11475397 (B.P.A.I. Jul. 30, 2012)

Ex Parte Richter

Board of Patent Appeals and InterferencesJul 30, 2012

11475397 (B.P.A.I. Jul. 30, 2012)

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. 11/475,397 06/27/2006 Harald Richter RI 210 2886 7590 07/31/2012 KLAUS J. BACH & ASSOCIATES PATENTS AND TRADEMARKS 4407 TWIN OAKS DRIVE MURRYSVILLE, PA 15668 EXAMINER MALEKZADEH, SEYED MASOUD ART UNIT PAPER NUMBER 1743 MAIL DATE DELIVERY MODE 07/31/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte HARALD RICHTER ________________ Appeal 2011-001975 Application 11/475,397 Technology Center 1700 ________________ Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and LINDA M. GAUDETTE, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1-4 and 6-7. We have jurisdiction under 35 U.S.C. § 6(b). Claim 1 is illustrative: 1. An adapter plate for supporting a vacuum suction device for connection to a flat or curved surface, comprising a flat bottom layer (1) and a top layer (2) consisting of a predetermined amount of a top layer material cast onto the bottom layer (1) and cured so as to join the bottom layer (1) and forming a supporting top layer of a thickness greater than that of bottom layer (1) and consisting of a material which is softer than the bottom layer and which forms a smooth top surface with a, in radial cross-section, Appeal 2011-001975 Application 11/475,397 2 rounded circumferential edge and wherein the bottom layer (1) has an underside which is provided with a self-adhesive cement layer. The Examiner relies upon the following references as evidence of obviousness (Ans. 4): Kaumeyer 5,480,688 Jan. 02, 1996 Richter 5,996,950 Dec. 07, 1999 Appellant’s claimed invention is directed to an adapter plate that is used to support a vacuum suction device. The plate comprises a top layer that is softer than an underlying bottom layer, and which top layer has a smooth top surface and a rounded circumferential edge. The underside of the bottom layer is provided with a self-adhesive cement layer. Appealed claims 1-4, 6 and 7 stand rejected under 35 U.S.C. § 112, first paragraph, written description requirement. The appealed claims also stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kaumeyer in view of Richter. We have thoroughly reviewed each of Appellant’s arguments for patentability. However, we find that the Examiner’s rejections are well founded. Accordingly, we will sustain the Examiner’s rejections for essentially those reasons expressed in the Answer, and we add the following primarily for emphasis. We consider first the Examiner’s rejection under § 112, first paragraph. Appellant does not contest the Examiner’s finding that the recitation “arched top surface” does not have original descriptive support in the present Specification. Appellant states “[t]his expression was not accepted by the Examiner and, consequently, is not present in the claim on appeal” (App. Br. 4, para. 6). We understand Appellant’s statement as an Appeal 2011-001975 Application 11/475,397 3 offer to delete the language “arched”, and a determination by Appellant to not appeal the § 112 rejection. Accordingly, we summarily affirm the Examiner’s rejection. We now turn to the § 103 rejection. Appellant does not dispute the Examiner’s finding that Kaumeyer discloses an article having the claimed structure, namely, a flat bottom layer and a top layer that is softer and thicker than the bottom layer and formed from a cured material, as well as an adhesive layer on the underside of the bottom layer. The principal argument advanced by Appellant is that the decorative emblem of Kaumeyer is not an adapter plate for supporting a vacuum suction device, as presently claimed. Appellant maintains that “[i]t can certainly not be argued that a decorative emblem is the same as, or lends itself to be used as, a support structure for supporting a vacuum suction holder” (App. Br. 5, third para.). We do not subscribe to Appellant’s reasoning. As emphasized by the Examiner, the intended use of a claimed article is generally assigned little patentable weight. In the present case, Appellant has presented no convincing rationale why the decorative emblem of Kaumeyer, having an adhesive attached to its bottom layer and a smooth, plastic top layer, cannot function as a support structure for a vacuum suction device on, for example, a dashboard of a motor vehicle. Although the reference, admittedly, does not disclose such a use, it is incumbent upon Appellant to demonstrate that the structure of the prior art article, having the claimed structure, is incapable of performing such a function. This Appellant has not done. Appeal 2011-001975 Application 11/475,397 4 We note that Appellant does not contest the Examiner’s legal conclusion regarding the obviousness of using the self-adhesive cement of Richter as the adhesive of Kaumeyer. We also note that Appellant has not presented separate arguments for any particular claim on appeal. Accordingly, all the appealed claims stand or fall together. As a final point, we note that Appellant bases no argument upon objective evidence of nonobviousness, such as unexpected results. Accordingly, the prima facie case of obviousness established by the Examiner stands unrebutted. In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner’s decision rejecting the appealed claims 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)(1)(iv). AFFIRMED ssl