and 11 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Olinger (US 3,921,100, issued Nov. 18,
1975).
3) Claims 4, 9, and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Olinger and Hapke (US 5,520,424, issued May
28, 1996).
4) Claims 12, 13, 15, and 16 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Olinger.
DISCUSSION
On October 17, 2017, the Board remanded this Appeal to the
Examiner to clarify the record and the basis for the claim rejections under 35
U.S.C. § 102(b) and/or § 103(a). The Examiner responded with a second
Examiner’s Answer on November 17, 2017 (“2d Ans.”). Thereafter, on
December 8, 2017, Appellants filed a second Reply Brief. (“2d Reply Br.”).
Rejection 1
The Examiner finds that “[rjecitations such as ‘an exterior’ on line 2
of claim 7 render the claims indefinite because it is unclear what the seal is
exterior to.” Ans. 2. Appellants contend claim 7 is clear and argue that the
limitation of “‘[a)] an object comprising at least one opening'' permits only
1 In the Examiner’s Answer dated July 1, 2015 (“Ans.”), the Examiner
withdrew rejections of claims 1 and 3—6 under 35 U.S.C. § 112, second
paragraph. Ans. 12; see also Final Act. 3, Ans. 2—3.
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one scenario: ‘at least one opening’ is located on exterior of the object” and
thus the ‘'flexible seal [is] situated on the objectReply Brief dated August
18, 2015 (“Reply Br.”) 1—2. Based on the foregoing, we agree with
Appellants that it is sufficiently clear this recitation refers to a seal on the
exterior of the object and do not sustain this rejection.
The Examiner next finds that
[rjecitations such as ‘each point of said shutter other than points of
said exterior sealing member is moved along a non-contact trajectory
line’ on lines 39—38 of claim 7 render the claims indefinite because it
is unclear how the points of the exterior sealing member do not move
along the trajectory lines when the shutter and the sealing member are
connected together.
Final Act. 4—5
Appellants contend that because “the exterior seal is flexible, some
points of the exterior flexible seal may not move parallel to non-contact
trajectory lines due to deformation of the seal after the initial touch position
when the shutter is moved from the initial touch position toward the closed
position in respect to the object.” Reply Br. 2. Based on the foregoing, this
claim recitation is not unclear because, as explained by Appellants, one of
ordinary skill in the art would understand that the claim refers to the points
on the exterior surface of the flexible seal which are deformed upon contact
with the object.
The Examiner next finds that the recitations of “a pair of points” at
line 53 of claim 7 renders “the claim indefinite because it is unclear if the
applicant is referring to the pair of points set forth on line 45 above or is
attempting to set forth another pair.” Final Act. 5. Further in claim 7, the
Examiner refers to “a distance” on line 54, “a contact pair” on line 57, and
“the contact pairs” on line 62. Ans. 3. Appellants argue that “introducing a
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generic pair of points with a, defining it with an expression starting with the
word comprising, and labeling it as an initial touch pair in one case and a
contact pair in the other case (see below) is proper, understandable and not
ambiguous.” Reply Br. 3. Appellants make a similar argument for the
claims recitations of “a distance.” Id. at 3^4. While we appreciate
Appellants’ grammatical explanation of the various recitations, the claim
terms identified by the Examiner do not comply with proper claim drafting
practice, and, consequently, have unclear meanings. Claim elements are
normally first introduced in a claim preceded by the article “a” as in “a pair
of points” or by the article “an.” Further, identifying the same element by
two different claim terms, i.e., “a contact pair” and “an initial touch pair,”
creates a lack of clarity. After the first introduction of the element in the
claim, it is normally referred to as “the pair of points” so there is no
ambiguity as to what element is being referred to in various parts of the
claim. If a distinct pair of points are later introduced in the claim, that pair
of points should be named differently, e.g., “a second pair of points.” We,
thus, sustain the rejection that the recitations in claim 7 of “a pair of points”,
“a distance”, and “a contact pair” are unclear.
The Examiner also finds in regard to claim 7 that “the position of the
shutter” on line 63 is similarly unclear as are “points of said exterior sealing
member” on lines 70—71. Final Act. 3. With respect to the limitation “the
position of the shutter,” Appellants argue that this limitation “is not present
in the claim language of the amendment dated 11/18/2014.” Appeal Br. 5.
However, that amendment was not entered. See 2d Ans. 7. With respect to
the limitation “position of said exterior sealing member,” Appellants make a
grammatical argument similar to that discussed above. Appeal Br. 5—6. As
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noted above, the limitation is unclear. We, thus, sustain the rejection of
claim 7 because these two limitations are unclear. Claims 8—11 are
dependent on claim 7. Id. at 13 (Claims App.). The rejection of claims 8—11
under 35 U.S.C. § 112, second paragraph is sustained due to the dependency
of these claims from claim 7.
The Examiner includes claims 12—16 in the heading for this rejection.
Final Act. 3; Ans. 2—3. However, the body of the rejection does not set forth
any rejection of claims 12—16. Therefore, we do not sustain the rejection of
claims 12—16 under 35 U.S.C. § 112, second paragraph.
Rejection 2
Appellants argue claims 1, 3, 5, and 6 as a group. Reply Br. 6. We
select claim 1 as representative and claims 3,5, and 6 stand or fall with
claim 1. 37 C.F.R. §41.37 (c)(l)(iv).
The Examiner finds that Olinger discloses all the limitations of claim
1. Final Act. 6—9. Appellants’ only contention of error is that Olinger does
not disclose the limitation that “each point of said shutter sealing area is
moved along a trajectory line . . . wherein the trajectory lines are straight
and parallel to each other.” Reply Br. 6—7. Appellants contend that Olinger
“is silent in regard to the shape of the trajectory lines.” Id. at 6. Appellants
also argue that “the examiner had agreed already with this argument at least
in regard to the claims 7 and 12; see the dated 09/22/2014 Applicant
Initiated Interview Summary.” Id.
The Examiner explains that the statement in the September 22, 2014,
interview summary “was referring to the appellants’ improper and equivocal
interpretation of the appellants’ disclosure that the sealing pair would
remain/stick together and move as a pair along the straight trajectory line as
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the seal is compressed” and “was merely commenting about the appellants’
interpretation of the original disclosure, as set forth above, and that, if true,
may be allowable over the teachings of Olinger.” 2d. Ans. 3. The Examiner
also asserts that Olinger “is not silent regarding the shape of the trajectory
lines . . . since, as illustrated in annotated figures 2 and 3, the linear tracks
54 force the points of the shutter 44 to move along a linear path which
parallels the straight longitudinal axes of the tracks 54.” Id. at 6, 8—9.
Appellants respond that “the words ‘straight’ and ‘linear’ are not present” in
Olinger, “the dashed dotted lines and the bold trajectory lines” added by the
Examiner in the annotated version of the Olinger drawings are not supported
by the specification of Olinger, and that Olinger’s “track 54 could be curved;
for instance, if a curve of track 54 is two dimensional, there are at least two
positions of track 54 (180 degrees apart) each can be confused by a viewer
as a straight track.” 2d Reply Br. 3^4.
We appreciate Appellants’ argument regarding the statement by the
Examiner in the interview summary concerning the disclosure in Olinger.
However, the meaning of the Examiner’s statement, as interpreted by
Appellants (see 2d Reply Br. 3), is not determinative of the rejection.
Rather, the pertinent issue is whether the Examiner has shown, by a
preponderance of the evidence, that Olinger anticipates claim 1 under 35
U.S.C. § 102(b) despite any dispute between Appellants and the Examiner
over the meaning and relevance of the interview summary statement to the
rejection of claim 1.
Olinger discloses “gas dynamic lasers . . . which use[] shutter doors
in its operation.” Olinger, 1:9-10. Olinger discloses a “double shutter box
19 [that] contains two shutter doors 44 and 46 which can be moved between
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open and closed positions to open or close openings 18 and 20.” Id. 2:32—
35. “Each shutter door . . . includes a bearing means 50 attached to the top
and bottom of each shutter door . . . Bearing means 50 comprises an
elongated recirculating ball bearing device 51 which provides for
recirculating balls 52.” Id. 2:58—64, Fig. 3. Olinger discloses that “[a] track
54 is provided at the top and bottom of each of the shutter boxes to receive
the long line of balls 52 in a groove 55 on the bearing side of the bearing
means 50.” Id. 3:6—9. Olinger also discloses that “[t]he face of the shutter
door always remains parallel to the sealing surface against which the shutter
door closes.” Id. 1:39-41.
Although, as noted by Appellants, Olinger does not use the words
“straight” and “linear” to describe tracks 54 in which bearing means 50
travel as shutter doors 44 and 46 open and close, we note that Olinger does
not describe the tracks as “curved,” or provide any suggestion that the tracks
could be “curved.”
We begin by reviewing the drawings of Olinger. When we review the
disclosure of drawings in a prior art reference, we should “evaluate and
apply the teachings ... on the basis of what they reasonably disclose and
suggest to one of ordinary skill in the art.” In re Aslanian, 590, F.2d 911,
914 (CCPA 1979). Figure 2 of Olinger discloses that tracks 54 are formed
from two upwardly extending parallel walls. Olinger, Fig. 2. Further,
Figure 2 discloses that bearing means 50 are disposed within the upwardly
extending parallel walls of tracks 54 so that “a long line of balls [52] can
engage a track.” Id. 3:6—7, Fig. 2. Bearing means 50 appear to be straight.
See id. at Fig. 4. As noted above, there is no explicit disclosure in Olinger
that either track 54 or bearing means 50 are curved. In contrast, Olinger
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discloses that “the shutter door always remains parallel to the sealing surface
against which the shutter door closes,” thus supporting the Examiner’s
finding that track 54 is straight. Id. 1:39-40. Based on the depiction of
tracks 54 and corresponding bearing means 50 in Figure 2 of Olinger and the
noted disclosure in column 1 that the shutter door always remains parallel to
the sealing surface when the shutter door closes, we determine that the
Examiner’s finding that Olinger discloses the limitation in claim 1 that “each
point of said shutter sealing area is moved along a trajectory line . . . wherein
the trajectory lines are straight and parallel to each other” is supported by a
preponderance of the evidence. As Appellants have not raised any other
contention of error with respect to the rejection of claim 1 under 35 U.S.C. §
102(b), we sustain the rejection of claim 1. Claims 3, 5, and 6 fall with
claim 1.
Rejection 3
In connection with the rejection of claims 7, 8, 10, and 11 under 35
U.S.C. § 102(b), Appellants rely on the same arguments as those advanced
for claim 1. Reply Br. 7. Consequently, we sustain the rejection of claims
7, 8, 10, and 11 for the same reasons as claim 1.
Rejections 4, 5, and 6
Appellants acknowledge that the Examiner issued a rejection of
claims 12, 13, 15, and 16. Reply Br. 7—8. However, Appellants do not
argue for the patentability of claims 12, 13, 15, and 16 or for the
patentability of claims 4, 9, and 14. Reply Br. 7—8; 2d Reply Br. passim.
Consequently, we summarily sustain the rejection of claims 4, 9, and 12—16
under 35 U.S.C. § 103(a). See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed.
Cir. 2008) (explaining that summary affirmance without consideration of the
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substantive merits is appropriate where an appellant fails to contest a ground
of rejection); see also 37 C.F.R. § 41.31(c) (“An appeal, when taken, is
presumed to be taken from the rejection of all claims under rejection unless
cancelled by an amendment filed by the applicant and entered by the
Office.”); 37 C.F.R. § 41.39(a)(1) (“An examiner’s answer is deemed to
incorporate all of the grounds of rejection set forth in the Office action from
which the appeal is taken . . . unless the examiner’s answer expressly
indicates that a ground or rejection has been withdrawn.”).
DECISION
The Examiner’s decision rejecting claims 7—11 under 35 U.S.C.
§112, second paragraph is affirmed.
The Examiner’s decision rejecting claims 12—16 under 35 U.S.C.
§112, second paragraph is reversed.
The Examiner’s decision rejecting claims 1 and 3—16 under 35 U.S.C.
§ 102(b) and/or 35 U.S.C. § 103(a) 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)(l)(iv).
AFFIRMED
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