Ex Parte Baltz et al

Patent Trials and Appeals Board

Jan 3, 2019

13752142 - (D) (P.T.A.B. Jan. 3, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/752,142 01/28/2013
26096 7590 01/07/2019
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Kyle L. Baltz
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
ATTORNEY DOCKET NO.
12486 PUS;
67080-576PUS 1
CONFIRMATION NO.
1704
EXAMINER
ALLEN, JEFFREY R
ART UNIT PAPER NUMBER
3733
NOTIFICATION DATE DELIVERY MODE
01/07/2019 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KYLE L. BALTZ and RY AN C. MEERS 1
Appeal2017-003502
Application 13/752,142
Technology Center 3700
Before MICHELLE R. OSINSKI, ANNETTE R. REIMERS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1, 3-11, and 16-25. Claims 12 and 13 have been
withdrawn from consideration. Claims 2, 14, and 15 have been canceled.
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Rehrig Pacific Company ("Appellant"), is the applicant as provided under
37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Brief 1
("Appeal Br."), filed Apr. 4, 2016.
Appeal2017-003502
Application 13/752,142
CLAIMED SUBJECT MATTER
The claimed subject matter "relates generally to a collapsible crate
and more particularly to a collapsible crate providing access to the interior
when the crate is stacked." Spec. ,r 1, Figs. 1, 4, 5. Claims 1, 16, and 23 are
independent.
Claims 1 and 23 are illustrative of the claimed subject matter and
recite:
1. A collapsible container comprising:
a base;
a plurality of walls including a first wall and a pair of end
walls perpendicular to the first wall, the plurality of walls
pivotable between an upright position and a collapsed position
on the base, the first wall including an opening therethrough; and
a first door selectively covering the opening through the
first wall, the first door slidable in a first direction from a closed
position covering the opening toward an open, retracted position
away from the opening, wherein the first door is closer to one of
the end walls when in the open position than when in the closed
position.
23. A collapsible container comprising:
a base;
a plurality of walls extending upward from a periphery of
the base including a first wall, the plurality of walls pivotable
between an upright position and a collapsed position on the base,
the first wall including an opening therethrough, the base
including a downwardly sloped portion proximate the opening
through the first wall to facilitate removal of objects from the
container through the opening; and
a first door selectively covering the opening through the
first wall.
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REJECTIONS
I. Claims 16, 21, and 22 stand rejected under 35 U.S.C. § I02(b) as
anticipated by Davidson (US 705,045, issued July 22, 1902).
II. Claim 17 stands rejected under 35 U.S.C. § I03(a) as unpatentable
over Davidson and Eckloff (US 5,785,328, issued July 28, 1998).
III. Claims 19 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Davidson and Coe (US 1,779,159, issued Oct.
21, 1930).
IV. Claims 1, 3, 10, and 16 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Flesher (US 6,170,689 Bl, issued Jan. 9, 2001)
and Pickler (US 6,702,135 B2, issued Mar. 9, 2004).
V. Claims 4 and 17 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Flesher, Pickler, and Leess (US 6,318,579 B 1,
issued Nov. 20, 2001 ).
VI. Claims 8, 9, 11, 21, and 22 stand rejected under 35 U.S.C. § I03(a)
as unpatentable over Flesher, Pickler, 2 and Davidson.
VII. Claims 6, 7, and 19 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Flesher, Pickler, and Cope (US 5,924,572,
issued July 20, 1999).
VIII. Claims 1, 3, 5, 16, and 18 stand rejected under 35 U.S.C. § I03(a)
as unpatentable over Flesher, Davidson, and White (US 8,397,618
B2, issued Mar. 19, 2013).
2 Presumably, the Examiner intended to include Pickler in rejection VI. See
Final Office Action 6 ("the modified container of Flesher") ("Final Act."),
dated July 23, 2015; see also Reply Brief 6 ("Reply Br."), filed Dec. 19, 2016.
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Application 13/752,142
IX. Claims 23 and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Flesher and Leess.
X. Claim 24 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Flesher, Leess, and Davidson.
ANALYSIS
Rejection I -Anticipation by Davidson
Claims 16, 21, and 22
Claim 16 is directed to a container including a first door, wherein the
first door is parallel to and adjacent the outer wall portion of the first wall
when the first door is in the retracted position. Appeal Br. 17, Claims App.
The Examiner finds the outer wall portion of Davidson "can be any side of
the [sic.] including the curved portion of the first wall, which has the same
curve as the door in the retracted portion. Therefore, the outer wall portion
and the door are parallel in the retracted positon" and "the outer [ w ]all
portion and the door [ of Davidson] do not contact each other in the retracted
positon because they are parallel in a z-axis of the structure." Ans. 10; 3 see
also Final Act. 3 ("Fig. 2, the lid is parallel at different portions and has the
same general shape as the outer wall portion").
As an initial matter, claim 16 requires the entire first door to be
parallel to the outer wall portion of the first wall when the first door is in the
retracted position not just a "portion" of the first door to be parallel to the
outer wall portion of the first wall when the first door is in the retracted
position, as the Examiner appears to suggest. See Appeal Br. 17, Claims
3 Examiner's Answer ("Ans."), dated Oct. 20, 2016.
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Application 13/752,142
App.; see also Final Act. 3; Ans. 10. In this case, although in Davidson, a
portion of door H may be parallel to an outer wall portion of frame (first
wall) D when door H is in the retracted position, all of door H is not parallel
to an outer wall portion of frame (first wall) D when door H is in the
retracted position, as required by claim 16. See Appeal Br. 17, Claims App.;
see also Reply Br. 1-2; Davidson, Figs. 1, 2.
For these reasons, we do not sustain the Examiner's rejection of
claims 16, 21, and 22 as anticipated by Davidson.
Rejections II and III - Obviousness over Davidson and either Eckloff or Coe
Claims 17, 19, and 20
Claims 17, 19, and 20 depend directly or indirectly from claim 16.
See Appeal Br. 17-18, Claims App. The Examiner's rejections of claims 17,
19, and 20 are based on the same unsupported findings discussed above with
respect to claim 16. See Final Act. 3--4. The Examiner does not rely on the
teachings of Eckloff or Coe to remedy the deficiencies of Davidson.
Accordingly, for reasons similar to those discussed above for claim 16, we
do not sustain the Examiner's obviousness rejections of claims 17, 19, and
20.
Rejection IV - Obviousness over Flesher and Pickler
Claims 1, 3, 10, and 16
Appellant does not offer arguments in favor of dependent claims 3,
10, and 16 separate from those presented for independent claim 1. Appeal
Br. 9-11. We select claim 1 as the representative claim, and claims 3, 10,
and 16 stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
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Application 13/752,142
Appellant contends that "[i]n Flesher[,] the door moves parallel to the
corrugations in the first wall 106 and overlaps a non-corrugated lower
portion of the wall. The door could not be moved perpendicularly to the
corrugations in first wall 106" and that "[i]n contrast, in Pickler, the door
provides a relatively small access opening into the dumpster, compared to
the size of the wall. The door is very small relative to the wall in which the
opening is formed. There is plenty of room for the horizontal door." Appeal
Br. 11; see also Reply Br. 4--5. Appellant concludes that "the door of
Flesher is too large to be slid horizontally because the side portions of the
wall are not large enough to accommodate the sliding door when it is
opened. Thus, Flesher could not be modified to have a horizontally sliding
door." Appeal Br. 11; see also Reply Br. 4--5.
To the extent Appellant is arguing the references must be capable of
bodily incorporation in order to combine their teachings, the test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of a primary reference. In re Keller,
642 F.2d 413,425 (CCPA 1981). "Rather, the test is what the combined
teachings of the references would have suggested to those of ordinary skill
in the art." Id.; see also Ans. 13.
In this case, the Examiner provides reasons with rational
underpinnings to combine Flesher and Pickler, namely, "so a lid could be
better secured on the container and since it has been held that rearranging
parts of an invention involves only routine skill in the art." See Final Act.
4--5. That Flesher and Pickler may teach additional structure does not
prevent the Examiner in this case from relying on each reference for limited
purposes. Appellant does not provide persuasive evidence or argument
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apprising us of error in the Examiner's proposed reasoning for the combined
teachings of Flesher and Pickler. In addition, the Examiner clarifies in the
Answer that ( 1) "[ t ]he entire door from Pickler is not being forced onto the
container of Flesher. Instead, the teaching that a door can be slid
horizontally is being ... used to modify the direction in which the door of
Flesher slides"; and (2) the modified door of Flesher "would not be required
to slide over the corrugations because all the modification is doing is
rotating the axis of the door structure which includes the portion of the
sidewall including dimples 139." See Ans. 13. Appellant does not apprise
us of Examiner error. See Reply Br. 4--5
For these reasons, we sustain the Examiner's rejection of claim 1 as
unpatentable over Flesher and Pickler. We further sustain the rejection of
claims 3, 10, and 16, which fall with claim 1.
Rejection V- Obviousness over Flesher, Pickler, and Leess
Claims 4 and 17
Appellant argues claim 4 and 17 as a group. See Appeal Br. 11. We
select claim 4 as the representative claim, and claim 1 7 stands or falls with
claim 4. 37 C.F.R. § 4I.37(c)(l)(iv).
Appellant contends that "[t]he base in Leess is sloped, but not
adjacent the opening so it does not 'facilitate removal of objects from the
container through the opening,' as claimed." Reply Br. 5; see also Appeal
Br. 11. According to Appellant, "even if Flesher were modified in light of
Pickler, neither discloses an opening adjacent the base," so if Flesher were
further modified in light of Leess, "then the base would be sloped but would
still not [be] adjacent a base such that it would 'facilitate removal of objects
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from the container through the opening' as claimed. Nor would the sloped
portion be 'below the rail."' Reply Br. 5---6; see also Appeal Br. 11.
Appellant's arguments are not directed to the rejection as set forth by
the Examiner and are against Flesher, Pickler, and Leess individually, where
the rejection is based on the combined teachings of Flesher, Pickler, and
Leess. In response to Appellant's contentions, the Examiner states that
"[t]he removal of objects in the combined structure would be facilitated
because the door would be located on the sidewall." Ans. 14; see also Final
Act. 6. Under the broadest reasonable interpretation, the Examiner's
findings are sound and based on rational underpinnings. The Examiner's
rejection is based on Flesher's door being modified so as to be horizontal,
which would result in an opening near the base. Even if the opening would
not be near the base in the modified Flesher device, the Examiner reasons
that the slope would "allow liquid to accumulate at one location in the
container to be removed" (Final Act. 6), which could be considered to
facilitate removal through the opening by being in one location regardless of
its proximity to the opening. Moreover, claim 4 recites nothing about the
slope portion of the base being adjacent the base opening. See Appeal Br.
16, Claims App.; see also id. at 11; Reply Br. 5---6; In re Self, 671 F.2d 1344,
1348 (CCPA 1982) (Limitations not appearing in the claims cannot be relied
upon for patentability). In addition, the Examiner's combined teachings of
Flesher, Pickler, and Leess would include the "sloped portion below the rail
portion," as claimed. See Final Act. 6; see also Appeal Br. 16, Claims App.
For these reasons, we sustain the Examiner's rejection of claim 4 as
unpatentable over Flesher, Pickler, and Leess. We further sustain the
rejection of claim 17, which falls with claim 4.
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Rejection VI - Obviousness over Flesher, Pickler, and Davidson
Claims 8, 9, and 21
We agree with Appellant that"[ w ]hat the Examiner calls 'teeth' in
Davidson [i.e., element g] are really just the wood strip portions of the
flexible door." See Appeal Br. 11; see also Reply Br. 6; Final Act. 6-7;
Davidson 1:67-71 ("The cover referred to is of the usual construction
consisting of a series of independent strips g."), Figs. 2, 3. Thus, the
Examiner does not establish by a preponderance of the evidence that
Davidson discloses the teeth arrangements of claims 8, 9, and 21.
For these reasons, we do not sustain the Examiner's rejection of
claims 8, 9, and 21 as unpatentable over Flesher, Pickler, and Davidson.
Claims 11 and 22
Claims 11 and 22 do not include limitations directed to "teeth." See
Appeal Br. 17, 18 Claims App. Thus, Appellant does not apprise us of
Examiner error for claims 11 and 22. See Appeal Br. 11-12; see also Reply
Br. 6; Final Act. 6-7. In particular, Appellant does not address why the
Examiner's reasoning in connection with claims 11 and 22 (i.e., "to have
manufactured the container with a cover, as taught by Davidson, to ensure
that the door opens and closes straight" (Final Act. 7)) lacks rational
underpinnings.
Accordingly, we sustain the Examiner's rejection of claims 11 and 22
as unpatentable over Flesher, Pickler, and Davidson.
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Application 13/752,142
Rejection VII - Obviousness over Flesher, Pickler, and Cope
Claims 6, 7, and 19
Appellant argues claim 6, 7, and 19 as a group. See Appeal Br. 12-
13. We select claim 6 as the representative claim, and claims 7 and 19 stand
or fall with claim 6. 37 C.F.R. § 4I.37(c)(l)(iv).
Appellant contends that "[n]either of [shutters 12B and 12C of Cope]
are 'slidably mounted to [a] rail portion' 'below which the opening is
partially defined' (from claim 3)." See Appeal Br. 12; see also Reply Br. 7.
However, the Examiner relies on the combined teachings of Flesher and
Pickler, not Cope, for the limitations of claim 3. See Final Act. 4--5, 7-8.
Appellant contends that "both Flesher and Cope have slidable doors
adjacent openings formed adjacent a top edge of a wall. In other words, the
doors move away from the opening to create a large opening together with
the upper mouth of the container" and that "[t]he Examiner proposes to
modify this arrangement in Flesher in view of Pickler so that the doors will
be horizontally sliding, thereby separating the door opening from the mouth
of the container. This is incompatible with the purpose of both Flesher and
Cope." See Reply Br. 7; see also Appeal Br. 12-13.
As an initial matter, Appellant does not apprise us as to how the
Examiner's proposed modification to Flesher in view of Pickler "is
incompatible with the purpose of both Flesher and Cope." See id. Further,
Appellant's arguments are against Flesher, Pickler, and Cope individually,
where the rejection is based on the combined teachings of Flesher, Pickler,
and Cope. To the extent Appellant is arguing the references must be capable
of bodily incorporation in order to combine their teachings, the test for
obviousness is not whether the features of a secondary reference may be
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bodily incorporated into the structure of a primary reference. Instead, "the
test is what the combined teachings of the references would have suggested
to those of ordinary skill in the art." See In re Keller, 642 F.2d at 425; see
also Ans. 15. In response to Appellant's contentions, the Examiner states
that "[ a ]dding a second door portion to the modified container of Flesher
requires very little change to the door structure and would be within the level
of ordinary skill in the art." Ans. 15. Appellant does not apprise us of
Examiner error. See Reply Br. 7.
For these reasons, we sustain the Examiner's rejection of claim 6 as
unpatentable over Flesher, Pickler, and Cope. We further sustain the
rejection of claims 7 and 19, which fall with claim 6.
Rejection VIII - Obviousness over Flesher, Davidson, and White
Claims 1, 3, 5, 16, and 18
Appellant correctly notes that "[ t ]he Examiner confirms that this
rejection is not a typographical error (page 15 of Examiner's Answer), but
... no primafacie case of obviousness has been provided." See Reply Br.
7-8 (emphasis added); see also Appeal Br. 13. Appellant also correctly
notes that "[t]he Examiner references 'Flesher in view of Davidson as
combined above' but the Examiner never fully explained a rejection based
upon Flesher and Davidson." See Reply Br. 7-8 (emphasis added); see also
Appeal Br. 13; Final Act. 8-9; Ans. 15-16.
In order for the Board to provide any meaningful appellate review
there must be some evidence or analysis in the record to support the
Examiner's factual findings and legal conclusions. In re Zurko, 258 F.3d
1379, 1386 (Fed. Cir. 2001). A rejection must be set forth in sufficiently
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articulate and informative manner as to meet the notice requirement of 35
U.S.C. § 132, such as by identifying where or how each limitation of the
rejected claims is met by the prior art references. In re Jung, 637 F.3d 1356,
1363 (Fed. Cir. 2011). It is neither our place, nor Appellant's burden, to
speculate as to the basis for rejecting claims. In re Stepan Co., 660 F.3d
1341, 1345 (Fed. Cir. 2011) (It is the PTO's obligation to provide timely
notice to the applicant of all matters of fact and law asserted.).
Accordingly, we do not sustain the Examiner's rejection of claims 1,
3, 5, 16, and 18 as unpatentable over Flesher, Davidson, and White.
Rejection IX- Obviousness over Flesher and Leess
Claims 23 and 25
Claim 23 is directed to a collapsible container including a base,
wherein "the base includ[ es] a downwardly sloped portion proximate the
opening through the first wall to facilitate removal of objects from the
container through the opening." Appeal Br. 18, Claims App. The Examiner
finds that Flesher discloses the container substantially as claimed except for
the above quoted limitation. See Final Act. 9. The Examiner relies on the
teachings of Leess for the limitation and concludes it would be obvious to
modify Flesher with these teachings. See id. at 9-10.
Appellant contends that "it would not make sense to add a sloped
portion to the base of Flesher because the opening through the wall does not
go all the way to the base. [Rather,] [t]he opening is formed halfway up the
wall." See Appeal Br. 14. Appellant also contends that "the sloped base [of
Leess] is not adjacent the opening to the container - - the base is opposite the
opening to the container." Id. ( citing Leess, Fig. 4)
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As an initial matter, the Examiner does not adequately address
Appellant's contentions. See Ans. 16. In this case, the Examiner does not
provide sufficient evidence or technical reasoning to establish that the sloped
portion of Leess' base is "proximate the opening through the first wall," as
called for in claim 23 or otherwise explain how the modified Flesher base
would result in a sloped portion proximate the opening through the first wall.
See Final Act. 9--10. Moreover, in the description of Figure 4, Leess states
that "the top 94 floor of the bottom 28 of the trash can slopes forwardly so
that if any water gets into the trash can 10, it will flow toward the front side
13." Leess, 2:43--45 (emphasis added), Fig. 4. Claim 23 recites "the base
including a downwardly sloped portion." Appeal Br. 18, Claims App.
( emphasis added).
For these reasons, we do not sustain the Examiner's rejection of
claims 23 and 25 as unpatentable over Flesher and Leess.
Rejection X - Obviousness over Flesher, Leess, and Davidson
Claim 24
Claim 24 depends from claim 23. See Appeal Br. 18, Claims App.
The Examiner's rejection of claim 24 as unpatentable over Flesher, Leess,
and Davidson is based on the same unsupported findings discussed above
with respect to claim 23. See Final Act. 10. The Examiner does not rely on
the teachings of Davidson to remedy the deficiencies of Flesher and Leess.
Accordingly, for reasons similar to those discussed above for claim 23, we
do not sustain the Examiner's rejection of claim 24 as unpatentable over
Flesher, Leess, and Davidson.
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DECISION
We REVERSE the Examiner's decision to reject claims 16, 21, and
22 as anticipated by Davidson.
We REVERSE the Examiner's decision to reject claim 17 as
unpatentable over Davidson and Eckloff.
We REVERSE the Examiner's decision to reject claims 19 and 20 as
unpatentable over Davidson and Coe.
We AFFIRM the Examiner's decision to reject claims 1, 3, 10, and 16
as unpatentable over Flesher and Pickler.
We AFFIRM the Examiner's decision to reject claims 4 and 17 as
unpatentable over Flesher, Pickler, and Leess.
We REVERSE the Examiner's decision to reject claims 8, 9, and 21
as unpatentable over Flesher, Pickler, and Davidson.
We AFFIRM the Examiner's decision to reject claims 11 and 22 as
unpatentable over Flesher, Pickler, and Davidson.
We AFFIRM the Examiner's decision to reject claims 6, 7, and 19 as
unpatentable over Flesher, Pickler, and Cope.
We REVERSE the Examiner's decision to reject claims 1, 3, 5, 16,
and 18 as unpatentable over Flesher, Davidson, and White.
We REVERSE the Examiner's decision to reject claims 23 and 25 as
unpatentable over Flesher and Leess.
We REVERSE the Examiner's decision to reject claim 24 as
unpatentable over Flesher, Leess, and Davidson.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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