Ex Parte Rouillard et al

Patent Trial and Appeal Board

Mar 12, 2018

13058367 (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.
13/058,367 02/10/2011 Carol A. Rouillard 083258-9084 US01 1767
24804 7590 03/14/2018
MICHAEL BEST & FRIEDRICH LLP (Diversey, Inc.)
100 E WISCONSIN AVE
STE 3300
MILWAUKEE, WI 53202
EXAMINER
FRICK, EMMA K
ART UNIT PAPER NUMBER
3618
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):
mkeipdocket@michaelbest.com
patents @ diversey.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CAROL A. ROUILLARD, ANDREW M. BOBER,
ALFRED ADOLF WIDMER, ANDREW R. J. RUSSELL,
DAVE CLARK, and RODERICK J. MCBRIEN
Appeal 2017-006023
Application 13/058,367
Technology Center 3600
Before: BENJAMIN D. M. WOOD, LYNNE H. BROWNE, and
NATHAN A. ENGELS, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-006023
Application 13/058,367
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134 from a Non-Final rejection
of claims 19—21, 23, 25—29, and 31—33. Claims 24 and 34 have been
withdrawn. Apr. 1, 2016 Non-Final Act, Summary. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm-in-part.
THE INVENTION
The claims are directed to an adjustable cleaning cart. Claim 19,
reproduced below, is illustrative of the claimed subject matter:
19. A cleaning cart for supporting cleaning
supplies, the cleaning cart comprising:
a cart frame;
a receptacle movable with respect to the cart
frame;
a receptacle frame movably coupled to the
cart frame to support the receptacle on the cart frame,
wherein the receptacle is removable and replaceable
within the receptacle frame; and
a user-manipulable control including an
actuator coupled to the receptacle frame, the actuator
engageable by a user to move the receptacle and
receptacle frame between a stowed position and a
deployed position with respect to the cart frame,
wherein the actuator is movable relative to the
receptacle and the receptacle frame.
REFERENCES
Tisbo US 5,887,878 Mar. 30, 1999
Emary US 7,168,773 B1 Jan. 30,2007
1 According to Appellants, the real party in interest is Diversey, Inc. App.
Br. 2.
2
Appeal 2017-006023
Application 13/058,367
REJECTION
Claims 19-21, 23, 25—29, and 31—33 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Tisbo and Emary. Apr. 1, 2016 Non-Final
Act. 2-9.
ANALYSIS
Claims 19—21, 23, 25, and 26
Claim 19 recites, inter alia, a cleaning cart having a cart frame, a
receptacle movable with respect to the cart frame, and a receptacle frame
movably coupled to the cart frame to support the receptacle, “wherein the
receptacle is removable and replaceable within the receptacle frame.” App.
Br. 10 (Claims App.). Claims 20, 21, 23, 25, and 26 depend from claim 19.
Id. at 10—11. The Examiner finds that Tisbo teaches the claimed cart frame,
as well as “a variety of receptacles and respective frames,” but the Examiner
asserts that Tisbo does not teach (1) a receptacle movable with respect to the
cart frame; (2) a receptacle frame movably coupled to the cart frame to
support the receptacle on the cart frame, wherein the receptacle is removable
and replaceable within the receptacle frame; and (3) the claimed user-
manipulable control/actuator. Apr. 1, 2016 Non-Final Act. 3 (citing Tisbo,
Fig. 1). The Examiner further finds that Emary teaches the missing
limitations; for example, the Examiner finds that tray 12 corresponds to the
receptacle, and connecting units 72, 74, with pivot connections 76, 78,
3
Appeal 2017-006023
Application 13/058,367
correspond to the receptacle frame. Id. at 3^4 (citing Emary, Fig. 4—9); see
Emary, 2:32-32, 3:1-9, 33—36)2.
In response to Appellants’ assertion that Emary does not teach a
receptacle that is “removable and replaceable within the receptacle frame
(App. Br. 5), the Examiner explains that Emary’s receptacles “are removable
out from underneath the cart frame (thus exposing the contents of the
receptacle) and replaceable back into the cart frame, while within the
receptacle frame.” Ans. 2—3. The Examiner also asserts that “Appellant’s
receptacles aren’t disclosed to be removable from the receptacle frame.” Id.
at 3.
We are not persuaded that Emary teaches a receptacle that is
“removable and replaceable within the receptacle frame,” as the Examiner
asserts. First, the plain meaning of “remove” suggests that receptacles that
are removable and replaceable within the receptacle frame are, in fact,
removable from the receptacle frame. See
http://www.dictionary.com/browse/remove?s=t (last visited Feb. 23, 2018)
(defining “remove” as “1. to move from a place or position; take away or
off: to remove the napkins from the table. 2. to take off or shed (article of
clothing): to remove one’s jacket”). This plain meaning is consistent with
how “removable” is used in the Specification. For example, the
Specification states in part:
In some embodiments, lower receptacles 64 supported by the cart
10 can be moved with respect to the cart 10 in order to provide
2 The Examiner provides an annotated version of Emary Figure 4 in which
tray unit 12 is labeled “Rec 1,” tray unit 14 is labeled “Rec 2,” the
unnumbered knob on tray unit 16 is labeled “A,” and connecting units 72
and 74 are labeled “LI” and “L2,” respectively.
4
Appeal 2017-006023
Application 13/058,367
increased user access to the interior areas of the lower receptacles
64, and to enable a user to stow the lower receptacles 64 (and the
contents therein) when not in use. The lower receptacles 64
illustrated in Figs. 3—6 can simply be moved and removed from
their positions on the cart 10. Other cart embodiments in which
lower receptacle movement (and in some cases, removal) are
illustrated in Figs. 23—35.
Spec 181 (emphasis added). This provision distinguishes “mov[ing]” a
receptacle from “remov[ing] it, contrary to the Examiner’s suggestion that
they are the same. Moreover, as this provision states, some of Figures 23
through 35 illustrate the removal of receptacles from the cart frame. Figures
23 and 24, for example, illustrate a cart frame having lower receptacle
supports; in Figure 24, the supports hold receptacles, whereas in Figure 23,
the receptacles having been taken off the supports.
Because we are not persuaded that Emary teaches a receptacle that is
“removable and replaceable within the receptacle frame,” we do not sustain
the Examiner’s rejection of claims 19-21, 23, 25, and 26 as unpatentable
over Tisbo and Emary.
Claims 27—29 and 21—22
Based on Appellants’ arguments (App. Br. 7—9), we will decide the
appeal of claims 27, 28, 31, and 33 on the basis of claim 27 alone and
address claims 29 and 32 separately. 37 C.F.R. § 41.50(b).
Claim 27
Claim 27 is similar to claim 19 except that it does not require a
receptacle to be “removable and replaceable within the receptacle frame.”
App. Br. 11 (Claims App.). The Examiner relies on Tisbo to teach the cart
frame and on Emary to teach the remaining limitations. Apr. 4, 2016 Non-
Final Act. 6—7 (citing Tisbo, Fig. 1; Emary, Figs. 4—9). Specifically, the
5
Appeal 2017-006023
Application 13/058,367
Examiner finds that Emary’s: (1) tray unit 12 (“Rec 1”) corresponds to the
claimed receptacle; (2) tray unit 14 (“Rec 2”) corresponds to the claimed
underlying receptacle; (3) elements 72 (“LI”), 74 (“L2”), 76, and 78
correspond to the claimed receptacle frame; and (4) the unnumbered knob
(“A”) attached to tray 16 corresponds to the claimed actuator. Id. The
Examiner determines that it would have been obvious at the time of the
invention to combine Tisbo’s cart with Emary’s receptacle system “so that
the cart is configured to effectively transport items in an organized form,
where contents [of] at least some of the receptacles are kept divided,” and to
provide “a means to easily see the contents of a plurality of receptacles
simultaneously.” Id. at 7.
Appellants argue that Emary’s knob is not coupled to a receptacle
frame, but rather “is fixed to an exterior of the tray unit 16.” App. Br. 5.3
Appellants also dispute the Examiner’s contention, Final Act. 9—10, that
“coupled” encompasses indirect connections, citing paragraph 92 of the
Specification in support. Id.
We disagree with Appellants that “coupled” should be narrowly
interpreted to exclude indirect connections. Indeed, the Specification
broadly interprets the term to include “both direct and indirect. . .
couplings.” Spec. 149. The excerpt of the Specification to which
Appellants refer is not to the contrary, as it describes specific embodiments
of the invention rather than the invention itself, and therefore does not
purport to limit the meaning of “coupled.” See In re Bigio, 381 F.3d 1320,
3 Appellants made this and the following arguments in opposition to the
rejection of claim 19, and then stated that the arguments “apply with equal
weight to claim 27.” App. Br. 7.
6
Appeal 2017-006023
Application 13/058,367
1325—26 (Fed. Cir. 2004) (“Absent claim language carrying a narrow
meaning, the PTO should only limit the claim based on the specification or
prosecution history when those sources expressly disclaim the broader
definition.”).
Appellants also argue that Emary’s knob is not movable relative to the
receptacle and the receptacle frame, but rather “moves with the tray units
12—16 and the connecting unit[s] 70—78 to expose the tray units 12—16.”
App. Br. 5. Again, we are not persuaded of Examiner error. As an initial
matter, although it may be said that the knob moves with, rather than relative
to, tray unit 16, the Examiner relies only on tray units 12 and 14 as
corresponding to the claimed receptacle, not on tray unit 16. Ans. 4.
Further, we agree with the Examiner that the knob is movable relative to tray
units 12 and 14, as well as relative to elements 72, 74, 76, and 79. “Relative
motion” is defined as the “change of position of a body with respect to a
second body or to a reference point.” McGraw-Hill Dictionary of
Scientific and Technical Terms 1782 (6th ed. 2003).4 Emary Figures 6-
9 illustrate the knob changing position with respect to tray units 12 and 14,
as well as with respect to elements 72—78, as the drawer expander moves
from a “closed condition” to an “open condition.” Emary, 2:9-17, Figs. 4,
6—9. For example, the distance between the knob and tray unit 12 is greater
in Figure 7, which depicts the trays in an open condition, than it is in Figure
6, which depicts the trays in a closed condition. See Id., Figs. 6—7.
Because Appellants do not apprise us of error in the Examiner’s
determination that the subject matter of claim 27 would have been obvious,
4 We refer to the McGraw-Hill Dictionary of Scientific and Technical Terms
because Dictionary.com does not define “relative motion.”
7
Appeal 2017-006023
Application 13/058,367
we sustain the rejection of claim 27, as well as claims 28, 31, and 33, as
unpatentable over Tisbo and Emary.
Claim 29
Claim 29 depends from claim 27 and additionally recites “wherein the
cart frame includes an upright and a bar, and wherein one or both of the
upright and the bar is adjustable to alter one or more of a height, a length,
and a width of the cart frame.” App. Br. 11 (Claims App.). The Examiner
finds that posts 68 of Tisbo’s cart frame correspond to the claimed upright,
and vertical riser tubes 182 and 190 correspond to the claimed bar. Apr. 1,
2016 Non-Final Act. 8. According to the Examiner, “[t]he height of the cart
frame is adjustable by varying the depth that uprights 68 fit into respective
sockets/pedestals,” and “[t]he height can also be varied by removing the top
tray system (via removing elements 188, 190 from 117, 188 respectively).”
Id. The Examiner further explains that “one having ordinary skill in the art
would reasonably understand that if the upright was inserted and secured
some of the way into the socket, the height of the upright would be increased
(when compared to a height when the upright is inserted all of the way).”
Ans. 6.
Appellants respond that “Tisbo teaches that posts 68 are threaded to
engage a coupling nut 72 with a tapered edge 74, and is silent as to any
adjustability consistent with the claimed invention.” App. Br. 6 (citing
Tisbo, 3:61—4:23); see also Reply Br. 5 (same). Appellants further assert
that “[r\emoving tubes 182 and posts 190 to alter the height does not make
these parts adjustable in a manner consistent with the claimed invention.”
App. Br. 6; see also Reply Br. 5 (“Claim 21 states that one or both of the
8
Appeal 2017-006023
Application 13/058,367
upright and the bar is adjustable, not that one or both of the upright and the
bar is removed.”).
Appellants have not persuaded us that the Examiner erred in rejecting
claim 29. Regarding Tisbo’s posts 68, we disagree with Appellants that
Tisbo teaches that posts 68 are threaded. Instead, base pedestals 66 into
which posts 68 are received, rather than the posts themselves, are threaded
externally; thus, pedestals 66 (not posts 68) “threadedly engage and securely
receive” coupling nuts 72, permitting posts 68 to be inserted into pedestals
66 at varying depths to adjust the height of cart frame. Tisbo, 3:61—4:4,
Figs. 1, 8. Further, Figure 8 of Tisbo supports the Examiner’s finding that
posts 68 need not be inserted fully into pedestals 66, but can be inserted at
varying depths to adjust the height of cart frame. Tisbo, Fig. 8.5 As for
elements 182 and 190, Appellants do not explain why removing the top tray
system, which indisputably changes the height of Tisbo’s cart, would not
quality as adjusting the cart’s height.
Because Appellants do not apprise us of error in the Examiner’s
determination that the subject matter of claim 29 would have been obvious,
we sustain the rejection of claim 29 as unpatentable over Tisbo and Emary.
Claim 32
Claims 32 depends from claim 27 and additionally recites “a barrier
positioned to inhibit removal of the receptacle when the barrier is in a first
position and to permit removal thereof when the barrier is in a second
position.” App. Br. 11 (Claims App.). The Examiner states:
[T]he combination [of Tisbo and Emary] further teaches a barrier
(including elements 100, 102, and the fasteners which are
5 In Figure 8, Pedestal 66 is mistakenly labeled “68.”
9
Appeal 2017-006023
Application 13/058,367
positioned to retain elements 100, 102 to the corresponding cart
frame member under which the receptacle system from Emary is
mounted) positioned to inhibit removal of a receptacle when the
barrier is in a first position (the first position being defined by a
position where the fasteners connect elements 100, 102 to
element S) and to permit removal of the receptacle when the
barrier is in a second position (the second position being defined
by disconnecting elements 100, 102 by removal of the fasteners,
thus permitting the removal of the receptacle from element S).
Final Act. 8—9. The Examiner further asserts that “Dictionary.com defines
barrier as ‘anything that restrains or obstructs progress, access,’” and
elements 100 and 102 and their associated fasteners “restrain or obstruct
progress, access, etc.'” Ans. 8. Appellants respond that “the Examiner
ignores the Appellant’s invention as a whole,” and that paragraph 122 of the
Specification “defines barriers as ‘devices that can be used to prevent or
inhibit access to and/inside the receptacles.” Reply Br. 6. According to
Appellants, Emary’s bracket arms 100, 102 “cannot possibly be used to
prevent or inhibit access to/inside of the tray units 12, 14, 16.” Id.
We are not persuaded of Examiner error. First, we disagree with
Appellants that paragraph 122 of the Specification defines the term
“barrier.” This paragraph merely states that “[s]ome examples of barrier
devices that can be used to prevent or inhibit access to and/or inside the
receptacles are illustrated in Figs. 36—53.” Spec. 1122. Even in light of
Appellants’ Specification, the ordinary meaning of the term “barrier,” as the
Examiner asserts, is broad and does not imply any specific structure.
Therefore, we are not persuaded that the Examiner erred in deeming
Emary’s brackets 100, 102, and their associated fasteners, as corresponding
to the claimed barrier.
10
Appeal 2017-006023
Application 13/058,367
DECISION
For the above reasons, the Examiner’s rejection of claims 19—21, 23,
25, and 26 is reversed, and the rejection of claims 27—29 and 31—33 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)(l)(iv).
AFFIRMED-IN-PART
11