Ex Parte Davis et al

Patent Trial and Appeal Board

Jan 12, 2017

11766417 (P.T.A.B. Jan. 12, 2017)

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
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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.
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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,
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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
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