Ex Parte Milano et al

Patent Trial and Appeal Board

Oct 24, 2014

13015993 (P.T.A.B. Oct. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ARTHUR J. MILANO, JR. and JAMES GREVAS
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Appeal 2012-009109
Application 13/015,993
Technology Center 3600
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Before: EDWARD A. BROWN, CHARLES N. GREENHUT, and
SCOTT A. DANIELS, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1
and 4–14. App. Br. 5. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to a portable shelter structure. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A portable shelter for providing cover over an area,
wherein the shelter is coupleable to a structure, the portable
shelter comprising:
a first base member and a second base member, each of
which are coupleable to the structure;
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Application 13/015,993
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two subframe assemblies, each subframe assembly
comprising:
a vertical support member having a first end and a
second end, wherein the first end is coupleable to a
respective base member;
at least two arm members, each having a first end and a
second end, wherein the first end of each respective arm
member is pivotally coupled to the second end of vertical
support member;
at least two brace members, each having a first end and a
second end, each respective first end being coupled to the
vertical support member and each respective second end being
pivotably coupled to a respective arm member;
a first coupling arrangement for pivotably coupling the
respective first end of each arm member to the second end of
the vertical support member;
a second coupling arrangement, slideably coupled to the
vertical support member, for coupling the respective first end of
each brace member to the vertical support member,
a canopy supporting assembly coupled to the two subframe
assemblies, wherein the canopy supporting assembly supports a
canopy and provides cover over the area and wherein
the canopy supporting assembly comprises a backbone pole and
wherein the first coupling arrangement of each sub frame assembly
comprises a clamp for releasably securing the backbone pole to the
sub frame assemblies and wherein the clamping of the backbone pole
by each respective clamp assists in preventing the sliding of the
backbone pole through the respective clamps, and
wherein the distance between the subframe assemblies is
adjustable and wherein the portable shelter comprises a canopy
coupled to the canopy supporting assembly, and wherein the distance
between the sub frame assemblies provides shelter to an area over the
structure and proximate the structure.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Rupright US 3,221,756 Dec. 7, 1965
Appeal 2012-009109
Application 13/015,993
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De Bliquy
Wang
Weber
Eriksson
Lah
US 4,131,380
US 4,724,882
US 5,660,425
US 6,287,042 B1
US 6,382,223 B1
Dec. 26, 1978
Feb. 16, 1988
Aug. 26, 1997
Sept. 11, 2001
May 7, 2002

REJECTIONS
Claims 1 and 4–17 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite. Ans. 4.
Claims 11, 13 and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rupright and Weber. Ans. 5.
Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Rupright, Weber and Wang. Ans. 7.
Claim 5 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Rupright, Weber and Wang. Ans. 8.
Claims 6–9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rupright, Weber, Lah and De Bliquy. Ans. 9.
Claims 10–12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rupright, Weber, Eriksson and De Bliquy. Ans. 10.

OPINION
Appellants do not contest the Examiner’s rejection under 35 U.S.C.
§ 112. App. Br. 9; Reply Br. 4; Ans. 12. We, therefore, summarily sustain
this rejection. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008)
(“the applicant can waive appeal of a ground of rejection”).

1 Appellants contend claims 2 and 3 have been properly cancelled (App. Br.
5) and the Examiner appears to agree (Ans. 3). Thus, we consider the
Examiner’s inclusion of these claims in the statement of rejection as an
inadvertent error.
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All of Appellants’ contentions relating to the rejections under § 103
rest on the propriety of the Examiner’s proposed combination of Rupright
and Weber. The Examiner proposes to substitute Weber’s clamping
arrangement 48 for Rupright’s pins 22 in order to provide adjustability so as
to accommodate picnic tables of various sizes. Ans. 6, 13. Appellants
contend that the Examiner’s proposed combination would render Rupright
unsatisfactory for its intended purpose because Rupright “requires non-
adjustability.” We disagree. Rupright merely teaches that pins 22 are used
to secure the ridge pole assembly 17. Rupright, col. 4, ll. 10–15. There is
no discussion as to the advantages of that particular arrangement over any
other. Weber’s clamps 48 could perform the same function of securing the
ridge pole assembly provided by Rupright without sacrificing any
functionality identified by Rupright as essential. Such a substitution would
additionally facilitate erecting the awning on picnic tables of various sizes
much in the same way Weber’s arrangement accommodates truck beds of
various widths (the dimension that appears to dictate the support mount 50
location). See Fig. 1. Appellants do not offer any evidence or technical
reasoning to support the assertion that Weber’s use of the clamps 48 on
edges of the canopy (at 24) would have deterred a skilled artisan from using
those clamps on Rupright’s central ridge pole assembly 17. In both Rupright
and Weber the goal is to releasably secure a tubular member. Ans. 13–14.
Combining prior art references does not mandate combination of their
specific structures. In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012).

DECISION
The Examiner’s rejections are affirmed.

Appeal 2012-009109
Application 13/015,993
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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

mls