John Evans' Sons, Inc.

Patent Trials and Appeals Board

Mar 17, 2020

15159780 - (D) (P.T.A.B. Mar. 17, 2020)

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.
15/159,780 05/19/2016 John R. Kunz JEvans-22 1094
32132 7590 03/17/2020
LAMORTE & ASSOCIATES P.C.
P.O. BOX 434
YARDLEY, PA 19067
EXAMINER
MASSAD, ABE L
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
03/17/2020 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):
mail@uspatlaw.com
malamorte@verizon.net
uspatlaw1@verizon.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOHN R. KUNZ
__________________

Appeal 2019-005406
Application 15/159,780
Technology Center 3600
____________________

Before JAMES P. CALVE, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1, 2, and 10–12 under 35 U.S.C. § 103 as
unpatentable over Mennuto (US 4,953,258, iss. Sept. 4, 1990), Baker (US
8,561,260 B2, iss. Oct. 22, 2013), and Tillman (US 5,311,642, iss. May 17,
1994). Appeal Br. 2, 5. Claims 3–9 and 13–19 are cancelled. Id. at 2. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies John Evans’ Sons, Inc. as the real party in interest. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Claims 1 and 10 are independent. Claim 1 is reproduced below with
disputed limitations italicized.
1. In a window having a window sash, wherein said
window sash travels in guide tracks between a fully open
position and a fully closed position, a system for inhibiting drift
movement of said window sash out of said fully open position,
said system comprising:
a brake shoe having a spool post, wherein said brake shoe
moves in one of said guide tracks with said window sash as said
window sash is manually manipulated between said fully closed
position and said fully open position;
a flexible locking finger extending from said brake shoe;
a coiled ribbon spring supported by said brake shoe about
said spool post, wherein said coiled ribbon spring has a free end
that can be extended away from said brake shoe;
a stop mounted to said one of said guide tracks at a fixed
elevation, said stop having a bottom edge that faces said brake
shoe in one of said guide tracks, wherein said stop has a
depression formed therein for receiving said flexible locking
finger and an inclined surface that extends from said bottom
edge to said depression to guide said flexible locking finger into
said depression as said window sash moves toward said fully
open position, wherein said flexible locking finger engages said
depression when said sash reaches said fully open position
therein creating an interconnection that prevents said brake shoe
from moving away from said stop until a threshold separating
force is applied to said window sash to move said sash from
said fully open position towards said fully closed position, and;
an anchor element extending from said stop that
interconnects with said free end of said coiled ribbon spring,
wherein said coiled ribbon spring biases said brake shoe toward
said stop.

Appeal Br. 20–21 (Claims App.) (emphasis added).

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ANALYSIS
Appellant argues the rejection of claims 1, 2, and 10–12 as a group,
presenting the same arguments against the rejection of independent claims 1
and 10 and not arguing dependent claims 2, 11, or 12 separately. See Appeal
Br. 6–19. We select claim 1 as representative. 37 C.F.R. § 41.37(c)(1)(iv).
Regarding claim 1, the Examiner cites Mennuto to teach a system for
inhibiting drift movement of a window sash in a window with a brake shoe
(balance shoe 16, 16A) that moves in a window guide track with a window
sash. Final Act. 2. The Examiner finds that Mennuto teaches a stationary
stop (spring holder 6, 6A) that is mounted to one of the guide tracks at a
fixed elevation and includes a flexible locking finger (leaf spring 28) and
spool posts 3, 5 to support coiled ribbon springs 2, 4 as claimed. Id.
The Examiner finds that Mennuto’s spring holder 6, 6A supports the
coiled ribbon spring 2, 4, as claimed, but it is mounted at a fixed elevation
rather than movable in the track of the window as claimed. Final Act. 2–3.
The Examiner also finds that Mennuto’s brake shoe 16, 16A moves with a
window sash, as claimed, but it does not support coil springs, and it includes
a depression 22B, which the claims require to be part of a stop mounted to
one of the guide tracks at a fixed elevation, rather than movable. See id.
The Examiner cites Baker to teach a movable brake shoe (carrier 40)
supporting coiled ribbon spring 42 and including a locking finger (projection
80) that engages depression 124 on a stationary stop (mounting bracket 44)
as claimed. Id. at 3. The Examiner determines it would have been obvious
to modify Mennuto to have a smaller stop element that can be installed more
easily in a tight space of a window track, as taught by Baker, and as a mere
reversal of working parts involving only routine skill in the art. Id.; Ans. 9.
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The Examiner recognizes that the modified system of Mennuto lacks a
stationary anchor element with “an inclined surface that extends from said
bottom edge to said depression to guide said flexible locking finger into said
depression,” as claimed. Final Act. 3. The Examiner finds that Tillman uses
an inclined surface of a fixed circular disc 32 to engage inclined surface 21
of a flexible locking finger (leaf spring 31) that extends from a movable shoe
(slide 13). Id. at 3, 6–7. The Examiner also finds that the inclined surface of
circular disc 32 contacts bevel 21 of slide 13 to guide locking finger 31 into
a releasable connection with fixed circular disc 32, which is anchored in the
door track, to hold the door in an open position as shown in Figure 8. See id.
The Examiner makes the following claim interpretation and findings:
The term “inclined” is defined as “sloping, slanting, or
leaning”, or “deviating in a direction from the horizontal or
vertical; sloping” (per https://www.thefreedictionary.com/
inclined). “Incline” is also defined as “to deviate from a line,
direction, or course; specifically: to deviate from the vertical or
horizontal” (per https://www.merriam-webster.com/dictionary/
incline). Thus, absent any special definition, the circular
surface of the fixed stop element (32) of Tillman reads on the
broadest reasonable interpretation of “inclined” as found in two
reputable dictionaries, as it is clearly sloped and deviates in a
direction from the horizontal or vertical. There is no special
definition set forth by the Appellant for the term “inclined” that
requires a planar or flat surface. The curved surface of the
fixed stop element of Tillmann therefore reads on the claimed
limitation “inclined surface”.
It is again noted that Mennuto discloses the claimed
depression and bottom edge, as well as a surface leading from
the bottom edge to the depression that guides the locking finger
to the depression. Tillmann is only relied upon to teach the use
of an inclined surface engaged by a flexible locking finger.
Ans. 8 (emphasis added).

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Appellant argues that Tillman’s circular disc 32 has a curved surface
that cannot be considered an inclined surface that leads from a bottom edge
to a depression of a stop as claimed. Appeal Br. 8, 13. Appellant argues
that Tillman teaches a leaf spring 31 that is mounted to sidewalls of slide 13
and moves across a hard elastic circular disc 32 as the door opens and closes.
Id. at 13. Appellant also argues that Tillman is non-analogous art that is not
from the same field of endeavor as the claimed invention and not reasonably
pertinent thereto either. Id. at 8, 12.
Is Tillman Analogous Art?
We first consider whether Tillman is analogous art to the claimed
invention because “[g]enerally, a skilled artisan would only have been
motivated to combine analogous art.” In re Ethicon, 844 F.3d 1344, 1349
(Fed. Cir. 2017). “A reference qualifies as prior art for a determination
under § 103 when it is analogous to the claimed invention.” Innovention
Toys, LLC v. MGA Entm’t., Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011); see
also In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (“A reference
qualifies as prior art for an obviousness determination under § 103 only
when it is analogous to the claimed invention.”) (citing Innovention
Toys, 637 F.3d at 1321; In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004);
In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992)).
Two separate tests define the scope of analogous prior art.
(1) whether the art is from the same field of endeavor,
regardless of the problem addressed and, (2) if the reference is
not within the field of the inventor’s endeavor, whether the
reference still is reasonably pertinent to the particular problem
with which the inventor is involved.
Klein, 647 F.3d at 1348 (quoting Bigio, 381 F.3d at 1325).
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The PTO determines the appropriate field of endeavor by reference to
explanations in the patent application to include the embodiments, function,
and structure of the claimed invention. Bigio, 381 F.3d at 1325. References
with the same structure and function as the claimed invention as perceived
by a skilled artisan are within the same field of endeavor. See id. at 1326.
“A reference is reasonably pertinent if . . . it is one which, because of
the matter with which it deals, logically would have commended itself to an
inventor’s attention in considering his problem.” Clay, 966 F.2d at 659. In
addition, “[i]f a reference disclosure has the same purpose as the claimed
invention, the reference relates to the same problem, and that fact supports
use of that reference in an obviousness rejection.” Id. “The identification of
analogous prior art is a factual question.” Bigio, 381 F.3d at 1324.
Tillman is in the Same Field of Endeavor
The Examiner finds that Tillman is in the same field of endeavor as
the claimed invention because both are directed to “hold-open mechanisms
for closure wings.” Ans. 3–4. The Examiner finds that Tillman’s hold-open
mechanism for a door is structurally and functionally similar to the claimed
invention because it includes a moving locking member coupled to a closure
wing and slidably movable to engage a fixed stop member. Id. at 4.
Appellant argues that “Tillman is not in the same field of endeavor as
the present invention being claimed [because] [t]he Tillman Patent is not a
window counterbalance system.” Appeal Br. 8.
Appellant is correct that counterbalance systems for windows are part
of the Field of Invention. Spec. 1:15–16. However, the Field of Invention
relates more broadly to structures of the brake shoe and spring mount “that
interconnect to inhibit unintentional movement.” Id. at 1:18–23.
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The claimed mechanical connection 24 includes a flexible finger 26
on a movable brake shoe 12 and a depression in a fixed stop mount 16. In
use, the flexible finger 26 rides up an inclined surface 36 on stop mount 16
and engages depression 34 to interconnect brake shoe 12 (and window sash)
to stop mount 16 in a window frame and hold the sash in an open position.
Tillman teaches a holding unit with a similar structure and function to
hold a door in an open position. Tillman, 1:10–19, 3:24–36. Elastic legs 31
form a holding element 25 on a movable slide 13 and releasably connect to a
fixed abutment in the form of a hard elastic circular disc 32 in Figure 10 of
Tillman. Id. at 4:24–50. Inclined surface 21 of elastic legs 31 engages the
similar inclined surface of disc 32, so slide 13 and flexible legs 21 releasably
connect to disc 32 to fix a door in an open position. Id.; see id. at 3:24–55.
Appellant’s argument that Tillman is not in the same field of endeavor
as the claimed system because it “is not a window counterbalance system” is
not persuasive because it does not explain why the structure and function of
the claimed connection system would be perceived as different to a skilled
artisan than the structure and function of Tillman’s system, which holds a
movable element in an open position using similar structure, as the
Examiner finds. Ans. 3–4; see also In re Berg, 320 F.3d 1310, 1315 (Fed.
Cir. 2003) (“As persons of scientific competence in the fields in which they
work, examiners and administrative patent judges on the Board are
responsible for making findings, informed by their scientific knowledge, as
to the meaning of prior art references to persons of ordinary skill in the art
and the motivation those references would provide to such persons. Absent
legal error or contrary factual evidence, those findings can establish a prima
facie case of obviousness.”).
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Based on the evidence of record before us, we determine that Tillman
is in the same field of endeavor as the claimed system. It includes a flexible
finger secured to a movable door to engage a fixed abutment in a door frame
using a depression to hold a movable closure (i.e., door) in an open position.
As the Examiner also finds, windows and doors are similar structures with
the same function as closure wings (see Ans. 3–4) of an aperture in a frame.
Tillman is Reasonably Pertinent to Inventor’s problem
We also determine that Tillman is reasonably pertinent to the problem
addressed by Appellant. Appellant and the Examiner agree that this problem
is retaining a window in an open position. Ans. 4; Appeal Br. 7. To solve
this problem, Appellant designed a hold-open mechanism to hold a window
releasably in an open position. We agree with the Examiner that Tillman
teaches a similar hold-open mechanism used to hold a door releasably in an
open position against closing forces acting on it. Ans. 4.
If a reference has the same purpose as the claimed invention, it relates
to the same problem, and that fact supports the use of that reference in an
obviousness rejection. Clay, 966 F.2d at 659. Appellant acknowledges that
Tillman is “a device for holding open a door.” Appeal Br. 7. In Tillman, a
flexible leaf spring finger 31 of a movable slide 13 that is attached to a door
engages a fixed abutment 32 attached to a door frame to releasably hold the
door in an open position like the claimed hold-open mechanism. Tillman,
1:10–19, 1:45–2:26, 3:42–4:64. The Examiner reasonably determines that
windows and doors have significant overlap in structure and function, and a
skilled artisan would be aware that the problem of holding such closures
open exists for doors and windows. Ans. 4. Appellant’s arguments do not
address these findings and thus do not apprise us of Examiner error.
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Appellant’s solution was a releasable latch (a flexible finger) on an
element that moves with a window sash engaging a depression on a structure
fixed in the window track to hold a sash in an open position against gravity
and other forces tending to close it. Spec. 9:12–10:24. Tillman teaches a
similar releasable latch used to retain a similar structure of a door in an open
position. Both latches are releasable by the application of sufficient force so
the window/door may be closed. Tillman, 1:14–19, 5:13–25; Spec. 10:3–24.
In Paulsen, the court determined that an inventor considering a hinge
and latch mechanism for portable computers would consider references that
used other housings, hinges, latches, and springs such as a desktop telephone
directory, a piano lid, a kitchen cabinet, a washing machine cabinet, a
wooden furniture cabinet, and a two-part housing for storing audio cassettes.
In re Paulsen, 30 F.3d 1475, 1481–82 (Fed. Cir. 1994) (cited with approval
in ICON health, 496 F.3d 1374, 1380 (Fed. Cir. 2007)).
Does Tillman Teach an Inclined Surface?
“Tillman is only relied upon to teach an inclined surface.” Ans. 8.
The circular disc 32 of Tillmann is not the flexible finger, but is
instead relied upon to teach the claimed incline and depression
of the stop element. . . . Flexible finger 31 is provided on the
sliding shoe 13. When the finger 31 approaches the disc 32, the
inclined surface 21 of the finger and the inclined surface of the
disc 32 engage each other, deflecting the finger until it engages
behind the disc in a depression defined by the disc and the rest
of the stop element. Therefore, Tillmann is relied upon to teach
the use of an inclined surface on a stop to deflect a flexible
finger. The overall structure of the finger and the stop of
Mennuto is not modified by Tillman, other than to include an
incline on the stop.
Final Act. 6–7 (emphasis added).

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The Examiner cites the following definitions of “inclined.”
“[I]nclined” is defined as “sloping, slanting, or leaning”, or
“deviating in a direction from the horizontal or vertical;
sloping” (per https://www.thefreedictionary.com/inclined).

“Incline” is also defined as “to deviate from a line, direction, or
course; specifically: to deviate from the vertical or horizontal”
(per https://www.merriam-webster.com/dictionary/incline).

Ans. 8. The Examiner determines that, absent any special definition in the
Specification, “the circular surface of the fixed stop element (32) of Tillman
reads on the broadest reasonable interpretation of ‘inclined’ as found in two
reputable dictionaries, as it is clearly sloped and deviates in a direction from
the horizontal or vertical.” Id. (“Tillman is only relied upon to teach the use
of an inclined surface engaged by a flexible locking finger.”).
Appellant disagrees and argues the following:
If the claimed “inclined surface” is considered the circular disc
32, as stated by the Examiner, the reference is unreasonable.
The Applicant claims an inclined surf ace that leads from a
bottom edge to a depression. The circular disc 32 is obviously
a circle. As such, it does have curved surfaces. However,
nothing on the circular disc can be considered an inclined
surface that leads from a bottom edge to a depression. The
circular disc 32 is a circle. As such, it has no bottom edge.
Likewise, as a circle, it has no depressions.
Appeal Br. 8.
We interpret the limitation “inclined surface” to mean a surface that
“slopes, slants, leans, or deviates in a direction away from a horizontal or a
vertical direction.” This meaning is consistent with the ordinary meaning of
“incline” presented in the dictionaries cited by the Examiner in the Answer
and reproduced above.

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This meaning also is consistent with the Specification which provides:
The depression 34 presents an inclined surface 36 at the bottom
edge of the stop mount 16. The inclined surface 36 extends into
the depression 34 and terminates with a ledge 38.
Spec. 9:27–10:3. Appellant’s Figures 2 and 4 are reproduced below.

Appellant’s Figure 2 is a perspective view of brake shoe 12 and its
flexible finger 26 that connects to depression 34 in stop mount 16 by riding
up on inclined surface 36 to ledge 38 and then to depression 34. Spec. 7:14–
26, 9:25–10:3. Figure 4 is a section view of brake shoe 12 connected to stop
mount 16 via finger 26 disposed in depression 34. Id. at 10:3–15.
As illustrated in Appellant’s drawings, inclined surface 36 “slopes,
slants, leans, or deviates in a direction away from a horizontal or a vertical
direction,” e.g., in comparison to horizontal ledge 38 or the vertical end of
flexible finger 26 (not enumerated in the drawings).
We agree with the Examiner that Tillman’s circular hard disc 32 has
an “inclined surface” as we interpret that term. As illustrated in Figure 10 of
Tillman, which is reproduced below, the curved outer surface of disc 32
slopes, slants, leans, and deviates in a direction away from a horizontal or a
vertical direction. Ans. 8–9.
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Tillman’s Figure 10 illustrates a fixed circular disc 32 whose curved
outer surface engages leading edge bevel 21 of movable slide 13 until disc
32 is captured in catch 32 formed in leaf spring 31. Tillman, 4:39–50.
We do not interpret “surface” in “inclined surface” to require a flat or
planar surface absent a lexicographic definition in the Specification, which
Appellant does not argue, and we do not find. See Ans. 8; Appeal Br. 8.
Moreover, Tillman teaches the equivalence of the inclined surface of
circular disc 32 with a flat or planar inclined surface for engaging a flexible
finger. As illustrated in the Figure 7 of Tillman, reproduced below, the fixed
abutment 31 has flat or planar inclined surfaces that engage similar, inclined
leading and trailing bevels 21, 22 of elastic leg 19. See Tillman, 4:24–38.

Figure 7 of Tillman illustrates a diamond-shaped abutment 31 with
inclined surfaces (at 31) that engage bevels 21, 22 of leg 19. Id.
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The principles of operation of Figures 7 and 10 are similar except the
flexible legs in Figure 10 are leaf springs 31 not elastic legs 19 as in Figure 7
and they engage disc 32 instead of diamond shape 31. See id. at 4:24–50.
This art-recognized equivalence of the inclined surfaces of disc 32 and
diamond-shaped abutment 31 for engaging inclined bevel surfaces 21, 22 of
flexible legs 19 also supports the Examiner’s finding that Tillman teaches an
inclined surface that guides an inclined flexible finger as claimed. Indeed,
“[a] reference must be considered for everything it teaches by way of
technology and is not limited to the particular invention it is describing and
attempting to protect.” EWP Corp. v. Reliance Universal Inc., 755 F.2d 898,
907 (Fed. Cir. 1985); see also In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir.
2012) (“A reference may be read for all that it teaches, including uses
beyond its primary purpose.”).
Thus, to releasably hold a door in an open position, Tillman uses a
flexible finger 19 with an inclined surface (leading bevel 21) on movable
slide 13 to engage an inclined surface on an abutment (diamond 31, disc 32)
fixed in a door frame. The cooperating, complementary, inclined surfaces
on the flexible finger and the fixed abutments facilitate the connection.
Motivation to Combine
Tillman’s teachings also support the Examiner’s modification of
Mennuto “to have the inclined surface taught by Tillman . . . to ensure
reliable movement of the finger to the locked position, so as to prevent
jamming of the window before it is able to reach a fully open position.”
Ans. 10; see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (the use
of a known technique in one device is obvious to try in another for similar
benefits unless its application is beyond the level of skill in the art).
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We are not persuaded that merely providing Mennuto’s shoe 16,
(which already has a depression) with an inclined surface, as taught by
Tillman for the very same purpose, namely, to facilitate engagement of
Mennuto’s flexible leaf spring 28 and detent 22 of shoe 16, would change
Mennuto’s principle of operation. See Appeal Br. 14.
To the contrary, application of Tillman’s teachings to Mennuto would
improve Mennuto similarly and complement Mennuto’s own design because
Mennuto’s finger leaf spring 28 is configured with a beveled leading edge in
the same manner as Tillman’s flexible fingers 19, 31 have a leading bevel 21
to engage an inclined surface of a diamond-shaped or circular abutment as
discussed above. Tillman provides an inclined surface on a fixed abutment
to engage a complementary beveled surface of a movable, flexible finger to
facilitate the interconnection of the movable slide 13 and abutment. The
Examiner proposes to improve Mennuto the same way by adding an inclined
surface on shoe 16 to engage a similar, beveled surface on leaf spring 28.
See Final Act. 6 (Mennuto “discloses deflection of the finger based on
engagement of an inclined surface [of leaf spring 28] at the stop.”).
Accordingly, we sustain the rejection of claim 1 and claims 2 and 10–
12, which fall with claim 1.
CONCLUSION
Claims
Rejected
35 U.S.C. § Reference(s)/B
asis
Affirmed Reversed
1, 2, 10–12 103 Mennuto,
Baker, Tillman
1, 2, 10–12
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
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AFFIRMED