Ex Parte Jackman

Patent Trial and Appeal BoardMay 31, 2013

11829169 (P.T.A.B. May. 31, 2013)

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. 11/829,169 07/27/2007 Wayne Jackman 11130-001 1661 29391 7590 05/31/2013 BEUSSE WOLTER SANKS MORA & MAIRE, P. A. 390 NORTH ORANGE AVENUE SUITE 2500 ORLANDO, FL 32801 EXAMINER TYLER, CHERYL JACKSON ART UNIT PAPER NUMBER 3744 MAIL DATE DELIVERY MODE 05/31/2013 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 WAYNE JACKMAN ____________ Appeal 2011-004236 Application 11/829,169 Technology Center 3700 ____________ Before JOHN C. KERINS, SCOTT A. DANIELS, and JEREMY M. PLENZLER, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004236 Application 11/829,169 2 STATEMENT OF THE CASE Wayne Jackman (Appellant) appeals under 35 U.S.C. § 134(a) from a final rejection of claims 5, 15 and 20. Claims 1-4, 6-14 and 16-19 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellant’s invention is directed to a portable canned drink cooler and dispenser. Claim 5, reproduced below, is illustrative of the claimed subject matter: 5. A portable canned drink cooler and dispenser, comprising: a tube comprising an outer wall and an inner wall with a webbing between the walls connecting the walls, the inner wall forming a generally cylindrical inner chamber comprising a length that slidably holds multiple drink cans end-to-end; spaces between the inner and outer walls and between the webbing forming longitudinal thermal chambers surrounding the inner wall suitable for receiving thermal packs along the length of the inner chamber; and the inner chamber comprising an access opening at a front end of the tube for receiving and dispensing the drink cans endwise; an elevator in the inner chamber for moving the drink cans toward the access opening, the elevator comprising an elevator plate slidably mounted in the inner chamber, and cords or rods attached to the elevator plate and extending from the front end of the tube that pull the elevator plate toward the Appeal 2011-004236 Application 11/829,169 3 front end of the tube to move the drink cans toward the access opening; the elevator plate comprising diametrically opposed slide bars slidably engaged in longitudinal tracks formed in the inner wall, one of the cords or rods attached to each of the slide bars and extending from the front end of the tube for manually pulling the elevator toward the access opening via the cords or rods; wherein the elevator plate comprises sides that converge toward each other and away from the inner wall with increasing distance behind a front surface of the elevator plate to prevent binding of the elevator plate against the inner wall; wherein the sides of the elevator plate are formed as a surface of rotation with a sectional radius centered approximately at the diametrically opposite side of the elevator plate, wherein no degree of canting of the plate can cause binding of the plate in the inner chamber. THE REJECTIONS Appellant appeals the following rejections: (i) claim 5 under 35 U.S.C. § 103(a) as being unpatentable over Penxa (US 5,272,890, issued Dec. 28, 1993) in view of Edwards (US 4,324,111, issued Apr. 13, 1982), D’Angelo (US 2006/0000229 A1, published Jan. 5, 2006) and Hilton (US 4,910,977, issued Mar. 27, 1990); Appeal 2011-004236 Application 11/829,169 4 (ii) claim 15 under 35 U.S.C. § 103(a) as being unpatentable over Penxa in view of Edwards, D’Angelo, Hilton and Bauer (US 5,413,414, issued May 9, 1995); and (iii) claim 20 under 35 U.S.C. § 103(a) as being unpatentable over Penxa in view of Edwards and D’Angelo. ANALYSIS Claim 5--Obviousness--Penxa/Edwards/D’Angelo/Hilton The issue joined between Appellant and the Examiner is whether Hilton, which is proposed by the Examiner to be combined with Penxa, Edwards and D’Angelo, discloses an elevator plate having sides that converge toward each other and away from the inner wall of a cooler for canned drinks. See, Appeal Br. 5-6; Ans. 6-7. The Examiner maintains that Hilton does disclose such a construction and concludes that it would have been obvious to incorporate that elevator plate into the Penxa beverage cooler in order to provide a more stable supporting device for the beverage cans stored therein. Ans. 6-7. The Examiner, without providing any detail or explanation as to what modification would be made, further asserts that “it would have been an obvious mechanical expedient . . . to modify the elevator plate to ensure that no degree of canting of the plate” will cause the plate to bind within the inner chamber of the cooler. Ans. 7. Appellant responds by arguing that the curved surfaces 20, 21 of Hilton are top and bottom surfaces of disc 18, and not the sides of the disc, which is flat. Appeal Br. 5-6. Appellant maintains that the sides do not converge toward each other and away from the inner wall of the container. Appeal Br. 6. Appeal 2011-004236 Application 11/829,169 5 The Examiner provides, as further explanation, annotated versions of Figures 3 and 4 of the Hilton disc 18, confirming that it is the top and bottom curved surfaces 20, 21 that are regarded as meeting the limitations directed to the claimed sides which converge toward each other and away from the container wall. Ans. 15. Even accepting the Examiner’s position that the top and bottom curved surfaces in Hilton may properly be regarded as “sides” of the disc, the Examiner has failed to establish that those sides converge toward each other and away from the container wall. The Examiner has annotated Figure 3 of Hilton with arrows purporting to show how the curved surfaces converge toward each other and converge away from the container wall. Id. The arrows on each of the upper and lower curved surfaces, however, do not demonstrate how each of the upper and lower surfaces converge toward the other and converge away from the inner wall of the container. The attempt to show convergence away from the inner wall of the container involves the outer contour of each surface of each side “converging” away from the wall of the container. The arrows indicate that the surface of each of the “sides” diverges from the opposite side in a direction away from the wall of the container. Were the direction of the arrows reversed, it would be seen that the sides converge toward each other in a direction toward the inner wall of the container, which is the opposite of that claimed. The rejection of claim 5 is not sustained. Claim 15--Obviousness-- Penxa/Edwards/D’Angelo/Hilton/Bauer Claim 15 contains the same limitation as does claim 5 with respect to the elevator plate comprising sides that converge toward each other and away from the inner wall of the container. As such, the rejection of claim 15 Appeal 2011-004236 Application 11/829,169 6 suffers from the same deficiency as does the rejection of claim 5. The rejection of claim 15 is thus not sustained. Claim 20--Obviousness-- Penxa/Edwards/D’Angelo Claim 20 requires that the portable canned drink cooler and dispenser have convection communication paths between the thermal chambers and the inner chamber providing air circulation therebetween.1 The Examiner relies on Edwards as providing the necessary teaching that, when combined with Penxa, assertedly renders obvious this claim limitation. Ans. 9, 12, 19. The Examiner-annotated Figure 6 of Edwards appears to best illustrate what the Examiner’s position is in this regard. Ans. 19. Appellant maintains that the Examiner has not established that the proposed modification would result in the presence of convection communication paths between the thermal chambers (in which cooling packs are positioned) and the inner chamber of the cooler (where the beverage containers are maintained). Appeal Br. 7 (argument directed to both claims 15 and 20). Annotated Figure 6 of Edwards contains a statement that “[c]onvection communication paths between the thermal chambers and the inner chamber” are shown by “shaded portions against inner wall (52)”. Ans. 19. However, the shaded portions against the inner wall are bounded by the inner wall, and thus there is no convective communication between the areas represented by the shaded portions and the inner chamber of the container. Convection is a specific form of heat transfer, as is emphasized by the further recitation in claim 20 that the claimed convection communication paths provide air circulation between the thermal chambers and the inner chamber. The Examiner has failed to establish that such paths 1 Claim 15, discussed above, includes a similar limitation. Appeal 2011-004236 Application 11/829,169 7 exist in the proposed modification of the Penxa device, or that it would have somehow been obvious to provide convection paths. The rejection of claim 20 is not sustained. DECISION The decision of the Examiner to reject claims 5, 15 and 20 is reversed. REVERSED Klh