Rick Amendolea

Patent Trials and Appeals Board

Dec 21, 2020

2020002683 (P.T.A.B. Dec. 21, 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.
15/046,898 02/18/2016 Rick Amendolea Amendolea-1502 1334
36787 7590 12/21/2020
BLYNN L. SHIDELER
THE BLK LAW GROUP
3000 Village Run Road
Suite 103-251
WEXFORD, PA 15090
EXAMINER
ANDERSON, AMBER R
ART UNIT PAPER NUMBER
3678
NOTIFICATION DATE DELIVERY MODE
12/21/2020 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):
blynn@BLKLawGroup.com
cbelleci@BLKLawGroup.com
patents@BLKLawGroup.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICK AMENDOLEA

Appeal 2020-002683
Application 15/046,898
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 4–6, and 19. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

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
Rick Amendolea. Appeal Br. 2.
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BACKGROUND
The Specification discloses that “[t]he present invention relates to
grab bars, and more particular[ly] to a rapidly mounted, modular, universal
grab bar with one piece molded mount with integrated accessories.”
Spec. ¶ 4.
CLAIMS
Claims 1 and 19 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A rapidly mounted, modular, universal grab bar system
comprising:
a plurality of wall mounted supports, wherein each wall
mounted support is formed as a molded member having a wall
end configured to be adjacent the wall with a central fastener
opening extending from the wall end, wherein the molded
member forming the wall mounted support includes a rail
member recess formed as a through-hole extending from one side
of the wall mounted support through to an opposed side of the
wall mounted support and intersecting with the central fastener
opening, wherein each wall mounted support is configured to be
secured to a wall, and wherein the central fastener opening is
formed as a first bore extending from the wall end to an enlarged
head receiving portion having a diameter larger than a diameter
of the first bore extending to the distal end, and wherein the
intersection of the enlarged head receiving portion with the first
bore is at least one half of the distance of from the wall end to
the through-hole forming the rail member recess;
a plurality of central fasteners, each central fastener with a
drive head and associated with at least one wall mounted support
and received within the central fastener opening thereof for
securing each wall mounted support to the wall through the
central fastener, wherein the wall mounted support is, at least at
one time, rotationally adjustable about the central fastener; and
at least one stock rail member forming the handrail
member, wherein each rail member is received within rail
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member recesses of the wall mounted supports extending
entirely through the through-hole forming the rail member recess
and wherein the central fastener extends perpendicular to the axis
of the rail member, wherein the rail member recess of each wall
mounted support being formed as a through-hole whereby the
recess encircles the rail member which is received within rail
member recess and aligns the rail member which is received
within rail member recess with the associated central fastener
which is received within the central fastener opening.
Appeal Br. 16–17.
REJECTIONS
1. The Examiner rejects claim 1 on the ground of nonstatutory double
patenting as unpatentable over claim 1 of Amendolea 709.2
2. The Examiner rejects claims 1, 4–6, and 19 on the ground of nonstatutory
double patenting as unpatentable over claims 1 and 5 of Amendolea 709
in view of Trimble. 3
3. The Examiner rejects claim 6 under 35 U.S.C. § 112(b) as indefinite.
4. The Examiner rejects claim 1 under 35 U.S.C. § 102(a)(1) as anticipated
by Amendolea 454.4
5. The Examiner rejects claims 4–6 and 19 under 35 U.S.C. § 103 as
unpatentable over Amendolea 454 in view of Trimble.
6. The Examiner rejects claim 19 under 35 U.S.C. § 103 as unpatentable
over Sladick5 in view of Trimble.

2 Amendolea, US 9,181,709 B2, iss. Nov. 10, 2015.
3 Trimble et al., US 2008/0080173 A1, pub. Apr. 3, 2008.
4 Amendolea, US 2013/0167454 A1, pub. July 4, 2013.
5 Sladick et al., US 2008/0184475 A1, pub. Aug. 7, 2008.
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DISCUSSION
Rejection 1
The Examiner finds that the present claim 1 and claim 1 in
Amendolea 709 are not patentably distinct from each other. Final Act. 3.
The Examiner finds that claim 1 in Amendolea 709 is a narrower claim than
the present claim 1 and that in such instances, the narrower claim anticipates
the broader claim. Id. at 4. In particular, the Examiner finds that to the
extent the present claim recites a support “formed as a molded member” and
claim 1 in Amendolea 709 recites a support “formed as a one piece
cylindrical member” the recitation in Amendolea 709 is broader and
encompasses a support that is formed as a molded member. Id. at 3–4.
We agree with the Examiner and are not persuaded otherwise by
Appellant’s arguments.
Appellant notes the differences between the present claim 1 and
claim 1 of Amendolea 709 and argues that “the claims of the ‘709 patent fail
to teach or remotely suggest the molded structure of the mount of the present
claimed invention.” Appeal Br. 10–11. Appellant also asserts that the
present claim is not required to include “wherein the one piece wall mounted
support is substantially solid surrounding the central fastener opening from
the one end to the through-hole forming the rail member recess,” and that
“[i]n contrast the present claimed invention uses a cored out structure rather
than a solid construction.” Id. at 11 (emphasis omitted). Yet, Appellant
does not address the Examiner’s finding that claim 1 of Amendolea 709 is
narrower and would thus anticipate the broader claim 1 in the present
application. To the extent Appellant notes the addition of the quoted
“wherein” clause in claim 1 of Amendolea 709 and an alleged “cored out”
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structure in the present claim, claim 1 of the present application does not
require a “cored out” structure.
In the Reply Brief, Appellant argues:
The claims of the prior structure REQUIRE the structure
wherein the one piece mounted structure is substantially solid
surrounding the central fastener opening from the one end to the
through hole. This design of the applicant teaches away from
molding because of the cycle time such structure would require
in the mold. The prior work of the applicant teaches away from
the invention as presently claimed.
Reply Br. 3. We are not persuaded for the reasons provided by the
Examiner. Specifically, the Examiner finds, and we agree, that there is no
patentable distinction between a “molded member” and a “one piece
cylindrical member” in the context of the claims at issue here. See, e.g.,
Ans. 3. Further, Appellant does not explain adequately how Amendolea 709
teaches away from the present claim or how any such teaching away would
be relevant to this rejection.
Based on the foregoing, we are not persuaded of error and we sustain
the rejection of claim 1, here.
Rejection 2
With respect to the rejection of claim 1, here, the Examiner appears to
rely on the same findings, discussed above. See Final Act. 4. The Examiner
only relies on Trimble to show that certain portions of the dependent claims
would have been obvious variants of the claims of Amendolea 709. Id. at 4–
5. Thus, for the reasons discussed above, we sustain the rejection of claim 1
here.
With respect to claims 4–6 and 19, we note that each of these claims
requires a molded member with “a cored out opening.” See Appeal Br. 17.
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With respect to this claim requirement, the Examiner provides evidence
from the written description in Amendolea 709, and the Examiner states that
the evidence relied upon is from “an alternative embodiment.” See Final
Act. 5. However, when considering whether the present claim would have
been an obvious variation of the claimed invention of Amendolea 709, the
disclosure of Amendolea 709 may not be used as prior art. Gen. Foods
Corp. v. Studiengesellschaft Kohle mbH, 972 F.2d 1272, 1279 (Fed. Cir.
1992) (“[C]omparison can be made only with what invention is claimed in
the earlier patent, paying careful attention to the rules of claim interpretation
to determine what invention a claim defines and not looking to . . . it as
though it were a prior art reference.” (emphasis omitted)). The specification
of the earlier patent may be examined with respect to embodiments that
provide support for the claims relied upon in the rejection in order to help
define the claim. See In re Vogel, 422 F.2d 438, 441–42 (CCPA 1970).
Here, the Examiner has admittedly relied upon Amendolea 709 with
respect to the disclosure of an alternative embodiment in order to show that
present claims 6 and 19 include only patentably indistinct differences from
the claims of Amendolea 709. The Examiner does not explain how these
portions of Amendolea 709 may be appropriately relied upon in the double
patenting rejection, e.g., by showing that they help define the claims relied
upon. Without such explanation, we are persuaded of error in the rejection,
as the Examiner appears to rely on the written description of Amendolea 709
as prior art for the double patenting rejection. Accordingly, we do not
sustain the double patenting rejection of claims 4–6 and 19.
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Rejection 3
The Examiner rejects claim 6 as indefinite for repeating the limitation
“wherein the molded member includes a cored out opening at the wall end
surrounding the central fastener opening” as recited in claim 4. Final Act. 6.
The Examiner finds that this repetition creates ambiguity because it is
unclear if the limitation in claim 6 is intended to provide additional structure,
such as in the form of an additional cored out opening or member. Id. at 6;
see also Ans. 7–8.
Appellant acknowledges the repetition of the language and argues that
the “issue does not raise to the level of making the claims indefinite”
because “[t]hose of ordinary skill in the art reading the specification and this
claim would have no difficulty in discerning its meaning even [if] the same
structure is repeated.” Appeal Br. 11–12.
We agree with the Examiner that the repetition of this language
creates sufficient ambiguity that should be corrected during prosecution,
such that the indefiniteness rejection is warranted.
[T]he patent drafter is in the best position to resolve the
ambiguity in the patent claims, and it is highly desirable that
patent examiners demand that applicants do so in appropriate
circumstances so that the patent can be amended during
prosecution rather than attempting to resolve the ambiguity in
litigation.
Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1255 (Fed. Cir.
2008).
Accordingly, we sustain this rejection of claim 6.
Rejection 4
With respect to claim 1, the Examiner finds that Amendolea 454
discloses a grab bar system including a plurality of wall mounted supports,
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central fasteners, and at least one stock rail member as claimed. Final
Act. 6–7 (citing Amendolea 454 Figs. 4A–7, 14). Appellant argues only that
Amendolea does not disclose a molded member as would be interpreted by a
person of ordinary skill in the art in light of the Specification. Appeal
Br. 13.
We are not persuaded of error for the reasons provided by the
Examiner. See Ans. 9–11. Specifically, without further explanation or
rebuttal from Appellant, we agree with the Examiner’s interpretation of a
molded member that would include the prior art’s disclosure of a one piece
cylindrical member. Id. at 9–10. We also agree with the Examiner that the
claimed “molded member,” as argued by Appellant, appears to refer to the
process by which such member is made, i.e., it is a product-by-process
limitation, and the claim does not set forth any structural difference that
would result from using a molding process for creating the wall mounted
support. Id. at 10–11.
In the Reply Brief, Appellant argues that the prior art teaches away
from the claimed molded construction. Reply Br. 5. Any teaching away
argument has no bearing on the analysis with respect to an anticipation
rejection.
For these reasons, we are not persuaded of error and we sustain the
rejection of claim 1 as anticipated.
Rejection 5
With respect to claims 4–6 and 19, the Examiner finds that
Amendolea 454 discloses the details of claim 1, as discussed above, and
further “discloses the system including bar caps at each end of the rail
member.” Final Act. 8. The Examiner acknowledges that the evidence
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relied upon in rejecting claim 1 “does not expressly disclose the molded
member . . . including a cored out opening at the wall end surrounding the
central fastener opening” as required by claims 4–6 and 19. Id. However,
the Examiner finds that Amendolea 454 teaches an alternative embodiment,
including such a cored out opening. Id. (citing Amendolea 454 Fig. 9; ¶ 62).
The Examiner determines that it would have been obvious to use a cored out
opening in the embodiment relied upon with respect to the rejection of
claim 1 “in order to receive a retaining washer that will prevent the central
fasteners from easily being pushed back through the central fastener opening
during installation.” Id. at 8–9.
The Examiner also acknowledges that Amendolea 454 does not
provide express disclosure for the light source or light dispersion features
required by claims 4–6 and 19. Id. at 9. However, the Examiner finds that
these features are taught by Trimble, and the Examiner determines that it
would have been obvious to incorporate such features into the device of
Amendolea 454 “in order to provide a bar system that assists a user in
locating the bar in low-light conditions and provide auxiliary area lighting,
as taught by Trimble.” Id. (citing Trimble Figs. 1–3; ¶ 4).
Appellant argues that a cored out section is “absolutely not taught or
remotely suggested in” Amendolea 454 or in Trimble. Appeal Br. 13–14.
In the Reply Brief, Appellant argues that the Examiner is ignoring the
meaning of the terms claimed, including the required “cored out opening.”
Reply Br. 5 (emphasis omitted). Appellant argues that a cored out portion of
a molded element is well known and well defined and that Amendolea 454
only discloses “a stepped out portion of the central opening.” Id. at 7.
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We are not persuaded of error. We interpret the claimed “cored out
opening” in a manner similar to that discussed above with respect to the
“molded member” in that, as claimed, this merely describes a process by
which a cavity is created in a finished product, which is how it is described
by Appellant. See Reply Br. 5–10. Appellant has not identified any
structural difference, and we do not see any, between a device with a cored
out opening as claimed and the device with the opening in Amendolea 454,
as relied upon by the Examiner.
Based on the foregoing, we are not persuaded of error and we sustain
the obviousness rejections of claims 4–6 and 19, here.
Rejection 6
With respect to claim 19, the Examiner finds that Sladick discloses a
grab bar system including each of the claimed elements other than the bar
caps being configured to facilitate the dissemination of light, for which the
Examiner relies on Trimble in the same manner as discussed in the previous
rejection. Final Act. 9–11 (citing Sladick Figs. 1–15B; ¶ 8, 9). With respect
to this rejection, Appellant does not provide a response in the Appeal Brief,
the Examiner does not discuss the substance of this rejection in the Answer,
and, thus, Appellant’s newly raised arguments in the Reply Brief are not in
response to any new issued raised by the Examiner in the Answer. Thus, we
consider Appellant’s response in the Reply Brief to be untimely and waived.
See 37 C.F.R. § 41.41(b)(2); see also Ex parte Borden, 93 USPQ2d 1473,
1474 (BPAI 2010) (informative) (“[T]he reply brief [is not] an opportunity
to make arguments that could have been made in the principal brief on
appeal to rebut the Examiner’s rejections, but were not.”). Accordingly, we
sustain this rejection.
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CONCLUSION
We REVERSE the double patenting rejection of claims 4–6 and 19.
We AFFIRM the remaining rejections of claims 1, 4–6, and 19.
In summary:
Claims
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
1 Nonstatutory
Double Patenting,
Amendolea 709
1
1, 4–6, 19 Nonstatutory
Double Patenting,
Amendolea 709,
Trimble
1 4–6, 19
6 112(b) Indefiniteness 6
1 102(a)(1) Amendolea 454 1
4–6, 19 103 Amendolea 454,
Trimble
4–6, 19
19 103 Sladick, Trimble 19
Overall
Outcome
1, 4–6, 19

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)(1)(iv).

AFFIRMED