Ex parte Sommer et al.

Board of Patent Appeals and Interferences

Apr 15, 1998

08163265 (B.P.A.I. Apr. 15, 1998)

Application for patent filed December 6, 1993.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte ROBERT L. SOMMER
and
DONALD L. GEMPERLINE
_____________
Appeal No. 97-0739
Application 08/163,2651
______________
ON BRIEF
_______________
Before MEISTER, FRANKFORT and McQUADE, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
Appeal No. 97-0739
Application 08/163,265
Our understanding of this foreign language document 2
is based upon a translation prepared for the U.S. Patent and
2
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 20, which are all of the claims
pending in this application.
Appellants' invention relates to a hanger aid that is
used temporarily with a pole to suspend a lightweight object from
an elevated structure. See, for example, Figures 1 and 2 of the
application drawings. Claims 1, 12 and 16 are representative of
the subject matter on appeal and a copy of those claims may be
found in the Appendix to appellants' brief.
The prior art references of record relied upon by the
examiner as evidence of obviousness of the claimed subject matter
are:
Sturges 1,852,629 Apr. 5, 1932
Richman et al. (Richman) 4,958,595 Sept. 25, 1990
Goldstein et al. (Goldstein) 5,060,995 Oct. 29, 1991
Smith 5,181,683 Jan. 26, 1993
Schmidt 100,196 Nov. 5, 1940
(Swedish Patent)2
Appeal No. 97-0739
Application 08/163,265
Trademark Office. A copy of that translation accompanies
this decision.
3

Claims 1 through 3, 5, 6 and 9 stand rejected under
35 U.S.C. § 103 as being unpatentable over Smith in view of
Sturges.
Claims 4, 12, 16 and 17 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Smith in view of Sturges as
applied to claims 1 through 3 above, and further in view of
Goldstein.
Claims 7 and 8 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Smith in view of Sturges as applied to
claim 1 above, and further in view of Richman.
Claims 10 and 11 stand rejected under 35 U.S.C. § 103
as being unpatentable over Smith in view of Sturges as applied to
claims 1 and 9 above, and further in view of Schmidt.
Claims 13 through 15, 18 and 19 stand rejected under
Appeal No. 97-0739
Application 08/163,265
As to the rejections listed as issues (g) through (k) 3
on page 6 of appellants' brief, the examiner has made clear on
pages 15-16 of the answer (Paper No. 14) that those rejections
have now been withdrawn.
4
35 U.S.C. § 103 as being unpatentable over Smith in view of
Sturges and Goldstein as applied to claim 12 above, and further
in view of Richman.
Claim 20 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Smith in view of Sturges and Goldstein as
applied to claim 16 above, and further in view of Schmidt.3
Reference is made to the examiner's answer (Paper
No. 14, mailed August 16, 1996) and to the supplemental
examiner's answer (Paper No. 16, mailed September 6, 1996) for
the examiner's reasoning in support of the above-noted
rejections. Appellants' arguments against the examiner's
rejections are found in appellants' brief (Paper No. 13, filed
June 3, 1996) and reply brief (Paper No. 15, filed August 26,
1996).
OPINION
Appeal No. 97-0739
Application 08/163,265
5
Our evaluation of the obviousness issues raised in this
appeal has included a careful assessment of appellants'
specification and claims, the applied prior art references, and
the respective positions advanced by appellants and the examiner.
As a consequence of our review, we have reached the conclusion
that
none of the examiner's rejections before us on appeal will be
sustained. Our reasons follow.
Looking at the basic combination of Smith and Sturges,
we share the examiner's view (answer, pages 4-5) that it would
have been obvious to one of ordinary skill in the art from the
combined teachings of Smith and Sturges to replace the rod or
pole receiving aperture (438) of the hanger aid (410) of Smith
Figure 6 with an open bottom receiving member having a hollow
interior which is tapered upwardly to temporarily receive an
end of a pole and to have such receiving member mounted on the
forward edge (418) and offset from the body of the hanger (410),
as suggested in Sturges. Where we part company with the examiner
is in the further conclusion that it would have been merely "a
Appeal No. 97-0739
Application 08/163,265
6
matter of obvious mechanical expedient and design choice to make
the material [more correctly the entire holder of Smith] out of
wire" (answer, page 5).
Smith repeatedly refers to the holder therein as
having "a rigid body" (see, e.g., col. 1, line 59, and claims 1,
3 and 4 thereof) and discloses that the holder is "preferably
constructed of a rigid material such as wood or the like"
(col. 2, lines 24-25). Sturges likewise conveys the idea that
the mooring device therein is made of a sturdy, rigid material.
Page 1, lines 42-44, of Sturges notes that the body member (A) of
the mooring device is formed of "a metal plate or casting." Both
of these references appear to us to teach away from a relatively
light-weight wire construction as seen in appellants' application
and as set forth in the claims on appeal. Given the disclosure
in the applied references, we conclude, as appellants have
(brief, page 7), that the examiner's proposed modification of
the holder of Smith as modified by Sturges to be made of a wire
member is based on hindsight derived from appellants'
application. Regarding claim 3 on appeal, we share appellants'
view as expressed in the last paragraph on page 8 of their brief.
Appeal No. 97-0739
Application 08/163,265
7
For these reasons, we will not sustain the examiner's rejection
of claims 1 through 3, 5, 6 and 9 under 35 U.S.C. § 103 based on
the teachings of Smith and Sturges.
Having reviewed the patents to Goldstein, Richman and
Schmidt also applied by the examiner, we find nothing therein
which overcomes or supplies the deficiencies of the basic com-
bination of Smith and Sturges as discussed above. In addition,
we note our agreement with appellants' position (reply brief,
pages 1-3) concerning the appropriate more narrow interpretation
to be given the terminology "spiral-shaped" in claims 4 and 12 on
appeal, and "series of spirals" as used in claim 16 on appeal.
In addition to the arguments made by appellants, we observe that
each of these claims requires the pole receiving member or series
of spirals to define a hollow interior "which is tapered
upwardly." Accordingly, it follows that the examiner's
respective rejections of claims 4, 7, 8 and 10 through 20 under
35 U.S.C.
§ 103 will likewise not be sustained.
Appeal No. 97-0739
Application 08/163,265
8
Based on the foregoing, the decision of the examiner
rejecting claims 1 through 20 under 35 U.S.C. § 103 is reversed.
REVERSED
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
JOHN P. McQUADE )
Administrative Patent Judge )
Appeal No. 97-0739
Application 08/163,265
9
Charles R. Wilson
4729 Cornell Road
Cincinnati, OH 45241