Ex Parte SUMMERVILLE

Patent Trial and Appeal Board

Aug 29, 2018

14530216 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/530,216 10/31/2014
78340 7590 08/31/2018
Emerson, Thomson & Bennett, LLC
1914 Akron-Peninsula Road
Akron, OH 44313
FIRST NAMED INVENTOR
AARON SUMMERVILLE
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.
40198.50033 7858
EXAMINER
TROY, DANIEL J
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
08/31/2018 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):
iplaw@etblaw.com
tlc@etblaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AARON SUMMERVILLE
Appeal2017-005236
Application 14/530,216
Technology Center 3600
Before LINDA E. HORNER, BRETT C. MARTIN, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-005236
Application 14/530,216
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant Aaron Smnmerville 1
appeals from the Examiner's decision, as set forth in the Final Office Action
dated February 12, 2016 ("Final Act."), rejecting claims 1-3 and 5-14. 2 We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The claims are directed to a modular conference table. Claims 1 and
12 are the independent claims on appeal. Claim 1, reproduced below with
disputed limitations italicized for emphasis, is illustrative of the claimed
subject matter:
1. A table comprising:
a substantially planar top surface, wherein the top surface
includes a first non-contiguous end portion and a second non-
contiguous end portion;
two terminal supports comprising a first terminal support
and a second terminal support, wherein the first terminal support
extends perpendicular from the first non-contiguous end portion
and the second terminal support extends perpendicular from the
second non-contiguous end portion; and,
at least two insertable top portion assemblies, wherein
each insertable top portion assembly consists of: an insertable top
portion and a center support, wherein the center support extends
perpendicularly from the insertable top portion, wherein the
center support is substantially in the center of the insertable top
portion;
wherein the insertable top portions are between the non-
contiguous end portions, wherein each of the insertable top
Appellant identifies Regency Seating, Inc. d/b/a Regency, Inc. as the
real party in interest. Appeal Brief, dated October 7, 2016 ("Appeal Br."), 3.
2 Claim 4 is cancelled. Appeal Br. 6
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Application 14/530,216
portions and the two non-contiguous end portions form a
substantially flat surface, wherein one of the insertable top
portions is removably attached to the first non-contiguous end
portion, and another of the insertable top portions is removably
attached to the second non-contiguous end portion.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Okamoto
Gray
US 2003/0089283 Al
US 2007/0277710 Al
REJECTIONS
May 15, 2003
Dec. 6, 2007
The Examiner made the following rejections:
1. Claims 1-3 and 5-14 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
2. Claims 1-3, 7-9, and 12 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over Gray.
3. Claims 5, 6, 10, 11, 13, and 14 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Gray and Okamoto.
Appellant seeks our review of these rejections.
DISCUSSION
Rejection 1: Claims 1-3 and 5-14 as Indefinite
Claims 1-3 and 5-14
The Examiner states that independent claims 1 and 12 ( and their
dependent claims 2, 3, 5-11, 13, and 14) are indefinite because there is no
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Application 14/530,216
antecedent basis for the limitation "two non-contiguous end portions." Final
Act. 3. With respect to claim 1, for example, the Examiner explains that
there are three distinct descriptors for non-contiguous end
portions, with lines 2-3[3J introducing "a first noncontiguous end
portion and a second non-contiguous end portion", line 12
claiming "the non-contiguous end portions", line 13 claiming
"the two non-contiguous end portions", and lastly, lines 14-16
referencing the original terminology of "the first non-contiguous
end portion" (lines 14-15) and 'the second noncontiguous end
portion' (line 16).
Answer, dated December 1, 2016 ("Ans."), at 2. According to the Examiner,
the "inconsistent claim terminology makes it unclear as to whether or not the
same non-contiguous end portions are being referenced throughout the
claim, and as such is considered indefinite." Id. at 2-3. The Examiner states
that similar problems exist for claim 12. Final Act. 3.
While the better practice is to use consistent terminology in claim
drafting, in this case, we agree with Appellant that one skilled in the art
would understand that "two non-contiguous end portions" in line 13 of claim
1 refers to the "first" and "second" non-contiguous end portions. Thus, the
rejection of claims 1 and 12 for this reason is not sustained.
Claims 6, 10, 11, and 14
The Examiner finds that claims 6, 10, 11, and 14 are indefinite. 4 The
Examiner explains that because the reference to "at least two center
3 The line numbers refer to the lines in the Claim Appendix in
Appellant's Appeal Brief.
4 Although the Examiner's statement of the rejection on page 3 of the
Final Office Action discusses only claims 6, 10, and 14, we understand this
rejection to include claim 11, which depends from claim 6, because the
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Application 14/530,216
supports" in claim 6 (line 2) is "unclear as to whether the at least two center
supports are making reference to the previously claimed center supports [in
independent claim 1 ], or if new and entirely separate center supports are
being introduced." Final Act. 3. The Examiner also finds that the reference
to "the two center supports" in claim 6 (line 9) is unclear as to whether it is
referring to "the at least two center supports" in claim 6 (line 2) and/or the
"center supports" in claim 1 (line 9). Id. The Examiner states that similar
problems exist for claims 10 and 14. Id.
In response to the Examiner's rejection, Appellant asserts that
It is clear from the claims, in light of the specification and
drawings, that "at least two center supports" [in claim 6] refers
to the center support in claim 1 being "at least two center
supports," and equally clearly, "the two center supports" are
referring back to "as least two center supports," and "those
skilled in the art would understand what is claimed when the
claim is read in light of the specification."
Appeal Br. 8 ( citation omitted).
After considering the claims and the Specification, we determine that
Examiner has the better position. The claims are awkwardly written and
amenable to two plausible interpretations. In re Miyazaki, 89 USPQ2d
1207, 1211 (BPAI 2008) (precedential) ("if a claim is amenable to two or
more plausible claim constructions, the USPTO is justified in requiring the
applicant to more precisely define the metes and bounds of the claimed
invention by holding the claim unpatentable under 35 U.S.C. § 112, second
paragraph, as indefinite"). We understand that the Examiner reads the
limitations so that claim 1 refers to two center supports and claim 6 adds
Examiner states, "Claims 2, 3, 5, 7-9, 11, and 13 are rejected for depending
from indefinite claims." Final Act. 4.
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third and fourth center supports, and Appellant reads all of the limitations as
referring to only two center supports. Because both interpretations are
plausible in light of the Specification, the claims are indefinite. Here,
Appellant is in the best position to more precisely define the metes and
bounds of his claim.
Thus, the rejection of claims 1-3, 5, 7-9, 12, and 13 as being
indefinite is not sustained, and the rejection of claims 6, 10, 11, and 14 as
being indefinite is sustained.
Claims 1 and 12
Rejection 2: Claims 1-3, 7-9, and 12
as Unpatentable Over Gray
Appellant argues independent claims 1 and 12 as a group. Appeal Br.
9-11. We select claim 1 as the representative claim, and claim 12 stands or
falls with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Gray discloses that the table embodiment
illustrated in Figure 6 has all of the limitations of claim 1, including an
insertable top portion assembly (i.e., extension section 40) consisting of an
insertable top portion (i.e., extension table portion 41) and center support
(i.e., leg 17). Final Act. 4. The Examiner further finds that paragraphs 30,
31, and 35 of Gray explicitly disclose that "the modular table assembly may
be expanded to any desired length with the addition of one or more
[extension] sections 40, which are defined by table extension portion 41, leg
17, and assembly of panels 50, 46." Id. at 5; Ans. 3--4.
Appellant asserts that the Examiner's rejection is erroneous because
Gray does not disclose "at least two insertable top portion assemblies,
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wherein each insertable top portion assembly consists of: an insertable top
portion and a center support," as recited in claim 1. Referring to the table
embodiment in Figure 1, Appellant contends that Gray teaches only one
center support, and "does not teach multiple supports, as recited in amended
claim 1." Appeal Br. 10 ( quoting Gray Abstract ("The use of structural
connecting blocks at the joints between the extension section and each of the
end sections obviates the need for additional supporting legs")); Gray ,r 31
("The extension section 40 includes the same center leg 17 used with the
modular table assembly 10 having only the pair of end sections 11 (FIG. 1 )")
( emphases omitted)).
In response to Appellant's argument, the Examiner correctly explains
that the rejection is based on the table embodiment depicted in Figure 6, not
the embodiment depicted in Figure 1 referenced by Appellant. Ans. 3--4.
We agree with the Examiner that, unlike the Figure 1 table embodiment, the
Figure 6 table has multiple table extensions 40, as recited in claim 1. Ans. 4.
The Examiner also correctly explains that Appellant's argument that Gray
teaches only one center support is incorrect because each additional
extension 40 in the Figure 6 table includes the components of its assembly,
including a portion 41 and a leg 17-a table with two extensions 40 has two
center legs 17. Id. Because Appellant does not address the rejection as
articulated by the Examiner, Appellant does not identify error in the
rejection.
For the reasons above, the rejection of claim 1 is sustained. Appellant
does not argue claim 12 apart from claim 1. We discern no error in the
Examiner's rejection of claim 12, and also sustain the rejection of claim 12.
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Claim 2, 3, and 7-9
Appellant argues that because "Gray does not teach all of the elements
of claim 1, it cannot render obvious" claims 2, 3, and 7-9. Appeal Br. 11-
12. For the reasons discussed above, the rejection of claim 1 is sustained.
Thus, the rejection of claims 2, 3, and 7-9 is also sustained.
Claim 5
Rejection 3: Claims 5, 6, 10, 11, 13, and 14
as Unpatentable Over Gray and Okamoto
Appellant argues that claim 5, through its dependency on claim 1,
requires "a center support for each insertable top portion, whereas Gray
specifically refutes the idea of having a leg for each additional extension
section." Appeal Br. 13. For the reasons discussed above with respect to
claim 1, we agree with the Examiner that Gray discloses that each additional
extension section in the Figure 6 table has a leg. Because Appellant does not
address specifically the rejection of dependent claim 5 as articulated by the
Examiner, Appellant does not identify error in the rejection. Thus, the
rejection of claim 5 is sustained.
Claim 6
Claim 6 recites, in part, table comprising "at least three modesty
panels."
The Examiner finds, in part, that Gray discloses "at least three
modesty panels ( assembly of panels 31, 50, 46) ... wherein the ... panels
have a left side notch (slot 57) and a right side notch (slot 57), and a notch
(slot 56) in the center support." Final Act. 7; Ans. 5.
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Appellant contends that the Examiner's finding is erroneous because
"[t]here is no way that connecting block 46 can be considered a modesty
panel, as a modesty panel is designed to separate the two longitudinal sides
of a table." Appeal Br. 14.
Appellant's argument is not persuasive because it misunderstands the
Examiner's rejection. We do not understand that the Examiner contends that
block 46 is a modesty panel. According to the Examiner, each modesty
panel "assembly" comprises two individual panels 50 and connecting block
46. Final Act. 7; Ans. 5. We also agree with the Examiner's finding that
"[t]aken as an assembly, as specified in the Examiner's prior art rejection,
the modesty panel of Gray clearly illustrates a left-side and a right-side
notch." Ans. 5. The slot 57 in Gray clearly illustrates a notch, as is claimed,
and the Examiner maintains that the claimed notches have no structural
features that differentiate from the prior art. Ans. 5.
Thus, the rejection of claim 6 is sustained.
Claims 10, 11, 13, and 14
Appellant argues that because "Gray does not teach all of the elements
of claim 1, it cannot render obvious" claims 10 and 11. Appeal Br. 16.
Similarly, Appellant argues that because "Gray does not teach all of the
elements of claim 12, it cannot render obvious" claims 13 and 14. Appeal
Br. 17. For the reasons discussed above, the rejection of claims 1 and 12 is
sustained. Thus, the rejection of claims 10, 11, 13, and 14 is also sustained.
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DECISION
For the above reasons, the Examiner's rejections under 35 U.S.C.
§ 112, second paragraph, of claims 1-3, 5, 7-9, 12, and 13 are not sustained,
and of claims 6, 10, 11, and 14 are sustained.
For the above reasons, the Examiner's rejections under 35 U.S.C.
§ 103(a) of claims 1-3 and 5-14 are sustained.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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