Ex Parte Wynn et al

Patent Trial and Appeal Board

Sep 18, 2013

11424969 (P.T.A.B. Sep. 18, 2013)

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.
11/424,969 06/19/2006 Matthew Wynn 1702.022.04 8468
64935 7590 09/19/2013
TILLMAN WRIGHT, PLLC
P.O. BOX 49309
CHARLOTTE, NC 28277-0076
EXAMINER
RUSH, KAREEN KAY
ART UNIT PAPER NUMBER
3728
MAIL DATE DELIVERY MODE
09/19/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MATTHEW WYNN, DANIEL LEE BIZZELL,
TOM PHILPOTT, and IAN D. KOVACEVICH
____________________

Appeal 2011-010430
Application 11/424,969
Technology Center 3700
____________________

Before: CHARLES N. GREENHUT, BARRY L. GROSSMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-010430
Application 11/424,969
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
2, and 11-28. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The claims are directed to a trashcan having an improved bag
retention member. Claim 1, reproduced below, is the sole independent claim
on appeal:
1. A trashcan, comprising
(a) a container having a base and a peripheral wall
extending upwardly from said base forming an interior space
for receipt of a trash bag therein; and
(b) a trash bag retention member disposed on said
peripheral wall, said retention member defines a passageway
into said interior space of said container and comprising a
plurality of resilient, flexible fingers configured to receive and
retain therebetween a portion of a trash bag, each said finger
extending in a first direction and then curving back to extend in
a generally opposite direction;
(c) wherein each said finger includes
(i) a curved first portion extending outward away
from said peripheral wall that defines a raised lip,
(ii) a second portion extending inward toward said
interior space of said container, an end of the
second portion being disposed inside said
container;
(d) wherein said raised lip of said curved first portion of
each said finger partially encircles a first end of the passageway
into said interior space of said container; and
(e) wherein said end of said second portion of each said
finger partially defines a second end of the passageway into
said interior space of said container;
(f) wherein the passageway is generally funnel shaped.
Appeal 2011-010430
Application 11/424,969
3
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Chan
Hull
US 6,557,716 B1
US 7,387,288 B2
May 6, 2003
Jun. 17, 2008

REJECTION
Claims 1, 2 and 11-28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chan and Hull. Ans. 3.

OPINION
The Examiner found, in relevant part, that Hull discloses a finger with
a curved first portion. Ans. 10 (annotated Figure 4). The curved first portion
identified by the Examiner is element 34 as shown in the annotated Figure 4.
Appellants argue that “the portion of the apparatus of Hull that the Examiner
has labeled as a ‘curved first portion’ is not in fact a finger of Hull, but is
instead a ‘generally cylindrical entrance portion 34’.” Reply Br. 3.
The Hull disclosure is clear in stating that element 34 is an “entrance
portion.” Hull, col. 2, l. 54. The Hull disclosure also is clear in stating that a
plurality of circumferentially-spaced resilient fingers 40-45 “extend from
generally cylindrical entrance portion 34.” Id. at ll. 55-59. This relationship
between entrance 34 and fingers 40-45 is illustrated in Figures 1 and 8 of
Hull. Thus, contrary to the finding by the Examiner, element 34 is not part of
the fingers and does not form a curved first portion of the fingers as required
by the claims.
While it is not entirely clear whether the Examiner made an error in
fact, by interpreting Hull’s cylindrical entrance portion 34 from which
Appeal 2011-010430
Application 11/424,969
4
fingers 40-45 emerge, as part of Hull’s fingers as discussed above (see Reply
Br. 3; Hull, figs. 1, 2, col. 2, ll. 55-59), or an error in law, by unreasonably
construing Hull’s cylindrical entrance portion 34 as being included in that
which one skilled in the art would understand to be encompassed by the
recited term “finger” (see, e.g., In re Cortright, 165 F.3d 1353, 1358 (Fed.
Cir. 1999) (“PTO’s interpretation of claim terms should not be so broad that
it conflicts with the meaning given to identical terms in other patents from
analogous art.”) (see Ans. 4-5, 10-11 (failing to make an express finding or
claim construction on either point), whichever the case, we are constrained
to reverse.

Appeal 2011-010430
Application 11/424,969
5
DECISION
The Examiner’s rejection is reversed.

REVERSED

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