Ex Parte Albright

Patent Trial and Appeal BoardNov 7, 2012

12290333 (P.T.A.B. Nov. 7, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/290,333 10/29/2008 Gregory R. Albright ICELUGE 3741 7590 11/08/2012 Robert W. Mulcahy, Esq. 520 Sequoia Drive Sunnyvale, CA 94086 EXAMINER SCHIFFMAN, BENJAMIN A ART UNIT PAPER NUMBER 1742 MAIL DATE DELIVERY MODE 11/08/2012 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 GREGORY R. ALBRIGHT ____________ Appeal 2011-005133 Application 12/290,333 Technology Center 1700 ____________ Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and TERRY J. OWENS, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1-10 and 13-18. We have jurisdiction under 35 U.S.C. § 6(b). Claim 1 is illustrative: 1. A mold for forming liquid dispenser ice figurines comprising: (i) a single piece plastic sidewall substantially surrounding a hollow interior portion thereof, an inner surface of the sidewall being contoured to define the shape of a predetermined figure, a portion of the sidewall being backfolded to the inner surface to define a hollow rib extending perpendicularly over the entire sidewall and disposed in a manner where it may be severed to expose opposing mold halves; (ii) a recessed basin element in the predetermined cavity figure and at least one strand of a flexible linear string cord element running from a sink Appeal 2011-005133 Application 12/290,333 2 in the basin to a distal exit in the figure, said linear piece having a handle means so as to enable physical removal of the linear cord so as to form a channel in any ice figure formed therein; (iii) a base portion extending generally horizontally across and enclosing the bottom of the sidewall and having at least one indentation recess for ultimate formation of a base compartment in any mold generated ice sculpture. The Examiner relies upon the following references as evidence of obviousness: Satterlee 1,563,529 Dec. 1, 1925 Moreland et al. (Moreland) 3,390,543 Jul. 2, 1968 Tu 4,807,844 Feb. 28, 1989 Kirks 5,971,352 Oct. 26, 1999 Lee et al. (Lee) US 2002/0056944 A1 May 16, 2002 Wust US 2002/0146481 A1 Oct. 10, 2002 Riedesel 6,651,447 B1 Nov. 25, 2003 Fleeman 6,763,675 B1 Jul. 20, 2004 Appellant’s claimed invention is directed to a mold for forming liquid dispenser ice figurines. The mold comprises, inter alia, a recess basin and at least one strand of a flexible linear string core running from a sink in the basin to a distal end in the figurine. When an ice figurine is formed in the mold the string cord is removed to form channels in the figure through which liquid may be dispensed. The appealed claims stand rejected under 35 U.S.C. § 103(a) as follows: (a) claims 1-3 over Tu in view of Satterlee, Lee, Riedesel, and Wust, (b) claims 4, 5, and 7 over the stated combination of references further in view of Kirks, Appeal 2011-005133 Application 12/290,333 3 (c) claim 6 over the references stated in (b) above further in view of Moreland, (d) claim 8 over the references cited in (b) above further in view of Fleeman, (e) claim 9 over the references cited in (a) above further in view of Fleeman, (f) claim 10 over Tu in view of Lee, (g) claims 13, 14 and 16 over Tu in view of Lee and Kirks, (h) claim 15 over Tu in view of Lee, Kirks, and Moreland, and (i) claims 17 and 18 over Tu in view of Lee, Kirks, and Fleeman. We have thoroughly reviewed each of Appellant’s arguments for patentability. However, we are in complete agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of §103 in view of the applied prior art. Accordingly, we will sustain the Examiner’s rejections for the reasons set forth in the Answer, and we add the following for emphasis only. There is no dispute that Tu, like Appellant, discloses a mold for making an ice sculpture or figurine comprising a plastic sidewall substantially surrounding a hollow interior portion, an inner surface of the sidewall being contoured to define the shape of a predetermined figure, and a recessed basin in the predetermined cavity figure, as well as an element which forms a channel in the ice sculpture when it is removed. The channel- forming element of Tu is a perforating bar rather than the presently claimed flexible linear string cord. However, we agree with the Examiner that the bar of Tu is the functional equivalent of the claimed string cord, and that it Appeal 2011-005133 Application 12/290,333 4 would have been a matter of obviousness for one of ordinary skill in the art, based on the Lee disclosure, to employ a linear string cord as the channel- forming element in the mold of Tu, or in any mold for an ice sculpture comprising a liquid dispenser. Indeed, we find that it would have been obvious for one of ordinary skill in the art to utilize any linear material that may be removed from an ice sculpture for forming channels therein. We find no merit in Appellant’s argument that Tu “fails to remotely appreciate the distal exit channel configuration of the instant ice mold” (Prin. Br. 11, last para.). For one, appealed claim 1 fails to recite any particular configuration for the distal exit channel. Furthermore, as set forth by the Examiner, “the Tu bar plug is a means of forming a mold drain having a channel with a proximal end, at the end of the channel directly adjacent the bottom of the basin, and a distal end, at the opposite end of the channel from the basin” (Ans. 12, first para.). We perceive no structural distinction between the claimed channel which runs from a sink in the basin to a distal exit and the drain channel of Tu. Appellant maintains that the “Tu patent prior art ice sculpture mold is visibly, structurally and functionally so different from the instantly claimed ice mold that comparison that comparison [ sic] is rendered difficult” (Prin. Br. 12, first para.). However, although Appellant’s and Tu’s figures depict different forms and shapes of ice sculptures, such difference is not reflected in the appealed claims. Also, Tu expressly discloses that the ice sculpture may represent an animal, a building or a person or an article [see abstract], i.e., forms other than those depicted. Appeal 2011-005133 Application 12/290,333 5 Hence, we are convinced that it would have been obvious for one of ordinary skill in the art to use the bar of Tu or the cord of Lee in a mold for forming ice sculptures of any configuration with liquid-dispensing channels therein. Also, contrary to Appellant’s argument, it is of no moment that Lee is not specifically directed to molding ice sculptures. Appellant has advanced no reason for why Lee’s use of flexible cords to form channels in molded plastic or metal would not translate into molding ice. Moreover, as alluded to by the Examiner, the presently claimed mold is not limited to forming only ice sculptures but may also mold metal and plastic articles. The recitation “for forming liquid dispenser ice figurines” is a statement of intended use which imparts no particular structure to the claimed article. Appellant’s similar arguments against cited references not specifically directed to molding ice sculptures are not convincing for establishing the nonobviousness of other features of the claimed mold, e.g., a hollow rib and a handle means for enabling removal of the linear cord. Again, Appellant has presented no reason why one of ordinary skill in the art would consider it nonobvious to employ known molding features in a mold for ice sculptures. As a final point, we note that Appellant bases no argument upon objective evidence of nonobviousness, such as unexpected results. In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner’s decision rejecting the appealed claims is affirmed. The decision of the Examiner is affirmed. Appeal 2011-005133 Application 12/290,333 6 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED cam