Ex Parte Orgeldinger

Patent Trial and Appeal Board

Aug 22, 2017

12749713 (P.T.A.B. Aug. 22, 2017)

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.
12/749,713 03/30/2010 Wolfgang ORGELDINGER 50501.222 7532
72372 7590 08/24/2017
SCHOPPE, ZIMMERMANN , STOCKELER & ZINKLER
C/O KEATING & BENNETT, LLP
1800 Alexander Bell Drive
SUITE 200
Reston, VA 20191
EXAMINER
ALLEN, JEFFREY R
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
08/24/2017 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):
USPTO@KBIPLAW.COM
j keating @ kbiplaw. com
ADeschere @ kbiplaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WOLFGANG ORGELDINGER
Appeal 2016-002464
Application 12/749,713
Technology Center 3700
Before MICHELLE R. OSINSKI, ANNETTE R. REIMERS, and
NATHAN A. ENGELS, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Wolfgang Orgeldinger (Appellant)1 appeals under 35 U.S.C. § 134
from the Examiner’s Final decision rejecting claims 1, 3—5, 7, 9, and 10,
which are all of the pending claims. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Appellant identifies the real party in interest as IFCO Systems GmbH.
Appeal Br. 2.
Appeal 2016-002464
Application 12/749,713
THE CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below and is
representative of the claimed subject matter on appeal.
1. A crate, comprising:
a bottom and two respective pairwise opposing side walls
and end walls, the side walls having a longer length than the end
walls, in a horizontal direction, wherein
each of the end walls includes a grip hole provided for
carrying the crate;
at least one of the end walls includes a groove;
each of the grip holes is centered in the respecti ve end wall
with respect to twTo vertical edges of the crate;
each of the grip holes joins a thickened upper frame
portion of the respective end wall;
each of the end walls is made of plastic;
the groove of the at least one of the end walls has a
structure such that, when the user cuts into the groove of the at
least one of the end walls, an inspection opening is provided in
the at least one of the end walls;
the groo ve surrounds a predefined area of the at least one
of the end walls and joins the grip hole of the at least one of the
end walls;
the predefined area of the at least one of the end walls
corresponds to the inspection opening; and
the groove lias a depth that is more than half of a thickness
of the at least one of the end walls and less than the thickness of
the at least one of the end walls.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Zulauf
Kraft
Kawaguchi
Thrush
Kohler
US 4,865,187
US 5,531,352
US 7,066,321 B2
US 2007/0084864 A1
US 2010/0308104 A1
Sept. 12, 1989
July 2, 1996
June 27, 2006
Apr. 19, 2007
Dec. 9, 2010
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Appeal 2016-002464
Application 12/749,713
REJECTIONS
I. Claims 1, 4, 5, and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Thrush, Kawaguchi, and Kohler. Final Act. 2-4.
II. Claims 3 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Thrush, Kawaguchi, Kohler, and Zulauf. Id. at 4—5.
III. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Thrush, Kawaguchi, Kohler, and Kraft. Id. at 5—6.
OPINION
Rejection I
The Examiner finds that Thrush teaches many of the elements of
independent claim 1, including, inter alia, that “at least one of the end walls
[120, 140] includes a groove (at 122)” and that this “groove surrounds a
predefined area of the at least one of the end walls and joins the grip hole
[120H, 140H].” Final Act. 2. In the Answer, the Examiner clarifies that
“[t]he groove that is being relied on is the area between the door and the wall
of the container” and that “[t]his area extends around the sides and top of the
door with gaps at the finger holes 122 and the handle 120H.” Ans. 6.2
Appellant argues that “in order to provide the hingedly-mounted
access door in the side of the utility crate of Thrush . . ., the area around the
sides and top of the door must be cut completely through the material of the
side so that the access door is operable and capable of rotating about the
hinge.” Reply Br. 3. Appellant argues that a reasonable construction of the
2 The Examiner acknowledges that Thrush fails to teach that this area
around the sides and top of the door has a structure such that, when the user
cuts into this area, an inspection opening is provided, or that it has a depth
that is more than half of a thickness of the end wall and less than a thickness
of the end wall. Final Act. 3.
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Application 12/749,713
term “groove” cannot extend to a structural element that extends through the
material of the wall. Id. (asserting that a “groove” is (i) instead “a long,
narrow channel or depression” according to the Merriam-Webster
Dictionary or (ii) “a long and narrow indentation built into a material” as
would be understood by one of ordinary skill in the art in the “context of
manufacturing or mechanical engineering”).
We agree that the area around the sides and top of the door in Thrush
extends through the material of the side of the crate. Even assuming
arguendo that the area around the sides and top of the door that extends
through the material of the side of the crate cannot reasonably be considered
a “groove” under the plain and ordinary meaning consistent with the
Specification, we are not persuaded of reversible error by the Examiner. In
particular, based on the record before us, we determine that the rejection as
articulated by the Examiner does not rely on deeming the area around the
sides and top of the door a “groove,” but rather the rejection relies
specifically on Kawaguchi for the claimed groove.
In particular, based on Kawaguchi’s teachings of providing a groove
for accessing the interior of a container, wherein the groove has a depth that
extends into the thickness of a wall of the container but is less than the
thickness of the wall (Kawaguchi 11:35—39) and Kohler’s teachings of
manufacturing a plastic container with frangible lines for removing a portion
of the plastic container (Kohler 123), the Examiner concludes that “[i]t
would have been obvious ... to have manufactured the crate of Thrush with
a frangible groove portion ... in order to prevent the door of the crate from
opening prior to use . . . and since such a modification would be the use of a
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Application 12/749,713
known technique on a known device to achieve a predictable result.” Final
Act. 3.
Accordingly, we view the Examiner’s rejection as modifying Thrush
to replace what may more precisely be called a “gap” or “outline” around the
sides and top of the door of Thrush with a frangible groove as taught by
Kawaguchi. Thus, the modification to Thrush articulated by the Examiner in
the Final Office Action clearly supplies a frangible groove, as taught by
Kawaguchi, in place of the structure (i.e., the “gap” or “outline”) originally
present in Thrush.
We have considered Appellant’s argument that the intended purpose
of Thmsh is to allow the door to be both openable and closable so that items
can be repeatedly stored and/or removed from the crate (Appeal Br. 8 (citing
Thrush || 6, 8, 11, 22, 32)) and that any modification of Thrush so as to
replace the gap or outline with a frangible groove portion would impair the
ability of the door to be subsequently re-closed and re-opened after its initial
opening (id. ). See also Reply Br. 4—5 (arguing more specifically that if
Thrush’s door were “completely surrounded by fragile or brittle material, as
alleged by the Examiner, the door would have been prevented from being
subsequently re-closed and re-opened after it is initially opened, and the
hinges that connect the door of Thrush . . . would have been rendered
completely useless”).
Even assuming arguendo that Thrush is limited to the narrow purpose
of a side door that can be re-closed and re-opened, we are not persuaded of
error. This is because the Examiner’s proposed modification does not
extend to modification of Thrush’s hinge 120C upon which access door
120B pivots to open or close doorway 125, nor does it extend to the area
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Application 12/749,713
along the bottom of the door in any way.3 Modifying Thrush to replace the
gap or outline around the sides and top of the door of Thrush with a
frangible groove would not appear to adversely affect the ability of the side
door to be re-closed and re-opened in that after the initial cutting of the
frangible groove by a user, the side door would appear to be capable of
functioning exactly as it currently functions (i.e., with a gap or outline
around the sides and top of the door, the gap or outline being created by the
cutting of the frangible groove).
We have also considered Appellant’s argument that the Examiner’s
proposed combination of prior art “would still not provide the feature of a
groove that surrounds a predefined area of an end wall (and which joins a
grip hole of the end wall).” Reply Br. 4. We, however, do not find this
argument persuasive in that it fails to include an explanation as to the why
the Examiner’s fact finding (Final Act. 2-4; Ans. 6—7) is in error. See 37
C.F.R. § 41.37(c)(l)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(holding that the Board had reasonably interpreted the same language in the
prior rule under 37 C.F.R. § 41.37(c)(l)(vii) as requiring “more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art”). Instead, we agree with the Examiner that the area around the
3 “The [gap or outline] that is being relied on is the area between the door
and the wall of the container. This area extends around the sides and top of
the door with gaps at the finger holes 122 and the handle 120H. . . . When
the teachings of Kawaguchi and Kohler were applied to Thrush[,] the door
would have a frangible connection along this areal’ Ans. 6—7 (emphasis
added). See also Final Act. 4 (relying on Thrush’s hinge in connection with
dependent claims 4, 5, and 7).
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Application 12/749,713
sides and top of the door surrounds a predefined area of at least one of the
end walls and joins the grip hole. See Final Act. 2.
For the foregoing reasons, we are not persuaded that the Examiner
erred in concluding that Thrush, Kawaguchi, and Kohler renders obvious the
subject matter of independent claim 1, and we sustain the rejection of
independent claim 1 as unpatentable under 35 U.S.C. § 103(a) over Thrush,
Kawaguchi, and Kohler. We also sustain the rejection of claims 4, 5, and 7,
which depend therefrom, and for which Appellant relies on the same
arguments and reasoning we found unpersuasive in connection with
independent claim 1. Appeal Br. 10.
Rejections II—III
The Examiner rejects, under 35 U.S.C. § 103(a): claims 3 and 10 as
unpatentable over Thrush, Kawaguchi, Kohler, and Zulauf; and claim 9 as
unpatentable over Thrush, Kawaguchi, Kohler, and Kraft. Final Act. 4—6.
Appellant’s arguments in support of the patentability of these claims relate
to the perceived deficiencies in the combination of Thrush, Kawaguchi, and
Kohler in connection with independent claim 1. Appeal Br. 10. Because we
have found no such deficiencies, we are not persuaded of error in the
Examiner’s rejection of dependent claims 3, 9, and 10. Accordingly, we
sustain, under 35 U.S.C. § 103(a), the rejection of: claims 3 and 10 as
unpatentable over Thrush, Kawaguchi, Kohler, and Zulauf; and claim 9 as
unpatentable over Thrush, Kawaguchi, Kohler, and Kraft.
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Application 12/749,713
DECISION
The Examiner’s rejections of claims 1, 3—5, 7, 9, and 10 are 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)(l)(iv).
AFFIRMED
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