Ex Parte Bennett et al

Patent Trial and Appeal BoardMay 16, 2013

11626331 (P.T.A.B. May. 16, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CLIFFORD D. BENNETT and KENNETH LEE ____________ Appeal 2011-003161 Application 11/626,331 Technology Center 3600 ____________ Before JOHN C. KERINS, WILLIAM A. CAPP, and JILL D. HILL, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-003161 Application 11/626,331 2 STATEMENT OF THE CASE Clifford D. Bennett and Kenneth Lee (Appellants) appeal under 35 U.S.C. § 134 from a final rejection of claims 1-9. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER The claimed subject matter relates to “chairs and spacers that are used in construction activities for the support of steel reinforcement members within concrete structures, and in particular to a stackable chair that reliably retains reinforcement bars, post-tension cables, rods, and the like.” Spec., para. [0003]. Claim 1 is representative of the subject matter on appeal and is reproduced below, with the key disputed limitation emphasized. 1. A chair for supporting and spacing concrete reinforcement members, comprising: an integrally formed body including an upper receiving area and a lower base, the receiving area including a vertical fin defining an open notch for receiving a concrete reinforcement member, wherein said reinforcement member may be emplaced within said open notch by lowering a member positioned above and across said chair downward into said open notch, and the base adapted to rest on a planar support surface. EVIDENCE The Examiner relies on the following evidence: Lowery US 6,962,029 B2 Nov. 8, 2005 Leonardis US 5,107,654 Apr. 28, 1992 Rasmussen US 5,822,946 Oct. 20, 1998 Appeal 2011-003161 Application 11/626,331 3 REJECTIONS Appellants seek review of the Examiner’s rejection of claims 1, 2, and 4-6 under 35 U.S.C. § 102(b) as anticipated by Lowery (Ans. 3, App. Br. 2); the rejection of claims 1-7 under 35 U.S.C. § 102(b) as anticipated by Leonardis (Ans. 4, App. Br. 2); and the rejection of claims 1 and 7-9 under 35 U.S.C. § 102(b) as anticipated by Rasmussen (Ans. 5, App. Br. 2). ANALYSIS Rejection of Claims 1, 2, and 4-6 over Lowery The Examiner finds that Lowery discloses including an upper receiving area and a base, the receiving area including a vertical fin (28, 29 or 30, 31) defining an open notch for receiving a concrete reinforcement member 35, 36 that can be placed within the open notch, and a pair of opposing gussets (43 and its opposing gusset) projecting perpendicularly from the vertical fin, the base including four supporting legs (17a, 17b, 18a, 18b), two of the legs being projections extending from the pair of opposing gussets. Ans. 3-4 (citing Lowery, fig. 1). Appellants argue that Lowery’s flexible prongs 28, 29, 30, 31 have varying lateral extents and are therefore not vertical fins as that term is defined by Appellants in the Specification. App. Br. 3-4 (citing Spec., p. 10, ll. 21-27). Appellants also argue that Lowery’s wire holding sections 40 are not open notches as that term is defined by Appellants in the Specification. App. Br. 3-5 (citing Spec., p. 10, ll. 21-27). The Examiner responds that the language argued by Appellants to differentiate the claimed “vertical fin” and “open notch” is not recited in the claims. Ans. 6. The Examiner therefore does not give the definitions proffered by Appellants and recited in the Specification any weight. Appeal 2011-003161 Application 11/626,331 4 Giving claims their “broadest reasonable interpretation” must take into account any definitions given in the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997) the PTO applies to the verbiage of the proposed claims the broadest reasonable meaning of the words . . . as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant's specification. Id. Because the Examiner has not found that Lowery teaches either a vertical fin or an open notch as those terms are defined in Appellants’ Specification, we do not sustain the rejection of claim 1 over Lowery. Claims 2 and 4-6 depend directly or indirectly from claim 1, and we therefore do not sustain the rejection of claims 2 and 4-6 over Lowery for the same reasons. Rejection of Claims 1-7 over Leonardis The Examiner finds that Leonardis discloses an integrally formed body including an upper receiving area and a base, the receiving area including a vertical fin 24 defining an open notch (25 or 28) for receiving rebar, and a pair of opposing gussets (5 and its opposing gusset) projecting perpendicularly from the vertical fin. Ans. 4-5 (citing Leonardis, figs. 1, 3, 5, and 7-10). The Examiner also finds that Leonardis’ receiving area includes four vertical fins defining two pairs of diametrically opposed open notches, the lowest portions of a first pair of opposed open notches (8 or 10) being located at a different height above the support surface than the lowest portions of a second pair of opposed open notches (8 or 10). Id. Appeal 2011-003161 Application 11/626,331 5 Appellants argue that Leonardis’ turret 3 does not include vertical fins because the lateral extents vary, and does not include an open notch as those terms are defined in the Specification. The Examiner again responds that the language argued by Appellants to differentiate the claimed “vertical fin” and “open notch” is not recited in the claims, and fails to give weight to the definitions proffered by Appellants and recited in the Specification. Ans. 6-7. As stated above, giving claims their “broadest reasonable interpretation” must take into account any definitions given in the Specification. See Morris, 127 F.3d at 1054. Because the Examiner has not found that Leonardis teaches either a vertical fin or an open notch as those terms are defined in Appellants’ Specification, we do not sustain the rejection of claim 1 over Leonardis. Claims 2-7 depend directly or indirectly from claim 1, and we therefore do not sustain the rejection of claims 2-7 over Leonardis for the same reasons. Rejection of Claims 1 and 7-9 over Rasmussen The Examiner finds that Rasmussen discloses an integrally formed body including an upper receiving area and a base 3, the receiving area including four vertical fins defining two pairs of diametrically opposed open notches (slot 9 or 10 in fig. 1 and 24-27 in fig. 5), the medial, lowest portions of the first pair of opposed open notches being located at a different height above the support surface than the medial, lowest portions of the second pair of opposed open notches. Ans. 5 (citing Rasmussen, fig. 3). Appellants argue that Rasmussen’s support surfaces 7-10 and 24-27 have varying lateral extents and therefore are not “vertical fins” as that term Appeal 2011-003161 Application 11/626,331 6 is defined in the Specification. Appellants state that examples of such varying lateral extents include “vertical groove 11 (Figure 1) or 31 (Figures 3/5) which includes an inwardly facing projection 12 (Figure 1) or inwardly facing unlabeled projection . . . designed to cooperate with a locking clip 14 . . . or 40,” a notch 13 at their uppermost end, and inwardly laterally projecting catches 38 shown in figure 3 of Rasmussen. App. Br. 12-13. Similar to the above rejections, because the Examiner has not found that Rasmussen teaches a vertical fin as that term is defined in Appellants’ Specification, we do not sustain the rejection of claim 1 over Rasmussen. Claims 7-9 depend directly or indirectly from claim 1, and we therefore do not sustain the rejection of claims 7-9 over Rasmussen for the same reasons. DECISION We REVERSE the rejections of claims 1-9 under 35 U.S.C. § 102(b) over Lowery, Leonardis, and Rasmussen. REVERSED hh