Ex Parte George

Patent Trial and Appeal Board

Aug 28, 2017

12497310 (P.T.A.B. Aug. 28, 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.
12/497,310 07/02/2009 Michael D. George 2986-9510(20090512) 6205
24247 7590 0!
TRASKBRITT, P.C.
P.O. BOX 2550
SALT LAKE CITY, UT 84110
EXAMINER
RAMSEY, JEREMY C
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
08/30/2017 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):
U S PTOMail @ traskbritt .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL D. GEORGE
Appeal 2017-003419
Application 12/497,310
Technology Center 3600
Before: JOSEPH L. DIXON, ERIC S. FRAHM, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-003419
Application 12/497,310
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
5—25. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to a movable partitions, leading end
assemblies for movable partitions, and related methods. Claim 5,
reproduced below, is illustrative of the claimed subject matter:
5. A movable partition assembly comprising:
a movable partition suspended from an overhead track
positioned above the movable partition, the movable partition
comprising:
a first plicated structure; and
a second plicated structure laterally spaced from and
extending generally parallel to the first structure; and
a leading end assembly suspended from the overhead track
and coupled to the movable partition at a leading end of the first
plicated structure and at a leading end of the second plicated
structure, the leading end assembly comprising a planar leading
surface having a size and shape configured to function as both a
lead post and a storage pocket cover by, in a storage position, at
least substantially covering an opening to a storage pocket for the
movable partition constructed within a building in which the
movable partition is to be stored in the storage position and,
in an extended position, juxtaposing a portion of a wall
opposing the storage pocket to which the movable partition is
extended in the extended position, the at least substantially planar
leading surface having a size and shape further configured to
exhibit a width, taken a direction perpendicular to an intended
direction of travel of the movable partition, substantially equal to
or greater than a corresponding width of at least a portion of the
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storage pocket and a width of a remainder of the movable
partition trailing the leading end assembly.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Quates et al. US 6,244,324 B1 June 12,2001
Huang US 2007/0095488 Al May 3, 2007
Applicant Admitted Prior Art (AAPA) (Figure 1 and Spec, paragraphs 3—6)
REJECTIONS
The Examiner made the following rejections:
Claims 5, 22, 23, and 25 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Applicant Admitted Prior Art (AAPA) in view of
Quates.
Claim 24 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Applicant Admitted Prior Art (AAPA) and Quates as
applied to claim 22 and further in view of Huang.
Claims 6, 7, 15—19, and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Applicant Admitted Prior Art (AAPA) in view of
Quates.
Claims 8—14 and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Applicant Admitted Prior Art (AAPA) and Quates as
applied to claim 6 and 18 and further in view of Huang.
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ANALYSIS
Claim 5
With respect to independent claim 5, Appellant argues the
combination of the prior art references when considered as a whole does not
teach or reasonably suggest:
a movable partition assembly including “«leading end assembly
suspended from the overhead track and coupled to the movable
partition at a leading end of the first plicated structure and at a
leading end of the second plicated structure, the leading end
assembly comprising a planar leading surface having a size and
shape configured to function as both a lead post and a storage
pocket cover by, in a storage position, at least substantially
covering an opening to a storage pocket for the movable partition
constructed within a building in which the movable partition is
to be stored in the storage position and, in an extended position,
juxtaposing a portion of a wall opposing the storage pocket to
which the movable partition is extended in the extended
position.”
(App. Br. 11—12). Appellant specifically contends:
First, the Final Office Action fails to properly consider that
it has been shown that one of ordinary skill would not have
combined the unrelated disclosures of the AAPA and Quates.
Second, the reasoning in the Final Office Action fails to
properly heed M.P.E.P. § 2144.04 II B and the related subject
matter of the claims, where the guidance set forth in the M.P.E.P.
indicates that the rejections including the combination of the
unrelated disclosures of the AAPA and Quates should be
overcome.
Third, the Final Office Action fails to properly consider
the evidence of secondary considerations set forth in the of-
record declarations in support of the unobviousness of the
claimed invention in view of the AAPA and Quates.
(App. Br. 12).
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With respect to independent claim 5, Appellant argues that one of
ordinary skill would not have combined the unrelated disclosures of the
AAPA and Quates, and that the Quates reference is not analogous art to the
subject matter of independent claim 5. (App. Br. 12—15).
The Examiner maintains that both the instant application and the prior
art to the Quates reference are in the same US classification and that “its
essential function is that of a flexible, extendable barrier as is the appellant's
device.” (Ans. 11). We agree with the Examiner that the function of the
AAPA and the Quates reference have a similar function of dividing a space
with an extendable barrier. The Examiner further maintains that “Quates is
directed towards a movable barrier that is extended from a storage box and
uses a leading end to cover access to the box yet also function for fixing to
an opposite side, the teaching of Quates is reasonably pertinent to the
particular problem faced by the inventor.” Again, we agree with the
Examiner that the Quates reference is a reasonably pertinent reference. The
Examiner further contends that “Both Quates and Appellant provide
retractable barriers stored within housings to prevent access to an area, thus
the purposes Quates and Appellants [sic] device are similar to one another.”
(Ans. 11).
We further find that independent claim 5 is directed to a “movable
partition assembly” with no further limiting context to the movable partition
assembly beyond the planar leading surface substantially covering the
opening of a storage pocket which is within a “building,” but no
express/direct limitations on the “movable partition assembly.” Therefore,
we agree with the Examiner that the AAPA and the Quates references are
analogous art and reasonably pertinent to the invention as recited in
independent claim 5.
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Appellant further contends that the second Decl. of Mr. Goodman,
filed Oct. 22, 2015, opines “[A]s someone who has been involved in the
field of movable partitions assemblies that implement plicated structures in
buildings to separate one space from another and, more importantly, provide
barriers during emergency situations such as a fire” would not find the
Quates reference related to or reasonably pertinent to the problems faced by
the inventor. (App. Br. 14). We find declarant Goodman’s statement and
Appellant’s argument to not be commensurate in scope with the express
language of independent claim 5 which is not directed to an emergency
situation or barrier for fire. Consequently, Appellant’s proffered arguments
and evidence does not show error in the Examiner’s combination or
conclusion of obviousness of independent claim 5. Appellant further
contends “there appears to be no evidence that one of ordinary skill in the art
(besides the applicant of the instant application) has combined these two
components as suggested in the outstanding Final Office Action.” (App. Br.
15). Appellant further contends that the second Decl. of Mr. Goodman
evidences a failure of others to provide the claimed configuration:
Even though movable partitions and the separate pocket doors
have been in use for the last 30 years, there was a failure of others
to provide a movable partition with an integrated leading end that
operated both as the leading end and a pocket door as, to my
knowledge, no one had ever thought to modify the leading
structure of the movable partition such that the pocket door could
be eliminated.
(App. Br. 15).
The Examiner states that the declaration has been considered, but the
Examiner reiterates the same response that the Quates reference teaches and
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fairly suggests the leading edge assembly covering the opening to the
storage location. (Ans. 12).
We note that the language of independent claim 5 recites “comprising
a planar leading surface having a size and shape configured to function as
both a lead post and a storage pocket cover by, in a storage position.” We
find the claim language is broader than the declarant Goodman’s
“integrated” and “pocket door,” and the claim language does not necessarily
eliminate the pocket door. Furthermore, we find no relative dimensions
recited in independent claim 5 which would further support Appellant’s
proffered elimination of the pocket door.
Appellant contends that “it appears that the function of the pocket
door would need to be shown as being not desired to support a case of
obviousness.” (App. Br. 18). As discussed above, we find no express
function for the door rather than just being a door without any function for
the “movable partition assembly.” We find the language of independent
claim 5 does not set forth the pocket as an element of the movable partition
assembly. Consequently, we find the door to the pocket is not element
which has been omitted since the pocket is not part of the movable partition
assembly. Therefore, Appellant’s contention is not commensurate in scope
with the express language of independent claim 5. Additionally, we find
Appellant’s general contention regarding “long felt need” to not be
addressed by the declarations because the declarant Goodman only states
there was a “[felt] need” (Goodman first Deck 17, Goodman 2nd Deck |7)
rather than a long felt need. Furthermore, the “felt need” discussion pertains
to fire safety, which is not commensurate in scope with independent claim 5.
As a result, Appellant’s argument does not show error in the Examiner’s
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treatment of the declarations, findings of fact, or conclusion of obviousness
of representative independent claim 5.
We find that the leading edge of the AAPA contains a planar surface
and depending on the relative dimensions of the first and second plicated
sides, the leading end assembly would “substantially cover” the opening of
the storage pocket.
Appellant further contends that the Examiner “Fails To Recognize
That Claim 5 Is Not Obvious As The Movable Partition Assembly Omits A
Pocket Door And Retains Its Function [Commercial]” success and long felt
need. (App. Br. 15—16).
The Examiner maintains that:
While appellant's device may omit the necessity for and
retain the function of a pocket door, this is clearly taught by
Quates. One having ordinary skill in the art would recognize the
advantage of modifying leading end and pocket door of AAPA
to be formed as a single part as taught by Quates in order
reduce cost of manufacture by eliminating multiple parts.
(Ans. 12—13). We agree with the Examiner.
Appellant further contends “the omission of the pocket door while
retaining its function with the leading end assembly is indicia of
unobviousness.” (App. Br. 16). We disagree with Appellant and find that
the pocket door is not necessarily an integral functional element of the
operation of the movable partition. Rather, we find the door to be an
optional element for aesthetics, but does not affect the operation of the
movable partition assembly. Consequently, Appellant’s argument does not
show error in the Examiner’s finding of fact or conclusion of obviousness of
independent claim 5.
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Appellant further contends that the office action fails to
recognize that claim 5 is not obvious in view of the four declarations.
(App. Br. 18).
We find Appellant’s argument to be a general argument
disagreeing with the Examiner’s conclusion based upon the evidence
submitted within the four declarations. We find Appellant’s argument
to be unpersuasive in showing error in the Examiner’s conclusion of
nonobviousness. From our review of the four declarations, we find
the evidence to be conclusory and does not support Appellant’s
conclusion of nonobviousness based upon commercial success and
long felt need. While the declarant Mr. Welch in his first declaration,
filed May 6, 2015, declares:
The movable partition assemblies including leading end
assemblies that also form a barrier over the storage pocket, as
claimed in the '310 Application, have currently replaced about
35% of Won-Door's sales of movable partition assemblies
including the smaller, standard lead post since their introduction
in 2011 (Ex. B), where movable partitions with both types of
leading end assemblies or lead posts have been and are still being
offered for sale to customers by Won-Door.
Furthermore, based on bid specifications and estimated
completion dates, in about the next three years, movable partition
assemblies including leading end assemblies that also form a
barrier over the storage pocket, as claimed in the '310
Application, are expected to replace over 80% of Won-Door's
sales of movable partition assemblies including the smaller,
standard lead post.
(Welch first Declaration || 7—8).
We find Mr. Welch’s first declaration to be directed to “smaller
partition assemblies” and is not commensurate in scope to the breath
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of Appellant’s claimed invention which covers all sizes, shapes, and
configurations of movable partitions. We note that Appellant’s
arguments go to a subset of all movable partitions disclosed and
claimed in Appellant’s claims. Consequently, Appellant’s evidence
and declarant’s conclusions do not necessarily evidence the
nonobviousness of the invention as recited in independent claim 5.
Declarant Mr. Welch additionally contends “Again, as noted above,
such movable partition assemblies including leading end assemblies that also
form a barrier over the storage pocket have about a 20% market share of the
horizontal sliding door market.” (Welch first Declaration 112). It is unclear
if declarant Welch is contending that the partitions that forms a barrier are
20% of the total market share which would conflict with the declarant’s
prior declaration concerning that the Won Door corporation has a 52%
market share in horizontal sliding door market (which we assume is a sliding
partition market). Therefore, with the expectation to grow to a 40% market
share in the next three years, then the Won Door Corporation would hold a
seventy-two percent market share. Or would the increased be within the
companies 52% market share to replace the leading edge assembly that is
not planar and then there would be no increase in the market share.
From our review of the exhibits submitted with Mr. Welch’s
declaration, it appears that there is a healthy demand and delivery of
partitions with a standard leading edge assembly, but the partitions
with the claimed leading edge assembly appear to be shorter in
distance/length which implies that there is a distinct attractiveness to
shorter distances such as hallways rather than room partitions.
Consequently, Mr. Welch’s general statements are unclear as showing
a being “completely replaced.”
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That is, movable partition assemblies including the smaller,
standard lead post are expected to be completely replaced by the
improved design of the movable partition assemblies including
leading end assemblies that also form a barrier over the storage
pocket, as claimed in the ‘310 Application, in the near future,
with the exception of a few highly customized applications (e.g.,
radial configurations and/or very large opening sizes) where the
movable partition assemblies including the smaller, standard
lead post may continue to be implemented.
(Welch first declaration | 8) (emphasis added).
Mr. Welch further opines based on the percentage of “Gross
revenues,” but the appendix to the declaration merely shows number
of units sold which does not include any data which corresponds to
the gross revenue. And, neither Appellant nor declarant identify the
nomenclature used within the appendices with which to readily
appreciate the data therein.
Mr. Welch further opines regarding:
The commercial success of the movable partition
assemblies including leading end assemblies that also form a
barrier over the storage pocket that Won-Door sells is, in large
part, attributable to the features claimed in, for example,
currently pending claims 5, 6, 16, 18, and 22 of the above-
referenced application. More specifically, the commercial
success of these movable partition assemblies that Won-Door
sells is, in large part, attributable to the presence and
configuration of the leading end assemblies that also form a
barrier over the storage pocket. For example, such movable
partition assemblies including leading end assemblies eliminate
the need for a separate pocket door cover. Furthermore, a single
movable partition assembly with a leading end that also covers
the storage pocket in which the movable partition is stored
provides the enhanced ability to test (e.g., fire test) the entire
movable partition assembly and provides an integrated, more
reliable assembly for use in emergency situations. Such details
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are further discussed in Mr. Goodman's Declaration, which is
filed concurrently herewith.
(Welch first Declaration 113). We note that the language of
independent claim 5 does not necessarily “form a barrier” over the
storage pocket {but see dependent claim 17 with method of installing).
We find Mr. Welch’s conclusion about the attributable presence and
configuration of the leading end assembly that also forms a barrier over the
storage pocket to be conclusory with respect to each of the independent
claims separately. Additionally, we find that the “the presence and
configuration of the leading end assemblies that also form a barrier over the
storage pocket” does not significantly change or impact the method of
“using” or “installing” the partition in independent claims 16 and 18. Nor
has Appellant or declarant identified how the method of using or installing is
affected the price, gross revenue, or number of units sold. As a result,
Appellant’s declarations are not commensurate in scope with that express
claim language. (Consequently, Appellant’s evidence cannot show
commercial success of the invention as recited in claims 16 and 18 and to a
lesser degree in independent claims 6 and 22 which do not have
commensurate claim language with independent claim 5).
Consequently, we find Appellant’s arguments do show error by
a preponderance of the evidence in the Examiner’s factual finding,
analysis, or reasoned conclusion of obviousness based upon the
relevant facts in the prosecution history.
Additionally, we note that Appellant’s argument with regards to
commercial success and long felt need are argued, but the declarations do
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not squarely evidence “commercial success” and “long” felt need but merely
provide gross revenue numbers, number of units and a “felt need.”
In Mr. Welch’s second Declaration, Mr. Welch responds to the
Examiner’s commentary regarding the sales:
In other words, the commercial success of the product
claimed in the ‘310 Application is shown internally within Won-
Door compared to another similar Won-Door product, both of
which are actively offered and marketed by Won-Door. In fact,
the primary difference between these two assemblies is only the
size and configuration of the leading end assembly. As a result,
speculation regarding Won-Door’s competitors in the market,
Won-Door’s market share, and other device features offered by
Won-Door, such as “Green” overhead track installations and
relatively smaller storage pocket requirements, does not appear
to apply in the case as each of the products compared above are
offered by Won-Door and have substantially the same
competition and substantially the same additional features.
Further, the initial price and marketing of each of these products
were similar and do not appear to be a substantial reason why the
movable partition assemblies claimed in the ‘310 Application
quickly began to outpace the other Won-Door products including
the standard lead post. However, it should be appreciated, that
since the commercial success of movable partition assemblies
claimed in the ‘310 Application was recognized after being
introduced into the market, marketing of this product has
increased due to market demands for the enhanced product.
(Welsh second declaration | 6).
We note that Appellant has not identified whether the cost to make the
claimed invention is less for the claimed partition with the claimed leading
edge assembly versus the prior art leading edge assembly.
Appellant merely states “Gross sales” but does not identify whether
the profit is less or more in the two types of assemblies, but that the “initial
price and marketing of each of these products were similar.”
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We find if the initial cost is the same on both doors, but Appellant
opines that there is no cost in construction by a third party to make a pocket
door, then Appellant impliedly admits that there end price to the purchaser is
less for the claimed partition due to the third-party construction costs which
may entice the usage thereof.
Further, Appellant does not identify what “initial price” includes.
Whether the price of the door is included in this price or whether just the
change in the leading end assembly. We note that a majority of the cost
would appear to be in the price of the length of the partition and construction
of the partition and the pocket, but the leading end assembly is merely a
portion thereof. Consequently, the gross revenue and the percentage of sales
does not necessarily directly correlate to increases. Additionally, merely a
transition from one leading end assembly to another leading end assembly
does not necessarily indicate any changes in sales if the sale would have
taken place either way depending on the remainder of the product. We find
the success or increase in market share from other manufacturers of single
track or dual track partitions has not been shown by the declarations or
evidence.
Although the Appellant alleges that the secondary considerations
of nonobviousness should establish that the claimed movable partition
assembly was not obvious, we see no persuasive analysis of how the alleged
commercial embodiment encompasses each and every limitation of any of
the claims thus rendering it impossible to determine the existence, or lack
thereof, between the claimed invention and the evidence purported to
establish commercial success. Thus, it would appear that there may be other
factors unrelated to the claims, which the Appellant has not addressed,
which could account for the alleged commercial success. When evidence is
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presented, it is our duty to consider all evidence anew. See, e.g., In re Eli
Lilly & Co., 902 F.2d 943, 945 (Fed. Cir. 1990). We are also mindful that
objective evidence of non-obviousness in any given case may be entitled to
more or less weight depending on its nature and its relationship with the
merits of the invention. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d
1530, 1538-39 (Fed. Cir. 1983). Accordingly, we consider anew the issue of
obviousness under 35 U.S.C. § 103, carefully evaluating and weighing both
the evidence relied upon by the Examiner and the objective evidence of non­
obviousness provided by the Appellant. Having considered all of the
evidence submitted, we do not find the Appellant’s secondary considerations
evidence sufficient to overcome the prima facie case of obviousness of
independent claim 5 set forth by the Examiner.
Claims 6, 7, 15, and 21
With respect to claims 6, 7, 15, and 21, Appellant argues the claims as
a group. We select independent claim 6 as the representative claim for the
group and address Appellant’s arguments thereto. Appellant contends that
the Examiner’s rejection should be reversed for “substantially the same
reasons discussed above in relation to claim 5.” (App. Br. 21—22).
Appellant merely repeats the language of the claim and generally argues the
same reasoning addressed above with respect to independent claim 5
regarding the combination and commercial success with long felt need.
We find Appellant’s reliance upon the arguments advanced with
respect to independent claim 5 to be unavailing because of the language of
independent claim 6 is not necessarily the same with a “planar” leading end
structure argued with respect to independent claim 5.
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Appellant emphasizes the language of independent claim 6 which
merely sets forth:
at least substantially cover an opening to the storage pocket
when at least substantially all of the movable partition is in a
storage position within the storage pocket and, in an extended
position be positioned proximate a portion of a wall opposing
the storage pocket and to which the leading end structure of the
movable partition is extended in the extended position.
(App. Br. 21—22).
Additionally, we find the language of independent claim 6 does not
set forth relative dimensions of any of the claimed features. Consequently,
we find that it would have been obvious to one of ordinary skill in the art
that some partitions with only the “at least one plicated structure” would
have a “leading surface having a size and shape configured to, in a retracted
position, at least substantially cover an opening to the storage pocket when
at least substantially all of the movable partition is in a storage position
within the storage pocket.” (Claim 6). Consequently, Appellant’s
arguments with respect to independent claim 5 are not commensurate in
scope with the differences in the claim language of independent claim 6.
Consequently, Appellant’s arguments cannot show error in the Examiner’s
finding of obviousness.
We further find Mr. Welch’s conclusion about the attributable
presence and configuration of the leading end assembly that also forms a
barrier over the storage pocket to be conclusory with respect to each of the
independent claims separately. Additionally, we find that the “the presence
and configuration of the leading end assemblies that also form a barrier over
the storage pocket” does not significantly change or impact the method of
“using” or “installing” the partition. Nor has Appellant or declarant
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identified how the method of using or installing is affected the price, gross
revenue, or number of units sold. As a result, Appellant’s declarations are
not commensurate in scope with the express claim language and
consequently cannot show commercial success of the invention as recited in
claims 16 and 18 and to a lesser degree in independent claims 6 and 22
which do not have commensurate claim language with independent claim 5.
Consequently, we find Appellant’s arguments do not more than
likely show error in the Examiner’s analysis or reasoned conclusion of
obviousness based upon the relevant facts in the prosecution history of
representative independent claim 6.
Claims 16 and 17
Appellant argues the claims as a group. (App. Br. 23). As a result we
select independent claim 16 as the representative claim for the group and
address Appellant arguments thereto. As discussed above with respect to
independent claim 6, we find the scope of independent claim 16 to be
different than independent claim 5, but Appellant argues “substantially the
same reasons discussed above in relation to claim 5.” (App. Br. 23).
Appellant repeats the language of the claim and generally set forth
similar arguments advanced with respect to independent claim 5. We
additionally note that Appellant’s arguments with respect to independent
claim 5 do not address any differences in the method of installing the AAPA
partition with respect to the claimed partition.
We find Mr. Welch’s conclusion about the attributable presence and
configuration of the leading end assembly that also forms a barrier over the
storage pocket to be conclusory with respect to each of the independent
claims separately. Additionally, we find that the “the presence and
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configuration of the leading end assemblies that also form a barrier over the
storage pocket” does not significantly change or impact the method of
“using” or “installing” the partition. We note that the proffered distinction
in the leading edge surface does not address any differences in the
installation and Appellant or declarant has not identified how the method of
using or installing is affected the price, gross revenue, or number of units
sold. As a result, we find Appellant’s proffered arguments do not show error
in the Examiner’s findings of fact or conclusion of obviousness with respect
to do the same method of installing the prior art partition of representative
claim 16.
Claims 18 and 19
With respect to independent claim 18, Appellant argues the claims as
a group. We select independent claim 18 as the representative claim for the
group and address Appellant’s arguments thereto. As discussed above with
respect to independent claim 6, we find the scope of independent claim 18 to
be different than independent claim 5, but Appellant argues “substantially
the same reasons discussed above in relation to claim 5.” (App. Br. 25). We
additionally note that Appellant’s arguments with respect to independent
claim 5 do not address any differences in the method of using the AAPA
partition with respect to the claimed partition. Additionally, we further note
that the proffered distinction in “covering an opening to the storage pocket
with a leading end structure” and “abutting a leading surface of the leading
end structure with a surface of another wall” does not show error in the
Examiner’s finding of fact or conclusion of obviousness of representative
independent claim 18. We further note that the AAPA leading end assembly
which discloses “covering an opening to the storage pocket with a leading
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end structure coupled to a leading end of each of the first plicated structure
and the second plicated structure of the movable partition” albeit not
completely covered.
Additionally, we find that the portion of the plicated structure with
which to attach the leading and assembly would have further dictated the
size of the leading end assembly, and the attachment may be on the exterior
portion of the plicated structure or on the interior of the plicated structure.
Each of two options would differentially impact to the percentage of the
coverage and would have been readily apparent to those skilled in the art.
As a result, we find Appellant’s conclusory arguments and declarations do
not show error in the Examiner’s factual findings or conclusion of
obviousness of representative independent claim 18.
Claims 22, 23, and 25
With respect to claims 22, 23, and 25, Appellant addresses the claims
together. (App. Br. 26). We select independent claim 22 as the
representative claim for the group and address Appellant’s arguments
thereto. Appellant sets forth similar arguments relying upon the arguments
advanced with respect to independent claim 5, but again we find a difference
in the scope of the claim language of independent claim 22, as discussed
above with respect to independent claim 6. Consequently, Appellant’s
argument does not necessarily show error in the Examiner’s conclusion of
obviousness for the same reasons discussed above. Additionally, we note
that Appellant’s claims are replete with “substantially” limitations, but
Appellant has not identified any definition thereof to distinguish over the
Examiner’s proffered prior art combination. As a result, Appellant has not
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shown error in the Examiner’s factual findings or conclusion of obviousness
of representative independent claim 22.
Dependent claims 8—14, 20, and 24
Appellant has not set forth separate arguments for patentability of
dependent claims 8—14, 20, and 24. (App. Br. 28). Appellant argues that the
Huang reference does not remedy the deficiencies in the AAPA and Quates
references. Because we found no error in the base combination, we group
these claims as falling with their corresponding parent claims.
CONCLUSIONS
The Examiner did not err in rejecting claims 5—25 as obvious under 35
U.S.C. § 103.
DECISION
For the above reasons, we sustain the Examiner’s obviousness
rejection of claims 5—25. No time period for taking any subsequent action in
connection with this appeal may be extended under 37 C.F.R. §
1.136(a)(l)(iv).
AFFIRMED
20