Ex Parte Davis et alDownload PDFPatent Trial and Appeal BoardJan 12, 201711766417 (P.T.A.B. Jan. 12, 2017) Copy Citation United States Patent and Trademark Office 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. 23852-0008 9328 EXAMINER JOHNSON, BLAIR M ART UNIT PAPER NUMBER 3634 MAIL DATE DELIVERY MODE 11/766,417 06/21/2007 121964 7590 01/12/2017 McNees Wallace & Nurick, LLC/ TAIT Towers Manufacturing, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Adam DAVIS 01/12/2017 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 ADAM DAVIS, JAMES FAIRORTH, and MICHAEL TAIT Appeal 2015-0051821 Application 11/766,4172 Technology Center 3600 Before CYNTHIA L. MURPHY, KENNETH G. SCHOPFER, and ROBERT J. SILVERMAN, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 7, 8, 11—13, 21—33, and 36. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Our decision references Appellants’ Appeal Brief (“Appeal Br.,” filed Dec. 17, 2014) and Reply Brief (“Reply Br.,” filed Apr. 2, 2015), and the Examiner’s Answer (“Ans.,” mailed Mar. 2, 2015), Advisory Action (“Adv. Act.,” mailed Oct. 7, 2014), and Final Office Action (“Final Act.,” mailed June 24, 2014). 2 According to Appellants, “[t]he real parties in interest are the Inventors, Adam Davis, James Fairorth and Michael Tait and the Assignee, TAIT TOWERS MANUFACTURING, LLC.” Appeal Br. 1. Appeal 2015-005182 Application 11/766,417 BACKGROUND The Specification “is directed to portable retraction devices. In particular, the present invention is directed to a portable retraction device and system for theatrical barriers.” Spec. 11. CLAIMS Claims 7, 8, 11—13, 21—33, and 36 are on appeal. Claim 7 is illustrative of the appealed claims and recites: 7. A portable barrier retraction system comprising: a barrier having at least one line disposed adjacent thereto, a controller capable of providing an addressed signal; one or more barrier retraction devices detachably affixed to a support frame, the one or more barrier retraction devices comprising: a drive motor having an addressable drive motor control, the drive motor being connected to the drive motor control with a power line and a feedback line, wherein the drive motor control is a servo drive and provides variable control of one or more of velocity, acceleration, and torque to the drive motor; and the drive motor being in rotational communication with at least one retraction assembly configured to retract or deploy the line in response to rotation of the drive motor, the line being configured to retract or deploy the barrier; wherein the drive motor provides independent selective rotation to the at least one retraction assembly in response to an addressed signal from the controller, power from the drive motor control and feedback from the drive motor; wherein the controller is capable of providing the addressed signal in response to direct input from an operator; wherein the system is portable and the barrier, the one or more barrier retraction devices, and the support frame are 2 Appeal 2015-005182 Application 11/766,417 capable of quick assembly and disassembly via quick release fasteners; and wherein the drive motor control of each of the one or more barrier retraction devices is capable of being connected in serial arrangement with other drive motor controls in any order. Appeal Br. 13. REJECTION3 The Examiner rejects claims 7, 8, 11—13, 21—33, and 36 under 35 U.S.C. § 103(a) as unpatentable over Weidhaas4 in view of Kurakake5 or Komaki.6 DISCUSSION With respect to claims 7 and 21, the only independent claims on appeal, the Examiner finds that Weidhaas discloses individual barrier retraction assemblies each with a motor and controlled by an operator to provide individual curtain control via different lines. Final Act. 2—3. The Examiner acknowledges that Weidhaas does not disclose “the preprogrammable control system, servomotors, and feedback lines” required by the claims. Id. at 3. The Examiner relies on either Kurakake or Komaki for these limitations, stating: However, Kurakake et al[.] and Komaki et al[.] each clearly disclose servo motors and attached controllers which are 3 In the Advisory Action, the Examiner indicates that the rejection under 35 U.S.C. § 112, second paragraph, “has been overcome.” Adv. Act. 2. This rejection has not been addressed in any of the briefs or the Examiner’s Answer, and for purposes of this decision, we consider the rejection to have been withdrawn. 4 Weidhaas et al., US 1,900,677, iss. Mar. 7, 1933. 5 Kurakake et al., US 2007/0120516 Al, pub. May 31, 2007. 6 Komaki et al., US 2004/0160206 Al, pub. Aug. 19, 2004. 3 Appeal 2015-005182 Application 11/766,417 operated by a central control via an address. See Figs. 2 (prior art) in Kurakake et al[.] and Fig. 1 is Komaki et al[.] and the descriptions thereof. In view of this conventional art and the desire of Weidhaas et al[.] to individually control the raising and lowering of the several lines, it would have been obvious to modify Weidhaas et al[.] to have such an updated control system so as to more efficiently operate the theatrical curtain. Id. Further, in response to Appellants’ arguments, the Examiner finds that “providing a modem, more efficient and effective control means for a theatre curtain, which are clearly still used today, would appear to be sufficient motivation” for the proposed combination. Ans. 3. We are persuaded by Appellants’ arguments that the rejection fails to provide a sufficient basis to conclude that it would have been obvious to combine the art as proposed and, as such, the proposed combination appears to be based on an impermissible hindsight reconstmction of the claimed system. See Appeal Br. 8—11. “[Rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” KSRInt'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (alteration in original) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). We find that the Examiner’s reliance on the general desire to modernize or make Weidhaas’s device more efficient is conclusory and not sufficient, by itself, to support the conclusion that it would have been obvious to combine the art in the manner proposed. In particular, the Examiner does not indicate why one of ordinary skill in the art would have looked to either Kurakake or Komaki as a means for modernizing Weidhaas’s device and the general desire to modernize is not enough to show that a person of ordinary skill in the art would have done so. Thus, 4 Appeal 2015-005182 Application 11/766,417 without providing a specific reason or citation to evidence showing why or how the controllers set forth in Kurakake or Komaki would have been used to modify Weidhaas’s device, we can only conclude, on the record before us, that the combination is a direct result of an impermissible hindsight reconstruction of the claims. For these reasons, we do not sustain the rejection. CONCLUSION For the reasons set forth above, we reverse the rejection of claims 7, 8, 11-13, 21-33, and 36. REVERSED 5 Copy with citationCopy as parenthetical citation