Ex Parte Kessler

Patent Trial and Appeal BoardMay 30, 2017

13655205 (P.T.A.B. May. 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. 13/655,205 10/18/2012 Robert Kessler 250/2097US(l) 1031 22822 7590 06/01/2017 LEWIS RICE LLC ATTN: BOX IP DEPT. 600 Washington Ave. Suite 2500 ST LOUIS, MO 63101 EXAMINER GALLEGO, ANDRES F ART UNIT PAPER NUMBER 3637 NOTIFICATION DATE DELIVERY MODE 06/01/2017 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): IPDEPT@LEWISRICE.COM KDAMMAN@LEWISRICE.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT KESSLER Appeal 2015-001972 Application 13/655,2051 Technology Center 3600 Before ANTON W. FETTING, BRUCE T. WIEDER, and TARA L. HUTCHINGS, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35U.S.C. § 134 from the final rejection of claims 1—8. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Appellant’s claimed “invention relates to a pallet support and more particularly to a pallet support, which slides onto the pallet and increases the useful life of the pallet.” (Spec. 12.) Claims 1 and 2 are the independent claims on appeal. Claim 1 is illustrative. It recites: 1 According to Appellant, the real party in interest is Green Line Industries, Inc. (Appeal Br. 1.) Appeal 2015-001972 Application 13/655,205 1. A pallet support, the pallet support comprising: an exterior frame, the exterior frame having an open side and a closed side; the open side of the exterior frame having a slot; the closed side of the exterior frame having one or more tong openings; and wherein the open side of the pallet support receives a pallet; and wherein the slot completely encapsulates an end of a stringer on a side of the pallet when placed on the pallet. REJECTIONS Claims 1 and 2 are rejected under 35 U.S.C. § 102(b) as anticipated by Depew (US 4,715,294, iss. Dec. 29, 1987). Claim 8 is rejected under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. §103(a) as unpatentable over, Depew. Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as unpatentable over Depew and Williams, JR. (US 2006/0169185 Al, pub. Aug. 3, 2006). Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over Depew and Brown (US 2004/0134146 Al, pub. July 15, 2004). Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as unpatentable over Depew and Salce (US 6,101,955, iss. Aug. 15, 2000). Claims 2 and 8 are rejected under 35 U.S.C. § 103(a) as unpatentable over Phillips (US 5,896,818, iss. Apr. 27, 1999) and Depew. Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over Phillips, Depew, and Brown. Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as unpatentable over Phillips, Depew, and Salce. 2 Appeal 2015-001972 Application 13/655,205 ANALYSIS The §102 rejection of claims 1 and 2 The Examiner finds that Depew discloses “wherein the slot completely encapsulates an end (defined by the end faces of the stringers abutting against the inner facing surfaces of the end caps 11’-13 ’) of a stringer on a side of the pallet when placed on the pallet.” (Final Action 3.) Appellant disagrees and argues that “the stringer end caps of Depew do not fully encapsulate the end of a stringer because when the end caps are placed on a stringer, portions of the stringer are left exposed.” (Appeal Br. 9.) As shown in Figures 6, 7, and 10 of Depew, [e]ach stringer end cap or bracket is of general U-shape in cross-section, with outer end stringers 11’, 12’ each having outer and inner arms 22, 22’, respectively, while central stringer end cap or bracket 13’ is provided with a pair of arms which are of like configuration as inner arms 22’ of stringer end caps 11’, 12’ and are, thus, designated with the same reference numeral, namely 22’. The arms of each of such stringer end caps or brackets 11’, 12’, 13’ are interconnected in their forward end portions by a web 15. (Depew, col. 7,11. 42—51.) In other words, the stringer end cap of Depew completely surrounds the ends of at least stringers 1 and 2. Thus, looking at, e.g., Figures 8 and 9, an end of stringer 2 is encapsulated by flange 23, arm 22, flange 23’, at least the portion of arm 22’ extending between bars 8’ and 9’, and the forward end portion of the stringer end cap. Stringer 1 is similarly encapsulated. Therefore, we are not persuaded that the Examiner erred in finding that Depew discloses slots that completely encapsulate an end of a stringer. 3 Appeal 2015-001972 Application 13/655,205 Appellant does not separately argue the rejection of claim 2 under § 102(b), therefore, claim 2 falls with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2014). The f103 rejection of claim 2 Appellant argues that the Examiner contends that encapsulation is shown by the combination of Depew and Phillips. As discussed above, at length, the Depew reference does not show a pallet support that completely encapsulates the end of a stringer. Because of this the Examiner has not provided a combination which teaches encapsulation of the end of a stringer. (Appeal Br. 13.) For the reasons discussed above with regard to claim 1, we are not persuaded of error. Claim 8 Claim 8 depends from claim 2 and recites that “the pallet support shield is compression molded.” Claim 8 is rejected “as anticipated by or, in the alternative,... as obvious over Depew.” (Final Action 4.) The Examiner finds that “Depew teaches wherein the pallet support shield is fabricated from plastic (Column 5 Lines 1—20).” (Id.) Additionally, Appellant has not challenged the Examiner’s taking of Official Notice that well known methods of molding plastic parts include . . . compression molding___It would have been obvious to persons of ordinary skill in the art to make the plastic shield of Depew from any known molding process, including compressive molding. (Id. at 5.) 4 Appeal 2015-001972 Application 13/655,205 Appellant argues “that Depew not only does not teach compression molding, the device of Depew cannot be manufactured by compression molding and, at the very least, Depew in fact teaches away from compression molding.” (Appeal Br. 14.) Appellant further argues that “[t]he device of Depew is of a shape . . . where it is not advantageous to manufacture the device via compression molding” at least because it “would require multiple dyes [sic] for the mold cavities.” (Id.) Therefore, Appellant argues, “manufacturing of the device [using compression molding] would be a multi-step multi-part undertaking.” (Id.) In other words, Appellant argues both that the device of Depew cannot be manufactured by compression molding and that it can be manufactured by compression molding (using multiple dies). Thus, we are not persuaded by Appellant’s argument that the device of Depew cannot be manufactured by compression molding. Appellant also argues that Depew teaches away from compression molding. However, Appellant’s argument does not indicate where Depew “criticize[s], discredits], or otherwise discourage[s] the solution claimed.” See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). In short, we are not persuaded that the Examiner erred in determining that “[i]t would have been obvious to persons of ordinary skill in the art to make the plastic shield of Depew from any known molding process, including compressive molding.” (See Final Action 5.) Therefore, we do not find Appellant’s arguments persuasive of error in the rejection of claim 8 under either § 102 or § 103.2 2 Appellant’s arguments with regard to claim 8 appear under the heading “35 U.S.C. § 103.” (See Appeal Br. 12, 14—16.) Appellant does not include 5 Appeal 2015-001972 Application 13/655,205 The rejections of claim 5 under £103 Claim 5 depends from claim 2 and recites “one or more gripping ribs are located within the at least two slots.” The Examiner finds that “Brown teaches gripping ribs (defined by axial protrusions 104) located within a slot (defined by the hollow space in the of the [sic] sleeve 100 into which post 106 is inserted).” (Final Action 6.) The Examiner also finds that it is it is well known to use ribs, splines or other longitudinally extending protrusions in an [sic] mating opening corresponding to the post or plank to grip the post or support the post while it is being slide [sic] within and held by the collar, slot or opening for which the post is designed to be seated. {Id. at 6—7.) Additionally, the Examiner finds that “the prior art of Brown and Depew both describe securing device structures for securing wooden members.” (Answer 4.) Brown discloses “a protective sleeve for posts, such as fence posts, which are placed in the ground and cemented in place.” (Brown, Abstract.) Specifically, Brown discloses that “[t]he sleeve has an elongate body 102 having an outer surface and an inner surface with axial protrusions 104 extending into the sleeve.” {Id. | 58.) Brown further discloses that “[t]he instant design protects the post by minimizing contact with wet surfaces since the post is in contact only with the protrusions.” {Id. 1 56.) Brown also discloses that “[t]he post is held in the sleeve by screws 110.” {Id. 1 58.) any argument regarding claim 8 under the heading “35 U.S.C. § 102.” {See id. at 7—12.) Nonetheless, in this instance, we will treat Appellant’s arguments as pertaining to both the § 102 and § 103 rejections. 6 Appeal 2015-001972 Application 13/655,205 Appellant argues that Brown is non-analogous art. (Appeal Br. 17.) Specifically, Appellant argues that Brown “is not in the same field or endeavor as Depew or the current application because mounting an outdoor fence post into the earth is a [sic] different from designing a device for use with a pallet.” (Id.) Appellant further argues that Brown “is also not pertinent to the problem with which the device of the current application is involved.” (Id.) The analogous-art test requires that the Board show that a reference is either in the field of the applicant’s endeavor or is reasonably pertinent to the problem with which the inventor was concerned in order to rely on that reference as a basis for rejection. In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992). References are selected as being reasonably pertinent to the problem based on the judgment of a person having ordinary skill in the art. Id. (“[I]t is necessary to consider ‘the reality of the circumstances, ’—in other words, common sense—in deciding in which fields a person of ordinary skill would reasonably be expected to look for a solution to the problem facing the inventor.” (quoting In re Wood, 599 F.2d 1032, 1036 (C.C.P.A. 1979))). In re Kahn, 441 F.3d 977, 986—87 (Fed. Cir. 2006). The problem with which the inventor was concerned was securing a wooden member (a stringer) to a device structure (a pallet support). We agree with the Examiner that “Brown and Depew both describe securing device structures for securing wooden members.” (See Answer 4.) Therefore, we are not persuaded that Brown is non-analogous art. Appellant next argues that “the Examiner . . . admits that ‘the post is held in the sleeve by screws.’ (Office Action (Nov. 22, 2013), Page 6 at 12)” but that “[t]he ribs of the current application are gripping ribs and are used to securely attach the pallet support shield to a pallet. Specification 7 Appeal 2015-001972 Application 13/655,205 1045.” (Appeal Br. 17.) But Appellant does not persuasively argue why Brown’s axial protrusions which are in contact with the post (see Brown 1 56) do not grip the post, at least to some degree. Appellant also does not persuasively argue why the Examiner erred in finding that “[t]he frictional contact of the protrusions reasonably grips the post, particularly when the wood post get wet and expands.” (Final Action 6.) Therefore, we are not persuaded that the Examiner erred in rejecting claim 5 under § 103. The £103 rejections of claims 6 and 7 Claim 6 depends from claim 2 and recites “one or more raised ribs are located on the surface of the pallet support, the ribs being oriented in a square pattern.” Claim 7 depends from claim 2 and recites “one or more raised ribs are located on the surface of the pallet support, the ribs being oriented in a honeycomb pattern.” Appellant argues that Salce provides, “[t]he raised extrusions provide sufficient intermittently positioned rough elements on the surface to prevent slipping or skidding of the load being carried on the pallet cover.” (Salce, Col. 3, Lines 28—31). Contrastingly the current application describes the “[gjripping ribs and interior ribs also add to the strength of the pallet support, as well as improving the grip of the pallet support on [the] pallet.” (Spec. 1045). (Appeal Br 19.) The Specification discloses: Adding Figure 10 to the consideration, raised ribs 150 in either a square or a hexagonal pattern form honeycomb pattern 170, which provides support for the pallet support 100 on open side 120. Gripping ribs 126 (Figure 4) and interior ribs 136 (Figure 4) also add to the strength of the pallet support 100, as well as improving the grip of pallet support 100 on pallet 102. 8 Appeal 2015-001972 Application 13/655,205 (Spec.l 45.) In other words, the gripping ribs 126 and the interior ribs 136 are separate structures from the raised ribs 150. Thus, we are not persuaded of error by Appellant’s argument that appears to be directed to gripping and interior ribs rather than the raised ribs of claims 6 and 7. Appellant further argues that Salce is non-analogous art. (Appeal Br. 19.) However, we agree with the Examiner that “Salce and Depew both describe devices for placing on and protecting a pallet,” and thus, like Appellant’s invention, are reasonably pertinent to the problem of increasing the useful life of a pallet. (See Answer 6.) Therefore, we are not persuaded that Salce is non-analogous art. The §103 rejection of claims 3 and 4 Claims 3 and 4 depend from claim 2. Appellant does not present any separate arguments for patentability for claims 3 and 4. Therefore, claims 3 and 4 fall with claim 2. See 37 C.F.R. § 41.37(c)(iv). DECISION The Examiner’s rejection of claims 1, 2, and 8 under 35 U.S.C. § 102(b) is affirmed. The Examiner’s rejections of claims 2—8 under 35 U.S.C. § 103(a) are affirmed. 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 9