Link, David

Patent Trials and Appeals Board

Dec 30, 2019

13913625 - (D) (P.T.A.B. Dec. 30, 2019)

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.
13/913,625 06/10/2013 David Link PM-US165441 8629
22919 7590 12/30/2019
GLOBAL IP COUNSELORS, LLP
David Tarnoff
1233 20TH STREET, NW
Suite 600
WASHINGTON, DC 20036-2680
EXAMINER
VALENTI, ANDREA M
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
12/30/2019 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):
mailpto@giplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID LINK

Appeal 2018-004789
Application 13/913,625
Technology Center 3600
____________

Before STEFAN STAICOVICI, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 8, 10, and 26–30.2 Appellant’s
representative presented oral argument on December 13, 2019. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Doskocil
Manufacturing Company, Inc. Appeal Br. 3.
2 Claims 1–7, 9, 11–18, 25, and 31 are cancelled, and claims 19–24 are
withdrawn from consideration. Appeal Br. 13–14 (Claims App.).
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Application 13/913,625

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CLAIMED SUBJECT MATTER
Claim 8 is the sole independent claim on appeal, and reads:
8. An animal door system for an animal enclosure,
the system comprising:
a door having a plurality of interconnected vertical and
horizontal wire rods that define an outer periphery of the door;
a frame including an opening having an inner periphery
and including a plurality of wire panels, each of the wire panels
having a plurality of interconnected vertical and horizontal wire
rods, the door being sufficiently large to cover the opening, the
outer periphery of the door overlapping the inner periphery of
the opening in a closed position of the door; and
a hook fixedly attached to the frame such that the hook is
disposed outside the inner periphery of the opening and at least
partially within the outer periphery of the door when the door is
in the closed position, the hook including an entry facing in an
upward direction,
the plurality of horizontal wire rods of the door being
wrapped around a vertical wire rod of the frame for laterally
pivoting the door in a horizontal direction to open and close the
door and enabling the door to slide in the upward direction to
an upward position and in a downward direction to a downward
position such that the entry of the hook is capable of receiving a
horizontal wire rod of the door when the door is in the closed
position and in the downward position to strengthen the animal
door system and the hook is fabricated from a wire rod that is
curved to form a blunt tip of the hook.

Appeal Br. 13 (Claims App.).

REJECTION
Claims 8, 10, and 26–30 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Link (US 6,883,463 B2, issued Apr. 26, 2005), Precision
Pet Products (Precision Pet Products Inc., “Wire Crates, Exercise Pens and
Appeal 2018-004789
Application 13/913,625

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Accessories,” 2 pages, “published at least as early 2007”), and Schweitzer
(US 2,860,886, issued Nov. 18, 1958).

ANALYSIS
In rejecting claim 8, the Examiner finds that Link discloses a wire
animal crate comprising, inter alia, a door 52 including an outer periphery,
and a frame including an opening having an inner periphery, where the
door’s outer periphery overlaps the frame’s inner periphery in a closed
position of the door. Final Act. 3 (citing Link Figs. 1, 4). The Examiner
concedes that Link does not disclose a hook attached to the frame, as
claimed. Id.
The Examiner finds that Precision Pet Products teaches an animal
door system for an animal enclosure, comprising a door, a frame, and a hook
having “a downward entry” and being disposed at least partially within the
outer periphery of the door when the door is in a closed position. Id.
According to the Examiner, the “PPP [Precision Pet Products] picture of
[the] crate has a hook fixed on the top center of the door that receives . . . a
horizontal wire rod of the top portion of the front cage panel[.]” Id. The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art, in view of this teaching of Precision Pet Products, to modify
Link’s wire animal crate by placing the hook to extend upward from the top
horizontal member of the door and be disposed outside (above) the inner
periphery of the opening and within the outer periphery of the door when
closed. Id. at 4.
The Examiner also concedes, however, that Link, as modified by
Precision Pet Products, does not teach that the hook is an upright hook and
Appeal 2018-004789
Application 13/913,625

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also receives a horizontal wire rod of the door when the door is in the closed
position, as claimed. Id. The Examiner relies on Schweitzer as teaching that
“it is known to place a hook with an upright entry on a frame face and a
door/closure with a horizontal wire member received in the upright entry of
the frame hook.” Ans. 8. The Examiner concludes that it would have been
obvious to a skilled artisan to further modify Link with the teachings of
Schweitzer. Final Act. 5. The Examiner reasons that this modification: (1)
is a simple substitution of one known hook element/orientation for another
to obtain predictable results; (2) involves “[m]erely reversing the parts so
that the hook on the door which receives the horizontal wire of Link as
modified by PPP is reversed so that the hook is on the horizontal wire and
receives the top outer periphery horizontal member of the door”; and (3) is
an obvious engineering design choice that involves shifting/reversing the
location of the hook from the door to the frame and reversing the orientation
of the hook from upward entry to downward entry. Id.
Appellant contends, inter alia, that the applied combination does not
disclose or suggest the claim limitation
the plurality of horizontal wire rods of the door being wrapped
around a vertical wire rod of the frame for laterally pivoting the
door in a horizontal direction to open and close the door and
enabling the door to slide in the upward direction to an upward
position and in a downward direction to a downward position.
Appeal Br. 10 (emphasis added) (hereinafter “contested limitation”).
Regarding Appellant’s position, the Examiner finds that, in Precision
Pet Products, “the door is vertically slideable about the vertical wire rod of
the frame enabling the door to slide in the upward direction to an upward
position and in a downward direction to a downward position,” where the
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Application 13/913,625

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entry of the hook is capable of receiving a horizontal wire rod when in the
closed position and in the downward position. Final Act. 4. In the Answer,
the Examiner submits that the operation of Precision Pet Products “requires
that the door slide up and down for the hook to receive a horizontal member
in the entry of the hook when the door is slid downward.” Ans. 7 (emphasis
added). The Examiner further submits that the hook “engages the horizontal
wire after the door slides up, rotates to a closed position, and slides down.”
Id. The Examiner explains that Link is modified by Precision Pet Products
“with a hook on the door that engages the front face wire of the enclosure
when the door slides up and down via horizontal members wrapped around a
vertical member.” Id.
Accordingly, the Examiner’s essential position is that Precision Pet
Products inherently (i.e., necessarily) discloses the contested limitation.
However, Precision Pet Products provides no express description of either
the structure or operation of the illustrated crate. And, we are unable to
determine with sufficient certainty, based only on the illustration of the wire
crate, whether the wire crate has a structure that “requires that the door slide
up and down for the hook to receive a horizontal member in the entry of the
hook when the door is slid downward,” as the Examiner finds. Ans. 7
(emphasis added). Even assuming this is a possible operation of the
illustrated wire cage, this is insufficient as “[i]nherency . . . may not be
established by probabilities or possibilities. The mere fact that a certain
thing may result from a given set of circumstances is not sufficient.” In re
Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations and internal
quotation marks omitted). Accordingly, we are not persuaded that Precision
Pet Products inherently discloses the contested limitation. As the
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Application 13/913,625

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Examiner’s proposed modification of Link is premised on Precision Pet
Products disclosing this limitation, the underlying factual basis for the
rejection of claim 8 is not supported by a preponderance of the evidence.
Moreover, even assuming the door of Precision Pet Products slides up
and down, as the Examiner finds, the Examiner does not adequately explain
how the gate of Link, as modified by Precision Pet Products, likewise slides
up and down, as called for by claim 8. The Examiner modifies Link’s wire
animal crate to include the hook of Precision Pet Products’ animal crate in
the orientation taught by Schweitzer, and does not appear to further rely on
any sliding characteristics of the door (gate) of Precision Pet Products’
animal crate in the rejection. See Final Act. 3–5. In other words, it is
unclear from the Examiner’s stated findings whether door 52 of Link’s
animal crate slides up and down, as called for by claim 8, such that when
door 52 is modified to include the hook of Precision Pet Products’ animal
crate in the orientation taught by Schweitzer, the resulting door (gate) of
Link, as modified by Precision Pet Products and Schweitzer, likewise slides
up and down. Thus, the Examiner’s conclusion that it would have been
obvious to modify Link in view of Precision Pet Products and Schweitzer to
result in the claimed animal door system is not supported by an adequate
factual basis. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (holding
that “[t]he legal conclusion of obviousness must be supported by facts.
Where the legal conclusion is not supported by facts it cannot stand.”)
In conclusion, for the foregoing reasons, we do not sustain the
rejection of claim 8, or dependent claims 10 and 26–30, as unpatentable over
Link, Precision Pet Products, and Schweitzer.

Appeal 2018-004789
Application 13/913,625

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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
8, 10, 26–30 § 103(a) Link, Precision Pet
Products,
Schweitzer
8, 10, 26–30

REVERSED