Dynamic Solutions Worldwide, LLC

Patent Trials and Appeals Board

Feb 1, 2022

2021004016 (P.T.A.B. Feb. 1, 2022)

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. 15/673,831 08/10/2017 Juan Rocha 2385.078 7683 23598 7590 02/01/2022 BOYLE FREDRICKSON S.C. 840 NORTH PLANKINTON AVENUE MILWAUKEE, WI 53203 EXAMINER BURGESS, MARC R ART UNIT PAPER NUMBER 3666 NOTIFICATION DATE DELIVERY MODE 02/01/2022 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): docketing@boylefred.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JUAN ROCHA and ROBERT SEATON Appeal 2021-004016 Application 15/673,831 Technology Center 3600 Before BENJAMIN D. M. WOOD, CARL M. DEFRANCO, and MICHAEL L. WOODS, Administrative Patent Judges. DEFRANCO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. CLAIMED SUBJECT MATTER The claims are directed to a plug-in insect trap. Claims 1, 14, and 17 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A plug-in insect trap comprising: 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Dynamic Solutions Worldwide, LLC. Appeal Br. 4. Appeal 2021-004016 Application 15/673,831 2 a trap enclosure providing an enclosure volume between a front facing plate coupled to a rear facing plate, the latter including a plurality of vent openings; an electrical housing supporting the trap enclosure and having rear facing electrical connectors insertable into an electrical socket of a rear wall; and an insect attractant comprising a light source positioned within the trap enclosure; an insect catching device positioned within the trap enclosure; wherein insects may enter the trap enclosure through the vent openings; wherein the plurality of vent openings are adapted to provide an uninterrupted straight line path of light from the light source to lateral areas of the rear wall flanking the electrical socket behind the trap enclosure; wherein the plurality of vent openings extend along left and right sides of the trap enclosure to provide a straight line path into the vent openings of the left side, through the enclosure volume, and out the vent openings of the right side. Appeal Br. 41 (Claims App.). REJECTIONS Claims 1-5, 8, 9, 11, and 14-19 stand rejected under 35 U.S.C. § 103 as being unpatentable over Larsen (US 8,707,614 B2, issued Apr. 29, 2014) and Prater (US 2009/0100743 A1, published Apr. 23, 2009). Claims 6 and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable over Larsen, Prater, and Chien (US 2015/0340826 A1, published Nov. 26, 2015). Claims 10, 12, and 13 stand rejected under 35 U.S.C. § 103 as being unpatentable over Larsen, Prater, and Nelson (US 6,493,986 B1, issued Dec. 17, 2002). Appeal 2021-004016 Application 15/673,831 3 Alternatively, claims 1-5, 8-11, and 14-19 stand rejected under 35 U.S.C. § 103 as being unpatentable over Studer (US 6,886,292 B2, issued May 3, 2005) and Larsen. Alternatively, claims 6 and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable over Studer, Larsen, and Chien. Alternatively, claims 10, 12, and 13 stand rejected under 35 U.S.C. § 103 as being unpatentable over Studer, Larsen, and Nelson. ANALYSIS As mentioned above, the Examiner rejects independent claims 1, 14, and 17 on alternative grounds, first, as being unpatentable over the combined teachings of Larsen and Prater (see Final Act 2-5), and, second, as being unpatentable over the combined teachings of Studer and Larsen (see id. at 8- 11). In our view, and as Appellant notes, the record does not support the Examiner’s reasoning for either of the proposed combinations. See Appeal Br. 23-24, 28-29; Reply Br. 3-5. A. The Rejection Based on Larsen and Prater With respect to the first rejection, the Examiner contends that one skilled would have found it obvious “to modify the trap of Larson with a rear plate/guard on the opening as taught by Prater in order to prevent inadvertent contact with the insect catching device.” Final Act. 4; see also Ans. 19-20 (“the fact remains it was obvious . . . that placing a grate over the opening to an adhesive trap will help prevent inadvertent contact”). We disagree for two reasons. First, Larsen has no need for Prater’s guard because Larsen already surrounds its insect-catching adhesive layer (element 56) with a rigid outer shell (element 52), which necessarily prevents inadvertent contact with both the light source and the insect-catching layer Appeal 2021-004016 Application 15/673,831 4 positioned within the outer shell. See Larsen, 3:16-22, Figs. 6, 7. Nowhere does the Examiner explain why an additional guard akin to Prater’s would not simply be redundant to Larsen’s rigid outer shell or would provide some improved protection that Larsen’s rigid outer shell somehow lacks. Moreover, even if there was a suggestion to place Prater’s guard over Larsen’s rigid outer shell, the Examiner fails to explain, nor do we discern, how the proposed modification would meet the claim limitations of providing “an uninterrupted straight line path” through the enclosure and into the vent openings. That is because Larsen describes its insect-catching device as having a “decorative” and “opaque” outer surface that will “add rigidity to the device” and “be most visible to users” such that “users would normally not view any insects [] which may become entrapped.” Larsen, 2:58-3:8. Logically then, the multilayer structure of Larson’s device would disrupt the path of light and prevent it from projecting through the vent openings along the sides of Larsen’s device as modified to include Prater’s guard. See Appeal Br. 23. As such, the modified Larsen device would fail to meet the claim limitations that the device “provide an uninterrupted straight line path of light from the light source to lateral areas of the rear wall flanking the electrical socket behind the trap enclosure” and also “provide a straight line path into the vent openings of the left side, through the enclosure volume, and out the vent openings of the right side.” Thus, the Examiner’s initial line of reasoning for combining Larsen and Prater falls woefully short. Perhaps realizing this weakness, the Examiner provides another reason for combining Larsen and Prater. Specifically, the Examiner asserts that one skilled in the art would have found it obvious to modify Larson’s Appeal 2021-004016 Application 15/673,831 5 trap enclosure to include vent openings along its sides, as taught by Prater, “in order to allow more light to escape and more entry points for insects and increase trap effectiveness.” Aside from the fact that this line of reasoning lacks evidentiary support and smacks of improper hindsight, we agree with Appellant that it also strains credulity given that Larsen’s trap enclosure already includes a relatively large opening along the top of the enclosure for luring insects into the trap, thereby usurping the need for any smaller openings. See Appeal Br. 23; Reply Br. 4-5. And as Appellant further notes, any increase in the number of openings would actually decrease the trap’s effectiveness by reducing the surface area of the insect-ensnaring adhesive layer. See Appeal Br. 24. In sum, we are not persuaded that one skilled in the art would have undertaken to modify Larsen by incorporating either the protective guard or the vent openings of Prater. The Examiner’s reasoning to the contrary lacks rational underpinning to support a legal conclusion of obviousness. Thus, we do not sustain the rejection of independent claims 1, 14, and 17. Nor do we sustain the rejection of dependent claims 2-5, 8, 9, 11, 15, 16, 18, and 19, which were rejected on the same basis as the independent claims.2 2 We also take issue with the tone of the Examiner’s response in repeatedly describing Appellant’s arguments as “weak,” “misleading,” “sneak[y],” “completely illogical,” “irrelevant,” “nonsense,” and a “massive oversimplification/misinterpretation by the appellant,” not to mention the Examiner’s many rhetorical questions. See Ans. 19-34. We advise the Examiner to refrain from such language in the future, as it is disrespectful of our stakeholders. Appeal 2021-004016 Application 15/673,831 6 B. The Rejection Based on Studer and Larsen The Examiner alternatively rejects independent claims 1, 14, and 17 as being unpatentable over the combined teachings of Studer and Larsen. See Final Act. 8-11. In doing so, the Examiner concludes that one skilled in the art would have found it obvious “to modify the trap of Studer by orienting the openings (and therefore the non-planar plate) towards the rear face as taught by Larson in order to conceal the insect catching device from view or obtain the desired light distribution.” Id. at 11 (emphasis added); see also Ans. 18. We disagree. In our view, neither of those reasons finds support in the record. Although it is true that Larsen teaches concealing the insect-trapping adhesive on the rearward-facing plate of its plug-in trap, we fail to discern why one skilled in the art would look to that teaching to modify Studer’s plug-in trap where Studer already discloses that same teaching. More specifically, like Larsen, Studer discloses that insect-trapping adhesive surface 30 may be mounted on either the forward-facing side of base 11 or the rearward-facing side of vented housing 15. See Studer, 3:39-45, Fig. 2. Given the redundancy of the teachings of Larsen and Studer, the Examiner must state some additional benefit that might be achieved by applying such redundancy to Larsen. The Examiner does not. See Final Act. 11 We also view the Examiner’s second reason for the proposed combination of Studer and Larsen-“obtain the desired light distribution”- as equally unavailing. Nowhere does the Examiner explain, nor do we discern, where Larsen teaches anything about a desired light distribution such that one skilled in the art would look to it as being applicable to Studer’s plug-in trap. Indeed, aside from stating that the insect-catching Appeal 2021-004016 Application 15/673,831 7 device includes “light-emitting portion 30,” Larsen is silent as to the path or projection of the light. Larsen, 2:41-48, Fig. 6. At best, Larsen teaches providing a relatively large opening for projecting light above the trap for attracting insects. But, because Studer already provides an opening at the top of its enclosure for allowing light to pass therethrough, one skilled in the art would have no reason to look to Larson for the same teaching where there is no indication of a need for improvement. Thus, we see error in the Examiner’s reasoning for the proposed combination of Studer and Larsen. As such, we do not sustain the rejection of claims 1, 14, and 17 as unpatentable over Studer and Larsen. Nor do we sustain the rejection of dependent claims 2-5, 8-11, 15, 16, 18, and 19, which were rejected on the same basis as the independent claims. C. The Remaining Rejections Claims 6, 7, 10, 12, and 13 depend either directly or indirectly from claim 1. See Appeal Br. 42 (Claims App.). The Examiner rejects those dependent claims on the basis of additional teachings from either Chien or Nelson. The Examiner does not rely on the additional teachings of Chien or Nelson to remedy the deficiencies discussed above regarding either the proposed combination of Larsen and Prater or that of Studer and Larsen. See Final Act. 7-8, 14-15. Thus, for the reasons discussed above, we do not sustain the rejection of dependent claims 6, 7, 10, 12, and 13. Appeal 2021-004016 Application 15/673,831 8 DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1-5, 8, 9, 11, 14-19 103 Larsen, Prater 1-5, 8, 9, 11, 14-19 6, 7 103 Larsen, Prater, Chien 6, 7 10, 12, 13 103 Larsen, Prater, Nelson 10, 12, 13 1-5, 8-11, 14-19 103 Studer, Larsen 1-5, 8-11, 14-19 6, 7 103 Studer, Larsen, Chien 6, 7 10, 12, 13 103 Studer, Larsen, Nelson 10, 12, 13 Overall Outcome 1-19 REVERSED