Ex Parte Neusch

Patent Trial and Appeal Board

Dec 23, 2016

12813457 (P.T.A.B. Dec. 23, 2016)

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.
12/813,457 06/10/2010 William H. Neusch 7020-306 7021
84649 7590 12/28/2016
Symbus Law Group, LLC
Cliff Hyra
11710 Plaza America Drive
Suite 2000
Reston, VA 20190
EXAMINER
AMIRI, NAHID
ART UNIT PAPER NUMBER
3679
NOTIFICATION DATE DELIVERY MODE
12/28/2016 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):
docketing @ sy mbu s. com
chyra @ symbus .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM H. NEUSCH
Appeal 2015-002427
Application 12/813,457
Technology Center 3600
Before LINDA E. HORNER, JEFFREY A. STEPHENS, and
GORDON D. KINDER, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
William H. Neusch (Appellant)1 seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision, as set forth in the Non-Final Action dated
1 Appellant identifies Neusch Innovations, LP as the real party in interest.
Appeal Br. 1. Since the filing of the Appeal Brief, Appellant recorded a
further assignment of the application from Neusch Innovations, LP to
Betafence Corporate Services NV. Appellant is advised in the future to file
a mandatory notice under 37 C.F.R. § 41.8(a) to notify the Board of a
change to the real party-in-interest. See 37 C.F.R. § 41.8(a) (requiring
appellant to identify the real party-in-interest in the appeal brief and within
20 days of any change during the proceeding).
Appeal 2015-002427
Application 12/813,457
July 10, 2013 (“Non-Final Act.”), rejecting claims 20-29. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to “a barrier to vehicular
traffic.” Spec. para. 4. Claims 20, 24, and 28 are the independent claims on
appeal. Claim 20 is reproduced below.
20. A gate assembly comprising:
a cable extending across a panel, the panel movable
between a closed position blocking an entry port and an open
position;
a latch post secured in the ground on a first side of the
entry port, a first end of the cable connected to the latch post
when the panel is in the closed position and the first end of the
cable disconnected from the latch post when the panel is in the
open position; and
a post device secured in the ground on a second side of the
entry port, the panel positioned through a passage of the post
device.
REJECTIONS
The Non-Final Action included the following grounds of rejection:
1. Claims 20-26 and 28 under 35 U.S.C. § 102(b) as anticipated by
Ferguson (US 4,480,405, issued Nov. 6, 1984).
2. Claims 27 and 29 under 35 U.S.C. § 103(a) as unpatentable over
Ferguson and Voss (US 2,849,810, issued Sept. 2, 1958).
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Application 12/813,457
ANALYSIS
Anticipation by Ferguson
Independent Claim 20
The Examiner found that Ferguson discloses the claimed gate
including a panel (gate 10) movable between a closed position to block an
entry point and an open position, a latch post (gate post 12), and a post
device (gate post 11 and fixing bracket 17), wherein panel 10 is positioned
through a passage (formed by tubular body 15) of post device (11, 17).
Non-Final Act. 3.
Appellant contends the Examiner erred in finding that Ferguson
discloses “the panel positioned through a passage of the post device,” as
recited in claim 20. Appeal Br. 5. In particular, Appellant argues “[njeither
tubular [body] 15 nor bush 16 are ‘of the post device’” and “even if the
tubular [body] 15 is construed as formed by the post 11, the gate 10[,] which
the Examiner construes as the claimed panel[,] is not ‘positioned through’
the passage.” Id. at 6.
With regard to the first argument, the Examiner determined that
“[u]nder the broadest reasonable interpretation of the claim, a ‘post device’
encompasses a post and any and all structure that may be connected to that
post.” Ans. 4-5. The Specification describes that “post device 128
comprises a pair of spaced apart members 128a, 128b defining a[n] interior
passage 136.” Spec. para. 50. Thus, the post device described in
Appellant’s Specification is not a single post, but a device comprised of
multiple members. We see no reason to, nor does Appellant seek to have us,
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Application 12/813,457
limit the definition of “post device” to the specific embodiment of “a pair of
spaced apart members 128a, 128b” disclosed in the Specification. We agree
with the Examiner that the broadest reasonable interpretation of “post
device” in light of the Specification encompasses gate post 11 and gate
support bracket 14 attached thereto.
With regard to the second argument, the Examiner further noted that
“the claim neither sets forth nor requires that the entire panel extend through
the passage” and thus “the panel (10) of Ferguson is ‘positioned through’ the
passage defined by the tubular body [(15)] vis-a-vis stub axle 21 which is a
constituent part of the panel (10).” Id. at 5. We agree with the Examiner
that stub axle 21 of stile 20 is a constituent part of gate (panel) 10. See
Ferguson, col. 3,11. 15-16 (“At the end of the gate adjacent gatepost 11, the
gate has a stile 20 with an outwardly directed stub axle 21.”). We further
agree with the Examiner that the claim language “the panel positioned
through a passage of the post device” does not require the entire panel to be
capable of being positioned through the passage. Under the broadest
reasonable interpretation of “the panel positioned through the passage,” the
claim limitation is met by the prior art as long as a component or portion of
the panel is positioned through the passage. We find that a preponderance of
the evidence supports the Examiner’s finding that a portion of the gate 10
(i.e., stub axle 21 of stile 20) is positioned through the passage (formed by
tubular body 15 of gate support bracket 14 on gate post 11).
For these reasons, Appellant has not demonstrated error in the
Examiner’s interpretation of the language of claim 20 or the Examiner’s
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Application 12/813,457
finding that Ferguson’s gate anticipates the claimed gate assembly.
Accordingly, we sustain the rejection of claim 20 as anticipated by
Ferguson.
Dependent claim 21
Claim 21 depends from claim 20 and recites “wherein the latch post
comprises a pin assembly, the first end of the cable connected to the pin
assembly when the panel is in the closed position.” Appeal Br. 14 (Claims
App.). The Examiner found that Ferguson’s latch post (gate post 12)
comprises a pin assembly (formed by outer stile 23 and inner stile 26), the
first end of the cable (wire 33) connected to the pin assembly (23, 26) when
the panel (10) is in the closed position. Non-Final Act. 5.
We agree with Appellant that Ferguson’s inner stile 26 is part of gate
10 and is not part of gate post 12. Appeal Br. 9. In particular, Ferguson
discloses that inner stile 26 is connected to stile 20 by wires 28, 29, 30, 32,
33. Ferguson, col. 3,11. 29-33; Fig. 1. The Examiner’s finding that
Ferguson’s latch post (gate post 12) comprises a pin assembly (stiles 23 and
26) is not supported by a preponderance of the evidence because gate post
12 is not comprised of inner stile 26. For this reason, we do not sustain the
rejection of claim 21 as anticipated by Ferguson.
Dependent claims 22 & 23
Claim 22 depends from claim 20 and recites “an end assembly
connected to a second end of the cable, the end assembly located on the
opposite side of the post device from the first end of the cable.” Appeal
Br. 14 (Claims App.). Claim 23 depends from claim 22. Id. at 15.
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Application 12/813,457
The Examiner found Ferguson discloses “an end assembly
(constituted by a catch assembly 50) connected to a second end of cable
(33), the end assembly (50) located on the opposite side of the post device
(12) from the first end of the cable (33).” Non-Final Act. 5.
One flaw in this rejection, as noted by Appellant (Appeal Br. 10), is
that the Examiner equated gate post 11 and fixing bracket 17 with the
claimed “post device” in the rejection of claim 20 and then equated gate post
12 with the claimed “post device” in the rejection of dependent claim 22.
Non-Final Act. 4 (Examiner finding that gate post 12 is the claimed “latch
post” in the rejection of claim 20).
Another flaw in this rejection, as noted by Appellant (Appeal Br. 11),
is that catch assembly 50 is not located on the opposite side of the post
device (gate post 11) from the first end of the cable. In particular, catch
assembly 50 is located on an inner, port entry side of gate post 11 and first
end of cable 33 is likewise located on the same inner, port entry side of gate
post 11. Ferguson, Fig. 1.
For these reasons, we do not sustain the rejection of claim 22, or its
dependent claim 23, as anticipated by Ferguson.
Claims 24-26 and 28
Independent claims 24 and 28, similar to dependent claim 21, recite “a
latch post. . . comprising a pin assembly.” Appeal Br. 15,16 (Claims App.).
The Examiner found that outer stile 23 and inner stile 26 of Ferguson
constitute the claimed “pin assembly.” Non-Final Act. 5-6. For the same
reasons discussed supra in our analysis of dependent claim 21, this finding is
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Application 12/813,457
not supported by a preponderance of the evidence. Further, we agree with
Appellant that the Examiner erred in finding (Ans. 6) that Ferguson’s stub
axle is capable of moving through the passage as called for in independent
claim 24, and is capable of moving laterally through the passage as recited in
independent claim 28. Appeal Br. 7-8. As noted by Appellant (Reply
Br. 4), Ferguson’s stub axle 21 “remains in the same location laterally
relative to the passage within tubular member 15” and is not capable of
moving through the tubular member. Ferguson, Fig. 1 and col. 3,11. 15-18
(describing that stub axle 21 is journaled in bush 16 and pins locate the stub
axle in the bush).
Accordingly, we do not sustain the rejection of independent claims 24
and 28, and dependent claims 25 and 26, as anticipated by Ferguson.
Obviousness over Ferguson and Voss
Claim 27 depends indirectly from independent claim 24, and claim 29
depends from independent claim 28. Appeal Br. 16 (Claims App.). The
Examiner found Ferguson fails to disclose that the end assembly (capture
assembly 50) is located on the opposite side of the post device (11, 17) from
the entry port, as called for in these dependent claims. Non-Final Act. 6.
The Examiner determined that “[i]t would have been an obvious matter of
design choice to one of ordinary skill in the art at the time [the] invention
was made to locate the end assembly of Ferguson on the opposite side of the
post device from the entry port[,] as taught by Voss[,] in order to provide a
gate which the various cable and pulley assemblies will be protectively
housed in a manner to prevent the same from deteriorating.” Id. at 7.
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Application 12/813,457
This second ground of rejection relies on the same findings that outer
stile 23 and inner stile 26 of Ferguson constitute the claimed “pin assembly”
and that Ferguson’s stub axle 21 is capable of moving through the passage of
tubular member 15 that we found unsupported by the evidence in the
rejection of claims 24 and 28. Also, as argued by Appellant, the Examiner’s
proposed modification to Ferguson to locate the catch assembly 50 on the
opposite side of gate post 11, is lacking rational underpinnings. Appeal
Br. 12. In particular, as explained by Appellant, the location of catch
assembly 50 on the entry port side of gate post 11 is necessary so that
Ferguson’s gate is able to open and close properly in response to a motor
vehicle pivoting the vertical gate to a horizontal position. Id. (citing
Ferguson, col. 4,11. 13-32; Figs. 3-5).
For these reasons, we do not sustain the rejection of claims 27 and 29
as unpatentable over Ferguson and Voss.
DECISION
The decision of the Examiner to reject claim 20 is AFFIRMED.
The decision of the Examiner to reject claims 21-29 is REVERSED.
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-IN-PART
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