Ex Parte SPILLMANN et al

Patent Trial and Appeal Board

Dec 20, 2018

14158375 (P.T.A.B. Dec. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/158,375 01/17/2014 JACQUES SPILLMANN
109676 7590 12/25/2018
Brooks Kushman P.C./Harman
1000 Town Center
Twenty Second Floor
Southfield, MI 48075
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
HARM0191PUSP 1791
EXAMINER
DABNEY, PHYLESHA LARVINIA
ART UNIT PAPER NUMBER
2655
NOTIFICATION DATE DELIVERY MODE
12/25/2018 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JACQUES SPILLMANN, DERRICK RODGERS, and
LAWRENCE ROMESTANT
Appeal2018-003943
Application 14/158,375
Technology Center 2600
Before ALLEN R. MacDONALD, KAL YANK. DESHPANDE, and
JON M. JURGOV AN, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL 1
1 Appellants indicate the real party in interest is Harman International
Industries, Inc. App. Br. 3.
Appeal2018-003943
Application 14/158,375
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a non-final rejection
of claims 1-3 and 5-20. 2 The Examiner indicates allowability as to claim
4. 3 Non-Final Act. 9. We have jurisdiction under 35 U.S.C. § 6(b).
REVERSED.
Representative Claim
Representative claim 1 under appeal reads as follows ( emphasis,
formatting, and bracketed material added):
1. A speaker rigging assembly comprising:
[A.] a frame;
[B.] a cam pivotally connected to the frame about a pivot
point, with at least two cam surfaces, each of the at
least two cam surfaces being offset at a different
radial distance from the pivot point corresponding
to a splay angle, with an intermediate surface
between the at least two cam surfaces; and
[C.] a unitary link having an elongate shape with a
proximal end pivotally connected to an upper rear
portion of the frame and a distal end having a
contact surface, wherein the distal end of the
unitary link extends from the frame in a deployed
position and the contact surface engages a cam
surface of a cam of an adjacent speaker rigging
assembly;
[D.] wherein at least one of the frame and the unitary link
are adapted to be mounted to a speaker assembly.
2 Although only claims 1-3, 5-9, and 15-19 are listed in the heading of the
rejection (Non-Final Act. 2), claims 10-14 and 20 are also discussed in the
body of the rejection (Non-Final Act. 5-7, 9).
3 Although listed with claim 4 as allowable, claims 10 and 20 are rejected.
2
Appeal2018-003943
Application 14/158,375
Adamson
Reference
US 7,328,769 Bl
Rejection on Appeal
Feb. 12,2008
The Examiner rejected claims 1-3 and 5-20 under 35 U.S.C. § I03(a)
as being unpatentable over Adamson. 4
Issue on Appeal
Did the Examiner err in rejecting claim 1 as being obvious?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred.
A.
The Examiner determines Adamson teaches a "unitary link ( fig. 11;
35, 45, 48, 50, 60-61; wherein at least pins, 45, 50 and 60-61, is [sic]
elongated, has proximal and distal ends, and connected to the frame)."
Non-Final Act. 2.
B.
The contentions we discuss are determinative as to the rejections on
appeal. Therefore, Appellants' other contentions are not discussed in detail
herein.
4 The contentions discussed herein as to claim 1 are determinative as to this
rejection. Therefore, except for our ultimate decision, we do not discuss
claims 2, 3, and 5-20 further herein.
3
Appeal2018-003943
Application 14/158,375
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a).
The Examiner relies on six different elements disclosed in
Adamson (i.e., a handle/knob 35, a locking pin 45, a handle 48,
a second locking pin 50 and stabilizing pins 60 and 61) for
satisfying the "unitary Zin~' limitations. (Office Action, p. 2.)
The definition of "unitary" is "of or relating to a unit," "based on
or characterized by unity or units," "having the character of a
unit: undivided, whole." (Merriam-Webster online dictionary,
accessed September 20, 2016.) Adamson discloses the
handle/knob 35, locking pin 45, handle 48, second locking pin
50 and stabilizing pins 60 and 61 as six separate components of
a rigging system. (Adamson, Figs. 7 and 11.) Adamson's six
components are not an undivided/whole link; rather, these
components are an assortment of different parts in a rigging
system. Adamson does not disclose a "unitary" link as required
by claims 1, 11 and 15.
App. Br. 8.
C.
The Examiner responds by reiterating that "Adamson clearly teaches a
"unitary" link having an elongate shape with a proximal end since any of
elements 35, 48, 50, 60-61; are elongated, having proximal and distal ends,
and connected to the frame." Ans. 2.
D.
As articulated by the Federal Circuit, the Examiner's burden of
proving non-patentability is by a preponderance of the evidence. See In re
Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) ("preponderance of the
evidence is the standard that must be met by the PTO in making rejections").
"A rejection based on section 103 clearly must rest on a factual basis[.]" In
re Warner, 379 F.2d 1011, 1017 (CCPA 1967). "The Patent Office has the
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Appeal2018-003943
Application 14/158,375
initial duty of supplying the factual basis for its rejection. It may not ...
resort to speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies in its factual basis." Id.
We conclude the Examiner's analysis fails to meet this standard
because the rejections do not adequately explain the Examiner's findings of
fact. Particularly, we agree with Appellants that Adamson does not teach
the claim 1 limitation of "a unitary link." We conclude, consistent with
Appellants' arguments, there is insufficient articulated reasoning to support
the Examiner's finding that Adamson teaches this limitation. Therefore, we
further conclude that there is insufficient articulated reasoning to support the
Examiner's final conclusion that claim 1 would have been obvious to one of
ordinary skill in the art at the time of Appellants' invention.
CONCLUSIONS
(1) Appellants have established that the Examiner erred in rejecting
claims 1-3 and 5-20 as being unpatentable under 35 U.S.C. § 103(a).
(2) On this record, the Examiner has not shown claims 1-3 and 5-20
to be unpatentable.
DECISION
We reverse the Examiner's rejection of claims 1-3 and 5-20.
REVERSED
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