Ronald Helton

Patent Trials and Appeals Board

Jun 29, 2020

15062566 - (D) (P.T.A.B. Jun. 29, 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.
15/062,566 03/07/2016 Ronald M. Helton 3240-00104 2689
62763 7590 06/29/2020
TOD T. TUMEY
TUMEY LLP
P.O. BOX 22188
HOUSTON, TX 77227-2188
EXAMINER
WALRAED-SULLIVAN, KYLE
ART UNIT PAPER NUMBER
3635
MAIL DATE DELIVERY MODE
06/29/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD M. HELTON
Appeal 2019-006708
Application 15/062,566
Technology Center 3600
Before MICHAEL L. HOELTER, WILLIAM A. CAPP, and
LEE L. STEPINA, Administrative Patent Judges.
Opinion for the Board filed by STEPINA, Administrative Patent Judge

Opinion Concurring filed by CAPP, Administrative Patent Judge
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 6, and 7. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM and enter a NEW GROUND OF REJECTION pursuant
to 37 C.F.R. § 41.50(b).

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 Ronald M. Helton.
Appeal Br. 3.
Appeal 2019-006708
Application 15/062,566
2
CLAIMED SUBJECT MATTER
The claims are directed to flood proof doors having a flange and
hinges.
Claims 1 and 4, reproduced below, are the sole independent claims on
appeal.
1. A flood proof door comprising:
a door having a front portion, lying in a plane, a rear
portion, a top and bottom portion and a pair of side portions;
each of said pair of side portions having an outwardly
extending flange lying in the plane of the front portion, the
outwardly extending flange extending from the bottom portion
of the door to a height above the bottom portion;
the bottom portion of the door including a downwardly
extending flange portion;
a plurality of hinges having a first element of the each of
said plurality of hinges attached to a first side of one of said
outwardly extending flange of the door, and front face of the
outwardly extending flange being coplanar with a front surface
of the door, each outwardly extending flanges-consisting of a flat
plate extension of the front portion of the door.

4. A flood proof door comprising:
a door having a front portion, lying in a plane, a rear
portion, a top and bottom portion and a pair of side portions;
each side portions of said pair of said portions having an
outwardly extending flange lying in the plane of the front
portion, the outwardly extending flange extending from the
bottom portion of the door to a height above the bottom portion;
the bottom portion of the door including a downwardly
extending flange portion;
a plurality of hinges having a first element of the hinge
attached to the outwardly extending flange of the door;
a second element of hinge secured to a first leg of an L-
shaped member which is adapted to be secured to a door jamb
frame,
Appeal 2019-006708
Application 15/062,566
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each outwardly extending flanges consisting of a flat plate
extension of the front portion of the door.
Appeal Br. 9–10 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Wirfs US 1,695,073 Dec. 11, 1928
Mehaffy US 3,044,130 July 17, 1962
Lingle US 3,768,206 Oct. 20, 1973
Heikkinen US 4,807,396 Feb. 28, 1989
Helton ’975 US 8,782,975 B2 July 22, 2014
Helton ’018 US 9,341,018 B2 May 17, 2016

REJECTIONS2
I. Claims 1–3 and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Heikkinen, Wirfs, and Lingle.
II. Claims 4 and 7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Heikkinen, Mehaffy, and Wirfs.

2 The Final Office Action included rejections of claims 1–4 and 6 on the
ground of nonstatutory double patenting over (i) claims 1, 2, and 4 of US
9,341,018 B2 (filed June 20, 2014) and Wirfs (Final Act. 3–5) and (ii)
claims 1 and 2 of US 8,782,975 B2 (filed Apr. 25, 2012) and Wirfs (Final
Act. 5–7). The Final Office Action also include a rejection of claims 1–4, 6,
and 7 under 35 U.S.C. § 112, second paragraph, as indefinite. Final Act. 7–
8. These rejections were all withdrawn by the Examiner. Ans. 3–4.
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Application 15/062,566
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OPINION
Rejection I–Heikkinen, Wirfs, and Lingle (claims 1–3 and 6)
The Examiner finds that Heikkinen discloses many of the elements
recited in claim 1, including an outwardly extending flange (bottom of door
plate 40) lying in a plane of a front portion of the door and extending from a
bottom portion of the door to a height above the bottom portion. Final
Act. 8–9 (citing Heikkinen, 4:35–40, 6:19–23, Figs. 1, 2). In this regard, the
Examiner notes that although Heikkinen’s Figures depict sealing assembly
10 only on the bottom of the door, Heikkinen’s detailed description discloses
that sealing assembly 10 is also used on the sides and top of the door. Id. at
9 (citing Heikkinen, 6:19–23). The Examiner also finds Heikkinen’s door
includes hinges 22. Id.
Although the Examiner finds Heikkinen discloses a door including a
flange on the bottom, sides, and top, as well as a plurality of hinges, the
Examiner finds Heikkinen does not explicitly disclose (i) that “a first
element of the each of said plurality of hinges [is] attached to a first side of
one of said outwardly extending flange[s] of the door” and (ii) that “said
outwardly extending flanges consist[] of a flat plate extension of the front
portion of the door.” Final Act. 8–9.
To address the first of these deficiencies in Heikkinen, the Examiner
finds Lingle “discloses a first element (92) of the each of said plurality of
hinges (96) attached to a first side (of 18) of one of said outwardly extending
flange (18) of the door (10).” Final Act. 10. The Examiner determines that
a person of ordinary skill in the art would have found it obvious to add
hinges in the claimed location on the flange “in order to provide secure
attachment of the door at an outermost point to the jamb, frame, or wall, as
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Application 15/062,566
5
hinging doors on flanges is extremely well known and common in the art,
and does not appear critical to the invention.” Id.
To address the second deficiency in Heikkinen, the Examiner finds
Wirfs discloses outwardly extending flanges consisting of a flat plate
extension (the top of door B in Figure 1). Final Act. 10. The Examiner
determines that a person of ordinary skill in the art would have been
motivated to use a flat plate structure as the flange in Heikkinen because
doing so would minimize the amount of material and machining required.
Id.
Appellant argues that because Heikkinen’s flanges include “at least
two plate steps 44,” Heikkinen fails to disclose an outwardly extending
flange consisting of a flat plate extension. Appeal Br. 6. We agree with the
Examiner’s response (Ans. 6) noting that the rejection of claim 1 relies on
Wirfs, not Heikkinen, to teach a flange consisting of a flat plate extension.
See Wirfs, Fig. 1. Thus, Appellant’s argument does not address the rejection
of claim 1 and does not apprise us of Examiner error.
Appellant next argues “Heikkinen also fails to explain how the sealing
assembly can be combined with the hinges which is a critical component of
the claimed invention.” Appeal Br. 6.
The Examiner responds that Lingle is relied upon to teach the recited
relationship between the flange and hinges, and, therefore, it is not necessary
for Heikkinen to explain how the combination of these components is
possible. Ans. 6–7. Nonetheless, the Examiner notes, “Heikkinen clearly
discloses use of hinges 22. Col 4 lines 35–40 discloses 40 is part of the
sealing assembly 10, and Col 6 lines 19–23 discloses that seal assembly 10
may be placed around the entirety of the door. As such, hinges 22 must be
combined with the sealing assembly 10.” Id. at 7. In other words, according
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Application 15/062,566
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to the Examiner, Heikkinen teaches the use of hinges in combination with a
proximate flange, even if Heikkinen does not specifically teach that the
flange and hinges are connected as recited in claim 1.
We agree with the Examiner on this point. It is not necessary that
Heikkinen explain how the deficiency regarding the attachment of the hinge
and flange, which is acknowledged by the Examiner in the rejection of
claim 1, would be remedied. Appellant’s argument on this point amounts to
an unpersuasive attack on the cited references individually rather than an
argument against the proposed combination of the references.
Appellant argues that “rectangular elements 18 of Lingle are not a
flange[,] but rather are part of the door frame.” Appeal Br. 6 (citing Lingle,
Fig. 2).
In response, the Examiner states, regarding Lingle, “Col 1 lines 56-61
discloses that relied upon outwardly extending flange 18 is a side rail which
is secured to the cover by nails. As such, 18 is not a part of the door frame
as argued by the Appellant, but is part of the door itself.” Ans. 7. The
Examiner contends element 18 of Lingle is an outwardly extending flange
because it extends outwardly from center rail 44 and insulation 80. Id.
In reply, Appellant asserts element 18 of Lingle is part of the door
frame itself and cannot reasonably be considered to be a flange that extends
outwardly from side portions of the door. Reply Br. 2.
Lingle describes element 18 as a “rectangular side rail” that is “nested
within the sockets formed along the sides of the cover 10.” Lingle, 1:57–59
(emphasis added). As shown in Figure 4 of Lingle, rectangular side rail 18
is surrounded by front cover 10 (including integral flanges 12 and flange
extensions 14), with this front cover 10 being directly attached to hinge plate
92. Lingle’s door is widest at the point identified by reference number 12
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(the integral flange), which extends beyond rectangular side rail 18. The
portion of this assembly farthest to the right in Figure 4 supports gasket 74
for compression against outside wall 88. See id. at 3:24–39. We reproduce
Figure 4 of Lingle below with an annotation identifying this portion of
Lingle’s assembly.

Annotated Figure 4 is a top view of a cross-section of Lingle’s door
mounted in a door opening and includes a circle identifying the lower right-
hand corner of the door.
The portion of the assembly identified in annotated Figure 4 of Lingle
above is comparable to Appellant’s outwardly extending flange 121, which
is shown in Appellant’s Figure 13 as supporting seals 122. Appellant’s
Specification indicates “[f]langes 114, 121, 141, 152 and 162 all extend
from the exterior surface of door 100.” Spec. ¶ 59 (emphasis added). As
rectangular side rail 18 is merely an internal subcomponent of a larger
assembly that more closely matches Appellant’s structure identified as an
outwardly extending flange, we agree with Appellant that a person of
ordinary skill in the art would not consider rectangular side rail 18, by itself,
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to be a flange under the broadest reasonable interpretation of this term in
light of Appellant’s Specification. Nonetheless, we agree with the
Examiner’s conclusion that Lingle discloses that first element (hinge
plate 92) of a plurality of hinges (hinges 96) is attached to a first side of an
outwardly extending flange. See Final Act. 8. Our findings differ from the
Examiner’s only in that we determine that the portion of the assembly
identified in annotated Figure 4 of Lingle above, rather than rectangular side
rail 18 by itself, satisfies the requirement for an outwardly extending flange
of the door.
Appellant next argues that rectangular side rail 18 does not lie in the
plane of the front portion of the door as recited in claim 1. Appeal Br. 6.
This argument is unpersuasive. The Examiner did not rely on Lingle
to teach that the flange lies in the plane of the front portion of the door, and,
instead, relied on Heikkinen to teach this feature. See Final Act. 9.
Appellant does not contest that Heikkinen discloses that its flange lies in the
plane of the front of the door. Thus, Appellant’s argument does not address
the Examiner’s proposed combination of references. In any event,
Appellant’s argument does not appear to apply to the portion of the
assembly identified in annotated Figure 4 of Lingle.
Finally, Appellant argues “it is unclear how the teachings of Lingle
and Werfs [sic] would be incorporated into Herkkinen [sic] to arrive at the
claimed invention. It appears that the examiner is selecting isolated
elements from the prior art in an attempt to render the invention obvious
based upon Appellant's disclosure.” Appeal Br. 6.
Appellant’s general allegation of impermissible hindsight is
unavailing because Appellant does not address the Examiner’s stated
rationales for modifying the door and flange disclosed by Heikkinen based
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Application 15/062,566
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on the teachings of Wirfs and Lingle. These rationales are set forth on page
10 of the Final Office Action.
We sustain the rejection of claim 1, and claims 2, 3, and 6 depending
therefrom, as unpatentable over Heikkinen, Wirfs, and Lingle. However as
our findings of fact regarding the flange disclosed by Lingle differ from
those made in the Final Office Action (see Final Act. 10), we designate our
affirmance a NEW GROUND OF REJECTION to afford Appellants a full
and fair opportunity to react to the thrust of the rejection. See In re Kronig,
539 F.2d 1300, 1302 (CCPA 1976) (“the ultimate criterion of whether a
rejection is considered ‘new’ in a decision by the board is whether appellants
have had [a] fair opportunity to react to the thrust of the rejection.”).
Rejection II–Heikkinen, Wirfs, and Lingle (claims 4 and 7)
Independent claim 4 differs from claim 1 by reciting, inter alia, “a
second element of hinge secured to a first leg of an L-shaped member which
is adapted to be secured to a door jamb frame.” Appeal Br. 9 (Claims App.).
The Examiner relies on Mehaffy to teach this element. Final Act. 12 (citing
Mehaffy, 2:55–56, Fig. 1). The Examiner relies on Wirfs to teach outwardly
extending flanges consisting of a flat plate extension of the front portion of
the door. Id. at 13 (citing Wirfs, Fig. 2).
The Examiner reasons it would have been obvious to modify the flood
proof door of Heikkinen with the plurality of hinges having a first element of
the hinge attached to a first side flange of the door and second element of the
hinge secured to a first leg of an L-shaped member secured to a door jamb
frame (as disclosed by Mehaffy) “to provide secure attachment of the door at
an outermost point to the jamb, frame, or wall, or to carry the door.” Final
Act. 12–13 (citing Mehaffy, 1:54–55).
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Appellant argues, “claim 4 recites that the outwardly extending flange
lies in the plane of the front portion of the door. Mehaffy fails to disclose
such arrangement.” Appeal Br. 7.
The Examiner responds, and we agree, that the rejection of claim 4
relies on Heikkinen to disclose an outwardly extending flange that lies in a
plane of a front portion of the door. Ans. 10; see also Final Act. 11. Thus,
Appellant’s argument fails to address the rejection of claim 4 by attacking
Mehaffy for not disclosing an element the Examiner finds is already
disclosed in Heikkinen.
Appellant next asserts the Examiner’s implementation of the teachings
of Wirfs in combination with those of Heikkinen is unclear, and “[i]n
Mehaffy, one portion of hinge 22 is attached to the side of door 4 by screws
25. Thus the examiner is saying that it is obvious to modify Heikkinen by
utilizing a single flange that is coplanar with the front surface of the door
(Wirfs) and then to attach a portion of a hinge to the flange (Mehaffy).”
Appeal Br. 7. Appellant contends such a modification to the arrangement in
Heikkinen amounts to the use of Appellant’s disclosure as a roadmap. Id.
We disagree with Appellant’s argument because the Examiner
provides specific statements of motivation for making the proposed
modifications to the arrangement in Heikkinen on pages 12–13 of the Final
Office Action. Appellant does not contest the Examiner’s findings regarding
these reasons for combining the teachings of Heikkinen, Wirfs, and
Mehaffy. See Appeal Br. 6. Appellant’s description of the Examiner’s
proposed combination of teachings, followed by a statement that the
Examiner is merely taking individual elements from the prior art based
solely on Appellant’s disclosure (see id.) does not identify error in the
Examiner’s reasoning set forth on pages 12–13 of the Final Office Action.
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Finally, although Mehaffy discloses hinge 22 attached via screws 25
and 26 to door 4 and in direct contact with the portion of door 4 identified by
the Examiner as an outwardly extending flange (see Mehaffy, Fig. 1),
Appellant asserts, “Mehaffy also does not show a first element of a hinge
connected to a single flange extending from side portions of a door.” Reply
Br. 2. This argument was first raised in the Reply Brief. Appellant’s
argument is untimely, and Appellant does not present any persuasive
evidence or explanation to show good cause why it should be considered by
the Board at this time. See 37 C.F.R. § 41.41(b)(2) (“Any argument raised
in the reply brief which was not raised in the appeal brief, or is not
responsive to an argument raised in the examiner’s answer . . . will not be
considered by the Board for purposes of the present appeal, unless good
cause is shown.”); 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.”).
We have considered all of Appellant’s timely arguments in support of
the patentability of claim 4, but find them unavailing. Accordingly, we
sustain the rejection of claim 4 as unpatentable over Heikkinen, Wirfs, and
Mehaffy. Appellant does not make separate arguments for the patentability
of dependent claim 7, and this claim falls with claim 4.

CONCLUSION
The Examiner’s rejections are affirmed.

DECISION SUMMARY
Appeal 2019-006708
Application 15/062,566
12

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed New
Ground
1–3, 6 103(a) Heikkinen, Wirfs,
Lingle
1–3, 6
4, 7 103(a) Heikkinen, Wirfs,
Mehaffy
4, 7
Overall
Outcome
4, 7 1–3, 6

TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .

Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
Appeal 2019-006708
Application 15/062,566
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AFFIRMED; 37 C.F.R. § 41.50(B).

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD M. HELTON
Appeal 2019-006708
Application 15/062,566
Technology Center 3600
OPINION CONCURRING
CAPP, Administrative Patent Judge
I agree with the majority that the Examiner’s rejection should be
affirmed. However, I write separately to comment on whether there is a
need, under the facts of this case, to designate the affirmance as a new
ground of rejection.
As shown in the annotated version of Lingle Figure 4 in the majority
decision hereinabove, Lingle exhibits structure comprised of side rail 18,
flange 12, and flange extension 14. Elements 12 and 14 are depicted in
Figure 4 as surrounding element 18. Collectively, elements 12, 14, and 18
extend laterally beyond the remainder of the door structure. Such elements
collectively provide a base for mounting gasket 74.
In the rejection under review, the Examiner cites to only element 18
as satisfying the flange limitation of the claim. Final Act. 10. However,
given the juxtaposition of elements 12, 14, and 18, I do not consider the
Examiner to have erred in citing to only element 18 as the flange. Although,
the Examiner could have cited collectively to elements 12, 14, and 18 as the
flange, I do not think that such is necessary under the facts of this case.
Appeal 2019-006708
Application 15/062,566
2
In the Appeal Brief, Appellant argues that element 18 is not a flange
because is it a part of a door frame. Appeal Br. 6. Even if we were to accept
this argument (we should not), Appellant does not persuasively explain why
a door frame may not be formed with a flange. Appellant never argues that
element 18 is not a flange because it is covered by elements 12 and 14,
which are integral to door cover 10 instead of other door features. See
generally Appeal Br. Here, the majority disagrees with the Examiner’s
finding that element 18 is not a flange sua sponte, for a reason that is never
raised by Appellant. This is contrary to the Board’s long-standing practice
of requiring an Appellant to identify the alleged error in an Examiner’s
rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011); see also 37
C.F.R. § 41.37(c)(1)(iv) (the Appeal Brief “shall explain why the examiner
erred”).
In my opinion, the Appellant has already been given a full and fair
opportunity to respond to the thrust of the rejection. Merely noting that
element 18 is surrounded by elements 12 and 12 does not change the
“thrust” of the Examiner’s rejection under prevailing law. See In re
Biedermann, 733 F.3d 329, 337 (Fed. Cir. 2013) (explaining that a new
ground of rejection, in an appropriate case, may be necessary to provide an
applicant with a fair opportunity to react to the thrust of a rejection). In my
opinion, the following principle applies here.
This court’s predecessor long acknowledged the right of the
Board to make additional findings of fact based upon the Board’s
own knowledge and experience to fill in the gaps that might exist
in the examiner’s evidentiary showing.
In re Leithem, 661 F.3d 1316, 1319 (Fed. Cir. 2011) (citing In re Ahlert, 424
F.2d 1088, 1091–92 (CCPA 1970); In re Moore, 444 F.2d 572, 574–75
(CCPA 1971)). Consistent with the foregoing principle, we should be able
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to find that, even if element 18 is surrounded by elements 12 and 14, such
finding amounts to no more than filling in gaps in the Examiner’s
evidentiary showing. To me, such a finding does not change the thrust of
the rejection. Elements 12 and 14 are integral to the exterior metal cover of
the door. Lingle, col. 1, ll. 49–55. In that regard, a person of ordinary skill
in the art would understand that elements 12 and 14 merely provide an
exterior cover for element 18, which is made of different material. In my
opinion, that does not negative the fact that element 18 is a flange that is
merely covered by a relatively thin layer of metal.
In summary, I concur in the result that has been reached by the
majority, which is an affirmance of the Examiner’s rejection. I am simply of
the opinion that designating the affirmance as a new ground of rejection,
under the facts of this case, is unnecessary.