Ex Parte Kushner

Patent Trial and Appeal BoardFeb 24, 2016

11514562 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111514,562 0910112006 7590 02/24/2016 STUART A WHITTINGTON 3142N.82NDWAY MESA, AZ 85207 FIRST NAMED INVENTOR Robert Gerald Kushner 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 ATTORNEY DOCKET NO. CONFIRMATION NO. PCI-06-003 6028 EXAMINER ELKINS, GARY E ART UNIT PAPER NUMBER 3782 MAILDATE DELIVERY MODE 02/24/2016 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 ROBERT GERALD KUSHNER Appeal2014-001024 Application 11/514,562 1 Technology Center 3700 Before MICHAEL L. HOELTER, THOMAS F. SMEGAL, and LISA M. GUIJT, Administrative Patent Judges. SMEGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Robert Gerald Kushner (Appellant) seeks our review under 35 U.S.C. Â§ 134 of the Examiner's final rejection of claims 19-29, as set forth in the Final Action mailed June 1, 2012.2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 According to Appellant, the real party in interest is the inventor. Br. 1. 2 Claims 1-18 were canceled. Br. 2. Appeal2014-001024 Application 11/514,562 CLAIMED SUBJECT MATTER Claims 19, 23, and 26 are independent claims. Claim 19 is reproduced below and illustrates the claimed subject matter. 3 19. A delivery box container support comprising: a plastic support structure having a top box supporting surface and three or more legs extending substantially perpendicular to the top box supporting surface, the three or more legs having respective ends configured to form a bottom box supporting surface, wherein the plastic support structure is dimensioned to fit within a separately provided pizza delivery box and configured to prevent damage to a pizza disposed within the pizza delivery box; and at least one round cutting blade rotatably attached to the plastic support structure disposed in between and substantially parallel to, the top box supporting surface and the bottom box supporting surface. REJECTIONS ON APPEAL The following Examiner's rejections are before us for review. 4 3 The claims appended at pages 16-18 of the Appeal Brief are not the claims pending in this appeal. The pending claims are found at pages 2--4 of the Amendment filed April 22, 2011, from which claim 19 is reproduced. See also Ans. 2. 4 Appellant's Appeal Brief identifies the grounds of rejection to be reviewed on appeal as those in a Final Action mailed November 25, 2009. See Br. 5- 6. However, after Appellant filed an Appeal Brief on April 26, 2010, that Final Action was withdrawn by the Examiner and replaced by a Non-Final Action mailed July 29, 2010. Appellant filed an Amendment dated April 22, 2011 along with a petition to revive an unintentionally abandoned application, which was granted. On June 1, 2012, the Examiner mailed the Final Action from which Appellant has taken the present Appeal. See Br. 1; see also Ans. 2. 2 Appeal2014-001024 Application 11/514,562 1. Claims 19 and 20 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Mitchell (US 1,589,208, iss. June 15, 1926) and DeCoster (GB 2,056,359 A, pub. Mar. 18, 1981). 2. Claims 19-22 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Giovannini (US Des. 207,336, iss. Apr. 4, 1967) and Decoster. 3. Claims 19-29 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Coyle (US 895,969, iss. Aug. 11, 1908) and DeCoster. 4. Claims 19-25 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Gruber (US Des. 149 ,551, iss. May 11, 1948) and Decoster. ANALYSIS Obviousness of claims 19 and 20 over Mitchell and DeCoster; of claims 19-22 over Giovannini and DeCoster; of claims 19-29 over Coyle and DeCoster; and of claims 19-25 over Gruber and DeCoster Appellant does not present any arguments contesting these rejections in the Appeal Brief. See generally Br. 6-15. Instead, Appellant addresses rejections previously presented by the Examiner (see Final Rejection mailed November 25, 2009), but no longer relied upon (see Non-Final Rejection mailed July 29, 2010 and Final Rejection mailed June 1, 2012). Lacking any argument directed to the present rejections before us, we summarily sustain the Examiner's rejections of claims 19-29.5 DECISION 5 In an appeal under 35 U.S.C. Â§ 134(a), it is the Examiner's final rejection that we review. See In re Webb, 916 F.2d 1553, 1556 (Fed. Cir. 1990). 3 Appeal2014-001024 Application 11/514,562 We AFFIRM the Examiner's rejections. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 4