Ex Parte Wells

Board of Patent Appeals and Interferences

Mar 7, 2012

10931952 (B.P.A.I. Mar. 7, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte LOUISE A. WELLS
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Appeal 2009-012795
Application 10/931,952
Technology Center 3600
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Before JOHN C. KERINS, STEVEN D.A. McCARTHY and
KEN B. BARRETT, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s 2
decision finally rejecting claims 1-4, 12 and 15. The Examiner rejects 3
claims 1-3 under 35 U.S.C. § 102(b) as being anticipated by Tarver (US 4
5,046,861, issued Sep. 10, 1991) and by Zommers (US 4,665,964, issued 5
May 19, 1987); and claims 4, 12 and 15 under 35 U.S.C. § 103(a) as being6

1 The Appellant is the real party in interest.
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unpatentable over Zommers. Claims 5-11, 13 and 14 are cancelled. We 1
have jurisdiction under 35 U.S.C. § 6(b). 2
We sustain the rejection of claim 1 under § 102(b) as being 3
anticipated by Zommers. We do not sustain the remaining rejections. 4
Claims 1 and 15 are independent claims. Claim 1 recites: 5
1. A curtain hanging fixture comprising: 6
a first track anchor having a first track proximal 7
end and a first track distal end, and a second track 8
anchor, having a second track proximal end and a 9
second track distal end, wherein said first track 10
anchor and said second track anchor are attached 11
substantially adjacent to a decorating area, said 12
decorating area having a desired color; 13
a first slide support, and a second slide support, 14
wherein said first slide support is slidably engaged 15
with said first track anchor, and said second slide 16
support is slidably engaged with said second track 17
support; and 18
a first universal bracket secured to said first slide 19
support, and a second universal bracket secured to 20
said second slide support. 21
22
ISSUES 23
Claims 2-4 and 12 depend from claim 1. The Appellant argues the 24
rejection of claim 2 as being anticipated by Zommers separately from the 25
rejection of claim 1 over that reference (See Br. 13) and repeats these 26
arguments with respect to the rejection of claim 4, 12 and 15 under § 103(a) 27
(see, e.g., Br. 16-17). Only issues and findings of fact contested by the 28
Appellant will be addressed. See Ex Parte Frye, 94 USPQ2d 1072, 1075-76 29
(BPAI 2010). 30
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This issue raises multitudinous issues: 1
First, does Tarver disclose first and second universal 2
brackets? (Br. 8-9). 3
Second, does Zommers disclose a fixture including first 4
and second track anchors (see Br. 10); first and second slide 5
members (Br. 11); and first and second universal brackets (see 6
id.)? 7
Third, does Zommers disclose a fixture including a first 8
track anchor having first top and bottom locks? (Br. 13). 9
10
FINDINGS OF FACT 11
The record supports the following findings of fact (“FF”) by a 12
preponderance of the evidence. 13
1. Tarver describes a drawer slide 10 including first and second 14
guide bars 12; first and second slide bars 38 slideably fastened within the 15
first and second guide bars 12, respectively; and a drawer 54 suspended 16
between end portions of the first and second slide bars 38. (Tarver, col. 3, ll. 17
20-24, 42-46 and 58-63; id., figs. 1 and 3). The drawer 54 is slideably 18
suspended between the end portions of the first and second slider bars 38 19
exclusively by means of front and rear drawer suspender screws 44a, 44b. 20
(Id.; Tarver, col. 4, ll. 7-9). 21
2. Zommers describes a foldably extensible and collapsible shade 22
member 2 for shading a skylight 19. (Zommers, col. 3, ll. 57-68 and fig. 2). 23
3. Zommers’ shade member 2 is supported by means of track 24
defining members 10 mounted on opposing sides 12 of a frame 14 of the 25
skylight 19. (Id.) The track defining members 10 define tracks 16 in the 26
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form of slotted upper tubes 36 bounded on one side by center webs 34. (Id.; 1
Zommers, col. 4, ll. 35-46). Figure 7 of Zommers depicts the slotted upper 2
tube or track 36 as a T-shaped channel. (Compare Zommers, fig. 7 with 3
Spec. 6, ll. 11-13 and fig. 3). 4
4. Zommers’ track defining member 10 supports carrier elements 5
18. The carrier elements 18 are adapted to be paired with one another to 6
support opposing trunnions or rods 6 of the shade member 2. (Zommers, 7
col. 3, l. 68 – col. 4, l. 6). 8
5. Zommers’ carrier elements 18 include orthogonal block-like 9
bodies 44 having top and bottom grooves 46, 48. The top and bottom 10
grooves 46, 48 are adapted to slideably engage the tracks 16 of the track 11
defining members 10. (Id.; Zommers, col. 4, ll. 50-59). As depicted in 12
Figure 7-9, the top and bottom grooves 46, 48 define portions of the bodies 13
44 having T-shaped cross-sections adapted to fit within the slotted upper 14
tubes or tracks 16, 36. 15
6. Zommers’ carrier elements 18 also include annular or trough-16
like projections 50 which cantilever (that is, project laterally) from the 17
bodies 44. The trough-like projections 50 receive and support the trunnions 18
or rods 6 of the shade member 2. (Zommers, col. 4, ll. 59-68). 19
7. Zommers also describes extension and retraction means 20 for 20
extending or retracting the shade member 2 when the trunnions 6 are 21
supported on the carrier elements 18. (Zommers, col. 4, ll. 6-15). Zommers 22
does not appear to describe any means for fastening or shackling the carrier 23
elements 18 in place in the tracks 16 of the track defining members 10. 24
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PRINCIPLES OF LAW 1
A claim under examination is given its broadest reasonable 2
interpretation consistent with the underlying specification. In re Am. Acad. 3
of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). In the absence of 4
an express definition of a claim term in the specification or a clear 5
disclaimer of scope, the claim term is interpreted as broadly as the ordinary 6
usage of the term by one of ordinary skill in the art reasonably would permit. 7
In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In 8
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Properties of preferred 9
embodiments described in the specification which are not recited in a claim 10
do not limit the reasonable scope of the claim. E-Pass Techs., Inc. v. 3Com 11
Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003). 12
13
ANALYSIS 14
First Issue 15
The Examiner finds that Tarver’s front and rear drawer suspender 16
screws 44a, 44b correspond to the first universal bracket recited in claim 1. 17
(See Ans. 4-5; see also FF 1). Although the Appellant does not formally 18
define the term “bracket” in the Specification, the ordinary usage of the term 19
is limited to a laterally projecting structure for supporting a vertical load or 20
to strengthen an angle. (See WEBSTER’S THIRD NEW INT’L DICTIONARY 21
(G&C Merriam Co. 1971)(“bracket,” defs. 1, 2b and 3)). This usage is 22
consistent with the appearance of the universal bracket 7 as depicted in 23
Figure 3 of the Appellant’s drawing. Tarver’s front and rear drawer 24
suspender screws 44a, 44b do not include laterally projecting structure for 25
supporting a vertical load. Since the Examiner has not adequately explained 26
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why Tarver’s front and rear drawer suspender screws 44a, 44b are universal 1
brackets, we do not sustain the rejection of claim 1 under § 102(b) as being 2
anticipated by Tarver. 3
4
Second Issue 5
Contrary to the Appellant’s argument at page 12 of the Brief, the 6
Examiner adequately notified the Appellant of the findings underlying the 7
rejection of claim 1under § 102(b) as being anticipated by Zommers. In 8
particular, the Examiner appears to have identified a component of 9
Zommers’ apparatus as depicted in Figures 1-14 corresponding to each 10
limitation of claim 1 by reference numeral. Since the rejection as articulated 11
by the Examiner is not so uninformative that the Appellant was prevented 12
from recognizing and seeking to counter the grounds for rejection, the 13
Examiner properly explained the ground of rejection. See In re Jung, 637 14
F.3d 1356, 1362 (Fed. Cir. 2011). 15
Despite the Appellant’s arguments to the contrary (see Br. 10-11), 16
Zommers describes apparatus including first and second track anchors, that 17
is, track defining members 10, having T-shaped channels; first and second 18
slide supports, that is, orthogonal block-like bodies 44, having portions with 19
T-shaped cross-sections adapted to fit within the track anchors; and first and 20
second universal brackets, that is, trough-like projections 50, adapted to 21
support rods or trunnions 6. (FF 3, 5 and 6). Proof of anticipation does not 22
require a prior art apparatus resembling the Appellant’s preferred 23
embodiment or functioning in an identical manner. (Cf. Br. 11 (arguing 24
lack of resemblance between the prior art apparatus and the Appellant’s 25
preferred embodiment)). Neither is evidence proving anticipation rebutted 26
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by an arguable showing that the reference “teaches away” from the claimed 1
subject matter. Celertitas Techs. v. Rockwell Int’l Corp., 150 F.3d 1354, 2
1361 (Fed. Cir. 1998). We sustain the rejection of claim 1 under § 102(b) as 3
being anticipated by Zommers. 4
5
Third Issue 6
The Examiner finds that the opposite ends of Zommers’ channels 36 7
correspond to the top and bottom locks recited in claims 2 and 15. (See Ans. 8
5; see also FF 7). Although the Appellant does not formally define the term 9
“lock” in the Specification, the ordinary usage of the term is limited to 10
structure for fastening or shackling other structure. (See WEBSTER’S THIRD 11
NEW INT’L DICTIONARY (G&C Merriam Co. 1971)(“lock,” defs. 1a and 1b)). 12
This usage is consistent with the description of the top lock 5 and the bottom 13
lock 6 on pages 5 through 6 of the Appellant’s Specification. The opposite 14
ends of Zommers’ channels 36 may limit the movement of the carrier 15
elements 18 but neither fasten nor shackle the carrier elements 18 in any 16
particular place. Since the Examiner has not adequately explained why the 17
opposite ends of Zommers’ channels 36 are universal top and bottom locks, 18
we do not sustain the rejection of claims 2 and 3 under § 102(b) as being 19
anticipated by Zommers, nor the rejection of claims 4, 12 and 15 under 20
§ 103(a) as being unpatentable over Zommers. 21
22
DECISION 23
We AFFIRM the Examiner’s decision rejecting claim 1. 24
We REVERSE the Examiner’s decision rejecting claims 2-4, 12 and 25
15. 26
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No time period for taking any subsequent action in connection with 1
this appeal may be extended under 37 C.F.R. § 1.136(a). 2
3
AFFIRMED-IN-PART 4
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Klh 8