Arthur KHALIQ

Patent Trials and Appeals Board

Sep 16, 2021

2021001741 (P.T.A.B. Sep. 16, 2021)

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.
15/847,888 12/19/2017 Arthur KHALIQ IAK-001US 9025
26349 7590 09/16/2021
Dana Legal Services - General
13500 SW Pacific Hwy Suite 117
Tigard, OR 97223
EXAMINER
WOOD, KIMBERLY T
ART UNIT PAPER NUMBER
3631
NOTIFICATION DATE DELIVERY MODE
09/16/2021 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):
docket.pat@danalegalservices.com
docket@danalegalservices.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARTHUR KHALIQ
Appeal 2021-001741
Application 15/847,888
Technology Center 3600
Before JENNIFER D. BAHR, BARRY L. GROSSMAN, and
CARL M. DEFRANCO, Administrative Patent Judges.

DEFRANCO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Examiner’s
decision to reject claims 1, 2, and 6–14. We have jurisdiction under
35 U.S.C. § 6(b). We affirm in part.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to an adjustable support assembly
for a planar surface, such as a shelf. Spec. ¶¶ 2–3, 8. Of the pending claims,

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the inventor, Arthur Khaliq, as the real party
in interest. Appeal Br. 2.
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claims 1 and 12 are independent. See Ans. 16–19.2 Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. An adjustable support assembly for securing to two
vertical supports, one at each end, and for supporting a planar
surface, the adjustable support assembly comprising:
a first u-channel section having a first end and a second
end and including:
a first L-shaped bracket secured to the first end of
the first u-channel section for securing the adjustable
support assembly to one of the two vertical supports; and
a pin-hole defined by the first u-channel section at
the second end of the first u-channel section;
a second u-channel section having a first end and a
second end and including:
a second L-shaped bracket secured to the second
end of the second u-channel section for securing the
adjustable support assembly to another one of the two
vertical supports; and
a pin-hole defined by the second u-channel section
at the first end of the second u-channel section: and
a center square tubular section, wherein the second end
of the first u-channel section is inserted in to one end of the
center square tubular section and the first end of the second
u-channel section is inserted into an opposite end of the center
square tubular section thereby allowing the adjustable support
assembly to be adjusted to the planar surface’s length and for

2 The Appeal Brief, filed August 3, 2020, as well as the Claims Appendix
submitted September 14, 2020 (hereinafter “Revised Claims App.), in
response to the Notice of Non-Compliant Appeal Brief, issued August 8,
2020, includes claims from an unentered After-Final Amendment dated
Nov. 18, 2019. See Ans. 13; see also Advisory Action dated Dec. 12, 2019
(rejecting entry of proposed amendment because it introduces new matter).
Thus, like the Examiner, we consider the Appeal Brief in the context of the
claims in the properly-entered Amendment dated June 13, 2019.
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securing the adjustable support assembly to the two vertical
supports using the first L-shaped bracket of the first u-channel
section and the second L-shaped bracket of the second
u-channel section.
Ans. 17 (emphases added).
REJECTIONS
1) Claims 6, 7, 13, and 14 stand rejected under 35 U.S.C. § 112(a) as
lacking adequate written description support. Final Act. 4–6.
2) Claim 1 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Hubbard (US 4,717,099, issued Jan. 5, 1988) and
Humphrey (US 6,591,574 B2, issued July 15, 2003). Final Act. 6–8.
3) Claim 2 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Hubbard, Humphrey, and Wronski (US 7,673,841 B2,
issued Mar. 9, 2010). Final Act. 8–9.
4) Claims 6 and 7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hubbard, Humphrey, Wronski, and Kaden (US 5,150,868,
issued Sept. 29, 1992). Final Act. 9.
5) Claim 8 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Hubbard, Humphrey, and Kaden. Final Act. 9–10.
6) Claims 9–11 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hubbard, Humphrey, and Jamison (US 6,461,016 B1,
issued Oct. 8, 2002). Final Act. 10–11.
7) Claims 12–14 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Weston (US 1,381,607, issued June 14, 1921) and
Hubbard. Final Act. 11–13.
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ANALYSIS
A. Written Description
Appellant does not respond to the pending rejection of claims 6, 7, 13,
and 14 for failing to comply with the written description requirement of 35
U.S.C. § 112(a). Compare Final Act. 4–6 with Appeal Br. 6–8. Thus, we
summarily sustain the Examiner’s § 112(a) rejection.
B. Obviousness
1. Claims 1, 2, and 6–11
We begin with claim 1. The Examiner finds that Hubbard discloses
an adjustable support assembly substantially as claimed, “except for [] a pin-
hole defined by the second channel section at the first end of the second
channel section and a pin-hole defined by the first channel section at the first
end of the first channel section.” Final Act. 6–7. For that limitation, the
Examiner finds that Humphrey teaches providing pin holes in the ends of
two telescoping channel sections and concludes that one skilled in the art
would have thought it obvious to modify Hubbard’s channel sections to
include pin holes as taught by Humphrey “for the purpose of providing a
means of preventing the ends of the channel sections from disengaging from
the tubular section.” Id. at 8. Notably, in arriving at the above conclusion,
the Examiner contends that “the planar surface and the vertical supports are
not positively claimed therefore the prior art needs to be capable of only
performing the functions associated with the planar surface and vertical
supports.” Final Act. 6–7 (emphasis added).
Appellant responds that Hubbard is directed to an alignment bracket
for a plumbing fixture, not a structure “for supporting a planar surface” and
configured “to be adjusted to the planar surfaces length,” as recited in
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claim 1. See Appeal Br. 6–7. According to Appellant, the Examiner errs by
disregarding those positively-recited features of the claim in finding that the
proposed combination of Hubbard and Humphrey is merely capable of
performing the recited function of supporting a planar surface. See id.
In our view, Appellant has the better position. As recited in the
preamble, the claimed invention is an adjustable support assembly “for
supporting a planar surface,” and as recited in the body of the claim, the
arrangement of the support assembly’s components allows it “to be adjusted
to the planar surface’s length.” See Ans. 17 (reproducing claim 1 as
submitted by Appellant and entered by the Examiner). “Whether to treat a
preamble as a limitation is a determination ‘resolved only on review of the
entire[ ] … patent to gain an understanding of what the inventors actually
invented and intended to encompass by the claim.’” Catalina Mktg. Intl.,
Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002) (quoting
Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257
(Fed. Cir. 1989)) (emphasis added). “In general, a preamble limits the
invention if it recites essential structure or steps, or if it is ‘necessary to give
life, meaning, and vitality’ to the claim.” Id. (quoting Pitney Bowes, Inc. v.
Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)). Indeed,
functional language may add a structural limitation to an apparatus claim
where the body of the claim describes something about the structural
requirements of the apparatus rather than merely reciting its intended use.
See K–2 Corp. v. Salomon S.A., 191 F.3d 1356, 1363–64 (Fed. Cir. 1999)
(noting that all limitations of a claim must be given weight and that
functional language may inform as to structural requirements of the claim).
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Here, the claim body’s recitation of structure that permits adjustment
of the support assembly to planar surfaces of different lengths gives life and
meaning to the functional language of the preamble. The Specification
confirms as much. See Spec. ¶ 2 (disclosing that the invention relates to “an
improved support system for planar surfaces, such as shelves or counters,
that are load bearing.”). Thus, contrary to the Examiner’s position in this
case, the functional claim language is entitled to patentable weight.
And because Hubbard indisputably fails to disclose a support
assembly for a planar surface, let alone a support assembly that can be
adjusted to accommodate planar surfaces of different lengths, we do not
sustain the Examiner’s obviousness rejection of claim 1. See Hubbard,
1:36–40 (disclosing a “bracket assembly for locating and aligning a fixture
such as a fire sprinkler pipe or other plumbing pipe.” Nor do we sustain the
Examiner’s obviousness rejections of claims 2 and 6–11, as they are based
primarily on Hubbard and are similarly deficient. See Final Act. 8–11.
2. Claim 12–14
The Examiner rejects independent claim 12, as well as its dependent
claims 13 and 14, as unpatentable over the combined teachings of Weston
and Hubbard. See Final Act. 11–13. Claim 12 recites a support assembly
for “repairing bowing of a shelf” such that “the assembly will adjust to the
shelf’s length” and “secure to the shelf in a way that the bowing of the shelf
is away from the assembly.” See Revised Claims App. 4. Notably, the
Examiner relies on Weston, not Hubbard, for teaching the claimed “shelf” as
well as the underlying support assembly (Weston’s “brace rods 12”) for
preventing the shelf from bowing. Final Act. 11–12; see also Weston, 1:52–
103. And, insofar as the assembly being adjustable to the shelf’s length,
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Weston discloses that the length of rods 12 can be adjusted to fit the
dimensions of the shelf so that “the shelves take the strain.” Weston, 1:72–
79. The Examiner relies on Hubbard simply to teach that one skilled in the
art would have known to construct Weston’s adjustable support assembly of
slidable channel/tubular sections in the manner taught by Hubbard and that it
would have been obvious to do so. See Final Act. 12.
Although Appellant “traverses” the rejection of claim 12, nowhere
does Appellant ever meaningfully dispute the Examiner’s findings and
conclusions with respect to the Examiner’s proposed combination of Weston
and Hubbard, which is the ground on which the Examiner rejects claim 12.
See Appeal Br. 8. Instead, Appellant’s arguments focus exclusively on the
above-discussed rejection of claim 1 based on the combination of Hubbard
and Humphrey, as opposed to the rejection of claim 12 based on the
combination of Weston and Hubbard. See id. at 6–8. Thus, because
Appellant fails to apprise us of error in the Examiner’s proposed
combination of Weston and Hubbard, we sustain the Examiner’s
obviousness rejection of claims 12–14.
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CONCLUSION
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
6, 7, 13, 14 112(a) Written Description 6, 7, 13, 14
1 103 Hubbard, Humphrey 1
2 103 Hubbard, Humphrey,
Wronski
2
6, 7 103 Hubbard, Humphrey,
Wronski, Kaden
6, 7
8 103 Hubbard, Humphrey,
Kaden
8
9–11 103 Hubbard, Humphrey,
Jamison
9–11
12–14 103 Weston, Hubbard 12–14
Overall
Outcome
6, 7, 12–14 1, 2, 8–11

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED IN PART