Ex Parte Kilduff et al

Patent Trial and Appeal Board

Aug 31, 2017

13648520 (P.T.A.B. Aug. 31, 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.
13/648,520 10/10/2012 Edward H. Kilduff DLP3C 1606
23684 7590
Thomas J. Brindisi
1613 Sunshine Avenue
Key West, EL 33040
09/05/2017 EXAMINER
LAROSE, RENEE MARIE
ART UNIT PAPER NUMBER
3667
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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):
brindisi @ aol.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD H. KILDUFF, CHI MING TSE,
GARETH BROWN, and CHI FAI CHEUNG
Appeal 2016-004904
Application 13/648,520
Technology Center 36001
Before LINDA E. HORNER, THOMAS F. SMEGAL, and
ERIC C. JESCHKE, Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Edward H. Kilduff et al. (“Appellants”)2 seek review under 35 U.S.C.
§ 134(a) of the Examiner’s decision, as set forth in the Final Office Action
dated April 3, 2015 (“Final Act.”), rejecting claims 46—58. Claims 1—45 and
59—82 are canceled. We have jurisdiction under 35 U.S.C. § 6(b).
1 This Application was originally assigned to Art Unit 3742, but is
now assigned to Art Unit 3667.
2 Appellants identify Enrico Dalla Piazza as the real party in interest.
Appeal Br. 2.
Appeal 2016-004904
Application 13/648,520
We reverse?
BACKGROUND
The disclosed subject matter “relates to devices used to spin items
centrifugally, and more particularly, to a pivotally-leveraged manual
centrifugal drive such as for use in drying items such as leafy vegetables and
other food items.” Spec. 12. Claim 46, the sole independent claim, is
reproduced below:
46. A device for use with food items, comprising:
an apparatus defining a holding area for food
items;
a manually-operable handle pivotally
coupled to the apparatus, the manually-operable
handle pivotable relative to the apparatus about a
handle axis of rotation between an 6 extended
position and a down position;
a basket disposed within the apparatus, the
basket rotatable relative to the apparatus about a
basket axis of rotation to spin food items, the basket
axis of rotation being non-parallel with the handle
axis of rotation, wherein the basket is a perforated
basket having a bottom and a generally cylindrical
sidewall extending from the bottom; and
a drive-train including a clutch and
connecting the manually-operable handle to the
basket such that the basket is rotated about the
basket axis of rotation in response to the manually-
operable handle pivoting between the extended
position and the down position;
3 This appeal is related to (1) Appeal 2016-001941 in Application
12/069,374 and (2) Appeal 2016-004941 in Application 14/156,360.
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Appeal 2016-004904
Application 13/648,520
wherein the manually-operable handle
extends from the handle axis of rotation such that a
line running through and collinear with the basket
axis of rotation would pass through the manually-
operable handle when the manually-operable
handle is in the down position.
REJECTIONS
1. Claims 46—53, 55, 57, and 58 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bull (US 5,562,025, issued Oct. 8, 1996) and
David (US 4,374,574, issued Feb. 22, 1983).4
2. Claim 56 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Bull, David, and Mulhauser (US 2006/0207441 Al,
published Sept. 21, 2006).
3. Claim 54 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Bull, David, and Siegel (US 2005/0204935 Al, published
Sept. 22, 2005).
DISCUSSION
Rejection 1 — Claims 46—53, 55, 57, and 58
In the Final Office Action, the Examiner relied on Bull for various
aspects of independent claim 46 but stated that Bull “does not specifically
teach the basket axis of rotation being non-parallel with and spaced apart
from the handle axis of rotation.” Final Act. 3. The Examiner found,
4 Although claim 58 is not listed as rejected in the Office Action
Summary (Final Act. 1), the Examiner does list that claim in the lead
paragraph for Rejection 1 (id. at 2) and discusses that claim in the body of
Rejection 1 (id. at 4—5). As such, we consider the absence of claim 58 from
the summary as a typographical error.
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Appeal 2016-004904
Application 13/648,520
however, that “David teaches a grinding tool that utilizes a handle that
moves on an axis that is non-parallel with the axis of rotation (movement of
lever 13 on side of housing 1 imparts clockwise rotation, Col 3, lines 55 —
60).” Id. The Examiner concluded that it would have been obvious “to
modify Bull to include the features of David since it is well known in the art
to use the torque produced by a lever to drive a wheel (See Col 2, lines 20 —
30 in David).” Id.
In the Answer, the Examiner replaces the original reasoning statement
for modifying Bull with the teachings of David (as set forth in the prior
sentence). The Examiner states that, in Bull, “[t]he knob [38] and the gear
housing are placed onto the top of the bowl. . ., giving a user an awkward
and bulky design to store” and that, “[o]nce stored, the knob does not lock,
so it gets moved around causing possible breakage of the knob and gear
parts.” Ans. 5. According to the Examiner, “it would have been obvious to
one skilled in the art to improve the Bull design to overcome these issues,
and improve the product so that it is more robust and user friendly.” Id. The
Examiner states that “[a]n inventor using Bull may wish as an improvement
for the user to only have to use one hand when spinning the colander” and
that “[o]ne may do that by looking at items that require only one hand to
operate,” such as the device in David. Id. According to the Examiner, lever
13 in David
shows usefulness in two ways 1) it allows the user a one handed
pumping action and 2) a flat handle removes the bulk of the knob
and gear housing thus flatten[ing] the top of the bowl (all
components are tucked way) giving ease to storing and less
bulk[,] alleviating the damage concern.
Id. The Examiner also states:
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Appeal 2016-004904
Application 13/648,520
The Examiner uses David for what it teaches about one
handed flat handle with a gear moving member to turn the gear,
thus giv[ing] a pivotal movement between the extended position
and the down position. David clearly demonstrates that handle —
the handle being on the side of the housing does not preclude a
person having ordinary skill in the art to place the same type of
handle on the top or a bottom of a housing. The elements of a
handle orientated for a direction of pivotal movement ... is
achieved by the element(s) used in the combination.
Id. at 7.
As an initial matter, we set forth our understanding of the modified
device proposed by the Examiner. We understand the Examiner to propose
modifying the embodiment of, for example, Figure 3 of Bull by (1)
removing handle 42 and knob 38 and (2) providing structures similar to
lever 13, rack 12, pin 14, pins 16, and leaf spring 17 of the embodiment of
Figures 1 and 2 of David to drive pinion gear teeth 34 of Bull. Although the
Examiner discusses the possibility of providing structure such as lever 13 of
David “on the top or a bottom of a housing” (Ans. 7), we understand the
modified device as proposed in the Final Office Action to include lever 13
on the side of salad spinner 10 from Bull and thus, in essentially the
orientation shown in Figures 1 and 2 of David.
Addressing the revised reasoning statements in the Answer,
Appellants argue that “the cited motivations — ‘one-handed operation,’
‘never having to hold the bowl down,’ ‘more robust and user-friendly,’ less
‘awkward and bulky design’ etc. — seem a post hoc selection of advantages.”
Reply Br. 2.
Rejections based on obviousness must be supported by “some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
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Appeal 2016-004904
Application 13/648,520
cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). Although we do not necessarily agree with the entirety of
Appellants’ characterization of the revised reasoning statements, we agree
that the Examiner has not provided adequate articulated reasoning to
combine the relied-upon aspects of Bull and David to support the conclusion
of obviousness of independent claim 46.
First, it is unclear how a user could operate the modified device with
one hand. The cited embodiment of David provides the benefit of one-
handed operation because of the overall size of the device, which allows
using the “encircling grip of the user’s hand” to hold housing 1 while
operating lever 13. David, col. 2,11. 25—27, Fig. 1. In other words, the mere
presence of lever 13 and rack 12 from David would not necessarily allow
one-handed operation in the modified device, even though that benefit is
present in the cited embodiment of David. Second, it is unclear how the
modified device—which would include lever 13 of David in the orientation
as shown in solid line in Figure 1 when not in use (see col. 3,11. 56—61)—
achieves a less awkward and bulky design than that shown in Bull.5
We turn now to a potential alternative version of the modified device,
in which lever 13 is mounted on the top of salad spinner 10 from Bull. As
noted above, in the Answer, the Examiner discusses such a modification,
stating, “the handle being on the side of the housing does not preclude a
person having ordinary skill in the art to place the same type of handle on
5 To the extent additional prosecution takes place in this Application,
it is unclear how this version of the modified device (i.e., with a side-
mounted lever) satisfies the requirement set forth in the final clause of claim
46 (beginning “wherein”). See Appeal Br. V-i (Claims App.).
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Application 13/648,520
the top or a bottom of a housing.” Ans. 7. To the extent the Examiner
proposes such a modification, we do not sustain Rejection 1 on that basis.
The Examiner does not articulate reasoning with rational underpinning to
modify the teachings of David to move lever 13 from the side of a rotated
structure (as taught, for example, in Figure 1 of David) to the top of a rotated
structure (as would be present in this alternative modified device). As noted
by Appellants, “side-mounting [of lever 13] is all that is described and
shown [in David].” Appeal Br. 7 n.3. Further, the Examiner does not
explain how pinion gear 34 in Bull could be rotated by rack 12 from David if
lever 13 from David were mounted on top of salad spinner 10 in Bull.
For these reasons, we do not sustain the rejection of independent
claim 46 as unpatentable over Bull and David, and we do not sustain the
rejection of claims 47—53, 55, 57, and 58, which depend from claim 46.
Rejections 2 and 3 — Claims 54 and 56
Claims 54 and 56 depend from claim 46. The Examiner’s added
reliance on Mulhauser (regarding Rejection 2) and Siegel (regarding
Rejection 3) does not remedy the deficiencies in the combined teachings of
Bull and David, discussed above (see supra Rejection 1). Thus, for the
reasons above, we do not sustain the rejection of claims 54 and 56.
DECISION
We reverse the decision to reject claims 46—58 under 35 U.S.C.
§ 103(a).
REVERSED
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