Ex Parte Westberg et al

Patent Trial and Appeal Board

Dec 2, 2016

12718737 (P.T.A.B. Dec. 2, 2016)

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.
12/718,737 03/05/2010 Todd C. Westberg 507686 5510
53609 7590 12/06/2016
REINHART BOERNER VAN DEUREN P.C.
2215 PERRYGREEN WAY
ROCKFORD, IL 61107
EXAMINER
IWARERE, OLUSEYE
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
12/06/2016 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):
RockMail@reinhartlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TODD C. WESTBERG and JOERG NIEDERHUEFNER
Appeal 2014-006865
Application 12/718,737
Technology Center 3600
Before BIBHU R. MOHANTY, CYNTHIA L. MURPHY, and
MATTHEW S. METERS, Administrative Patent Judges.
MOHANTY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1—10 and 12 which are all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF THE DECISION
We REVERSE.
Appeal 2014-006865
Application 12/718,737
THE INVENTION
The Appellants’ claimed invention is directed to a retail display
system (Spec., para. 10). Claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A method for monitoring inventory levels of retail merchandise
contained in a self facing retail display system, the self facing retail
display system defining a retail merchandise confinement space for
receipt of one or more items of retail merchandise and a pusher for
biasing said one or more items of retail merchandise towards a front
end of the self facing retail display system, comprising the steps
of:
sensing a parameter associated with a movement of the pusher
of the self facing retail display system using a sensor, wherein the
sensor includes first and second parallel electrical contact strips, and
wherein the step of sensing the parameter includes detecting an
intermittent completion of an electrical circuit between the first and
the second electrical contact strips based upon movement of the
pusher; and
determining a repeating value of a number of intermittent
completions of the electrical circuit based upon said sensing during
placement or removal of a single unit of the one or more items of
retail merchandise from the self facing retail display system.
THE REJECTIONS
The following rejections are before us for review:
1. Claims 1—4, 6—10, and 12 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Hill (U.S. 2004/0034581 Al, Feb. 19, 2004) and Cheng
(US 2006/0219517 Al, Oct. 5, 2006).
2. Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Hill, Cheng, and White (US 2007/0273513 Al, Nov. 29, 2007).
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Appeal 2014-006865
Application 12/718,737
FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence1.
ANALYSIS
The Appellants argue that the rejection of claim 1 is improper because
the cited prior art fails to disclose the claim limitation for
sensing a parameter associated with a movement of the pusher of the
self facing retail display system using a sensor, wherein the sensor
includes first and second parallel electrical contact strips, and
wherein the step of sensing the parameter includes detecting an
intermittent completion of an electrical circuit between the first and
the second electrical contact strips based upon movement of the
pusher
(App. Br. 6-9, Reply Br. 6-10 (emphasis added)).
In contrast, the Examiner has determined that the cited claim
limitations are shown by Cheng at paragraph 19, and Hill in the Abstract,
and paragraph 42 (Final Rej. 2, 3, Ans. 5).
We agree with the Appellants. Here, the above cited claim limitation
requires sensing a parameter associated with a movement of the pusher
.. .wherein the sensor includes first and second parallel electrical contact
strips, and wherein the step of sensing the parameter includes detecting an
intermittent completion of an electrical circuit between the first and the
second electrical contact strips. The above citations to the prior art fail to
disclose this. For example, Cheng at para. 19 does disclose using sensors
1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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Appeal 2014-006865
Application 12/718,737
116 for monitoring the supply of products, but this could be done by
measuring weight for example and there is no specific disclosure of sensing
movement of a pusher with first and second parallel contact strips in the
specific manner claimed. Hill in the Abstract discloses keeping track of
items by the sensor transducers measuring weight, not movement in the
manner claimed. Hill at paragraph 42 does disclose using sensors but again
there is no specific disclosure of sensing movement of a pusher with first
and second parallel contact strips in the specific manner claimed.
The Examiner in the Answer states that
Cheng [0019] discusses electrical sensors which must have some
electric contact strips in order to be powered. ... [and this is]
construed to have AC which requires a first contact strip for power
and second for ground. Therefore, the Cheng . . . teaches two contact
strips by virtue of providing AC power to the sensors.
(Ans. 5, 6). We disagree with this contention. The sensors in Cheng at para.
19 have not specifically been shown to be electrical at this paragraph, and
could be mechanically based. Regardless, being powered by electrical
power could for instance be done through positive and negative point like or
post terminals and not by the required first and second parallel electrical
contact strips. Here, both Cheng and Hill at the above cited portions fail to
specifically disclose sensing a parameter associated with a movement of the
pusher .. .wherein the sensor includes first and second parallel electrical
contact strips, and wherein the step of sensing the parameter includes
detecting an intermittent completion of an electrical circuit between the first
and the second electrical contact strips. For these reasons the rejection of
claim 1 and the rejections of dependent claims 2—10 and 12 are not
sustained.
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Appeal 2014-006865
Application 12/718,737
CONCLUSIONS OF LAW
We conclude that Appellants have shown that the Examiner erred in
rejecting the claims as listed in the Rejections section above.
DECISION
The Examiner’s rejection of claims 1—10 and 12 is reversed.
REVERSED
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