Ex Parte GASSER

Patent Trial and Appeal BoardAug 22, 2018

14063327 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/063,327 10/25/2013 513 7590 08/24/2018 WENDEROTH, LIND & PONACK, L.L.P. 1030 15th Street, N.W., Suite 400 East Washington, DC 20005-1503 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR IngoGASSER 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. 2013-1604A 8536 EXAMINER DOYLE, RYAN A ART UNIT PAPER NUMBER 3637 NOTIFICATION DATE DELIVERY MODE 08/24/2018 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): eoa@wenderoth.com kmiller@wenderoth.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte INGO GASSER1 Appeal2017-005712 Application 14/063,327 Technology Center 3600 Before MICHAEL L. HOELTER, MICHELLE R. OSINSKI, and JEFFREY A. STEPHENS, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 8-16 and 18-25, which are all of the pending claims. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 Julius Blum GmbH ("Appellant") is the Applicant as provided in 3 7 C.F .R. Â§ 1.46 and is identified as the real party in interest. Appeal Br. 1. Appeal2017-005712 Application 14/063,327 THE CLAIMED SUBJECT MATTER Claim 8, the sole independent claim, is reproduced below and is representative of the claimed subject matter on appeal. 8. A drawer comprising: a pair of drawer side walls including a first drawer side wall and a second drawer side wall; and a bottom between said first drawer side wall and said second drawer side wall; wherein each of said pair of drawer side walls includes: an inner wall arranged such that said inner wall of said first drawer side wall faces said inner wall of said second drawer side wall; an outer wall connected to said inner wall; a container rail to be fastened to an extension rail of a drawer extension guide, a lower region of said inner wall being directly fixed to said container rail, said container rail being at least as long as a respective one of said pair of drawer side walls such that said container rail extends along an entire length of said respective one of said pair of drawer side walls, said container rail being arranged below an upper edge of said bottom; and a discrete upwardly-projecting front fitment member having a lower region directly fixed to said container rail, said front fitment member including an attachment device for attaching a drawer front panel to said drawer side wall, an upper region of said inner wall being directly fixed to an upper region of said front fitment member. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Grabher Haemmerle us 5,478,146 US 8,491,069 B2 2 Dec. 26, 1995 July 23, 2013 Appeal2017-005712 Application 14/063,327 Bohler2 WO 2007/137311 A2 Dec. 6, 2007 THE REJECTIONS I. Claims 8, 10, 11, 13-16, 18-20, 24, and 25 stand rejected under 35 U.S.C. Â§ 102(b) as anticipated by Bohler. Final Act. 4---6. II. Claims 8, 10, 14, 15, and 18-25 stand rejected under 35 U.S.C. Â§ 102(e) as anticipated by Haemmerle. Id. at 6-8. III. Claims 9 and 12 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Bohler and Grabher. Id. at 9. OPINION Rejection I The Examiner finds that Bohler discloses all of the limitations of independent claim 8, including, inter alia, "a discrete upwardly-projecting front fitment member (14 or 14, 15) having a lower region (bottom of 14) directly fixed ([F]ig. 4) to said container rail" and "an upper region ... of said inner wall being directly fixed ([F]ig. 3) to an upper region (15 region of 14) of said front fitment member." Final Act. 4--5. More particularly, with respect to the lower region of the front fitment member being directly fixed to the container rail, the Examiner states that "[ t ]he Examiner relies upon a reasonable interpretation of [']fixed,['] such that the bottom portion of the detent device 14 ... is securely placed (definition provided below) with direct contact to the container rail of the lateral drawer frame 2." Ans. 7; see also id. at 8 (noting that Merriam-Webster defines "fixed" as 2 Unless otherwise noted, citations to "Bohler" in this opinion will be to the English translation entered into the record as an attachment to the Examiner's Answer mailed December 22, 2016. 3 Appeal2017-005712 Application 14/063,327 "securely placed or fastened"); see also Adv. Act. 2 ("[T]he rejection relies upon a reasonable interpretation of [']fixed,['] such [that] the bottom portion of the detent device 14 is up, against and held in place relative to the container rail of the lateral drawer frame 2.") More particularly, with respect to the upper region of the front fitment member being directly fixed to the inner wall of the drawer side wall, the Examiner finds that "receiving device 15, in conjunction with detent device 14 and rear wall holder 24, provides support to the upper portion of the wall and lower portion of wall 6." Ans. 9; see also Adv. Act. 2 ("[T]he rejection relies upon a reasonable interpretation of [']fixed,['] such [that] the inner wall of the lateral drawer frame 2 is up, against and held in place relative to the mounting element 15."). Appellant argues that "the ordinary meaning of the term 'fixed' requires more than simply 'up, against and held in place relative to' (i.e., being supported by)." Appeal Br. 4. Appellant argues that a narrower ordinary meaning is supported by the discussion in the Specification that "the 'directly fixed' connection allows force applied to the drawer side wall to be transmitted and dissipated more efficiently." Id.; see also, e.g., Spec. 2: 12-21 ("[I]t has been proven to be particularly advantageous if the front fitment member ... [is] directly fixedly connected to the container rail, preferably by welding, riveting, screwing, clinching or wobble clinching. That gives a stable frame formed from the container rail, the fitment member[] ... arranged on the container rail and the inner wall to which the front fitment member ... can be directly and fixedly connected. . . . The stable frame provides that forces which are applied to that arrangement ... can be very well absorbed."). That is, Appellant "submits that one 4 Appeal2017-005712 Application 14/063,327 component simply resting on - but not being fixed to - another component is not 'fixed' to that other component and therefore would not necessarily allow for such force transmission and dissipation." Appeal Br. 4. We agree with Appellant that the Examiner's position is unreasonable because it fails to account for the front fitment member being "fixed to" another component, as opposed to simply being "fixed." In other words, although a component resting on another component may be "fixed" if the resting relationship results in the component being held in place and remaining stationary, a resting relationship does not equate to the components being "fixed to" each other. Consequently, we agree with Appellant that the Examiner's findings as to the disclosure of Bohler are predicated on an unreasonably broad interpretation of one component being "fixed to" another component simply by being in contact with each other and/or resting on one another. Appellant explains that "detent device 14 (at best) simply contacts or rests on the lower U-shaped rail portion of the drawer frame 2, but is not fixed thereto." Appeal Br. 4 ( emphasis omitted). Appellant also explains that "detent device 14 and the mounting element 15 of the 'fitment member' are also not directly fixed to an upper region of an inner wall," but are merely "'arranged in the drawer frame."' Id. ( emphasis omitted) ( citing Bohler Abst. ). The Examiner has not established a finding supported by a preponderance of the evidence that Bohler, as relied upon in the rejection, discloses a front fitment member directly fixed to both a container rail and an inner wall of a drawer side wall, as required by this anticipation rejection under review. For the foregoing reasons, Appellant shows error by the Examiner in finding that the subject matter of claim 8 is anticipated by Bohler. We do 5 Appeal2017-005712 Application 14/063,327 not sustain the rejection of claim 8, or claims 10, 11, 13-16, 18-20, 24, and 25 which depend therefrom, under 35 U.S.C. Â§ 102(b) as anticipated by Bohler. Rejection II The Examiner finds that Haemmerle discloses all of the limitations of independent claim 8, including, inter alia, "a discrete upwardly-projecting front fitment member (24) having a lower region (12 portion) directly fixed ([F]ig. 16) to said container rail." Final Act. 6-7. More particularly, the Examiner finds that Haemmerle discloses "that 'the drawer container 8 has a drawer frame structure 12 by way of which the drawer 1 is fixed to a drawer rail 5 [i.e., the container rail identified by the Examiner]."' Ans. 16 ( quoting Haemmerle 5:59---61 and also citing Figs. 16-19). Appellant argues that even assuming arguendo that drawer frame structure 12 is considered part of the fitment member 24 in accordance with the Examiner's stated position, "there is no explanation of the relationship or connection between the drawer frame structure 12 and the drawer rail 5" so as to adequately support that the drawer frame structure 12 is directly fixed to the drawer rail 5. Appeal Br. 7. Appellant submits that "it is possible that the drawer frame structure is connected to the drawer rail 5 via other intervening components, or that the drawer frame structure simply rests on the drawer rails." Id. An Examiner's factual finding regarding what a reference discloses must be supported by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) ("preponderance of the evidence is the standard that must be met by the PTO in making rejections"). In order to satisfy this standard, the evidence must demonstrate that it is more likely 6 Appeal2017-005712 Application 14/063,327 than not that the alleged facts are actually true. See Bosies v. Benedict, 27 F.3d 539, 542 (Fed. Cir. 1994) (the preponderance of the evidence standard requires the finder of fact to believe that the existence of a fact is more probable than its non-existence). We are persuaded by Appellant's argument that the Examiner has not adequately explained why it is more likely than not that Haemmerle' s drawer frame structure 12 is directly fixed to drawer rail 5, as opposed to the other possible relationships or connections between the drawer frame structure 12 and drawer rail 5 posited by Appellant. Without further explanation or evidence, one of ordinary skill in the art can only speculate as to the type of construction between drawer frame structure 12 and drawer rail 5, and such speculation is insufficient to support the anticipation rejection under review. 3 For the foregoing reasons, Appellant shows error by the Examiner in finding that the subject matter of claim 8 is anticipated by Haemmerle. We do not sustain the rejection of claim 8, or claims 10, 14, 15, and 18-25 which depend therefrom, under 35 U.S.C. Â§ 102(e) as anticipated by Haemmerle. Rejection III In rejecting claims 9 and 12 under 35 U.S.C. Â§ 103(a) as unpatentable over Bohler and Grabher, the Examiner states that "it would have been obvious to one of ordinary skill in the art ... to modify the ... connection- type of Bohler to use a ... welded-type connection to provide great stability." Final Act. 9 ( citing Grabher 1: 13-16). The Examiner, however, 3 We note that any consideration of what one of ordinary skill in the art may deem obvious regarding the type of construction between a front fitment member and a container rail is immaterial to the anticipation rejection made here and before us for review. 7 Appeal2017-005712 Application 14/063,327 fails to adequately explain what specific connection-types of Bohler are being modified so as to use a welded-type connection, and thus fails to remedy the above-identified deficiency of Bohler in failing to disclose a front fitment member directly fixed to both a container rail and an inner wall of a drawer side wall. The Examiner does not adequately explain how Grabher's teachings that a wall can be produced from a metal material and that welding is an alternative connection type to rivets and flanges (id. (citing Grabher 1:7-9, 40-44; 2:53-54; Figs. 1-5)) would have led one of ordinary skill in the art to directly fix Bohler's front fitment member to both a container rail and an inner wall of a drawer side wall. Accordingly, we do not sustain the rejection of claims 9 and 12 under 35 U.S.C. Â§ 103(a) as unpatentable over Bohler and Grabher. DECISION The Examiner's decision to reject claims 8, 10, 11, 13-16, 18-20, 24, and 25 under 35 U.S.C. Â§ 102(b) as anticipated by Bohler is reversed. The Examiner's decision to reject claims 8, 10, 14, 15, and 18-25 under 35 U.S.C. Â§ 102(e) as anticipated by Haemmerle is reversed. The Examiner's decision to reject claims 9 and 12 under 35 U.S.C. Â§ 103(a) as unpatentable over Bohler and Grabher is reversed. REVERSED 8