Ex Parte Zeigler

Patent Trial and Appeal Board

Mar 25, 2016

13113704 (P.T.A.B. Mar. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/113,704 05/23/2011
44012 7590 03/29/2016
WRB-IPLLP
801 N. Pitt Sreet, Suite 123
ALEXANDRIA, VA 22314
FIRST NAMED INVENTOR
Theodore R. Zeigler
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.
000002-092 1139
EXAMINER
HAWK, NOAH CHANDLER
ART UNIT PAPER NUMBER
3636
NOTIFICATION DATE DELIVERY MODE
03/29/2016 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):
HARRY@WRB-IP.COM
angie@wrb-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THEODORE R. ZEIGLER
Appeal2014-003068
Application 13/113,704
Technology Center 3600
Before LYNNE H. BROWNE, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Theodore R. Zeigler (Appellant) appeals under 35 U.S.C. § 134(a)
from the Examiner's decision to reject (1) under 35 U.S.C. § 102(b) claims
1--4, 9-12, 14--16, and 18-20 as anticipated by Zeigler (US 7,712,261 B2;
iss. May 11, 2010); and (2) under 35 U.S.C. § 103(a) claim 17 as
1 The Examiner indicates that (1) "[ c ]laims 6-8 are allowed"; and (2) "[ c ]laim
13 is objected to as being dependent upon a rejected base claim, but would be
allowable if rewritten in independent form including all of the limitations of
the base claim and any intervening claims." See Final Act. 9 (mailed April 3,
2013); see also id. at 1 (Office Action Summary).
Appeal2014-003068
Application 13/113,704
unpatentable over Zeigler. Claim 5 has been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to collapsible structures and, more
particularly, to such structures including pivotable strut pairs that include
stops for limiting pivotable movement of the struts." Spec. para. 1; Fig. 2.
Claims 1, 14, 19, and 20 are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A structural module, comprising:
a first strut pair comprising a first strut and a
second strut pivotably connected to each other at a
first strut pair pivotable connection point disposed
in a middle half of each of the first strut and the
second strut:
a second strut pair comprising a third strut
and a fourth strut pivotably connected to each other
at a second strut pair pivotable connection point
disposed in a middle half of each of the third strut
and the fourth strut;
a first hub, a first end of the first strut and a
first end of the third strut being pivotably connected
to the first hub;
a second hub, a first end of the second strut
and a first end of the fourth strut being pivotably
connected to the second hub; and
a stop having a first end that at least partially
defines an abutment end of the stop, and a second
end pivotably connected to the first strut and to the
third strut,
wherein the structural module is movable
between a closed position in which the abutment
end of the stop is spaced from the second huh and
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Appeal2014-003068
Application 13/113,704
an open position in which the abutment end of the
stop contacts the second hub.
ANALYSIS
Anticipation by Zeigler
Claims 1--4, 9-12, 14-16, and 18-20
Independent claim 1 recites, in relevant part, "a first strut pair
comprising a first strut and a second strut pivotably connected to each other
at a first strut pair pivotable connection point disposed in a middle half of
each of the first strut and the second strut" and "a second strut pair
comprising a third strut and a fourth strut pivotably connected to each other
at a second strut pair pivotable connection point disposed in a middle half of
each of the third strut and the fourth strut." Appeal Br. 10, Claims App.
The Examiner finds:
Zeigler discloses a first strut pair (27a and the "black" strut
33a/37a seen below in annotated Figures 5 and lB) pivotably
connected at a pivotable connection point (35a) in the middle half
of each strut and a second strut pair (27b and the "dotted" strut
33b/37b seen below) pivotably connected at a pivotable
connection point (3 5b) in the middle half of each strut.
Ans. 3 (citing the Examiner's annotated version of Figures lB and 5 of
Zeigler at Ans. 4); see also Final Act. 2. The Examiner further finds:
The ordinary meaning of the word "strut" includes "a long,
thin piece of wood or metal used for support in a building,
vehicle, etc.["] [Merriam-Webster Online, http://www.merriam-
webster.com/dictionary/strut, (retrieved 10/29/2013)] [.]
Such a definition does not require that a strut be a single,
unitary or linear piece. The [E]xaminer has found that a strut (the
"black" strut, seen above) is formed comprising Zeigler's
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Appeal2014-003068
Application 13/113,704
elements 33a and 37a and another strut (the "dotted" strut, seen
above) is formed comprising Zeigler' s elements 3 3 b and 3 7b.
Such struts are pivotably joined at a middle half thereof to
another strut (27a or 27b, respectively) to form a strut pair and
meet the definition of a "strut" insofar as they provide a long,
thin piece of metal (Zeigler teaches the use of aluminum tubes to
form the struts - Column 2, lines 46-4 7) used for support in a
building.
Ans. 5 (citing the Examiner's annotated version of Figures lB and 5 of
Zeigler at Ans. 4).
Appellant contends:
The Examiner's position (A) ignores the recitation that the struts
of the strut pair are connected to each other in the middle half of
the struts, and (B) ignores the disclosure of Zeigler that the struts
33a and 37a and the struts 33b and 37b are disclosed as being
separate struts and are movable independently of each other,
which is completely contrary to the notion of them being or
functioning as a single struts [sic].
At least because Zeigler manifestly does not disclose strut
pairs with first and second struts that are pivotably connected to
each other at a str11t pair pivotable connection point disposed in
a middle half of each of the first strut and the second strut.
Appeal Br. 8 (underline added); see also id. at 7; Reply Br. 2-3.
When claim terminology is construed in the United States Patent and
Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004). Further, "the claims themselves provide substantial guidance as to
the meaning of particular claim terms." Phillips v. AWH Corp., 415 F.3d
1303, 1314 (Fed. Cir. 2005) (citing Vitronics Corp. v. Conceptronic, Inc., 90
F.3d 1576, 1582 (Fed. Cir 1996)).
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Appeal2014-003068
Application 13/113,704
The Examiner finds that Appellant's Specification does not provide an
explicit definition of the term "strut." See Ans. 5. However, Appellant's
disclosure describes:
[T]he first strut pair 25 pivotable connection point 31 is
ordinarily disposed along a middle half of each of the first and
second struts 27 and 29, and the second strut pair 33 pivotable
connection point 39 is also ordinarily disposed along a middle
half of each of the third and fourth struts 3 5 and 3 7.
Spec., para. 28 (emphasis added), Fig. 2.
The term "pair" modifies the strut, in that two, and only two,
corresponding struts make up the respective first and second strut pairs.
Accordingly, a person of ordinary skill in the art, when interpreting the
claimed terms "the first strut" and "the second strut" in light of the
Specification and in light of the claimed term "the first strut pair" would
understand that the two corresponding "first and second struts" constitute
"the first strut pair." Further, a person of ordinary skill in the art, when
interpreting the claimed terms "the third strut" and "the fourth strut" in light
of the Specification and in light of the claimed term "the second strut pair"
would understand that the two corresponding "third and fourth struts"
constitute "the second strut pair."
Zeigler teaches: "at least two struts 27a and 27b"; "at least two
locking struts 33a and 33b"; and "at least two second struts 37a and 37b."
See Zeigler, col. 2, 11. 40-41, col. 3, 11. 1-2, 60-61, Fig. lB. Upon review of
Zeigler' s disclosure, a person of ordinary skill in the art would recognize
that 27a, 33a, and 37a are three separate struts and 27b, 33b, and 37b are
three separate struts and that neither strut 27a with struts 33a/37a nor strut
27b with struts 33b/37b constitutes the respective first and second "strut
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Application 13/113,704
pair" recited in claim 1. See Appeal Br. 7-8; Ans. 3, 5. Moreover, although
Zeigler teaches that second struts 37a and 37b and locking struts 33a and
33b are each connected at respective pivot points 35a and 35b of respective
struts 27a and 27b, the Examiner does not direct us to any discussion in
Zeigler regarding movement of the second struts about the pivot points being
contingent upon/related to the locking struts movement about the pivot
points or vice versa. See Zeigler, col. 3, 11. 4---6, 63---66; see also Appeal Br.
6-8; Reply Br. 2-3. Against this background, the Examiner's interpretation
of Zeigler's strut 27a with struts 33a/37a and strut 27b with struts 33b/37b as
constituting the respective first and second "strut pair" recited in claim 1 is
untenable. See Final Act. 2; Ans. 3, 5; see In re Cortright, 165 F.3d 1353,
1358 (Fed. Cir. 1999) ("Although the PTO must give claims their broadest
reasonable interpretation, this interpretation must be consistent with the one
that those skilled in the art would reach.").
Each of independent claims 14, 19, and 20 include limitations to a
"strut pair" as discussed for claim 1. See Appeal Br. 12-15, Claims App.
The Examiner relies on the same unsupported findings for claims 14, 19, and
20 as discussed above in claim 1. See Final Act. 5-8. Thus, the Examiner's
findings with respect to Zeigler are deficient for claims 14, 19, and 20 as
well.
Accordingly, for the foregoing reasons, we do not sustain the
Examiner's rejection of independent claims 1, 14, 19, and 20 and their
respective dependent claims 2--4, 9-12, 15, 16, and 18 as anticipated by
Zeigler.
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Application 13/113,704
Claim 17
Obviousness over Zeigler
The Examiner's proposed modification of Zeigler does not remedy the
deficiency discussed above. See Final Act. 9. Accordingly, for similar
reasons, we do not sustain the Examiner's rejection of dependent claim 17 as
unpatentable over Zeigler.
DECISION
We REVERSE the decision of the Examiner to reject claims 1--4, 9-
12, and 14--20.
REVERSED
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