Ex Parte Lee et al

Patent Trials and Appeals BoardMar 25, 2019

14264208 - (D) (P.T.A.B. Mar. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/264,208 04/29/2014 Davin Robert Lee 27060 7590 03/27/2019 ZIOLKOWSKI PATENT SOLUTIONS GROUP, SC (EATON) 136 S WISCONSIN ST PORT WASHINGTON, WI 53074 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. 14-ICD-242 (ETC7455.153) CONFIRMATION NO. 4737 EXAMINER FIGUEROA, FELIX 0 ART UNIT PAPER NUMBER 2833 NOTIFICATION DATE DELIVERY MODE 03/27/2019 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): info@zpspatents.com sml@zpspatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DA VIN ROBERT LEE, RICHARD WILLIAM FITZGERALD, ROBERT W. NICKERSON and DANA KATHRYN LELAND 1 Appeal2018-007373 Application 14/264,208 Technology Center 2800 Before BEYERL YA. FRANKLIN, JEFFREY B. ROBERTSON, and JANE E. INGLESE, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants identify the real party in interest as Eaton Corporation. Appeal2018-007373 Application 14/264,208 Appellants request our review under 35 U.S.C. Â§ 134(a) of the Examiner's decision rejecting claims 1-5, 7, 8, 11-15, 18-22, 24, and 25. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). STATEMENT OF THE CASE Claim 1 is illustrative of Appellants' subject matter on appeal and is set forth below (with text in bold for emphasis): 1. A switch guard for preventing accidental actuation of a control switch, the switch guard comprising: a rigid wall structure comprising a pair of side walls and a pair of end walls arranged to accommodate positioning of the control switch therein, each of the pair of end walls including at least one opening formed therein; and a mating feature provided at each of the end walls of the wall structure, each mating feature being a separate component from the rigid wall structure and being configured to selectively translate through the at least one opening formed in the respective end wall between a first position and a second position to secure the switch guard about the control switch; wherein the rigid wall structure extends continuously around the control 2 Appeal2018-007373 Application 14/264,208 switch so as to completely surround a perimeter of the control switch, with the pair of side walls and the pair of end walls being oriented so as to each extend outwardly and upwardly relative to the control switch; and wherein at least one of the pair of end walls has a height that extends up past a top surface of the control switch. The Examiner relies on the following prior art references as evidence of unpatentability: Gasper 2002 Lee 1998 US 6,365,851 Bl us 5,757,618 THE REJECTIONS pat. Apr. 2, pat. May 26, 1. Claims 1, 7, 8, 11, 12, 16, 17, 24, and 25 are rejected under 35 U.S.C. Â§I02(a)(l) as being anticipated by Gasper (US 6,365,851). 2. Claims 2-5, 13-15, and 19-22 are rejected under 35 U.S.C. Â§ 103 as being unpatentable over Gasper in view of Lee (US 5,757,618). 3. Claim 18 is rejected under 35 U.S.C. Â§ 103 as being unpatentable over Gasper. ANALYSIS 3 Appeal2018-007373 Application 14/264,208 We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections."). After considering the evidence presented in this Appeal (including the Examiner's Answer, the Appeal Brief, and the Reply Brief), we are persuaded that Appellants identify reversible error. Thus, we reverse the Examiner's rejections and add the following primarily for emphasis. Claim interpretation of the phrase "rigid wall structure" recited in claim 1 is at issue. Appellants argue that this phrase would be understood as meaning walls that are arranged to form a stationary/rigid structure in light of the Specification. Reply Br. 4. Appellants refers toÂ§ [0027] of the Specification and Figure 3 in this regard. Id. As such, Appellants submit that the two-piece construction (Gasper's handle portion 2 and upper cam surface 7) whereby handle portion 2 rotates relative to upper cam surface 7 (Appeal Br. 7-8) is not a stationary/rigid structure and therefore Gasper does not anticipate claim 1. Reply Br. 4. We are persuaded by such argument for the following reasons. During examination, claim terms must be given their broadest reasonable construction consistent with the Specification. In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); see also, Every Penny Counts, Inc. v. American Express Co. 563 F.3d 1378, 1381 (Fed. Cir. 2009) ("Of particular relevance is the patent specification, which we have described as 'the primary basis for construing the claims."' 4 Appeal2018-007373 Application 14/264,208 (citations omitted)). As mentioned, supra, Appellant refers toÂ§ [0027] of the Specification, reproduced below (with text in bold for emphasis): [0027] In FIG. 3, the switch guard 20 is shown in greater detail according to an exemplary embodiment of the invention. In general, the switch guard 20 is constructed as a rigid guard member - formed of hard plastic or metal, for example - that is not prone to deflection or bending when contacted by an operator, such that the switch guard 20 provides adequate protection to the rocker button 18 from accidental actuation. The switch guard 20 generally matches a shape of the rocker button 18 and thus includes a wall structure formed from a pair of side walls and a pair of end walls that extend continuously around the rocker button 18 so as to be positioned thereabout. According to one embodiment, the two side walls 30 of the switch guard 20 extend lengthwise along the rocker button 18 and include sloped portions 32 thereon that slope downwardly to meet at a midpoint 34 of the wall. The sloped portions 32 of the walls 30 enable an operator to affirmatively actuate the rocker button 18 with minimal interference from the switch guard 20, while still providing adequate protection against accidental actuation of the button. Each of the end walls 3 6 includes openings 3 7 formed therein that provide for mating of the switch guard 20 to the switch module housing 22. We also refer to Â§ [0004] of the Specification, reproduced below: [0004] With respect to existing switch guards that are implemented to prevent accidental actuation of a switch, such switch guards are constructed as a plastic guard that uses plastic snap-fit fingers to attach it to the switch housing. As such, these switch guards require the guard material to be flexible enough to allow it to snap in place. While this flexibility of the switch guard enables it to be snapped/secured to the switch housing in an easy fashion, the switch guard does not provide the rigidity that is desired in order for the switch guard to adequately prevent accidental actuation of the switch and/or a desired durability that prevents the switch guard from breaking. 5 Appeal2018-007373 Application 14/264,208 The above excerpts from the Specification indicate that the switch guard remains unchanged/stationary ( does not flex or bend, for example) which prevents accidental actuation of the switch. Hence, it is within this context provided by the Specification that we interpret the phrase "rigid wall structure". Because Gasper's handle portion 2 and upper cam surface 7 ( of Gasper's extraction handle 1) rotates relative to the stationary set of lateral surfaces 22 ( of switch guard 20) when the extraction handle 1 is pivoted upward (see., e.g., Figures 7 and 8 of Gasper), it does not remain unchanged so as to provide adequate protection from accidental actuation of the switch. In other words, the moveable nature of Gasper's handle portion 2 relative to upper cam surface 7 (of Gasper's extraction handle) allows for Gasper's handle 1 to be positioned as shown in Gasper's Figures 7 and 8, whereby the switch 30 is exposed and unprotected. In this manner, we agree with Appellant that Gasper does not anticipate claim 1 with particular regard to the phrase "rigid wall structure" as interpreted herein in light of the Specification. We thus reverse Rejection 1. We also reverse Rejections 2 and 3 for the same reasons. DECISION Each rejection is reversed. ORDER REVERSED 6