Ex Parte Christie

Patent Trial and Appeal Board

May 3, 2016

11353756 (P.T.A.B. May. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111353,756 02/14/2006
34060 7590 05/05/2016
MICHAELN, HAYNES
1341 HUNTERSFIELD CLOSE
KESWICK, VA 22947
FIRST NAMED INVENTOR
Malcolm Robert Christie
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. CONFIRMATION NO.
CHR0185058 (1153-003) 6667
EXAMINER
REDMAN, JERRY E
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
05/05/2016 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):
P AIR@MichaelHaynes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MALCOLM ROBERT CHRISTIE
Appeal2014-002744
Application 11/353,756
Technology Center 3600
Before JOHN C. KERINS, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Malcolm Robert Christie ("Appellant") 1 appeals under 35 U.S.C. § 134
from the Examiner's final decision rejecting claims 1 and 7 under 35 U.S.C.
§ 103(a) as unpatentable over Bricker (US 3,985, 174, iss. Oct. 12, 1976) and
Casebolt (US 3,553,891, iss. Jan. 12, 1971). The Board has jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 The Appeal Brief fails to identify the real party in interest. See 37 C.F.R.
§ 41.37(c)(l)(i) (2014). Accordingly, we assume the named inventor is the
real party in interest. See id.
Appeal2014-002744
Application 11/353,756
CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim, and it recites:
1. A pet door assembly which comprises:
a substantially planar frame operatively adapted to define
an access opening through which a pet can pass between an
indoor space and an outdoor space and substantially through a
substantially planar operatively moveable closure that is
positioned in a closed closure position, the closure defining a
plane that at least partially defines the indoor space and the
outdoor space, the frame including an interior frame member
adapted to be located adjacent the indoor space and an exterior
frame member that is adapted to be located adjacent the outdoor
space, the interior and exterior frame members adapted to
cooperatively define a peripheral channel extending about the
frame and opening in a direction substantially parallel to the
plane of the closure, each frame member defining corresponding
ribs that extend into the channel and away from that member's
corresponding adjacent space;
a pair of elongate connectors adapted to be operatively
fastened to, and to connect the frame to, respective planar
surfaces of the closure that each extend perpendicular to the
plane of the closure and cooperatively define an internal comer
of a closure frame of the closure, the connectors each defining a
series of longitudinally extending ridges that correspond with the
ribs of the frame members, each connector being at least partially
receivable in the channel, the ridges of each connector being
configured to interlock with the ribs of the corresponding frame
member when the connectors are urged into the channel; and
a self-closing door that is operatively adapted to be
mounted on the frame and to be displaceable between a closed
position in which the self-closing door closes the access opening
and an open position.
Appeal Br., Claims App. (emphases added).
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Appeal2014-002744
Application 11/353,756
ANALYSIS
The Examiner pertinently finds extensions 21 and 22 ofBricker's
inner frame member 17 correspond to the "pair of elongate connectors" of
claim 1. Final Act. 2.2 Appellant asserts that finding is in error, because
Bricker's extensions 21 and 22 are not, as recited in claim 1, adapted to be
operatively fastened to planar surfaces of Bricker's closure 12, 13, 14 that
extend perpendicular to the plane of the closure. Appeal Br. 13. For the
following reasons, Appellant's argument is persuasive.
The Examiner's position is premised, in part, on a claim construction
that the "adapted to" limitation at issue is a functional limitation that
Bricker's structure must only be capable of performing. Final Act. 3;
Ans. 7. The Examiner's position is further premised on a claim construction
that the "adapted to" limitation at issue is "intended use language" given
"little to no patentable weight." Ans. 5-7.
The United States Court of Appeals for the Federal Circuit has "noted
that the phrase 'adapted to' generally means 'made to,' 'designed to,' or
'configured to,' though it can also be used more broadly to mean 'capable
of' or 'suitable for."' In re Man Machine Interface Techs. LLC, _ F.3d _,
No. 2015-1562, 2016 WL 1567181, at *2 (Fed. Cir. Apr. 19, 2016) (citing
In re Giannelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014)). Thus, to the extent
2 The Final Office Action states Bricker discloses "at least one mounting
member (21, 22, along the comer portion and 17 which extends beyond the
comer)." Final Act. 2 (emphasis added). As Appellant points out, claim 1
does not recite a mounting member. Appeal Br. 13. It is apparent from the
entire rejection (Final Act. 2-3), and the Specification's description of
"mounting members or connectors 62" being "elongate" (Spec. 6:14--15),
that the Examiner finds Bricker's extensions 21 and 22 correspond to the
claimed pair of elongate connectors.
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Appeal2014-002744
Application 11/353,756
the Examiner's decision rests upon a claim construction that the "adapted to"
limitation at issue here is merely an intended use to be given little to no
patentable weight, the Examiner errs.
Further, Appellant's Specification indicates the more narrow
interpretation of "adapted to" set forth in the In re Man Machine Interface
decision applies here. The Specification directly addresses the Bricker
structure, indicating Bricker' s frame 17 "is fastened to a facing surface of'
the door frame 12, 13. Spec. 1:15-18 (emphasis added). The Specification
indicates "[a] problem with this arrangement is that the frame [17] has to suit
the dimensions of the window screen or screen door," and further "in the
case of a sliding screen door, the frame [17] could interfere with relatively
sliding door members." Id. at 1:18-22. By contrast, the Specification
indicates its exemplary "connectors 62 are fastened to the inwardly facing
surface 78" of a sliding glass door frame, so connectors 62 do not interfere
with the sliding. Id. at 7: 5-7 (emphasis added). The Specification further
indicates:
Of particular significance is the fact that the frame 12 is fastened
to inwardly facing surfaces of a screen door frame. This inhibits
interference in the case of glass sliding doors. Furthermore, the
use of the connectors 62 provides a convenient manner of
installing the pet door assembly 10. In particular, the use of the
connectors 62 provides a means whereby a position of the
closure assembly 10 can be adjusted to suit the particular screen
door, without having to provide a customized closure assembly.
Id. at 7 :24--30 (emphases added). We determine a broadest reasonable
interpretation of the "adapted to" limitation at issue here, in light of these
disclosures in the Specification, is that the connectors are made, designed, or
configured to be operatively fastened to a planar surface of the closure that
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Appeal2014-002744
Application 11/353,756
extends perpendicular to the plane of the closure. See Microsoft Corp. v.
Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015) (under broadest
reasonable interpretation, construction cannot be divorced from the
Specification).
Bricker' s extensions 21 and 22 are not made, designed, or configured
to be operatively fastened to a planar surface of closure frame 12, 13 that
extends perpendicular to the plane of the closure. Bricker' s Figure 3 is
reproduced below, with annotations "A" and "B" added for reference in our
discussion:
Fig 3
Figure 3 is a cross sectional view showing, in part, the connection between
the frame 12 of the closure 12, 13, 14 and the frame 17 of the pet door
assembly. Nut and bolt assembly 25 fastens extensions 21 and 22 of
frame 17 to the indoor-facing and outdoor-facing planar surfaces of closure
frame 12, which we have identified by arrows A. Those surfaces extend
parallel to the plane of closure 12, 13, 14. See Bricker Fig. 1. The surface
of door frame 12 identified by arrow B, by contrast, extends perpendicular
to the plane of closure 12, 13, 14. However, extensions 21and22 are not
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Appeal2014-002744
Application 11/353,756
made, designed, or configured to be operatively fastened to the surface B, as
can be seen from Figure 3.
The Examiner's reliance on Casebolt in connection with the claimed
rib-ridge interlocking interface between the connectors and the frame
members does not cure the discussed deficiency of Bricker. See Final
Act. 2-3. Therefore, we do not sustain the rejection of claims 1 and 7 as
unpatentable over Bricker and Casebolt.
DECISION
The Examiner's decision to reject claims 1 and 7 is reversed.
REVERSED
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