Ex Parte Johnson

Patent Trial and Appeal BoardJan 30, 2017

13209022 (P.T.A.B. Jan. 30, 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. 347.00210101 9205 EXAMINER WRIGHT, KIMBERLEY S ART UNIT PAPER NUMBER 3637 MAIL DATE DELIVERY MODE 13/209,022 08/12/2011 26813 7590 01/30/2017 MUETING, RAASCH & GEBHARDT, P.A. P.O. BOX 581336 MINNEAPOLIS, MN 55458-1336 Bryan T. Johnson 01/30/2017 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 BRYAN T. JOHNSON Appeal 2014-009144 Application 13/209,022 Technology Center 3600 Before LINDA E. HORNER, JILL D. HILL, and JEFFREY A. STEPHENS, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Bryan T. Johnson (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s final decision rejecting claims 1—17. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2014-009144 Application 13/209,022 BACKGROUND Independent claims 1, 7, and 13 are pending. Independent claim 1, reproduced below, illustrates the claimed invention. 1. A stand for holding material over a ground surface, wherein the stand defines a front side, a rear side, a left side, a right side, and a top side, wherein the stand comprises: an upper portion comprising: a first wire-grid wall located on the rear side of the stand and extending between the left side and the right side of the stand, a second wire-grid wall located on the left side of the stand and coupled to the first wire-grid wall, and a third wire-grid wall located on the right side of the stand and coupled to the first wire-grid wall, wherein each of the first, second, and third wire- grid walls comprises: a grid of wire lying in a plane configured to receive material holding apparatus on either side of the grid of wire, and a frame extending around the grid of wire, wherein each of the first, second, and third wire- grid walls is perpendicular to the ground surface; a lower portion positioned to support the upper portion above the ground surface, wherein the lower portion comprises: a first, second, third, and fourth lower support member, wherein each of the first, second, third, and fourth lower support members are parallel to each other and located at a different one of four comers of the lower portion, and at least one lower shelf extending between the first, second, third, and fourth lower support members, wherein at least a portion of the at least one lower shelf comprises a grid of wire lying in a plane parallel to the ground surface and configured to receive material holding apparatus; and at least one material holding apparatus comprising attachment apparatus, wherein the attachment apparatus comprises at least two U-shaped members, each of the at least 2 Appeal 2014-009144 Application 13/209,022 two U-shaped members configured for attachment to a different horizontal wire of the grid of wire of one of the first, second, and third wire-grid walls, wherein the at least two U-shaped members open in the same direction. REJECTIONS1 I. Claims 13—17 stand rejected under 35 U.S.C. § 102(b) as anticipated by Ochs (US 3,007,708, iss. Nov. 7, 1961). Final Act. 2; Ans. 3. II. Claims 13—17 stand alternatively rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs and Boyer (US 6,241,107 Bl, iss. June 5, 2001). Final Act. 13; Ans. 3. III. Claims 1—8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, and Metcalf (US 4,832,298, iss. May 23, 1989). Final Act. 5; Ans. 3. IV. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Metcalf, and Jones (US 4,425,182, iss. Jan. 10, 1984). Final Act. 10; Ans. 3. V. Claims 10 and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Metcalf, and Richards (US 2008/0143069 Al, pub. June 19, 2008). Final Act. 11; Ans. 3. VI. Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Metcalf, and Pollack (US 6,886,794 B2, iss. May 3, 2005). Final Act. 12; Ans. 3. 1 Rejections VII—X were introduced and designated as new grounds in the Examiner’s Answer. Ans. 4 (see 37 C.F.R. § 41.39(b)). 3 Appeal 2014-009144 Application 13/209,022 VII. Claims 1—8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, and Cobb (US 4,842,230, iss. June 27, 1989). Ans. 4. VIII. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Cobb, and Jones. Ans. 8. IX. Claims 10 and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Cobb, and Richards. Ans. 9. X. Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Cobb, and Pollack. Ans. 10. OPINION Rejection I—Anticipation of Claims 13—17 Independent claim 13 recites the upper and lower portions of the stand as in independent claim 1 (set forth above), but does not recite the U-shaped members. The Examiner finds that Ochs discloses the recitations of claim 13, including stackable stands that, when stacked, result in upper and lower portions as claimed. Final Act. 2—3 (citing Ochs 1:15—27 (describing stacked racks), 2:32-40 (discussing rack stacking)). Appellant argues claims 13—17 as a group. We select claim 13 as representative. 37 C.F.R. § 41.37(c)(l)(iv). Claims 14—17 stand or fall with claim 13. Appellant argues that Ochs fails to disclose “an upper portion including first, second, and third wire-grid walls, each including a grid of wire and a frame extending around the grid of wire, and a lower portion to support the upper portion above the ground surface as recited in independent claim 13.” Appeal Br. 10. According to Appellant, Ochs’ walls 12, 13 are 4 Appeal 2014-009144 Application 13/209,022 not supported by a lower portion above the ground, and instead extend all the way to the bottom of the storage rack. Id. at 10-11. Regarding the Examiner’s contention that two stacked racks of Ochs disclose the claimed invention, Appellant argues that two separate racks cannot equal a single stand having an upper and lower portion as claimed. Id. at 11. The Examiner responds that the broadest reasonable interpretation of the term “stand” “would only require a structure standing or situated in a particular place or position, with an upper portion and a lower portion,” which is demonstrated by Ochs’ stacked racks. Ans. 12. Appellant replies that “the Examiner failed to properly apply the ‘broadest reasonable interpretation’ to the two portions of the stand of independent claim 13,” which “would not be two separate racks as described in Ochs,” because one skilled in the art would recognize that “a stand” is not equivalent to two stands. Id. at 2—3. Appellant further contends that one skilled in the art, giving the words of the claim their plain meaning, would not equate the “upper portion” of the claimed stand with an entire stand of Ochs, or the “lower portion” of the claimed stand with an entire stand of Ochs. Id. at 3. We are not persuaded by Appellant’s argument. Appellant’s stand is made up of many assembled components. We fail to see a difference between the components that comprise Appellant’s claimed stand, and utilizing two of Ochs’ racks as components assembled to make a single stand. We therefore sustain the Examiner’s rejection of independent claim 13. Claims 14—17 fall with claim 13. 5 Appeal 2014-009144 Application 13/209,022 Rejection II— Obviousness of Claims 13—17 In the obviousness rejection, the Examiner again finds that Ochs discloses the recitations of claim 13, including stacked racks that combine to create a stand having upper and lower portions as claimed. Final Act. IS IS. Appellants again argue claims 13—17 as a group, and make the same arguments set forth above in Rejection I. Appeal Br. 12—13; Ans. 3. For the reason set forth above regarding Rejection I, we sustain the obviousness rejection of claims 13—17. Rejection III— Obviousness of Claims 1—8 Independent claims 1 and 7 recite, inter alia, a material holding apparatus comprising U-shaped members that attach to different horizontal wires of the grid wire and open “in the same direction.” The Examiner finds that Metcalf discloses this limitation via its “two U-shape members (19, top and bottom) configured for attachment to different horizontal wires (12, as shown in Fig. 1).” Final Act. 8. Appellant disagrees, arguing that Metcalfs hook members 19 open in the opposite direction, rather than in the same direction. Appeal Br. 15—16 (annotating Fig. 8 of Metcalf and Fig. 12A of Appellant’s Specification). The Examiner responds that the claims do not recite “a first direction” and “a second direction,” such that the claimed “same direction” could mean a plurality of directions, and that Metcalf discloses “two U-shaped members (at 25) open in the same direction, towards a direction extending between both U-shaped members.” Ans. 14. 6 Appeal 2014-009144 Application 13/209,022 Appellant responds that “the same direction” is indeed a single direction, and does not include a direction extending between both U-shaped members as proposed by the Examiner.2 Reply Br. 6. We agree with Appellant. The same direction is indeed a single direction. As shown in Metcalf’s Figure 8, the opposing curvilinear detent portions 35, 36 of its hook members 19 open toward each other and in opposite directions, rather than in the same direction. We therefore do not sustain the rejection of independent claims 1 and 7, and likewise do not sustain the rejection of claim 2—6 and 8 which depend therefrom. Rejections IV through VI— Obviousness of Claims 9—12 Claims 9—12 depend from claim 7. The Examiner does not find that Jones, Richards, or Pollack cure the deficiency of Metcalf. Thus, for the reason set forth above in Rejection III, we do not sustain Rejections IV—VI. Rejection VII—New Grounds: Obviousness of Claims 1—8 In the new ground of rejection set forth in the Answer, the Examiner replaces Metcalf with Cobb, finding that Cobb discloses the claimed U- shaped members that attach to different horizontal wires of the grid wire and open “in the same direction.” Ans. 7. Appellant argues claims 1—8 as a group. We select claim 1 as representative. 37 C.F.R. § 41.37(c)(l)(iv). Claims 2—8 stand or fall with claim 1. In opposing this rejection, Appellants make the same argument set forth in Rejection I — that Ochs fails to disclose a single stand having the 2 The word “same” is defined as “identical; not different.” https://en.oxforddictionaries.com/defmition/us/same (last visited Jan. 1, 2017). 7 Appeal 2014-009144 Application 13/209,022 claimed upper portion and lower portion. Reply Br. 4—5. For the reasons set forth in our analysis of Rejection I, we are not persuaded by this argument and we sustain Rejection VII. Rejection VIII—New Grounds: Obviousness of Claim 9 Regarding claim 9, which depends from independent claim 7, Appellant argues allowability for the reasons set forth regarding Rejection VII. For the reasons set forth above, we do not find this argument persuasive. Appellant further states that “dependent claim 9 includes recitations that further support patentability.” Reply Br. 10. This naked assertion does not apprise us of any error in the Examiner’s findings or reasoning. See In reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and naked assertion that the corresponding elements were not found in the prior art.”); 37 C.F.R. § 41.37(c)(l)(iv) (“The arguments shall explain why the examiner erred as to each ground of rejection contested by appellant.”). Accordingly, we sustain Rejection VIII. Rejection IX—New Grounds: Obviousness of Claims 10 and 12 Regarding claims 10 and 12, which also depend from independent claim 7, Appellant argues allowability for the reasons set forth regarding Rejection VII. For the reasons set forth above, we do not find this argument persuasive. Appellant further states that “dependent claim 10 and 12 include[] recitations that further support patentability.” Reply Br. 11. Again, this assertion does not apprise us of any error in the Examiner’s 8 Appeal 2014-009144 Application 13/209,022 findings or reasoning. See In re Lovin, 652 F.3d at 1357; 37 C.F.R. § 41.37(c)(l)(iv). Accordingly, we sustain Rejection IX. Rejection X—New Grounds: Obviousness of Claim 11 Regarding claim 11, which depends from independent claim 7, Appellant argues allowability for the reasons set forth regarding Rejection VII. For the reasons set forth above, we do not find this argument persuasive. Appellant further states that “dependent claim 11 includes recitations that further support patentability.” Reply Br. 12. As above, this assertion does not apprise us of any error in the Examiner’s findings or reasoning. See In re Lovin, 652 F.3d at 1357; 37 C.F.R. § 41.37(c)(l)(iv). Accordingly, we sustain Rejection X. DECISION We AFFIRM the rejection of claims 13—17 under 35 U.S.C. § 102(b) as anticipated by Ochs. We AFFIRM the rejection of claims 13—17 under 35 U.S.C. § 103(a) as unpatentable over Ochs and Boyer. We REVERSE the rejection of claims 1—8 under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, and Metcalf. We REVERSE the rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Metcalf, and Jones. We REVERSE the rejection of claims 10 and 12 under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Metcalf, and Richards. We REVERSE the rejection of claim 11 under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Metcalf, and Pollack. 9 Appeal 2014-009144 Application 13/209,022 We AFFIRM the rejection of claims 1—8 under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, and Cobb. We AFFIRM the rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Cobb, and Jones. We AFFIRM the rejection of claims 10 and 12 under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Cobb, and Richards. We AFFIRM the rejection of claim 11 under 35 U.S.C. § 103(a) as unpatentable over Ochs, Boyer, Cobb, and Pollack. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 10