Ex Parte Zindl et alDownload PDFPatent Trial and Appeal BoardJul 9, 201813147107 (P.T.A.B. Jul. 9, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/147,107 07/29/2011 530 7590 07/11/2018 LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK 600 SOUTH A VENUE WEST WESTFIELD, NJ 07090 FIRST NAMED INVENTOR Peter Zindl 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. TRODAT 3.3-014 9806 EXAMINER EV ANIS KO, LESLIE J ART UNIT PAPER NUMBER 2854 NOTIFICATION DATE DELIVERY MODE 07/11/2018 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): eOfficeAction@ldlkm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER ZINDL, MARKUS ZEHETNER, and VOLKER MARTIN 1 Appeal2017-011507 Application 13/147, 107 Technology Center 2800 Before BRADLEY R. GARRIS, JEFFREY B. ROBERTSON, and LILAN REN, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner's rejections of claims 1-3 under 35 U.S.C. § 102(b) as anticipated by Moody (US 2006/0144267 Al, Jul. 6, 2006) and of claim 4 under 35 U.S.C. § 103(a) as unpatentable over Moody. We have jurisdiction under 35 U.S.C. § 6. 1 Trodat GMBH is identified as the real party in interest (Br. 2). Appeal2017-011507 Application 13/147, 107 We AFFIRM. Appellants claim a stamp pad assembly for a self-inking stamp compnsmg: a carrying device 130 having lateral surfaces 137, an angular orientation surface 146 arranged on at least one of the lateral surfaces, and at least one structure 133, 134 arranged on the angular orientation surface for securing the carrying device in the self-inking stamp with a corresponding angular orientation surface in a shaft for a stamp pad; and at least one pad for absorbing ink arranged within the carrying device (sole independent claim 1, Figs. 24--28). In a narrower embodiment of the stamp pad assembly, the angular orientation surface extends at an angle of about 45° from a plane of a base plate of the carrying device (dependent claim 4). A copy of representative claims 1 and 4, taken from the Claims Appendix of the Appeal Brief, appears below. 1. A stamp pad assembly for a self-inking stamp, comprising: a carrying device including: lateral surfaces formed at opposing sides of the carrying device; an angular orientation surface arranged on at least one of the lateral surfaces; and at least one structure arranged on the angular orientation surface for securing the carrying device in the self-inking stamp with a corresponding angular orientation surface in a shaft for a stamp pad; and 2 Appeal2017-011507 Application 13/147, 107 at least one pad for absorbing ink arranged within the carrying device. 4. The stamp pad assembly according to Claim 1, wherein the carrying device further comprises a base plate, and wherein the angular orientation surface extends at an angle of about 45° from a plane of the base plate. Appellants present arguments specifically directed to claims 1 and 4 only (Br. 3-11 ). Therefore, claims 2 and 3 will stand or fall with their parent claim 1. We will sustain the Examiner's rejections for the reasons expressed in the Final Office Action and the Answer with the following comments added for emphasis and completeness. In the § 102 rejection of claim 1, the Examiner finds that Moody discloses a stamp pad assembly comprising a carrying device having "an angular orientation surface (i.e. upper angled surface of lateral surfaces 90, 92 shown in Figures 7-8) arranged on at least one of the lateral surfaces 90, 92, and at least one structure 94, 96, 98, 100 arranged on the angular orientation surface for securing the carrying device in a self-inking stamp" (Final Action 3). With respect to the claim 1 language regarding a corresponding angular orientation surface in a shaft for a stamp pad, the Examiner determines that "the claim is drawn to the stamp pad assembly per se and not the combination of the stamp pad assembly and stamp and therefore this language is merely a functional recitation of an intended use or desired mode of operation of the assembly" (id.). The Examiner further 3 Appeal2017-011507 Application 13/147, 107 determines that "since Moody teaches a stamp pad assembly including all of the positively recited structural elements, it is broadly capable of being used with a stamp having a corresponding angular orientation surface in the stamp shaft" (id.). Appellants challenge the Examiner's finding of anticipation by arguing that Moody fails to clearly show an angular orientation surface arranged on at least one of the lateral surfaces as recited in claim 1 (Br. 5). Appellants acknowledge (id.) the Examiner's position that the parallel lines and comers shown in Figure 7 of Moody "make it clear that there is an angled surface at the top of the lateral surface members 90, 92" (Final Action 6). According to Appellants, however, Moody does not clearly show the claimed angular orientation surface and "[a]ny interpretation that such parallel lines provide an 'upper angled surface,' is based entirely on conjecture and without clear support in the figures or specification of Moody" (Br. 6). Appellants' argument is not persuasive for the reasons fully detailed by the Examiner (Final Action 6, Ans. 3). We emphasize that Figure 7 of Moody clearly shows with great particularity parallel lines and comers that convincingly support the Examiner's finding of an angular surface as claimed. See In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972) (holding "Fig. 3 in the Wilson reference focuses on the edge rolls, showing them with great particularity and showing the grooves thereon to have an angularity well within the range recited in appellant's claims"). Therefore, we do not agree with Appellants' position that the Examiner's finding is an interpretation "based entirely on conjecture" (Br. 6). Furthermore, we emphasize that 4 Appeal2017-011507 Application 13/147, 107 Appellants do not even attempt to support their position and concomitantly undermine the Examiner's finding by proffering an alternative interpretation of Moody's parallel lines and comers. Appellants also contend that "the Examiner has not provided any support to show how structures 94, 96, 98, and 100 of Moody are 'arranged on the angular orientation surface,' as stated in claim 1" (id. at 8-9). However, we agree with the Examiner that "since Figures 7-10 [ of Moody] show the structure 94, 96, 98, 100 is overlying the angular surface, it is considered to be 'on' the angular orientation surface as broadly recited" (Ans. 5; see also Final Action 7). As above, Appellants do not proffer any alternative interpretation of Figures 7-10 in an attempt to support their contention that Moody's structure is not arranged on the angular surface as claimed. Finally, Appellants argue that the§ 102 rejection is improper because the above discussed structure of Moody is not disclosed as securing Moody's carrying device "with a corresponding angular orientation surface in a shaft for a stamp pad" as recited in claim 1 (Br. 9). Importantly, Appellants' argument does not address and therefore does not show error in the Examiner's previously mentioned determination that (i) claim 1 is directed to a stamp pad assembly rather than the combination of such an assembly and a stamp having a shaft with a corresponding angular orientation surface and (ii) Moody's assembly is capable of being secured with the non-claimed corresponding angular 5 Appeal2017-011507 Application 13/147, 107 orientation surface recited in claim 1 because the assemblies defined by this claim and disclosed by Moody are structurally identical (Final Action 3; see also Ans. 6). In short, Appellants fail to provide the appeal record with any explanatory support for the seemingly-illogical proposition that the claim 1 assembly is capable of being secured in the manner recited but the structurally identical assembly of Moody is not. For the above-stated reasons and those given by the Examiner, Appellants do not show error in the Examiner's finding that claim 1 is anticipated by Moody. We sustain, therefore, the § 102 rejection of claims 1-3. In the § 103 rejection of claim 4, the Examiner finds that the angular surface shown in Figures 7-8 of Moody "appears to be arranged at an angle in a range of between 0° and 90° but Moody is silent with respect to ... whether the angle is about 45° [as claimed]" (Final Action 5). However, the Examiner states that an appropriate angle for Moody's angular surface would be determined by routine experimentation and concludes that it would have been obvious to provide the angular surface with an appropriate angle, such as about 45°, via such routine experimentation (id.). Appellants contest the claim 4 rejection by emphasizing the Examiner's finding that the angular surface of Moody "appears" to be at an angle between 0° and 90° and by arguing that "[t]he 'appearance' of a feature in a figure is not sufficient to support the rejection of such a feature" (Br. 11). 6 Appeal2017-011507 Application 13/147, 107 As correctly explained by the Examiner, the rejection is based on the Examiner's conclusion that it would have been obvious for an artisan through routine experimentation to determine an acceptable angle for the angular surface shown in Figures 7-8 of Moody, and as a consequence "the Examiner is not relying solely on the 'appearance' of a feature to support the rejection" (Ans. 8). Appellants do not dispute the Examiner's explanation (i.e., no Reply Brief has been filed). Under these circumstances, the record supports a prima facie case for concluding that it would have been obvious to provide Moody with an appropriate angle between 0° and 90° as shown in Figures 7-8 including an angle of about 45° as required by claim 4. Accordingly, we also sustain the § 103 rejection of claim 4. DECISION The decision of the Examiner is affirmed. 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 7 Copy with citationCopy as parenthetical citation