Ex Parte Benz et al

Patent Trial and Appeal BoardNov 21, 2013

11919723 (P.T.A.B. Nov. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte THOMAS BENZ, JUERGEN FINK, and CHRISTINE LINKE ____________________ Appeal 2012-000844 Application 11/919,723 Technology Center 3700 ____________________ Before STEFAN STAICOVICI, WILLIAM A. CAPP and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-000844 Application 11/919,723 2 STATEMENT OF CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 15-28, 30, and 32-34. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Claims 15 and 30 are the independent claims on appeal. Claim 30, reproduced below, is illustrative of the claimed subject matter: 30. A container for refrigerated goods, the container comprising: a body part including side walls, a floor, and a rear wall; and a front part coupled to the body part, wherein the front part includes: a first side piece; a second side piece; and a central piece having a first end connected to the first side piece and a second end connected to the second side piece, wherein the central piece of the front part includes an upper portion, a mid portion, and a lower portion, wherein the upper portion of the central piece of the front part has a downward-opening U-profile, and wherein a segment of the mid portion of the central piece of the front part extends diagonally downward and to the front edge of the mid portion of the central piece of the front part and joins onto one of the sides of the U- profile of the upper portion of the central piece of the front part facing the rear side of the front part. Appeal 2012-000844 Application 11/919,723 3 REJECTIONS 1. Claims 15-19, 21-24, and 26 are rejected under 35 U.S.C. § 102(e) as being anticipated by Lyvers (US 2005/0210655 A1; pub. Sep. 29, 2005); 2. Claims 20, 27, and 28 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Lyvers and Litchfield (US 3,901,572; iss. Aug. 26, 1975); 3. Claim 25 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Lyvers and Baker (US 5,437,503; iss. Aug. 1, 1995); and 4. Claims 30 and 32-34 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Lyvers, Litchfield, and Baker. OPINION Anticipation – Claims 15-19, 21-24, and 26 – Lyvers Appellants argue claims 15-18, 21, and 26 as a first group and claims 19 and 22-24 as a second group. See App. Br. 8-12. We select claim 15 as representative of the first group and claim 19 as representative of the second group. Claims 16-18, 21, and 26 stand or fall with claim 15 and claims 22- 24 stand or fall with claim 19. Claim 15 The Examiner finds that, in Lyvers, the first bottom wall 22a discloses the claimed body part, the shelf extrusion 20a discloses the claimed front part, the first side wall 24a discloses the claimed central piece, and the end walls 26a, 26b disclose the claimed side pieces. Ans. 4-5. Appellants argue that Lyvers does not disclose “a front part coupled to a body part” as required by claim 15 because the first bottom wall 22a and the shelf extrusion 20a are part of the same integral piece. App. Br. 9; Reply Br. 8-9. However, as the Examiner explains, the fact that the first bottom Appeal 2012-000844 Application 11/919,723 4 wall 22a and the shelf extrusion 20a are integral means that the shelf extrusion 20a is coupled to the first bottom wall 22a. Ans. 12. Appellants do not point to any special meaning of “coupled” in the Specification or allege that a special meaning of “coupled” exists in the art that requires some form of fastener. Thus, we are not persuaded that two parts formed integrally are not coupled to one another. Appellants additionally argue that Lyvers does not disclose the claimed arrangement because “[t]he end walls 26a, 26b are not part of the front part” and, instead, Lyvers “discloses an integrally formed first bottom wall 22a and a shelf extrusion 20a that are connected to the end walls 26a, 26b.” Reply Br. 9. This argument is also not persuasive because claim 15 simply requires that the front part is “formed by a pair of side pieces and at least one central piece extending to and connected to the side pieces.” Appellants have failed to persuasively explain why the front part in Lyvers is not formed by the first side wall 24a (central piece) extending to and connected to the end walls 26a, 26b (side pieces). For these reasons, we are not apprised of Examiner error and we sustain the rejection of claims 15-18, 21, and 26. Claim 19 Claim 19 depends from claim 15 and additionally recites that each of the side pieces of the front part has a bore and the central piece of the front part has a bore with each of the respective interconnections between the side pieces and the central piece including a pin accommodated in the bore of one of the side pieces or the bore of the central piece. The Examiner finds that Lyvers discloses bores (fastener channels 23) located in the central piece (first side wall 24a) of the front part and a pin Appeal 2012-000844 Application 11/919,723 5 (fastener 19) accommodated in the bore of one of the side pieces of the front part of the bore of the central piece of the front part. Ans. 5 Appellants argue that the fastener channels 23 in Lyvers are located in the floor portion (i.e., first bottom wall 22a) of the first shelf extrusion 20a, not in the central walls 32a, 34a. App. Br. 9; Reply Br. 9. Appellants further argue that because the Examiner has already considered the floor portion (first bottom wall 22a) as the claimed body part, the same floor portion cannot now also be considered a portion of the front part. App. Br. 11; Reply Br. 11. Initially, we note that the Examiner considers the first side wall 24a as the claimed central portion, not elements 32a, 34a. See Ans. 5-6. Further, Appellants do not persuasively explain, and we do not see, why the channel 23 cannot properly be considered part of the first side wall 24a while the portion of the first bottom wall 22a extending outward from the first side wall 24a and beyond the channel 23 is considered the claimed body part as the Examiner explains. Ans. 12-13. Appellants additionally argue that the fastener 19 in Lyvers cited by the Examiner as disclosing the claimed pin cannot be considered a pin. App. Br. 10; Reply Br. 10. However, Appellants do not persuasively explain, and we do not see, why the fastener 19 in Lyvers cannot be considered a pin as recited in claim 19. For these reasons, we are not apprised of error and we sustain the rejection of claims 19 and 22-24. Appeal 2012-000844 Application 11/919,723 6 Obviousness – Claims 20, 27, and 28 – Lyvers/Litchfield Appellants argue claims 20, 27, and 28 as a group. See App. Br. 12- 13. We select claim 20 as representative. Claims 27 and 28 stand or fall with claim 20. Claim 20 depends from claim 19 (and ultimately claim 15) and additionally recites that “each of the side pieces of the front part has a peg that is received in the cavity of the central piece of the front part.” The Examiner finds that Litchfield teaches a wall 8 having recesses with locating members of posts 13 inserted into the recesses 10 in the wall 8 and projecting detent members 15 on the posts in locking engagement with the opening 17 on the wall and proposes modifying Lyvers accordingly. Ans. 7. Appellants contend that the post 13 in Litchfield does not teach the claimed peg because the post 13 is not part of the side piece in Litchfield. App. Br. 13; Reply Br. 14-15. Appellants’ arguments do not appear to be commensurate with the scope of claim 20 because the claim does not specify how the peg is part of the side piece. Appellants fail to persuasively explain, and we do not see, why a post 13 engaged with a side piece in Litchfield could not reasonably be considered part of the side piece. Thus, we are not apprised of Examiner error and we sustain the rejection of claims 20, 27, and 28. Obviousness – Claim 25 – Lyvers/Baker Claim 25 depends from claim 21 (and ultimately claim 15) and additionally recites that Appeal 2012-000844 Application 11/919,723 7 the upper portion of the central piece of the front part has a downward-opening U-profile, and a segment of the mid portion of the central piece of the front part extends diagonally downward and to the front edge of the mid portion of the central piece of the front part and joins onto one of the sides of the U-profile of the upper portion of the central piece of the front part facing the rear side of the front part. The Examiner cites Baker as teaching the claimed downwardly opening U-profile and the segment of the mid portion of the central piece of the front part and proposes modifying Lyvers accordingly. Ans. 9, 14. Appellants contend that the Examiner’s proposed modifications to Lyvers would require a substantial reconstruction from an arrangement having two side pieces to an arrangement having a rectilinear frame surrounding four sides of the wall sections 20a, 32a, and 34a. App. Br. 15; Reply Br. 16, 18. This contention is not persuasive because, as explained by the Examiner, the proposed modifications to Lyvers simply require that the shape of the upper portion of the central piece in Lyvers has a downwardly- opening U-shaped profile as taught by Baker and that mid portion of the central piece in Lyvers has a diagonally downward extent as taught by Baker. See Ans. 14-15. Appellants additionally contend that the pair of side pieces (from claim 15) would be missing in the proposed combination. App. Br. 15; Reply Br. 17. This contention is also unpersuasive because the Examiner does not propose eliminating the side pieces (end walls 26a, 26b) from Lyvers. Appellants additionally generally allege that one skilled in the art would not have combined Lyvers and Baker because the arrangement in Baker has no relation to the arrangement in Lyvers. Reply Br. 18. However, the Examiner explains that Lyvers would have been modified Appeal 2012-000844 Application 11/919,723 8 based on the teachings of Baker in order to provide an improved drawer assembly that is easy to assemble (Ans. 9) and Appellants do not point to error in this reasoning. For these reasons, we are not apprised of Examiner error and we sustain the rejection of claim 25. Obviousness – Claims 30 and 32-34 – Lyvers/Litchfield/Baker Claim 30 Appellants argue claims 30 and 32-34 as a group. See App. Br. 16-17. We select claim 30 as representative. Claims 32-34 stand or fall with claim 30. Appellants contend that the Examiner’s reasoning for the proposed combination of Lyvers, Litchfield, and Baker is conclusory because the reasoning does not explain how the alleged combination would be made and that the references do not teach or suggest the alleged combination. App. Br. 17; Reply Br. 20. This contention is not persuasive because there is no requirement that the Examiner explain how the alleged combination would physically be made or that the references teach or suggest their combination. Appellants further allege that the Examiner’s reasoning for the proposed combination is conclusory because it fails to explain how the alleged combination would provide the advantages alleged by the Examiner any differently than the individual references. App. Br. 17; Reply Br. 21. The Examiner explains that the reasoning for the proposed modifications is “to make the drawer cheaply and readily assembled by the purchaser without the need for special tools . . . and to provide an improved drawer assembly that is easy to assemble.” Ans. 11. Appellants fail to persuasively explain Appeal 2012-000844 Application 11/919,723 9 why one skilled in the art would not have modified Lyvers as explained by the Examiner. Appellants additionally contend that because there is no reason for the proposed combination, the rejection must be based on impermissible hindsight. App. Br. 17; Reply Br. 21. As noted above, the Examiner provides a reason for the proposed combination. Appellants’ general allegation of hindsight, with nothing more, does not apprise us of Examiner error. Appellants present additional arguments on pages 22-23 of the Reply Brief similar to those presented regarding claims 15, 19, 20, and 25 and discussed above. To the extent these arguments are commensurate with the scope of claim 30, they are not persuasive for the reasons set forth above regarding claims 15, 19, 20, and 25. For these reasons, we are not apprised of Examiner error and we sustain the rejection of claims 30 and 32-34. DECISION We AFFIRM the Examiner’s decision to reject claims 15-28, 30, and 32-34. 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 Klh